AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT
Exhibit 10.1
AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT
This Amended and Restated Executive Employment Agreement (the “Agreement”) is entered into by
and between American Reprographics Company, a Delaware corporation (“ARC”), as the employer, and
Kumarakulasingam Xxxxxxxxxxx, a resident of California, an individual (“Executive”), as the
employee, on March 21, 2011, effective as of February 9, 2011 (the “Effective Date”).
RECITALS
WHEREAS, ARC and Executive entered into an Employment Agreement dated January 7, 2005, as
amended (“Agreement”), under which Executive is employed as Chief Executive Officer and President
of ARC.
WHEREAS, the term of the Agreement expired on February 9, 2011, and the Agreement was
automatically extended on a year-to-year basis thereafter pursuant to Section 2 of the Agreement.
WHEREAS, the parties now wish to amend and restate the Agreement as of the Effective Date.
Now, therefore, in consideration of the promises, covenants and agreements set forth in this
Agreement, the parties agree as follows:
1. Position and Duties
(a) ARC employs Executive as its President and Chief Executive Officer, and Executive agrees
to serve ARC in such capacity, upon the terms and conditions set forth herein.
(b) Executive shall report to the Board of Directors of ARC (“Board”). Executive’s primary
responsibilities shall be (i) to be responsible for developing long range
corporate goals and for creating strategies to achieve those goals, for general corporate
development, and for mergers and acquisitions, (ii) to perform other duties commonly incident to
the office of Chief Executive Officer and President of a publicly traded company, and (iii) to
perform such other duties and have such other powers as the Board shall designate from time to
time. Executive shall have the authority generally incident and necessary to perform such duties.
Executive will be the head of ARC’s executive team.
(c) During the term of this Agreement, Executive will devote substantially all of his
employment time and attention to the affairs of ARC and use his best efforts to promote the
business and interests of ARC. Executive owes a fiduciary duty of loyalty, fidelity and allegiance
to act at all times in the best interests of ARC, and not to do any act which would injure the
business, interests, or reputation of ARC or any of its subsidiaries or affiliates.
2. Term
The term of this Agreement shall commence on the Effective Date hereof and continue until
February 9, 2014 unless otherwise terminated in accordance with the provisions hereof;
provided, however, that this Agreement will automatically be extended on a year-to-year
basis on the terms and conditions set forth herein, including the bonus provisions of Section 3(b),
unless either party gives written notice to the other at least one hundred twenty (120) days prior
to the expiration of the term of this Agreement, which includes any extensions, that this Agreement
shall terminate at the end of such term, or extension thereof.
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3. Direct Compensation
In consideration of the services to be provided by Executive, Executive shall receive
compensation, less all applicable taxes, social security payments and other items that ARC is
required by law to withhold or deduct therefrom, as follows:
(a) Base Salary. Executive’s annual Base Salary shall be $950,000, payable in
installments in accordance with ARC’s customary payroll procedures; provided, however, that
as of the Effective Date and for the remainder of the fiscal year ending December 31, 2011 (the
“2011 Base Salary Reduction Period”), the amount of Base Salary payable to Executive pursuant to
this Section 3(a) shall be reduced by twenty-five percent (25%) (the “2011 Base Salary Reduction”),
payable $700,000 in cash, payable in accordance with ARC’s customary payroll procedures, and
$12,500 in restricted shares of ARC common stock, to be approved by the Compensation Committee of
ARC’s Board of Directors. The restricted shares of ARC common stock shall vest in equal
installments of twenty-five percent (25%) on each of the first four anniversaries of the date of
grant, subject to Executive’s continued employment with ARC on each vesting date. Notwithstanding
anything to the contrary contained in this Section 3(a), if Executive’s employment with ARC is
terminated other than for Cause during the 2011 Base Salary Reduction Period, any Base Salary
severance benefits payable to Executive under Sections 12(a), (c) and (d) of the Agreement shall be
calculated based on the $950,000 Base Salary amount, without taking into account the 2011 Base
Salary Reduction.
(b) Incentive Bonus. During the term of this Agreement, Executive shall be eligible
to receive an annual Incentive Bonus (“Incentive Bonus”) as follows:
(i) “EPS” as used herein means the pre-tax earnings per share from operations (excluding
extraordinary items) of the common stock of ARC calculated under Generally Accepted Accounting
Principles applied on a consistent basis (“GAAP”) by ARC’s regular certified public accountants as
of the close of business on the last day of each relevant fiscal year. EPS shall be calculated on
a fully diluted basis, taking into account unexercised options and warrants to the extent and in
the manner required under GAAP.
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(ii) For each fiscal year of ARC ending December 31, 2011, 2012 and 2013, Executive shall
receive an Incentive Bonus in an amount equal to $60,000 for each full percentage point by which
EPS for such fiscal year exceeds by more than 10 percentage points the EPS for the immediately
preceding fiscal year, after taking into account the amounts of the Incentive Bonus earned by
Executive under this Section 3(b). Executive shall not be entitled to any Incentive Bonus for a
partial percentage point increase. For illustration purposes only: if EPS for any given fiscal
year during the term of this Agreement is $1.00, an Incentive Bonus of $60,000 will be paid if EPS
for the next fiscal year equals or exceeds $1.11 but is less than $1.12, and $120,000 will be paid
if such EPS equals or exceeds $1.12 but is less than $1.13. If EPS for any fiscal year during the
term of this Agreement is $1.20, an Incentive Bonus of at least $60,000 will be paid if EPS for the
next fiscal year equals or exceeds $1.332.
(iii) The Incentive Bonus shall be paid no later than 60 days following the close of each
fiscal year, 70% in cash and 30% in restricted shares of ARC common stock. To the extent that such
Incentive Bonus is paid in restricted shares of ARC common stock, such shares shall be issued
forthwith after approval by the Compensation Committee of the Board of Directors at its first
meeting in the fiscal year following the close of the fiscal year to which such Incentive Bonus
relates, but in no event shall such shares be issued later than two and one-half months after the
close of such fiscal year; provided, however, that as a condition to receiving restricted
shares of ARC common stock, Executive must deposit with ARC on the date of issuance cash in the
amount, if any, by which the total of employee withholding taxes required to be withheld with
respect to the entire Incentive Bonus exceeds the cash portion of the Incentive Bonus available for
withholding. The restricted shares of ARC common stock shall vest in equal installments of
twenty-five percent (25%) on each of the first four anniversaries of the date of grant, subject to
Executive’s continued employment with ARC on each vesting date. To be
eligible to receive an Incentive Bonus, Executive must have been employed by ARC during the
entire fiscal year to which such Incentive Bonus relates.
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(iv) Notwithstanding anything to the contrary contained in this Section 3(b), any annual
Incentive Bonus payable under this Section 3(b) in respect of any given fiscal year shall be no
greater than $4,000,000 (the “Maximum Annual Incentive Bonus Payment”); provided, however,
that (A) any portion of the Maximum Annual Incentive Bonus Payment that remains unearned as of the
close of the fiscal year to which such Incentive Bonus relates shall be added to any Maximum Annual
Incentive Bonus Payment earned and payable in respect of any subsequent fiscal year during the term
of the Agreement; and (B) Executive may, at his option, elect not to receive payment of all or any
portion of an annual Incentive Bonus earned and otherwise payable to Executive in respect of any
given fiscal year, in which case the amount of any earned and unpaid annual Incentive Bonus shall
be added to, and paid in connection with, any Maximum Annual Incentive Bonus Payment made for any
subsequent fiscal year during the term of the Agreement.
4. General Benefits
During the term of this Agreement, Executive shall be entitled to other benefits provided by
ARC to its senior executives from time to time, including but not limited to, 401(k) and other
retirement plans, deferred compensation, paid holidays, sick leave and other similar benefits.
Executive shall be entitled to 4 weeks paid vacation each calendar year accrued and vested in
accordance with ARC’s vacation policy applicable to senior management.
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5. Stock Plans
In the sole discretion of the Board of Directors of ARC, Executive shall be eligible to
participate in stock option, stock purchase, stock bonus and similar plans of ARC established from
time to time by ARC.
6. Group Insurance or Benefit Plans
(a) During the term of this Agreement, Executive shall be automatically covered by ARC group
insurance programs (including any self-insured programs sponsored by ARC), including medical,
dental, vision, disability, and life, if any. Executive’s spouse and children which are eligible
for coverage may join the insurance programs, subject to ARC’s policies and applicable laws. The
premiums for all insurance programs for Executive and Executive’s spouse and eligible children
shall be paid by ARC.
(b) Provided that this Agreement has not terminated under Section 11(c) or (f), ARC shall
continue to provide to Executive, Executive’s spouse and Executive’s eligible children, at no
expense to either, medical insurance coverage under the same group insurance or ARC-sponsored
self-insurance, or equivalent coverage, as is provided from time to time to ARC’s senior
executives. Such coverage shall continue until the first to occur of (i) medical insurance
coverage being available through another employer, or (ii), in the case of Executive’s eligible
children, the termination of eligibility under ARC’s policies and applicable laws, or (iii) in the
cases of Executive and his spouse, qualification, in each instance, for Medicare coverage.
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7. Special Benefits
Executive shall be allowed additional employer-paid benefits of his choice (“Special
Benefits”), including the lease of automobiles, social, golf or athletic club
memberships and other benefits not specifically provided for in this Agreement, provided,
however, that the annual cost to ARC shall not exceed $10,000. Any employer taxes imposed upon
ARC by reason of the furnishing of such Special Benefits shall be included in the annual $10,000
limitation. Any unused allowance for Special Benefits shall not be carried over to a subsequent
year.
8. Reimbursement of Business Related Expenses.
Executive shall be entitled to receive prompt reimbursement for reasonable expenses incurred
by him in performing services hereunder during the term of this Agreement in accordance with the
policies and procedures then in effect and established by ARC for its employees. Executive may, at
his discretion, fly business class or first class on all airplane flights of more than one (1) hour
if Executive deems such to be appropriate for the conduct of his duties. In addition to the
Special Benefits set forth in Section 7 above, Executive shall also be entitled to reimbursement of
Executive membership dues and related ongoing costs of appropriate professional organizations which
are approved by the Board.
9. Obligations and Restrictive Covenants.
(a) Obligations. During the term of this Agreement, Executive shall not engage in any
other employment, occupation or consulting activity for any direct or indirect remuneration. This
obligation shall not preclude Executive from: (i) serving in any volunteer capacity with any
professional, community, industry, civic, educational or charitable organization; (ii) serving as a
member of corporate boards of directors, provided that the Board has given written consent, and
these activities or services do not materially interfere or conflict with Executive’s
responsibilities or ability to perform his duties under this Agreement; or (iii)
engaging in personal investment activities for himself and his family which do not interfere
with the performance of his duties and obligations hereunder.
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(b) Non-Competition; Non-Solicitation. The Parties hereto recognize that Executive’s
services are unique and the restrictive covenants set forth in this Section 9 are essential to
protect the business (including trade secret and other confidential information disclosed by ARC
to, learned by or developed by Executive during the course of employment by ARC) and the good will
of ARC. For purposes of this Section 9, all references to “ARC” shall include ARC’s predecessors,
subsidiaries and affiliates. As part of the consideration for the compensation and benefits to be
paid to Executive hereunder, during the term of this Agreement Executive shall not:
(i) Engage in any business similar or related to or competitive with the business conducted by
ARC described from time to time in ARC’s Annual Report on Form 10-K filed with the United States
Securities and Exchange Commission (the “Core Business of ARC”);
(ii) Render advice or services to, or otherwise assist, any other person, association,
corporation, or other entity that is engaged, directly or indirectly, in any business similar or
related to, or competitive with, the Core Business of ARC;
(iii) Transact any business in any manner with or pertaining to suppliers or customers of ARC
which, in any manner, would have, or is likely to have, an adverse effect upon the Core Business of
ARC; or
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(iv) Induce any employee of ARC to terminate his or her employment with ARC, or hire or assist
in the hiring of any such employee by any person or entity not affiliated with ARC.
For purposes of this Agreement, “affiliate” shall mean any entity which owns or controls, is
owned or controlled by, or is under common ownership or control, with ARC.
10. Confidentiality
Executive acknowledges that it is the policy of ARC to maintain as secret and confidential all
valuable and unique information heretofore or hereafter acquired, developed or used by ARC relating
to the business, operations, employees and customers of ARC, which information gives ARC a
competitive advantage in the industry, and which information includes technical knowledge, know-how
or trade secrets and information concerning operations, sales, personnel, suppliers, customers,
costs, profits, markets, pricing policies, and other confidential information and materials (the
“Confidential Information”).
(a) Non-Disclosure. Executive recognizes that the services to be performed by
Executive are special and unique, and that by reason of his duties he will be given, acquire or
learn Confidential Information. Executive recognizes that all such Confidential Information is the
sole and exclusive property of ARC. Executive shall not, either during or after his employment by
ARC, disclose the Confidential Information to anyone outside ARC or use the Confidential
Information for any purpose whatsoever, other than for the performance of his duties hereunder,
except as authorized by ARC in connection with performance of such duties.
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(b) Return of Confidential Information. Executive shall deliver promptly upon
termination of employment with ARC, or at any time requested by ARC, all memos, notes,
records, reports, manuals, drawings, and any other documents, whether in electronic form or
otherwise, containing any Confidential Information, including without limitation all copies of such
materials in any format which Executive may then possess or have under his control.
(c) Ownership of Inventions; Assignment of Rights. Executive agrees that all
information, inventions, intellectual property, trade secrets, copyrights, trademarks, content,
know-how, documents, reports, plans, proposals, marketing and sales plans, client lists, client
files and materials made by him or by ARC (the “Work Product”) are the property of ARC and shall
not be used by him in any way adverse to the interests of ARC. Executive assigns to ARC any and
all rights of every nature which Executive may have in any such Work Product; provided, however,
that such assignment does not apply to any right which qualifies fully under California Labor Code
Section 2870. This section shall survive any termination of this Agreement and the employment
relationship between Executive and ARC. Executive shall not deliver, reproduce or in any way allow
such documents or things to be delivered or used by any third party without specific direction or
consent of the Board. Likewise, Executive shall not disclose to ARC, use in ARC’s business, or
cause ARC to use, any information or material that is a trade secret of others.
(d) Predecessors, Subsidiaries and Affiliates. For purposes of this Section 10,
references to ARC include its predecessors, subsidiaries and affiliates.
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11. Termination.
Notwithstanding any other term or provision contained in this Agreement, this Agreement and
the employment hereunder will terminate prior to the expiration of the term of this Agreement under
the following circumstances:
(a) Death. Upon Executive’s death.
(b) Disability. Upon Executive becoming “Permanently Disabled”, which, for purposes
of this Agreement, shall mean Executive’s incapacity due to physical or mental illness or cause,
which, in the written opinion of Executive’s regular licensed physician, results in the Executive
being unable to perform his duties on a full-time basis for 6 months during a period of 12 months.
(c) Termination by ARC for Cause. Upon written notice to Executive, ARC may terminate
this Agreement for Cause, which, for purposes of this Agreement, shall mean termination by action
of the Board in its reasonable discretion because of Executive’s:
(i) willful refusal without proper cause to perform (other than by reason of physical or
mental disability or death) the duties set forth in this Agreement or delegated from time to time
in writing by the Board, which remains uncorrected for 30 days following written notice to
Executive by the Board; or
(ii) gross negligence, self dealing or willful misconduct of Executive in connection with the
performance of his duties hereunder, including, without limitation, misappropriation of funds or
property of ARC or its subsidiaries or affiliates, securing or attempting to secure personally any
profit in connection with any transaction entered into on behalf of ARC or its subsidiaries or
affiliates, or any willful act or gross negligence having the effect of injuring the reputation,
business or business relationships of ARC or its subsidiaries or affiliates; or
(iii) fraud, dishonesty or misappropriation of ARC business and assets that xxxxx the business
of ARC or its subsidiaries or affiliates; or
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(iv) habitual insobriety, abuse of alcohol, abuse of prescription drugs, or use of illegal
drugs; or
(v) engaging in any criminal activity involving moral turpitude; or
(vi) indictment or being held for trial in connection with a misdemeanor involving moral
turpitude or any felony; or
(vii) conviction of a felony or entry into a guilty plea that negatively reflects on
Executive’s fitness to perform the duties or xxxxx the reputation or business or ARC or its
subsidiaries or affiliates; or
(viii) any material breach of any covenants under this Agreement or other material policy of
ARC, other than under clauses (i) through (vii) of this Section 11(c) which remains uncorrected for
30 days following written notice to Executive by the Board.
(d) Termination by ARC without Cause. Upon written notice to Executive, ARC may
terminate this Agreement at any time without any Cause or reason whatsoever.
(e) Termination by Executive with Good Reason. Upon written notice to ARC of any of
the following “Good Reasons,” and the failure of ARC to correct the reduction, change or breach
within 30 days after receipt of such notice, Executive may terminate this Agreement after the
occurrence of
(i) a material change by ARC in the nature of Executive’s title, duties, authorities and
responsibilities set forth in this Agreement without Executive’s express written consent; or
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(ii) a reduction in the nature of Executive’s compensation as established under this
Agreement, without Executive’s express written consent; or
(iii) a material breach by ARC of any material sections of this Agreement, other than as set
forth in clauses (i) and (iii) of this Section 11(e); or
(iv) a Change of Control, as defined in Section 11(g), as a result of which Executive is not
offered the same or comparable position in the surviving company, or is offered such position but
within twelve (12) months after Executive accepts such position, Executive’s employment is
terminated either without cause or for a Good Reason described in subsections (i) or (ii) of this
Section 11(e) or in subsection (iii) as to the employment agreement then applicable to Executive.
(f) Termination by Executive without Good Reason. Upon 45 days prior written notice
to ARC, Executive may terminate this Agreement and resign from Executive’s employment hereunder
without any Good Reason.
(g) Change of Control.
(i) For purposes of this Agreement, “Change of Control” shall mean:
(A) ARC merges or consolidates with any other corporation (other than one of ARC’s
subsidiaries), as a result of which ARC is not the surviving company, or the shares of ARC voting
stock outstanding immediately after such transaction do not constitute, become exchanged for or
converted into, more than 50% of the Voting Shares of the merged or consolidated company (as
defined below);
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(B) ARC sells or otherwise transfers or disposes of all or substantially all of its assets;
(C) Any third person or entity shall become the Beneficial Owner, as defined by Rule 13(d)-3
under the Securities Exchange Act of 1934, in one transaction or a series of related transactions
within any 12 month period, of at least 50% of the Voting Shares of ARC’s then outstanding voting
securities.
(ii) For purposes of this Agreement, “Voting Shares” shall mean the combined voting securities
entitled to vote in the election of directors of a corporation, including ARC, or the merged,
consolidated or surviving company, if other than ARC.
12. Severance Benefits
(a) Basic Benefits. Upon expiration or termination of this Agreement for any reason,
and subject to the provisions of Section 12(e), Executive will be entitled to: (i) payment for all
Base Salary and unused vacation accrued and prorated, but unpaid, as of the effective date of
termination, provided that payment for such amounts will be made no later than 30 days after the
effective date of termination, (ii) payment, when due, of any earned but unpaid Incentive Bonus for
the preceding fiscal year, (iii) any unreimbursed business expenses authorized by this Agreement,
provided that such reimbursement will be paid to Executive no later than 30 days after the
effective date of termination, (iv) continuation of any benefits under Section 6(a) as required by
applicable law (e.g., COBRA), and (v) such rights as then exist with respect to then vested stock
options, restricted stock or other rights under similar plans.
(b) Termination by ARC for Cause or by Executive without Good Reason. If this
Agreement and Executive’s employment hereunder is terminated by ARC for
Cause pursuant to Section 11(c), or by Executive without Good Reason pursuant to Section
11(f), Executive shall not be entitled to any additional payments or benefits hereunder.
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(c) Termination by ARC without Cause; Termination by Executive with Good Reason. If
this Agreement and Executive’s employment hereunder is terminated by ARC without Cause pursuant to
Section 11(d), or by Executive for Good Reason as defined in Section 11(e), subject to Executive’s
compliance with the provisions of Section 15 below, Executive shall receive the following
additional payments or benefits:
(i) Executive’s then Base Salary for the remaining term of this Agreement, paid as and when
due as if this Agreement had not been terminated;
(ii) Continuation of coverage and premium payments by ARC under ARC’s group insurance programs
for Executive and his eligible family members under Section 6(a) if this Agreement had not been
terminated, and thereafter under Section 6(b) in accordance with the provisions of such Section;
(iii) Continuation of the Special Benefits under Section 7 of this Agreement, if this
Agreement had not been terminated; and
(iv) All unvested stock options, restricted stock or similar rights granted to Executive shall
accelerate and become vested and exercisable immediately as of the effective date of termination.
(d) Termination because of Death or Disability of Executive. If this Agreement and
Executive’s employment hereunder is terminated under Sections 11(a) or (b) by
reason of Executive’s death or by reason of being Permanently Disabled, Executive or his
family shall be entitled to the additional benefits described in Section 12(c)(ii) above.
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(e) Parachute Payments. In the event that the severance, acceleration of stock
options and other benefits provided for in this Agreement or otherwise payable to Executive (i)
constitute “parachute payments” within the meaning of Section 280G (as it may be amended or
replaced) of the Internal Revenue Code of 1986, as amended or replaced (the “Code”) and (ii) but
for this Section 12(e), would be subject to the excise tax imposed by Section 4999 (as it may be
amended or replaced) of the Code (the “Excise Tax”), then Executive’s benefits hereunder shall be
either:
(i) provided to Executive in full; or
(ii) provided to Executive only as to such lesser extent which would result in no portion of
such benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into
account the applicable federal, state and local income taxes and the Excise Tax, results in the
receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding
that all or some portion of such benefits may be taxable under the Excise Tax. Unless ARC and
Executive otherwise agree in writing, any determination required under this Section 12(e) shall be
made in writing in good faith by ARC’s independent public accountants (the “Accountants”). In the
event of a reduction in benefits hereunder, Executive shall be given the choice of which benefits
to reduce. For purposes of making the calculations required by this Section 12(e), the Accountants
may make reasonable assumptions and approximations concerning applicable taxes and may rely on
reasonable, good faith interpretations concerning the application of the Code. ARC and Executive
shall furnish to the Accountants such information and documents as the Accountants may reasonably
request in order to make a
determination under this Section 12(e). ARC shall bear all costs the Accountants may
reasonably incur in connection with any calculations contemplated by this Section 12(e).
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(f) 409A Compliance.
(i) 6-Month Delay Rule. Except as provided in paragraph (ii) below, in the event that
Executive is a “specified employee” (as defined in Section 409A(a)(2)(B)(i) of the Code and
regulations thereunder) at the time of the termination of his employment with ARC, payment of all
amounts subject to Section 409A of the Code that would otherwise be made under Section 12 of this
Agreement, including any installments, may not be paid before a date that is six months and two
days after the date of termination from employment (including death). Such amounts that otherwise
would have been paid during such six-month period will be paid as of the date that is six months
and two days after the date of employment termination.
(ii) Exception. In the event that payment of amounts under Section 12 of this
Agreement at the time(s) of payment specified under its terms (without regard to this Section
12(f)) does not cause any amount of the payment to fail to comply with the provisions of Section
409A of the Code, and does not result in any excise tax or additional tax penalty under Section
409A, then the six-month delay rule of paragraph (i) above will not apply and payment of such
amounts will be made at the time(s) specified under the applicable terms of Section 12 of this
Agreement without regard to this Section 12(f).
(iii) General Compliance. During the term of this Agreement, ARC and Executive agree
to modify and administer the Agreement to the extent possible to comply with Section 409A of the
Code and to avoid incurring any excise and other additional tax liability that might be imposed on
Executive or ARC.
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13. Arbitration and Equitable Relief
(a) Arbitration. In consideration of Executive’s employment with ARC, its promise to
arbitrate all employment-related disputes and Executive’s receipt of the compensation paid to
Executive by ARC, at present and in the future, Executive agrees that any and all controversies,
claims, or disputes with anyone (including ARC and any employee, officer, director, shareholder or
benefit plan of ARC in their capacity as such or otherwise) arising out of, relating to, or
resulting from Executive’s employment with ARC or the termination of that employment with ARC,
including any provision of this Agreement, shall be subject to binding arbitration under the
arbitration rules set forth in the California Code of Civil Procedure section 1280 through 1294.2,
including section 1283.05 collectively (the “Rules”) and pursuant to California law. Disputes
which Executive agrees to arbitrate, and hereby agrees to waive any right to a trial by jury,
include without limitation, any common law claims, statutory claims under Title VII of the Civil
Rights Act of 1964, the Americans With Disabilities Act of 1990, the Age Discrimination In
Employment Act of 1967, the Older Workers Benefit Protection Act, the California Fair Employment
And Housing Act, the California Labor Code (except for workers compensation or unemployment
insurance claims), or ERISA, claims of harassment, discrimination or wrongful termination and any
other statutory claims under state or federal law.
(b) Procedure. Any arbitration will be administered by JAMS and a neutral arbitrator
will be selected in a manner consistent with its rules for the resolution of employment disputes.
The arbitrator shall have the power to decide any motions brought by any party to the arbitration,
including motions for summary judgment and/or adjudication and motions to dismiss and demurrers,
prior to any arbitration hearing. The arbitrator shall have the power to award any remedies,
including attorneys’ fees and costs, available under applicable law. ARC will pay for any
administrative or hearing fees charged by the arbitrator or JAMS except that Executive shall
pay the first $200.00 of any filing fees associated with any arbitration Executive initiates.
The arbitrator shall administer and conduct any arbitration in a manner consistent with the Rules.
To the extent that the JAMS rules for the resolution of employment disputes conflict with the
Rules, the Rules shall take precedence. The decision of the arbitrator shall be in writing.
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(c) Remedy. Except as provided by the Rules and this Agreement, arbitration shall be
the sole, exclusive and final remedy for any dispute between ARC and Executive. Accordingly,
except as provided for by the Rules and this Agreement, neither ARC nor Executive will be permitted
to pursue court action regarding claims that are subject to arbitration. Notwithstanding, the
arbitrator will not have the authority to disregard or refuse to enforce any lawful ARC policy, and
the arbitrator shall not order or require ARC to adopt a policy not otherwise required by law which
ARC has not adopted.
(d) Availability of Injunctive Relief. In addition to the right under the Rules to
petition the court for provisional relief, ARC may also petition the court for injunctive relief,
notwithstanding any provision in this Agreement requiring arbitration, where ARC alleges or claims
a violation of this Agreement, or any separate agreement between Executive and ARC regarding trade
secrets, confidential information or non-solicitation, or California Labor Code §2870. No bond
shall be required of ARC. Executive understands and agrees that any breach or threatened breach of
this Agreement or of any such separate agreement will cause irreparable injury to ARC or its
subsidiaries or affiliates and that money damages will not provide an adequate remedy therefore,
and Executive hereby consents to the issuance of an injunction. In the event either Party seeks
injunctive relief, the prevailing party shall be entitled to recover reasonable costs and attorney
fees related thereto.
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(e) Administrative Relief. This Agreement does not prohibit Executive from pursuing
an administrative claim with a local, state or federal administrative body such as the Department
of Fair Employment and Housing, the Equal Employment Opportunity Commission or the Workers’
Compensation Board. This Agreement does, however, preclude Executive from pursuing court action
regarding any such claim.
(f) Voluntary Nature of Agreement. Executive acknowledges and agrees that he is
executing this Agreement voluntarily and without any duress or undue influence by ARC or anyone
else. Executive further acknowledges and agrees that he has carefully read this Agreement, that he
has asked any questions needed for him to understand the terms, consequences and binding effect of
this Agreement, and that he fully understands this Agreement, including that he is waiving his
right to a jury trial. Finally, Executive acknowledges that he has been provided an opportunity to
seek the advice of an attorney of his choice before signing this Agreement.
14. Governing Law
This Agreement shall be governed by and construed and interpreted in accordance with the laws
of the State of California without regard to California conflict of laws principles.
15. Release
In exchange for the benefits and other consideration under this Agreement to which Executive
would not otherwise be entitled, Executive shall enter into and execute a release substantially in
the form attached hereto as Exhibit A (the “Release”) upon his termination of employment. Unless
the Release is executed by Executive and delivered to ARC within thirty (30) days after the
termination of Executive’s employment with ARC, Executive shall receive
only the basic severance benefits provided under Section 12(a) of this Agreement and no
additional benefits under Section 12 or the extended health insurance coverage under Section 6 (b)
of this Agreement.
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16. Notices
Any notices or other communications desired or required under this Agreement shall be in
writing, signed by the Party making the same, and shall be deemed delivered when personally
delivered or on the second business day after the same is sent by certified or registered mail,
postage prepaid, addressed as follows (or to such other address as may be designated by like
written notice):
| If to Executive: | At the last residential address known by ARC | ||
| If to ARC: | American Reprographics Company 0000 Xxxxx Xxxxxxxx, Xxxxx 000 Xxxxxx Xxxxx, XX 00000 Attn.: Chief Financial Officer |
17. Severability
In the event that any provision of this Agreement becomes or is declared by a court of
competent jurisdiction to be illegal, unenforceable or void, this Agreement shall continue in full
force and effect without said provision.
18. Assignment
Except as otherwise specifically provided herein, neither party shall assign this Agreement or
any rights hereunder without the consent of the other party, and any attempted or purported
assignment without such consent shall be void; provided that Executive’s consent under this
Agreement shall not be required hereby for any of the transactions involving a Change
of Control. This Agreement shall otherwise bind and inure to the benefit of the parties
hereto and their respective successors, assigns, heirs, legatees, devisees, executors,
administrators and legal representatives.
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19. Entire Agreement
This Agreement contains the entire agreement of the parties and supersedes all prior or
contemporaneous negotiations, correspondence, understandings and agreements between the parties
regarding the subject matter of this agreement. Any prior employment agreement, bonus agreement or
other compensation agreement between Executive and ARC or any predecessor, subsidiary or affiliate
of ARC, is hereby amended and superseded as of the Effective Date. This Agreement may not be
amended or modified except in writing signed by both parties.
20. Waiver
If either Party waives any breach of any provisions of this Agreement, he or it shall not
thereby be deemed to have waived any preceding or succeeding breach of the same or any other
provision of this agreement.
21. Counterparts
This Agreement may be executed in counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first
hereinabove set forth.
| AMERICAN REPROGRAPHICS COMPANY, a Delaware corporation |
EXECUTIVE | |||||
By:
|
/s/ Xxxxxxxx Xxxxxxxxxx
|
/s/ Kumarakulasingam Xxxxxxxxxxx
|
||||
| Title: Chief Operations Officer | ||||||
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EXHIBIT A
RELEASE AGREEMENT
I understand that my position with American Reprographics Company (“ARC”) terminated effective
(the “Separation Date”). ARC has agreed that if I choose to sign this Agreement,
ARC will pay me severance benefits (minus the standard withholdings and deductions) pursuant to the
terms of the Amended and Restated Executive Employment Agreement entered into on ,
between myself and ARC (the “Severance Benefits). I understand that I am not entitled to the
Severance Benefits unless I sign this Agreement. I understand that in addition to the Severance
Benefits, ARC will pay me all of my accrued salary and vacation, to which I am entitled by law.
In consideration for the Severance Benefits I am receiving under this Agreement, I agree not
to use or disclose any of ARC’s proprietary information without written authorization from ARC, to
immediately return all Company property and documents (including all embodiments of proprietary
information) and all copies thereof in my possession or control, and to release ARC and its
officers, directors, agents, attorneys, employees, shareholders, and affiliates from any and all
claims, debts, liabilities, demands, causes of action, attorneys’ fees, damages, or obligations of
every kind and nature, whether they are known or unknown, arising at any time prior to the date I
sign this Agreement. This general release includes, but is not limited to: all federal and state
statutory and common law claims, claims related to my employment or the termination of my
employment or related to breach of contract, tort, wrongful termination, discrimination, wages or
benefits, or claims for any form of compensation. This release is not intended to release any
claims I have or may have against any of the released parties for (a) indemnification as a
director, officer, agent or employee under applicable law, charter document or agreement, (b)
severance and other termination benefits under my employment agreement and any related
written documents, (c) health or other insurance benefits based on claims already submitted or
which are covered claims properly submitted in the future, (d) vested rights under pension,
retirement or other benefit plans, or (e) in respect of events, acts or omissions occurring after
the date of this Release Agreement.
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In releasing claims unknown to me at present, I am waiving all rights and benefits under
Section 1542 of the California Civil Code, and any law or legal principle of similar effect in any
jurisdiction:
“A general release does not extend to claims which the creditor does
not know or suspect to exist in his favor at the time of executing
the release, which if known by him must have materially affected his
settlement with the debtor.”
I acknowledge that I am knowingly and voluntarily waiving and releasing any rights I may have
under the federal Age Discrimination in Employment Act of 1967, as amended (“ADEA”). I also
acknowledge that the consideration given for the waiver in the above paragraph is in addition to
anything of value to which I was already entitled. I have been advised by this writing, as
required by the ADEA that: (a) my waiver and release do not apply to any claims that may arise
after my signing of this Agreement; (b) I should consult with an attorney prior to executing this
release, (c) I have twenty-one (21) days within which to consider this release (although I may
choose to voluntarily execute this release earlier); (d) I have seven (7) days following the
execution of this release to revoke the Agreement; (e) this Agreement will not be effective until
the eighth day after this Agreement has been signed both by me and by ARC (“Effective Date”); and I
will not be paid any of the Severance Benefits until this Agreement has become effective.
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This Agreement constitutes the complete, final and exclusive embodiment of the entire
agreement between ARC and me with regard to the subject matter hereof I am not relying on any
promise or representation by ARC that is not expressly stated herein. This Agreement may only be
modified by a writing signed by both me and a duly authorized officer of ARC. I accept and agree
to the terms and conditions stated above:
| AMERICAN REPROGRAPHICS COMPANY, a Delaware corporation |
EXECUTIVE | |||||||
| By: | Kumarakulasingam Xxxxxxxxxxx | |||||||
| Address: | ||||||||
| Title: | ||||||||
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