SEPARATION AGREEMENT
--------------------
SEPARATION AGREEMENT (this "Agreement") dated as of September 18, 1997, by
and between Unidigital Inc., a Delaware corporation (the "Corporation"), and
Xxxxxxx Xxxxx ("Xxxxx").
W I T N E S S E T H :
---------------------
WHEREAS, Xxxxx is an executive officer and employee of the Corporation; and
WHEREAS, the Corporation and Xxxxx desire to provide for the amicable
severance of the employment relationship between the Corporation and Xxxxx.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein, the parties hereto, intending to be legally bound, hereby
agree as follows:
1. Resignation.
-----------
(a) In connection with Xxxxx'x termination of employment by the Corporation
and, at the Company's request, Xxxxx hereby resigns as an executive officer and
employee of the Corporation, including all affiliates of the Corporation,
controlling corporations, divisions and subsidiaries of the Corporation (the
"Affiliates"), effective as of the date hereof. Unless otherwise specified
herein, all references herein to the Corporation shall include each of the
Affiliates.
(b) Upon the execution hereof and except as otherwise provided herein,
Xxxxx shall not be entitled to any further salary, reimbursement for expenses,
additional stock options or other compensation (other than applicable COBRA
benefits) from the Corporation.
2. Consideration. The Corporation hereby agrees to provide Xxxxx with the
-------------
following separation benefits:
(a) Upon the execution hereof, a one-time lump sum payment in the net
amount of $20,000, such payment to be made by certified check, wire transfer or
Unidigital check;
(b) For ninety (90) days, commencing as of the date hereof, Xxxxx shall
continue to receive his salary (at the same amount payable immediately prior to
Xxxxx'x last date of employment), payable in equal installments in accordance
with the Corporation's general salary payment policies (it being understood that
payments are made to employees one week after services have been rendered to the
Corporation); and
(c) Health insurance benefits (in the same manner and amount which exists
at the time of signing this Agreement) for four (4) months, commencing as of the
date hereof.
3. Release by Xxxxx. Except for the obligations expressly arising hereunder
----------------
for the transactions contemplated hereby, Xxxxx hereby fully, irrevocably and
unconditionally releases and discharges the Corporation, its agents, officers,
employees, shareholders, directors, successors and assigns from any and all
manner of claims, complaints, demands, causes of action, obligations,
liabilities, costs, expenses (including attorneys' fees and costs) and damages,
of every kind, either at law or in equity, arising from his employment with or
separation of employment from the Corporation, including without limitation, any
claim relating to (i) health benefit claims (other than applicable COBRA
benefits), (ii) any federal, state, or local employment discrimination or fair
employment law, such as the federal Age Discrimination in Employment Act and the
Civil Rights Acts of 1964 and 1991, (iii) any and all unused vacation time with
the Corporation, (iv) any taxes incurred because of or in connection with the
provisions of this Agreement, (v) any amounts now or hereafter claimed by Xxxxx
as owed by the Corporation to Xxxxx for the reimbursement of business expenses,
and (vi) any options or shares of capital stock now or hereafter claimed by
Xxxxx as owed by the Corporation to Xxxxx; provided, however, that this release
shall not extend to fraudulent or criminal conduct. In addition, and not in
limitation of the foregoing, Xxxxx hereby forever releases and discharges the
Corporation from any liability or obligation to reinstate or employ him in any
employment capacity. The Corporation acknowledges that Xxxxx was and will
continue to be indemnified for his actions as an officer and employee of the
Corporation and the Affiliates through the date of this Agreement and is covered
in such capacities during such time. The parties hereto understand and agree
that the foregoing release shall not adversely impact any indemnification rights
(including attorneys' fees and costs) Xxxxx may have against the Corporation for
all acts taken by him as an officer or employee of the Corporation, prior to his
resignation of such positions, to the fullest extent permitted by Delaware law
and as provided in the Corporation's Certificate of Incorporation and By-Laws
and by any private insurance maintained by the Corporation for such purpose.
4. Release by the Corporation. The Corporation hereby fully, irrevocably
--------------------------
and unconditionally releases and discharges Xxxxx from any and all manner of
claims, complaints, demands, causes of action, obligations, liabilities, costs,
expenses (including attorneys' fees and costs) and damages, of every kind,
either at law or in equity, arising from Xxxxx'x employment with or separation
of employment from the Corporation, including without limitation Xxxxx'x
services as an executive officer of the Corporation; provided, however, that
this release shall not extend to fraudulent or criminal conduct.
5. Covenants Not to Xxx.
--------------------
(a) Xxxxx represents and warrants that he has not filed, nor has he
assigned to any third person, any complaints, charges or claims for relief
against the Corporation with any local, state or federal court or administrative
agency. Xxxxx further agrees and covenants not to xxx or to bring, or assign to
any third person, any claims or charges against the Corporation or its agents,
officers, employees, shareholders, directors, successors and assigns with
respect to any matter arising before the date hereof or covered by the release
set forth in Section 3, and not to assert against the Corporation in any suit,
action, litigation or proceeding any matter arising before the date hereof or
covered by the release set forth in Section 3.
2
(b) The Corporation represents and warrants that it has not filed, nor has
it assigned to any third person, any complaints, charges or claims for relief
against Xxxxx with any local, state or federal court or administrative agency.
The Corporation further agrees and covenants not to xxx or to bring, or assign
to any third person, any claims or charges against Xxxxx with respect to any
matter arising before the date hereof or covered by the release set forth in
Section 4, and not to assert against Xxxxx in any suit, action, litigation or
proceeding any matter arising before the date hereof or covered by the release
set forth in Section 4.
6. Property. Xxxxx agrees promptly to return to the Corporation any item
--------
that is the property of the Corporation, including without limitation any and
all automobiles, telephones, telecopiers, computers and related equipment,
documents, books, records, memoranda, plans, computer disks, software,
addresses, telephone numbers, agreements, files and any other papers and written
data relating to or in any way connected to the business and affairs of the
Corporation which are in the possession or control of Xxxxx or in the possession
or control of a member of Xxxxx'x family or an entity controlled by or
affiliated with Xxxxx. Xxxxx hereby agrees to make available to the Corporation
any such material in either of their possession or control for review of such
item by the Corporation.
7. Ownership of Rights. Any and all writings, inventions, improvements,
-------------------
processes, procedures and/or techniques which Xxxxx has made, conceived,
discovered or developed, either solely or jointly with any other person or
persons, at any time during the term of his employment with the Corporation,
whether during working hours or at any other time and whether at the request or
upon the suggestion of the Corporation or otherwise, which relate to any
business carried on by the Corporation, are the sole and exclusive property of
the Corporation. Xxxxx shall promptly make full disclosure to the Corporation of
all such writings, inventions, improvements, processes, procedures and
techniques, and shall do everything necessary or desirable to vest the absolute
title thereto in the Corporation.
8. Non-Disclosure of Information. Xxxxx acknowledges that by virtue of his
-----------------------------
position he has been privy to the Corporation's and the Affiliates' trade
secrets including but not limited to the Corporation's and the Affiliates'
customers list and private processes, as they may exist or as the Corporation
and the Affiliates may determine from time to time, and that such secrets are
valuable, special, and unique assets of the Corporation's and the Affiliates'
business and constitute confidential information and trade secrets of the
Corporation and the Affiliates (hereafter collectively "Confidential
Information"). Xxxxx shall not, for a period of two (2) years after the
execution of this Agreement, disclose all or any part of the Confidential
Information to any person, firm, corporation, association or any other entity
for any reason or purpose whatsoever, nor shall Xxxxx and any other person by,
through or with Xxxxx, and for a period of two (2) years after the execution of
this Agreement, make use of any of the Confidential Information for any purpose
or for the benefit of any other person or entity, other than the Corporation or
the Affiliates, as the case may be, under any circumstances. Additionally, Xxxxx
shall not take any action which in any manner shall be intended to be or
reasonably be calculated to be injurious to the Corporation or the
3
Affiliates. The Corporation and Xxxxx agree that a violation of the foregoing
covenants will cause irreparable injury to the Corporation, and that in the
event of a breach or threatened breach by Xxxxx of the provisions of this
Section 8, the Corporation shall be entitled to an injunction restraining Xxxxx
from:
(a) Disclosing, in whole or in part, any Confidential Information, or from
rendering any services to any person, firm, corporation, association or other
entity to whom any such information, in whole or in part, has been disclosed by
Xxxxx or is threatened by Xxxxx to be disclosed in violation of this Agreement.
(b) Continuing such injurious actions. Nothing herein stated shall be
construed as prohibiting the Corporation from pursuing any other rights and
remedies, at law or in equity, available to the Corporation for such breach or
threatened breach, including the recovery of damages from Xxxxx.
9. Restrictive Covenant.
--------------------
(a) For a period of one (1) year after the execution of this Agreement,
Xxxxx covenants and agrees that, within a radius of twenty-five (25) miles from
each of the present places of the Corporation's and the Affiliates' business, he
shall not own, manage, operate, control, be employed by, participate in, or be
connected in any manner with the ownership, management, operation, or control,
whether directly or indirectly, as an individual on his own account, or as a
partner, member, joint venturer, officer, director or shareholder of a
corporation or other entity, of any business of the same kind as the business
currently conducted by the Corporation or the Affiliates at the time of the
execution of this Agreement (a "Competitive Business"), except that Xxxxx may
own not more than two percent (2%) of the outstanding shares of any publicly
held corporation which is a Competitive Business which has shares listed for
trading on a securities exchange registered with the Securities and Exchange
Commission or through the automatic quotation system of a registered securities
association.
(b) For a period of one (1) year after the execution of this Agreement,
Xxxxx further covenants he shall not interfere with, solicit or disrupt or
attempt to interfere with, solicit or disrupt the relationship, contractual or
otherwise, between the Corporation or the Affiliates and any customer, supplier,
lessee or employee of the Corporation or the Affiliates.
(c) Xxxxx acknowledges that the restrictions contained in this Section 9
are reasonable. In that regard, it is the intention of the parties to this
Agreement that the provisions of this Section 9 shall be enforced to the fullest
extent permissible under the law and public policy applied in each jurisdiction
in which enforcement is sought. Accordingly, if any portion of this Section 9
shall be adjudicated or deemed to be invalid or unenforceable, the remaining
portions shall remain in full force and effect, and such invalid or
unenforceable portion shall be limited to the particular jurisdiction in which
such adjudication is made.
4
10. Specific Performance. Xxxxx acknowledges that any breach by him of
---------------------
Sections 7, 8 or 9 of this Agreement would substantially and materially impair
and irreparably harm the Corporation's business and goodwill; that such
impairment and harm would be difficult to measure and, therefore, total
compensation in solely monetary terms would be inadequate. Xxxxx therefore
agrees that in the event of any breach or threatened breach by him of Sections
7, 8 or 9 of this Agreement, the Corporation shall be entitled, in addition to
monetary damages or other remedies, to equitable relief, including injunctive
relief, and payment by Xxxxx of all costs and expenses incurred by the
Corporation in enforcing said Section against him, including attorneys' fees
incurred by the Corporation; provided, however, that in the event the
Corporation is unsuccessful in obtaining the judicial relief requested
hereunder, Xxxxx shall be entitled to payment by the Corporation of all costs
and expenses incurred by Xxxxx in defending the Corporation's claims hereunder,
including reasonable attorney's fees incurred by Xxxxx.
11. Confidentiality. The parties hereto agree that a material item of this
---------------
Agreement is an agreement to keep confidential the terms and conditions of this
Agreement. No disclosure shall be made by any of the parties hereto except to
the extent that any of the parties is obligated to make disclosure to such
party's attorneys and accountants in the rendering of professional services, or
pursuant to the securities laws or any other laws of the United States or any
other state.
12. Non-Disparagement. Each of the parties agree not to engage in any
-----------------
conduct or make any statement that would disparage the other party or their
respective business interests in any way.
13. Further Assurances; Cooperation.
-------------------------------
(a) The parties hereto agree to execute and deliver such other documents,
instruments and agreements and to take such other action as may be necessary,
proper or appropriate to carry out the terms of this Agreement.
(b) Xxxxx agrees to use his reasonable efforts to cooperate and assist the
Corporation at its cost and expense (including any reasonable out-of-pocket
expenses incurred by Xxxxx in furtherance of this Section 13(b)), but without
remuneration to Xxxxx, upon the request of the Corporation, in defending any
claims, suits, actions, litigation, demands, losses or controversies whatsoever
against the Corporation that arise from the activities of the Corporation prior
to the date of the effectiveness of Xxxxx'x resignation as an officer and
employee of the Corporation, provided that the Corporation provides reasonably
sufficient notice to Xxxxx and that Xxxxx'x efforts will only be required during
normal business hours.
14. Breach. The parties agree that in the event one party breaches any part
------
of this Agreement, legal proceedings may be instituted against that party for
breach of contract. The non-prevailing party in such legal proceedings shall
reimburse the prevailing party for the reasonable
5
costs and expenses, including reasonable attorneys' fees, incurred. The parties
further agree that the "prevailing party" shall be determined by the judge
rendering the decision in such proceeding and that the parties will be bound by
such judge's decision.
15. Notices. All notices required or permitted under this Agreement shall
-------
be in writing and delivered by any method providing for proof of delivery. Any
notice shall be deemed to have been given on the date of delivery to a location
specified by the other party, or by attempted delivery with proof thereof.
Notices shall be delivered to the parties at the following addresses until a
different address has been designated by notice to the other party:
If to the Corporation:
Unidigital Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxx, President and
Chief Executive Officer
With a copy to:
Xxxxxxxx Ingersoll
000 Xxxxxxx Xxxx Xxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxx X. Xxxxx, Esq.
If to Xxxxx:
000 Xxxx 00xx Xxxxxx
Xxx. 00X
Xxx Xxxx, Xxx Xxxx 00000
With a copy to:
Shereff, Friedman, Xxxxxxx & Xxxxxxx, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx, Esq.
16. Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same instrument.
6
17. Entire Agreement. This Agreement contains the entire agreement among
-----------------
the parties hereto with respect to the subject matter hereof, and no
modification hereof shall be effective unless in writing and signed by the party
against which it is sought to be enforced. Except as set forth above, this
Agreement supersedes all prior understandings, negotiations and agreements
relating to the subject matter hereof. Xxxxx and the Corporation affirm that the
only consideration for executing this Agreement are the terms stated herein, and
that no other promises or agreements of any kind have been made to or with
either of them by any person or entity whatsoever to cause them to sign this
Agreement. The Corporation represents that it has the corporate power, authority
and legal right to deliver this Agreement and that the execution, delivery and
performance of this Agreement by the Corporation has been duly authorized by all
necessary corporate action. Xxxxx represents that he has had an opportunity to
discuss and review the terms of this Agreement fully with his attorney. Xxxxx
further represents that he has carefully read this Agreement, understands the
contents hereof, and executes the same as his own free act.
18. Expenses. Each of the parties hereto shall bear such party's own
--------
expenses in connection with this Agreement and the transaction contemplated
hereby.
19. Governing Law; Jurisdiction. This Agreement shall be governed by and
----------------------------
construed in accordance with the laws of the State of New York applicable to
agreements made and to be performed entirely within such State. Any action
arising out of or relating to any of the provisions of this Agreement shall be
brought and prosecuted only in the courts of, or located in, the State of New
York, and the parties hereto consent to the jurisdiction and venue of said
courts.
20. Headings. The headings in this Agreement are solely for convenience of
--------
reference and shall not affect the interpretation of any of the provisions
hereof.
21. Severability. If any provision herein contained shall be held to be
------------
illegal or unenforceable, such holding shall not affect the validity or
enforceability of the other provisions of this Agreement.
22. Binding Effect. This Agreement shall be binding upon and inure to the
---------------
benefit of the Corporation and the Affiliates, and their respective successors
and assigns, and upon Xxxxx and his executors, administrators, legal
representatives, heirs and assigns.
* * * * *
7
IN WITNESS WHEREOF, the parties hereto have caused this Separation
Agreement to be executed as of the date first above written.
UNIDIGITAL INC.
By/s/ Xxxxx Xxxx
-------------------------------------
Xxxxx Xxxx, Senior Vice President and
Chief Operating Officer
/s/ Xxxxxxx Xxxxx
-------------------------------------
Xxxxxxx Xxxxx
8
