EXHIBIT 10.32
EMPLOYMENT AGREEMENT
This Executive Employment Agreement (the "Agreement") is entered into by
and between AMERICAN REPROGRAPHICS COMPANY, a Delaware corporation ("ARC) as the
employer; and XXXX X. XXXX, a resident of California, an individual
("EXECUTIVE"), as the employee, on January 7, 2005, but shall be effective only
upon the date (the "Effective Date") of the effectiveness of a Registration
Statement on Form S-1 filed by ARC for the initial public offering of ARC's
shares of common stock. ARC and Executive may be referred to collectively in
this Agreement as the "Parties" and individually as a Party.
RECITALS
ARC has agreed to employ Executive and Executive has agreed to accept such
employment, subject to the terms and conditions set forth herein.
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 hereby employs Executive as its Chief Financial Officer
("CFO"), and Executive agrees to serve ARC in such capacity, upon the terms and
conditions set forth herein.
(b) Executive shall report to ARC's Chief Executive Officer ("CEO")
and Chief Operating Officer ("COO"). Executive's primary responsibilities shall
be to (i) keep or cause to be kept the books of account of ARC in a thorough and
proper manner and shall render statements of the financial affairs of ARC in
such form and as often as required by the Board or ARC's CEO. Executive, in his
capacity as CFO, subject to the order of the Board, shall have the
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custody of all funds and securities of ARC, and shall attest to financial
statements, shall be responsible for ARC's compliance with financial reporting
and disclosure laws and rules, and shall perform other duties commonly incident
to the office of CFO, and shall also perform such other duties and have such
other powers as the Board or ARC's CEO shall designate from time to time.
Executive shall have the authority generally incident and necessary to perform
such duties. Executive will be a member of the executive team.
(c) During the term of this Agreement, Executive will devote 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 and of Executive's employment hereunder shall
commence on the Effective Date hereof and continue until the third (3rd)
anniversary of the Effective Date 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 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 $250,000,
paid in 12 equal monthly installments on the last day of each calendar month.
Base Salary for any partial month shall be prorated on the basis of a 365 day
year. Base Salary shall be subject to annual review by ARC's CEO and ARC's Board
of Directors Compensation Committee (the "Compensation Committee"), and may be
adjusted in light of the financial performance of ARC or the personal
performance of Executive, but shall in no event be less than $250,000 per year
during to the term of this Agreement. After any such change, Executive's new
level of Base Salary shall be Executive's Base Salary for purposes of this
Agreement.
(b) INCENTIVE BONUS. During the term of this Agreement, Executive
shall be eligible to receive an annual Incentive Bonus ("Incentive Bonus") in
amount not exceeding $250,000 per year under performance criteria to be
established by ARC's CEO and COO in consultation with Executive. The Incentive
Bonus shall be paid no later than 60 days following the close of each fiscal
year, in cash or ARC common stock, or partly in each, as elected by Executive at
least 20 days before the date such Incentive Bonus is paid. To the extent that
such Incentive Bonus is paid in ARC common stock, such stock shall be valued
using the average of the closing prices of ARC common stock on the New York
Stock Exchange for the 10 trading days immediately preceding the date of
issuance of ARC common stock in payment of the Incentive Bonus, provided,
however, that as a condition to receiving ARC common stock Executive must
deposit with ARC on the date of issuance cash in the amount, if any, by which
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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. To be eligible to receive a bonus, Executive must
have been employed by ARC during the entire fiscal year to which such Incentive
Bonus relates. Subject to the foregoing, and to possible repayment if the
Incentive Bonus is, in fact, not earned, or if Executive's employment terminates
prior to the end of a fiscal year, the parties will make a reasonable estimate
of the probable amount of the Incentive Bonus to be earned for a particular year
on or about August 1 of each such fiscal year, and 40% of the amount of such
estimate shall be paid to Executive on or about August 15 of such fiscal year. A
final reconciliation of the actual amount of Executive's Incentive Bonus against
the amount paid in August of such fiscal year shall be made at the time that the
Incentive Bonus, if any, is due, as above provided, and at that time ARC shall
pay the remaining amount due, or Executive shall refund the excess previously
paid, as the case may be.
(c) ADDITIONAL BONUSES. ARC may from time to time, in its absolute
discretion, establish additional bonus programs for Executive.
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 ("Stock Plans") established from time to time by ARC.
6. GROUP INSURANCE OR BENEFIT PLANS
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.
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
$15,000. Any employer taxes imposed upon ARC by reason of the furnishing of such
Special Benefits shall be included in the annual $15,000 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
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employees. 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 ARC's CEO.
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 ARC's CEO 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.
(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:
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(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 to its shareholders and Board (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
(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").
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(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.
(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
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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.
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 ARC 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 or
ARC's CEO, which remains uncorrected for 30 days following written notice to
Executive by ARC's CEO; or
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(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
(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 ARC's CEO.
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(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 consent; or
(ii) a reduction in the nature of Executive's compensation as
established under this Agreement, other than as expressly permitted in this
Agreement, without Executive's express consent; or
(iii) a change in the officer (other than a change in the
person who occupies such position) to whom Executive reports without Executive's
express consent; or
(iv) a material breach by ARC of any material sections of this
Agreement, other than as set forth in clauses (i) through (iii) of this Section
11(e); or
(v) 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
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subsections (i), (ii), (iii) of this Section 11(e) or in subsection (iv) 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);
(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.
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(h) EXPIRATION. For purposes of this Agreement, the expiration of
this Agreement at the end of its term, including any extensions, does not
constitute a termination.
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, (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,
(iv) continuation of any benefits under Section 6 as required by applicable law,
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.
(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, provided,
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however, that if Section 11(e)(5) is applicable to such termination, such Base
Salary shall continue to be paid for the greater of the remaining term of this
Agreement or twelve (12) months;
(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 for the period during which Base Salary is paid under
Section 12(c)(i) above;
(iii) Continuation of the Special Benefits under Section 7 of
this Agreement, for the period during which Base Salary is paid under Section
12(c)(i) above; 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 continuation of coverage
and premium payments by ARC under ARC's group insurance programs for Executive
and his eligible family members under Section 6 for a period of 12 months after
the termination of employment.
(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
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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).
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,
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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
Section 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.
(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.
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(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.
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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
000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attn.: Chief Executive 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 terminated on and 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.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first hereinabove set forth.
AMERICAN REPROGRAPHICS EXECUTIVE
COMPANY,
a Delaware corporation
By: /s/ Xxxx X. Xxxx
By: /s/ X. Xxxxxxxxxxxx ------------------------
------------------------- Xxxx X. Xxxx
Address: 0000 Xxxxxxxxxxx Xxxx
-------------------------
Xxxxxxxx Xxxxxxx, XX
-------------------------
Title:
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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
Executive Employment Agreement entered into on __________ __, 2004 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
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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.
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
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("Effective Date"); and I will not be paid any of the Severance Benefits until
this Agreement has become effective.
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 EXECUTIVE
COMPANY, a Delaware corporation
By: ________________________
By: ___________________________ Xxxx X. Xxxx
___________________________ Address: ________________________
________________________
Title: ___________________________
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