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EXHIBIT 10.1(R)
SEPARATION AGREEMENT
This SEPARATION AGREEMENT (the "Agreement") is made and entered into
this 30th day of November, 1997, ( 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 (the "Company")
and XXXXXX X. XXXXXXX (the "Executive").
WITNESSETH:
WHEREAS, the Executive has been employed as the President and Chief
Executive Officer of the Company; and
WHEREAS, the Company and the Executive have 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;
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:
I. TERMINATION OF THE EXECUTIVE'S EMPLOYMENT.
The Executive and the Company agree and acknowledge that the
Executive's employment with the Company shall terminate as of the close of
business on Friday, November 7, 1997 (the "Employment Termination Date").
II. RESIGNATION FROM COMPANY POSITIONS.
As of the Employment Termination Date, the Executive agrees to tender
his resignation as a member of the Board of Directors of the Company and as an
officer and/or member of the Boards of Directors of any and all subsidiaries of
the Company. Also, effective as of the Employment Termination Date, the
Executive shall resign as a trustee of the Company'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 currently holds such a position. The Executive also agrees to
resign, as of the Employment Termination Date, from any and all Company
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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III. SEPARATION PACKAGE.
In addition to the compensation and benefits to which the Executive
would be entitled based upon his employment with the Company through the
Employment Termination Date, the Executive shall receive the following as
additional consideration, which the Executive acknowledges is significant and
substantial:
A. COMPENSATION.
1. Continuation of Salary. The Company 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 the
Company), payable on the last business day of each
calendar month, through the last day of the calendar
month which is twelve (12) calendar months after the
Employment Termination Date (the "Severance Period").
If at any time during the Severance Period, the
Executive breaches his obligations under this
Agreement, the Company may, upon written notice to
the Executive, terminate the Severance Period and
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
continue to be made during the remainder of the
Severance Period to the Executive's surviving spouse,
or, if no spouse survives him, to the Executive's
estate.
2. Annual Incentive and Bonus Compensation. The
Executive shall not be eligible for consideration for
any awards under any annual incentive compensation or
bonus plan, program or arrangement of the Company for
1997 or any year thereafter. The Executive shall not
be eligible for any bonus for 1997 or any year
thereafter which is based on compensation not counted
for purposes of the Company's tax-qualified Profit
Sharing Retirement Plan or Employee Savings Plan due
to certain limitations imposed by the Internal
Revenue Service.
3. Long-term Incentive Compensation. Effective as of the
execution of this Agreement, the Executive shall not
be eligible for consideration for any new grants or
awards under any long-term incentive compensation
plan, program or arrangement of the Company,
including the 1991 Stock Option Plan or the special
performance-based compensation plan regarding stock
performance between 1995 and 1999.
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The Company agrees to arrange for the Committee of
the 1991 Stock Incentive Plan to immediately
accelerate the vesting on any outstanding options or
awards that the Executive holds on the date of
execution of this Agreement so that all such options
become immediately 100% exercisable. Further, the
Company agrees to arrange for the Committee to extend
the period for exercise of the Executive's
outstanding options until November 7, 1998. Any
outstanding incentive stock options granted to the
Executive by the Company shall convert to
nonqualified stock options if not exercised within
three months after the Employment Termination Date.
B. BENEFITS.
Except as specifically set forth to the contrary herein, the Executive
shall cease to be eligible to participate in all employee benefit plans
sponsored by, contributed to or maintained by the Company as of the
Employment Termination Date.
1. Group Health and Dental Insurance. Effective as of
the Employment Termination Date, the Executive and
his eligible dependents shall cease to be eligible to
participate in the Company's group health and dental
insurance plan or plans; provided, the Executive and
his covered dependents shall be eligible for COBRA
continuation coverage under any plan of the Company
which is a group health plan subject to the
provisions of part 6 of Title I of ERISA, with
premiums payable by the Executive at the Company's
continuation coverage rates.
2. Life Insurance.
a. Group Term Life and AD&D Insurance.
Effective as of the Employment Termination
Date, the Executive shall cease to be
eligible to participate in the Company's
group term life insurance and accidental
death and dismemberment coverages; provided,
that to the extent any conversion rights
exist under such coverages, those rights
shall be made available to the Executive.
b. Whole Life or Supplemental Life Insurance.
Effective as of the Employment Termination
Date, the Executive shall cease to be
eligible to participate in any whole life or
supplemental life insurance programs of the
Company in which he has previously
participated; provided, that to the extent
any conversion or transfer rights exist
under such coverages, those rights shall be
made available to the Executive.
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c. COLI or Key Man Insurance. Any and all
Company-owned life insurance or key man
insurance purchased by the Company on the
life of the Executive shall remain the
exclusive property of the Company.
3. Retirement Benefits.
a. Tax-Qualified Retirement Plans. During the
Severance Period, the Executive shall be
eligible to continue to participate in the
Company's Profit Sharing Retirement Plan and
Employee Savings Plan, based on the
continuation of his salary, to the extent
permitted under the terms of those plans.
b. Nonqualified Retirement Plans.
(1) Special Nonqualified Deferred
Compensation Plan. The Executive
shall immediately cease to make
contributions to the Special
Nonqualified Deferred Compensation
Plan as of the Effective Date of
this Agreement. The Company shall
authorize the Trustee of the Special
Nonqualified Deferred Compensation
Plan to make distribution to the
Executive of his account in the Plan
on or about June 1, 1998.
(2) Executive Retirement Plan. The
Executive shall immediately cease
participation in the Executive
Retirement Plan as of the Effective
Date of this Agreement. The parties
understand that the Executive
Retirement Plan is in the process of
being terminated, and the Executive
will be offered the same termination
options as any other covered
employee.
(3) Supplemental Retirement Income Plan.
The Executive is entitled to certain
payments under the terms of the
Supplemental Retirement Income Plan,
pursuant to that certain Xxxxxx
Agreement signed by the Executive
and the Company on June 27, 1995.
The Company agrees to make payments
to the Executive pursuant to the
terms of the Supplemental Retirement
Income Plan and the Executive's
Xxxxxx Agreement.
4. Accrued Vacation. As of the Employment Termination
Date, the Executive shall not be eligible for any
paid vacation days. In lieu of
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payment for accrued but unused vacation days, the
Company shall pay Severance Pay as described in
Paragraph 9 hereof.
5. Expense Reimbursement. The Company shall reimburse
the Executive for all reasonable business expenses
incurred prior to the Employment Termination Date in
the performance of his duties as an employee of the
Company in accordance with the Company's standard
travel and expense policy.
6. Automobile. The Executive has previously been
assigned a Company-leased BMW 740 automobile for his
use. The Company agrees to take all actions available
to transfer or assign the vehicle lease to the
Executive pursuant to the requirements of BMW
Financial Services, Inc. (the leasing corporation) as
soon as possible after the Effective Date, and the
Executive agrees to accept such lease transfer or
assignment. Upon a transfer or assignment of the
lease to Executive, the Executive agrees to become
solely and fully responsible for all future lease
payments and other obligations under the lease,
including but not limited to, service and maintenance
of the vehicle, excess mileage, insurance coverages
and premiums, ad valorem taxes, licensing and tags
and any and all liability for collision, property
damage and personal injury resulting from use of the
leased vehicle. In the event the Company is held
liable for any costs or damages related to
Executive's use of the leased vehicle after the
Executive assumes the vehicle lease, the Executive
agrees to indemnify the Company for any such costs or
damages.
7. Club Memberships. The Company has previously paid
various membership fees and dues for the Executive to
be a member of certain social and business clubs.
Effective as of the Employment Termination Date, the
Company will pay no further fees or dues related to
club memberships.
8. Other Employee Benefits. All other employee benefits
plans, programs or arrangements in which the
Executive is an eligible participant or beneficiary,
shall be administered in accordance with the terms of
each such individual plan, program or arrangement and
the provisions of such plan, program or arrangement
shall govern the Executive's rights to benefits
thereto following the Employment Termination Date.
9. Severance Pay. In addition to the amounts described
above, the Company agrees to pay the Executive a
single sum amount of Eighty Thousand Dollars
($80,000.00) as Severance Pay; provided, that if the
Executive does not accept transfer or assignment of
the lease for the vehicle described in Paragraph 6,
the amount of the Severance Pay under this Paragraph
shall
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be reduced to Sixty-Five Thousand Dollars
($65,000.00); and provided further, that any payment
of Severance Pay will be subject to applicable
withholding amounts. Upon the Executive's request for
tax reasons, the Company agrees to pay as much as
Twenty Thousand Dollars ($20,000.00) of the Severance
Pay directly to an outplacement company of the
Executive's choice. Unless otherwise requested by the
Executive, the Company shall pay the Severance Pay on
or about June 1, 1998. The Company agrees to pay this
Severance Pay to assist the Executive with certain
costs associated with his termination of employment,
including but not limited to, the costs of
continuation coverage under group health and dental
plans, assumption of the lease payments on the
vehicle, legal assistance, and outplacement services.
IV. STATUS AS AN AGENT.
The Executive agrees that as of the date of execution of this
Agreement, the Executive relinquishes all power as an agent of the Company and
acknowledges that he cannot bind the Company in any agreement, contract or
promise and agrees not to represent that he has such powers to third parties
without the express written consent of the Company.
V. COOPERATION AFTER EMPLOYMENT TERMINATION DATE.
The Executive agrees to cooperate fully with the Company during the
Severance Period and to reasonably assist the Company thereafter on all matters
relating to his employment and the conduct of the Company's business, including
any litigation, claim or suit in which the Company deems that the Executive's
cooperation is needed. The Executive also agrees that during the Severance
Period, the Executive will make himself available on reasonable notice to
furnish services in the nature of a consultant to the Company regarding any
issues arising from the Executive's employment and the conduct of the Company's
business, including but not limited to any litigation matters involving Company
as a party or witness and as to which the Executive possesses knowledge or
information which is relevant to the litigation. The Company agrees to reimburse
the Executive for all reasonable "out-of-pocket" expenses related to provision
of the services referenced in this Paragraph, provided the Executive receives
advance approval of such expenses by the Company's Chief Executive Officer and
provides the Company with receipts and invoices for all such expenses in
accordance with the Company's general expense reimbursement policy.
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VI. CONFIDENTIALITY OF AGREEMENT.
The Executive and the Company understand and agree that, due to the
sensitive nature of this matter, the terms of this Agreement are to be kept
private and confidential and that the terms of this Agreement shall not be
disclosed, unless the party(ies) is (are) required by law to do so. While not
limiting the generality of the foregoing, disclosure includes any statement,
written or oral, to any person, including, but not limited to, any current or
former employees of the Company. The parties to this Agreement acknowledge that
there will be circumstances under which some or all of the terms of this
Agreement will have to be made known to some individuals in the regular course
of conducting business and personal affairs. In keeping with that understanding,
the Company agrees that the Executive may discuss the terms of this agreement
with his attorneys, accountants, tax advisors and his immediate family. The
Executive agrees to advise such individuals of the confidentiality provisions of
this Agreement and will require that anyone so named shall keep the terms of
this Agreement confidential. Should the Executive disclose any of the terms of
this Agreement to persons (whether entities or individuals) other than those
specified in this Article, then such actions shall constitute a breach of the
terms of this Agreement on the part of the Executive. The Executive acknowledges
that the terms of this Agreement will become known to certain officials and
employees of the Company. The Company agrees that this information will be
disseminated only on a need-to-know basis, and that any individual who is made
aware of the terms and provisions of this Agreement shall be advised of the
confidentiality provisions of this Agreement. The Company's disclosure other
than as permitted in this paragraph to those who "need-to-know" the terms of the
Agreement will constitute a breach of this Agreement. Notwithstanding the
foregoing, the parties acknowledge that certain terms or conditions of the
Agreement may be required to be disclosed by the Company in its public filings
for compliance with SEC rules and regulations. Therefore, the parties agree that
any information disclosed by the Company in its press releases, public reports
and public filings shall be exempt from the provisions of this Confidentiality
Section at all times after such information has been made available to the
public. The parties further agree that it shall not be considered a breach of
this Section for the Executive to disclose to potential employers and others
that he resigned from his position with the Company to pursue other business
opportunities, that he has received a severance package from the Company, that
he and the Company have agreed that all terms and conditions of the severance
package are to remain confidential and that he may not discuss those terms and
conditions.
VII. NONDISPARAGEMENT.
The Executive agrees that he shall not make any untrue statement or
criticism, written or oral, nor take any action which is adverse to the
interests of the Company or that would cause the Company, its affiliates,
subsidiaries, divisions or its current and former officers, directors,
employees, agents, or shareholders embarrassment or humiliation or otherwise
cause or contribute to such persons being held in disrepute by the public or the
Company's clients, customers, or executives. The Company agrees that it shall
not make any untrue statement or criticism, written
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or oral, nor take any such action which is adverse to the interests of the
Executive or that would cause the Executive embarrassment or humiliation or
otherwise cause or contribute to the Executive being held in disrepute by the
public or the Company's clients, customers, or executives. The obligations under
this Section shall survive the termination of the Severance Period.
VIII. NEUTRAL REFERENCES.
The Executive acknowledges and agrees that the Company shall provide
the Executive, upon the request of the Executive, or any other prospective
employer of the Executive, upon the request of such prospective employer, with a
neutral reference letter which will contain no more than a factual recitation of
the Executive's employment history with the Company, and which will include
dates of hire and termination, positions held and similar factual information.
This neutral reference letter will contain no evaluation information as to the
Executive's job performance or job history. The Executive and the Company
acknowledge and agree that the Company shall be under no obligation to provide
anything other than such a neutral reference letter to the Executive or any
prospective employer of the Executive prior to, on or after the Employment
Termination Date. From and after the Employment Termination Date, the Executive
shall refrain from discussing the terms and conditions of the termination of the
Executive's employment with any employee, agent, client or customer of Company.
With the exception of those within the Company with a "need-to-know" and the
Company's legal counsel, the Company will refrain from discussing the terms and
conditions of the termination of the Executive's employment with any agent,
client or customer of the Company.
IX. COVENANT NOT TO SOLICIT.
Due to the Executive's extensive knowledge of the specifics of the
Company's business, and its customers and clients, the Executive agrees that
during the Severance Period and for a period of one year (1) year thereafter, he
will not, without the prior written consent of the Company, either directly or
indirectly, on his own behalf or in the service or on behalf of others, solicit,
divert or appropriate, or attempt to solicit, divert or appropriate, to any
business that competes with the Company's business any person or entity who
transacted business with the Company during the year preceding the Employment
Termination Date. This provision shall be specific and shall apply only to any
and all persons or entities with whom the Executive has (i) had direct contact,
(ii) been a party to marketing or sales strategies with regard to, or (iii) been
privy to marketing or sales strategies with regard to such persons or entities.
The Executive agrees that during the Severance Period and for a period
of one (1) year thereafter, he will not, either directly or indirectly, on his
own behalf or in the service or on behalf of others solicit, divert or hire
away, or attempt to solicit, divert or hire away to any business that competes
with Company's business any person then employed by the Company, or any person
not
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then employed by the Company but employed by the Company at any time and for any
period after the date which is one (1) year prior to the Employment Termination
Date.
X. COVENANT NOT TO DISCLOSE COMPANY PROPRIETARY INFORMATION.
During the Executive's employment with the Company, he has had access
to and become familiar with information that the parties acknowledge to be
confidential, valuable or uniquely proprietary information regarding the
Company, 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 the Company, 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 the Company's press
releases, public documents, annual reports, SEC filings or other public filings
shall not be considered proprietary or confidential information.
XI. 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 the Company all documents (including
copies and computer records thereof) of any nature which relate to or contain
proprietary or confidential information concerning Company, its customers, or
employees, and any and all property of the Company which has been in his
possession, including 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 the Company. All
business records, papers and documents kept or made by the Executive relating to
the business of the Company shall be and remain the property of the Company,
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 the Company's press releases, public
documents, annual reports, SEC filings or other public filings shall not be
considered proprietary or confidential information.
XII. GENERAL RELEASE BY THE EXECUTIVE.
Except as specifically provided in Section XIII hereof, for and in
consideration of the additional consideration to be provided to the Executive by
the Company pursuant to this Agreement, the sufficiency of which is hereby
acknowledged, the Executive does hereby, for and on behalf of himself and the
Executive's related persons, fully and finally release, acquit and forever
discharge the Company, the Company's related entities and persons, all employee
benefit plans of the Company and all employee benefit plans of the Company's
related entities, and such plans' related entities and persons, of and from any
and all claims, counterclaims, actions, causes of action, demands, rights,
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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 the Company 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.
XIII. LIMITATION OF RELEASE BY THE EXECUTIVE.
Notwithstanding the provisions of Section XII hereof, it is understood
and agreed that the waiver of benefits and claims contained in Section XII 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 the
Company which have accrued as of the Employment Termination 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.
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XIV. GENERAL RELEASE BY THE COMPANY.
The Company does hereby, for and on behalf of itself and its related
entities and persons, fully and finally release, acquit and forever discharge
the Executive of and from any and all claims, counterclaims, actions, causes of
action, demands, rights, damages, costs, expenses or compensation which the
Company and/or the Company's related entities and persons have knowledge of, as
of the Employment Termination Date, based on any acts, omissions, transactions
or occurrences whatsoever occurring prior to and/or up until the Employment
Termination 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 the Company and the termination of that
employment relationship.
XV. 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 the
Company 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.
XVI. RIGHT OF REVOCATION BY THE EXECUTIVE.
From the Employment Termination Date until the Effective Date, the
Executive may revoke this Agreement by sending written notice of revocation by
Registered Mail within that period to:
Mr. G. Xxxxxx Xxxxxxxx
0000 Xxxxxxx 000
Xxxx Xxxxxxxx, 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.
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XVII. AMENDMENT.
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 the Company acting on behalf of the Company.
XVIII. MISCELLANEOUS.
A. BINDING AGREEMENT. This Agreement shall be binding upon both
the Executive and the Executive's related entities and
individuals, and upon the Company and the Company'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 material
or substantial breach of any provision of this Agreement or
conduct by either the Executive or any officer or director of
the Company which constitutes disparagement of the other or an
attempt to damage the other's business relations and
reputation, 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 material and substantial breach(es). In addition,
in the event of a breach of any provision of this Agreement by
the Executive, or conduct by the Executive which constitutes
disparagement of the Company or an attempt by the Executive to
damage the Company's business relations and reputation, the
Company 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.
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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 days of either party notifying
the other party of a dispute or controversy regarding this
Agreement. The Company 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.
The Company and the Executive agree that the arbitrator may,
in his discretion, award the costs and expenses of the
arbitration, including legal counsel fees and expenses, to the
prevailing party or divide such costs and expenses between the
parties, unless otherwise required by law.
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F. ENTIRE AGREEMENT BETWEEN PARTIES AND NO INDICATION OF
FAULT. This Agreement constitutes the entire agreement between
the Executive and the Company 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 Employment Termination 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
the Company 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 the Company or by
the Executive.
XIX. 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.
[THE REMAINDER OF THIS PAGE IS LEFT BLANK INTENTIONALLY SO THAT ALL SIGNATURES
MAY BE ON THE SAME PAGE.]
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IN WITNESS WHEREOF, the undersigned has executed this Separation
Agreement on the day and year first above written.
EXECUTIVE:
/s/ Xxxxxx X. Xxxxxxx
---------------------------------------
XXXXXX X. XXXXXXX
COMPANY:
AMERICAN BUSINESS PRODUCTS, INC.
By: /s/ G. Xxxxxx Xxxxxxxx
---------------------------------------
Title: Director- Chairman of Compensation
Committee
This document has been signed in duplicate.
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