EMPLOYMENT AGREEMENT
BETWEEN
ANACOMP, INC.
("ANACOMP")
with offices located at
00000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, Xxxxxxx 00000
and
XXXXXX X. XXXXXX
----------------
("EMPLOYEE")
Date of Agreement: SEPTEMBER 10,1997
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Effective Date of Agreement: SEPTEMBER 1, 1997
-----------------
Date of Expiration of Agreement: AUGUST 31, 1999
-----------------
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EMPLOYMENT AGREEMENT
This Agreement is entered into between ANACOMP, INC. or any of its
subsidiaries or affiliates (herein referred to as "ANACOMP") and EMPLOYEE.
The full identification of each party, date of Agreement, effective date of
Agreement, and date of expiration of Agreement are all included on the cover
sheet immediately preceding this page which is incorporated herein by this
reference. The following conditions and terms shall apply:
SECTION I
MERGER OF ALL PRIOR AGREEMENTS
1.1 MERGER. This Agreement and the letter agreement dated July 16,
1997 between the parties shall supersede and terminate all prior employment
contracts and agreements between EMPLOYEE and ANACOMP. In the event of any
conflict between this Agreement and such letter agreement, the terms of this
Agreement shall govern.
SECTION II
SCOPE AND TERM OF EMPLOYMENT, COMPENSATION
2.1 SCOPE OF EMPLOYMENT. ANACOMP and EMPLOYEE mutually agree that
Addendum I, attached hereto and incorporated herein by this reference, is
intended to define the scope of employment, base salary, and incentive
compensation.
2.2 EMPLOYMENT TERM. Subject always to termination provisions as
provided elsewhere in this Agreement, the term of this Agreement shall begin on
the Effective Date of Agreement and shall terminate on the Date of Expiration of
Agreement, both as shown on the cover sheet. Unless otherwise terminated as
provided elsewhere herein, this Agreement shall automatically renew after
expiration date on an annual basis unless either party gives the other party
thirty (30) days prior written notice requesting that said Agreement not be
renewed. If this Agreement is not renewed and EMPLOYEE continues working beyond
Termination Date at the request of ANACOMP, said employment shall be on a
month-to-month basis. If, at the expiration of the original two-year term or any
renewal term, ANACOMP declines to renew this Agreement and does not request that
EMPLOYEE continue working, of if ANACOMP terminates the month-to-month
employment basis described in the previous sentence, EMPLOYEE shall be entitled
to all benefits due him under this Agreement and not previously paid, a
severance payment equal to EMPLOYEE's prior twelve months' salary, payable in a
lump sum or biweekly at EMPLOYEE's option, health benefits until other
employment is secured or for twelve months, whichever is sooner, and the
immediate vesting of all of EMPLOYEE's existing already awarded options to
acquire ANACOMP common stock. If, on the other hand, EMPLOYEE elects not to
renew the Agreement, EMPLOYEE shall only be entitled to all benefits due him
under the Agreement through the end of the then term of the Agreement.
2.3 COMPENSATION. Compensation is confidential and is to be discussed
only with the officers of ANACOMP, as required.
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SECTION III
FRINGE BENEFITS
3.1 BENEFITS. In addition to the regular compensation, EMPLOYEE shall
be entitled to the normally available employee fringe benefits including regular
holidays, vacations and health insurance. ANACOMP, however, reserves the right
to change or alter these fringe benefits from time to time with the
understanding that the EMPLOYEE will be treated on an equal basis with other
employees of similar status.
SECTION IV
INSURANCE ON EMPLOYEE
4.1 INSURANCE. EMPLOYEE agrees that ANACOMP may, at its option and
expense, obtain life insurance on the life of the EMPLOYEE and the ownership of
all such policies and the proceeds therefrom shall be the sole property of
ANACOMP. EMPLOYEE agrees to undergo a routine physical examination for insurance
purposes within fifteen (15) days upon the request and at the expense of
ANACOMP.
SECTION V
RELOCATION
5.1 RELOCATION. EMPLOYEE agrees that it is a condition of his
employment that he relocate to Poway, California by September 2, 1997. He
further agrees that such relocation will not trigger a termination of this
Agreement nor a right to receive the Severance Allowance pursuant to Section
6.4.2 hereof. For the purpose of this Agreement, "relocate to Poway" shall mean
that EMPLOYEE normally lives in the vicinity of Poway such that he can attend
ANACOMP's office located in Poway on a regular daily basis.
SECTION VI
TERMINATION
6.1 COMPENSATION AND BENEFITS UPON TERMINATION. This Agreement may be
terminated prior to the expiration of the initial term or any renewal term by
any of the following events:
(a) mutual written agreement expressed in a single document signed by
both ANACOMP and EMPLOYEE;
(b) voluntary written resignation by EMPLOYEE given to ANACOMP ninety
(90) days prior to the date of resignation;
(c) death of EMPLOYEE;
(d) written notice of termination by ANACOMP without cause as defined
in Section 6.2;
(e) written notice of termination by ANACOMP with cause as defined in
Section 6.3; or
(f) the occurrence of any of the events specified in Section 6.4.1,
which EMPLOYEE elects to treat as a termination.
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Upon termination for any of the foregoing reasons, EMPLOYEE shall
continue to render his services and shall be paid his regular compensation and
benefits up to the date of termination. If this Agreement is terminated under
Sections 6.1(b), 6.1(c) or 6.1(e), no Severance Allowance (as defined below)
shall be paid to EMPLOYEE (except, with respect to any termination pursuant to
Section 6.1(e), as otherwise provided in Section 6.3). If this Agreement is
terminated under Sections 6.1(a), 6.1(d) or 6.1(f), then ANACOMP shall pay to
EMPLOYEE a severance allowance equal to the EMPLOYEE's prior twelve months cash
compensation, payable in a lump sum or biweekly at EMPLOYEE's option, health
benefits until other employment is secured or for twelve months, whichever is
sooner, and all of EMPLOYEE's existing already awarded options to acquire
ANACOMP common stock shall immediately vest (collectively, the "Severance
Allowance"). This Severance Allowance is in addition to the regular compensation
and benefits which EMPLOYEE shall receive up to the date of termination. In the
event of such termination, this Agreement shall be deemed terminated for all
purposes except to the extent otherwise herein provided.
6.2 TERMINATION WITHOUT CAUSE. If ANACOMP concludes that EMPLOYEE's
services are no longer required, this Agreement may be terminated without cause
by giving EMPLOYEE written notice thereof. The noninsurability of EMPLOYEE,
either present or future, does not constitute grounds for termination under this
or any other section of the Agreement. If EMPLOYEE is terminated under this
section, ANACOMP shall pay EMPLOYEE the compensation, benefits and Severance
Allowance provided in Section 6.1 above.
6.3 TERMINATION WITH CAUSE.
6.3.1 ANACOMP may immediately terminate this Agreement at any
time with cause upon written notice to the EMPLOYEE specifying the cause and
effective date of termination. As used in this section, "cause" shall mean only
the following:
(i) Inability of EMPLOYEE, as determined by ANACOMP, to
perform EMPLOYEE's assigned duties on a fulltime basis for any continuous period
of one hundred twenty (120) days or a total of one hundred eighty (180) days in
any twelve (12) month period, which period shall commence on the initial date of
this Agreement and every anniversary thereafter.
(ii) The willful and continued failure by EMPLOYEE
substantially to perform his duties and obligations, including the continued
failure to meet business goals, or the willful engagement by EMPLOYEE in
misconduct which is materially injurious to ANACOMP, monetarily or otherwise.
For purposes of this subsection, no act or failure to act on EMPLOYEE's part
shall be considered "willful" unless done or omitted to be done by EMPLOYEE in
bad faith and without reasonable belief that his action or omission was in the
best interests of ANACOMP.
(iii) The failure of EMPLOYEE to relocate permanently to
Poway, California by September 2, 1997.
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6.3.2 Employee agrees that in the event written notice of
termination is given under this Section 6.3, the EMPLOYEE agrees to treat the
contents of said notice as privileged and EMPLOYEE shall have no action against
ANACOMP or any of its officers, agents or employees due to the contents of said
notice unless the contents are intentionally false and malicious. If EMPLOYEE is
terminated under this Section 6.3, he shall receive no Severance Allowance at
the time of such termination. If EMPLOYEE is given notice of termination under
this Section 6.3 and it is later established that no "cause" existed, EMPLOYEE
shall be entitled to all compensation, benefits and allowances due him for the
period following such alleged termination and through the date of such
determination and shall be entitled to the Severance Allowance, plus legal
interest from the date of termination and all reasonable attorneys' fees
incurred by EMPLOYEE in contesting the notice of termination.
6.4 DEMOTION, TRANSFER OR REDUCTION IN COMPENSATION, MERGER, TRANSFER
OF ASSETS, CHANGE IN CONTROL OR BUSINESS DISCONTINUATION.
6.4.1 DEMOTION, TRANSFER, OR REDUCTION IN COMPENSATION. If any
of the following takes place:
(1) EMPLOYEE is demoted, including for these purposes (i) any material
change in the title or duties described in Addendum I hereto, or (ii) any
significant reduction or change by ANACOMP in the functions, duties or
responsibilities of EMPLOYEE under this Agreement,
(2) a transfer of EMPLOYEE to another location, other than Poway or San
Diego, California, or
(3) any reduction in annual base salary (but not including a reduction
in the incentive bonus received by EMPLOYEE resulting from his or ANACOMP's
performance under any of the bonus plans discussed in Addendum II hereof),
EMPLOYEE may, in his sole discretion, elect to treat any such occurrence as a
termination of this Agreement by giving written notice of such election to
ANACOMP, entitling EMPLOYEE to payment of the compensation, benefits and
Severance Allowance provided in Section 6.1 above. In the event ANACOMP disputes
any election made by EMPLOYEE pursuant to this Section 6.4.1, ANACOMP shall
notify EMPLOYEE in writing of such dispute within ten (10) days of receiving
EMPLOYEE's written election and both parties shall proceed to negotiate a
resolution of such dispute in good faith. If ANACOMP does not so notify EMPLOYEE
within the ten (10) day period, ANACOMP shall be deemed to have accepted
EMPLOYEE's election and shall pay all compensation, benefits and Severance
Allowance provided in Section 6.1 above.
6.4.2 MERGER, TRANSFER OF ASSETS, CHANGE IN CONTROL OR
BUSINESS DISCONTINUATION. In the event of any:
(a) merger or consolidation where ANACOMP is not the
consolidated or surviving company and the surviving or resulting company does
not expressly agree to be bound by and have the benefits of the provisions of
this Agreement, or
(b) transfer of all or substantially all of the assets of
ANACOMP and the transferee of ANACOMP's assets does not expressly agree to be
bound by and have the benefits of the provisions of this Agreement, or
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(c) change in control of ANACOMP of a nature that would be
required to be reported in response to Item 6(e) of Schedule 14A of Regulation
14A promulgated under the Securities Exchange Act of 1934 as in effect on the
day thereof (the "Exchange Act"), provided that, without limitation, such a
change in control shall be deemed to have occurred if: (i) any person or persons
acting in concert (as such term is used in Section 13(d) and 14(d)(2) of the
Exchange Act) is or becomes the beneficial holder directly or indirectly of
securities of ANACOMP representing 25% or more of the combined voting power of
ANACOMP's then outstanding securities; (ii) during any period of two (2)
consecutive years, individuals who at the beginning of such period constitute
the Board cease for any reason to constitute a majority thereof, unless the
election or nomination for election by ANACOMP's shareholders of each new
director was approved by a vote of at least 2/3 of the directors who were
directors at the beginning of such period; or (iii) transfer of all or
substantially all of the stock of ANACOMP and the transferee of ANACOMP's stock
does not expressly agree to be bound by and have the benefits of the provisions
of this Agreement, or
(d) discontinuation of the business by ANACOMP,
then, in such event, EMPLOYEE shall remain subject to and have no greater rights
that he would otherwise be entitled to receive under Sections 6.1, 6.2, 6.3 and
6.4.1 hereof.
6.5 RETURN OF COMPANY PROPERTY. EMPLOYEE agrees to return all property
of ANACOMP, including but not limited to, details of equipment, prices,
specifications, programs, customer and prospective customer lists and any other
proprietary data or objects acquired through the EMPLOYEE"s employment with
ANACOMP, within seven (7) days after termination of employment, regardless of
the reason therefor.
6.6 WAIVER OF CLAIMS. All Severance Allowance payments made by ANACOMP
to EMPLOYEE pursuant to Section II hereof or this Section VI shall be in full
and complete payment of any and all claims that EMPLOYEE may have against
ANACOMP regarding his employment or the termination thereof, and EMPLOYEE hereby
expressly waives all rights that he may have to any other payments or to bring
any other claims based upon his employment or the termination thereof. Except
for the qualification with respect to employee benefits described in Section II
above, all Severance Allowance payments due from ANACOMP to EMPLOYEE under this
Agreement are absolute, and shall not be diminished or otherwise affected by
virtue of EMPLOYEE's securing alternative employment. At the time he receives
his Severance Allowance, EMPLOYEE agrees that he will execute a release
agreement in favor of ANACOMP.
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SECTION VII
RESTRICTIVE COVENANT AND NON-COMPETITION
CONFIDENTIAL INFORMATION
7.1 NON-COMPETITION. EMPLOYEE and ANACOMP shall enter into the
"Confidentiality, Non-Competition and Non-Disclosure Agreement" attached hereto
as Addendum III. In the event of any conflict between the terms of this
Agreement and such Non-Disclosure Agreement, this Agreement shall govern. If
EMPLOYEE violates such Non-Disclosure Agreement, ANACOMP shall have the right to
stop all termination payments due under Sections II and/or VI hereof, which have
not yet been fully paid to EMPLOYEE. EMPLOYEE agrees that, upon his relocation
to Poway, California, he will, upon request by ANACOMP, execute a revised
Non-Disclosure Agreement that will comply with the laws of the State of
California.
The provisions of this Section shall not prevent EMPLOYEE from
complying with the terms of this Agreement with ANACOMP nor from owning any
shares of stock of any competitor of ANACOMP so long as such shares are
regularly traded on a recognized security exchange or are listed for trade by
NASDAQ in the Over-the-Counter Market.
SECTION VIII
WARRANTIES AND REPRESENTATIONS
8.1 EMPLOYEE hereby warrants and represents as follows:
(1) That the execution of this Agreement and the discharge of
EMPLOYEE's obligations hereunder will not breach or conflict with any other
contract, agreement or understanding between EMPLOYEE and any other party or
parties.
(2) That EMPLOYEE has ideas, information and know-how relating to the
type of business conducted by ANACOMP and EMPLOYEE's disclosure of such ideas,
information and know-how to ANACOMP will not conflict with or violate the rights
of any third party or parties with respect thereto.
SECTION IX
REMEDIES
9.1 The parties agree that the remedy for breach of this Agreement
shall include actions in equity for injunctive relief as well as money damages.
The remedies given to or reserved by each party hereunder shall be cumulative
and not exclusive of any other remedy available under law.
SECTION X
NO WAIVER
10.1 The failure of EMPLOYER to terminate this Agreement for the breach
of any condition or covenant herein by the EMPLOYEE shall not affect EMPLOYER's
right to terminate for subsequent breaches of the same or other conditions or
covenants. The failure of either party to enforce at any time or for any period
of time any of the provisions of this Agreement shall not be construed as a
waiver of such provisions or of the right of the party thereafter to enforce
each and every such provision.
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ARTICLE XI
BENEFIT
11.1 This Agreement shall bind, benefit, and be enforceable by ANACOMP,
its successors and assigns, and by EMPLOYEE, EMPLOYEE's heirs, executors,
administrators, and legal representatives.
ARTICLE XII
SEVERABILITY
12.1 Should any provision of this Agreement not be enforceable in any
jurisdiction, the remainder of the Agreement shall not be affected thereby.
ARTICLE XIII
SURVIVAL
13.1 The obligations contained in Sections II, VI, and VII shall
survive the termination of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed or caused this
Agreement to be executed as of the day, month and year stated on the cover page
of this Agreement, which Agreement shall be effective only upon approval by
ANACOMP, INC., as evidenced by the authorized signature of an officer of ANACOMP
below.
APPROVED BY:
ANACOMP, INC. EMPLOYEE:
By:
Xxxxx X. Xxxxxxx Xxxxxx X. Xxxxxx
President and Chief Executive Officer
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ADDENDUM I
TO
EMPLOYMENT AGREEMENT DATED SEPTEMBER 10,1997
BETWEEN
ANACOMP, INC. ("ANACOMP")
AND
XXXXXX X. XXXXXX ("EMPLOYEE")
SCOPE OF EMPLOYMENT
ANACOMP will employ the EMPLOYEE in the capacity of Senior Vice
President, General Counsel, and Secretary of ANACOMP, effective upon the
EMPLOYEE'S permanent relocation to Poway. EMPLOYEE will be responsible for
managing ANACOMP's legal staff, handling ANACOMP's legal requirements and will
be the primary conduit for matters relating to ANACOMP's Board of Directors.
EMPLOYEE will report to the Chief Executive Officer in the interim, but that
reporting relationship may change and the EMPLOYEE understands that he may in
the future report to another position within the organization.
LOCATION
EMPLOYEE will be based at ANACOMP's Poway, California facility and will
be required to relocate there permanently on or before September 2, 1997.
BASE SALARY
For all services rendered by EMPLOYEE under this Agreement, EMPLOYEE
shall receive a new Base Salary of $155,350 per year payable bi-weekly. This new
Base Salary will take effect concurrent with the EMPLOYEE'S permanent relocation
to Poway. Base Salary will be reviewed at the beginning of each fiscal year.
INCENTIVE COMPENSATION
BONUSES
In addition to Base Salary, EMPLOYEE shall receive a new annual bonus
opportunity of $83,650, payable monthly, quarterly or after year-end, as more
particularly described in the EMPLOYEE's Compensation Plan attached hereto as
Addendum II. This new annual bonus will take effect on October 1, 1997, assuming
that EMPLOYEE has permanently relocated to Poway by that date. The annual bonus
shall be established at the beginning of each fiscal year.
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STOCK OPTIONS
ANACOMP will award the EMPLOYEE with additional non-qualified stock
options to purchase 15,000 shares of ANACOMP Common Stock at fair market value.
The EMPLOYEE will be eligible to receive these options upon the EMPLOYEE'S
permanent relocation to Poway, and his execution of Addendum III of this
Agreement, subject to approval by Anacomp's Board of Directors. After they are
awarded, these options will vest in one-third increments over three years from
the date of grant.
ANACOMP, INC. EMPLOYEE
By:
Xxxxx X. Xxxxxxx Xxxxxx X. Xxxxxx
President and Chief Executive
Officer
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ADDENDUM II
TO
EMPLOYMENT AGREEMENT DATED SEPTEMBER 10, 1997
BETWEEN
ANACOMP, INC. ("ANACOMP")
AND
XXXXXX X. XXXXXX ("EMPLOYEE")
FY97 COMP PLAN EXECUTIVE SUMMARY
FOR SENIOR MANAGEMENT REFERENCE ONLY / NOT FOR DISTRIBUTION
PLAN: MGT 1
NAME: Senior Managers & Equivalents
DATE: Final / 10-07-96
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SALARY: -Represents 65% of total comp base
-Paid bi-weekly
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AREA -Represents 14% of total comp base (40% of total bonus base)
PROFIT -Paid on area of responsibility profit goal
BONUS: -Paid on divisional EBIT for channel presidents
-Paid on Anacomp, Inc. adjusted net income for corporate
personnel
-Paid monthly based on the following formula:
-Nothing paid for performance less than 70% of goal
-For performance greater than=70% and less than=150% of goal,
payment percentage is calculated as follows:
Payment % = 40 + ((Perf. % - 70) * 2)
-Performance vs. payment examples:
PERFORMANCE PAYMENT PERFORMANCE PAYMENT
----------------------- -----------------------
less than 70% 0% 105% 110%
70% 40% 110% 120%
80% 60% 120% 140%
90% 80% 130% 160%
100% 100% 140% 180%
150% 200%
-Maximum payment percentage is 200% of bonus amount
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STRATEGIC -Represents 10.5% of total comp base (30% of total bonus base)
FOCUS -Paid on area of responsibility revenue goal for defined
BONUS: strategic products and services
-Paid on divisional strategic revenue goal for channel
presidents
-Paid on Anacomp, Inc. strategic revenue goal for
corporate personnel
-Paid quarterly based on the following formula:
-Nothing paid for performance less than 70% of goal
-For performance greater than=70% and less than=150% of goal,
payment percentage is calculated as follows:
Payment % = 40 + ((Perf. % - 70) * 2)
-Performance vs. payment examples:
PERFORMANCE PAYMENT PERFORMANCE PAYMENT
----------------------- ---------------------
less than70% 0% 105% 110%
70% 40% 110% 120%
80% 60% 120% 140%
90% 80% 130% 160%
100% 100% 140% 180%
150% 200%
-Maximum payment percentage is 200% of bonus amount
-No payment percentage above 100% will be paid unless at least
90% of the area profit goal described above is achieved
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ASSET -Represents 5.25% of total comp base (15% of total bonus base)
MGT -Paid on Anacomp, Inc. asset management targets
BONUS: -Paid quarterly based on the following formula:
-Nothing paid for performance less than 95% of goal
-For performance greater than=95% and less than=100% of goal,
payment percentage is calculated as follows: Payment
% = 50 + ((Perf. % - 50) * 10)
-Performance vs. payment examples:
PERFORMANCE PAYMENT PERFORMANCE PAYMENT
----------------------- -------------------------
less than 95% 0% 100% 100%
95% 50% greater than100% 100%
-Maximum payment percentage is 100% of bonus amount
------------------------------------------------------------------------------
CORP. -Represents 5.25% of total comp base (15% of total bonus base)
EBITDA -Paid on Anacomp, Inc. EBITDA
BONUS: -Paid after year-end based on the following formula:
-Nothing paid for performance less than 95% of goal
-For performance greater than=95% and less than=110% of goal,
payment percentage is calculated as follows: Payment
% = 50 + ((Perf. % - 95) * 10)
-Performance vs. payment examples:
PERFORMANCE PAYMENT PERFORMANCE PAYMENT
--------------------- ---------------------
less than 95% 0% 100% 100%
95% 50% 110% 200%
-Maximum payment percentage is 200% of bonus amount
------------------------------------------------------------------------------
NOTES:
1. Salaries will be frozen and 65%/35% split of base vs. bonus (it's currently
70%/30%) will be achieved through the awarding of additional bonus.
2. President's Club qualification will be on an invitation basis.
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ADDENDUM III
TO
EMPLOYMENT AGREEMENT DATED ______
BETWEEN
ANACOMP, INC. ("ANACOMP")
AND
XXXXXX X. XXXXXX ("EMPLOYEE")
In consideration of the employment or continued employment of EMPLOYEE by
Anacomp, Inc. and its successors, assigns, subsidiaries, or duly authorized
representatives (hereinafter collectively referred to as "Anacomp") and of the
award of an option for the purchase of 15,000 shares of Anacomp, Inc. Common
Stock (contingent upon Employee's relocation to Poway and approval by the
Compensation Committee of the Board of Directors), par value $.01 per share, at
a price of $_____ (price as set on the date of award), EMPLOYEE hereby agrees as
follows:
1. CONFIDENTIALITY AND TRADE SECRETS. The EMPLOYEE recognizes and
acknowledges that during the course of his/her employment, he/she will have
access to and become acquainted with confidential, trade secret and
proprietary information about Anacomp's businesses and customers (hereinafter
collectively referred to as the "Protected Information"). The parties hereto
recognize that the Protected Information available to EMPLOYEE may pertain
both to customers and accounts handled by EMPLOYEE personally as well as
accounts with which EMPLOYEE is not personally involved. The parties agree
that all Protected Information constitutes a trade secret of Anacomp.
Protected Information may include, but is not limited to, the names,
addresses, and requirements of any customer or prospective customer of
Anacomp; the terms (including price terms) of contractual relations with such
customers; special requirements of such customers; the identities of
individual contacts at such customers; and any other information relating to
Anacomp's research, operations, business relationships, engineering data or
results, specifications, concepts, methods, processes, rates or schedules,
vendor information, products or services (including prices, costs, sales or
content), financial information or measures, business methods, future
business plans, data bases, computer programs, designs, models, operating
procedures, and knowledge of the organization. The EMPLOYEE recognizes and
acknowledges that all of the Protected Information is valuable, special and
essential to the successful and effective conduct of Anacomp's business.
Therefore, the EMPLOYEE shall not, during his/her employment with Anacomp or
at any time thereafter, regardless of the reasons for leaving that
employment, use, disclose or communicate, directly or indirectly, any
Protected Information to any third party for any reason or purpose
whatsoever, except as required in the course of his/her employment with
Anacomp. Further, upon the termination of his/her employment with Anacomp,
for any reason whatsoever, EMPLOYEE shall promptly return any and all copies
of any written material, documents, computer hardware and software, tools and
equipment belonging to Anacomp or relating to the business of Anacomp in
his/her possession.
2. NON-COMPETITION.
2.1 NON-COMPETITION WHILE AN EMPLOYEE OR CONSULTANT. While an employee of
Anacomp, or as a consultant to Anacomp after his termination of employment,
EMPLOYEE agrees not to compete in any manner, either directly or indirectly as
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an employee, consultant, investor or owner, whether for compensation or
otherwise, with Anacomp, or to assist any other person or entity to compete
with Anacomp. Further, while an employee of Anacomp, EMPLOYEE agrees not to
engage in any other employment without the prior written permission of
Anacomp.
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3. NON-SOLICITATION.
3.1 NON-SOLICITATION OF EMPLOYEES. During the term of his/her employment
at Anacomp and for two (2) years following the termination for any reason of
such employment, EMPLOYEE agrees, either on his/her own behalf or on behalf
of any other person or entity, directly or indirectly, not to hire, solicit,
or encourage to leave the employ of Anacomp any person who is then an
employee of Anacomp. The foregoing restrictions shall apply to employees
located in all geographical areas where EMPLOYEE performed services for
Anacomp during the two-year period prior to his/her termination, including
areas for which EMPLOYEE had supervisory authority.
3.2 NON-SOLICITATION OF CUSTOMERS. Because of EMPLOYEE's access to
Protected Information of Anacomp, EMPLOYEE agrees that, during the term of
his/her employment at Anacomp and for two (2) years following the termination
for any reason of such employment, he/she will not, directly or indirectly,
in connection with the products and services offered by Anacomp and those
products and services which are competitive with the products and services of
Anacomp: (a) solicit, attempt to obtain, or in any way transact business with
any customers which were customers of Anacomp during his/her employment or at
the time of his/her termination; (b) aid or assist any other party in the
solicitation of any such customers; or (c) interfere with Anacomp's
relationships with any of its customers by soliciting such customers or
inducing them to discontinue their relationships with Anacomp. Products and
services which are competitive with the products and services of Anacomp
include but are not limited to: MICROGRAPHICS PRODUCTS (computer output to
microfilm-COM-equipment and software, cameras and film, processors,
duplicators, retrieval and display equipment and software, computer aided
retrieval-CAR-systems, readers, reader printers, other micrographics
equipment, micrographics equipment maintenance, micrographics consumable
supplies and accessories, records management software); OUTPUT SERVICES
(computer output to microfilm-COM, source document microfilming, output of
data to compact disk, laser printing, conversion of paper and film to
electronic images, micrographic or electronic imaging system design,
consulting and education, system implementation and integration); ELECTRONIC
IMAGE MANAGEMENT PRODUCTS (hardware, software, magnetics products including
tapes, tape drives and optical media supplies, maintenance of electronic
imaging equipment); ELECTRONIC IMAGE MANAGEMENT SERVICES (conversion of
computer generated data to optical or laser disk, COLD, electronic document
imaging and workflow, conversion of paper documents to electronic images,
system design consulting and education, system implementation and
integration, conversion of microfilm to electronic images); and ARCHIVAL
SERVICES (storage, management and retrieval of all forms of customer
information and business records, including but not limited to paper,
microfiche, magnetic media and digital storage media). The foregoing
restrictions shall apply to all geographical areas where EMPLOYEE performed
services for Anacomp during the two-year period prior to his/her termination,
including areas for which EMPLOYEE had supervisory authority.
4. REMEDIES. EMPLOYEE acknowledges that compliance with Sections 1, 2 and 3 of
this Agreement is necessary to protect the business and good will of Anacomp and
that a breach of those sections will irreparably and continually damage Anacomp
for which money damages may not be adequate. Therefore, EMPLOYEE agrees that, in
the event he/she breaches or threatens to breach any of these Sections, Anacomp
shall be entitled to both a preliminary or permanent injunction in order to
prevent the continuation of such harm and money damages insofar as they can be
determined. Nothing in this Agreement, however, shall be construed to prohibit
Anacomp from also pursuing any other remedy, the parties having agreed that all
remedies shall be cumulative.
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5. INVENTIONS. EMPLOYEE agrees that all inventions, improvements,
discoveries, systems, techniques, ideas, processes, programs, and other
things of value made or conceived in whole or in part by EMPLOYEE while an
employee of Anacomp shall be and remain the sole and exclusive property of
Anacomp, and he/she will disclose all such things of value to Anacomp and
will cooperate with Anacomp to insure that the ownership by Anacomp of such
things of value is protected. Nothing in this Section is meant to apply to an
invention for which no equipment, supplies, facility or trade secret
information of Anacomp was used, which was developed entirely on EMPLOYEE's
own time, and which does not relate to Anacomp's business, research,
development or from any work performed by EMPLOYEE for Anacomp.
6. EMPLOYMENT. This Agreement does not confer upon EMPLOYEE any rights to
continue in the employ of Anacomp or affect in any way Anacomp's right to
terminate his/her employment at any time.
7. SEVERABILITY. If any provision or clause of this Agreement, or portion
thereof, shall be held by any court or other tribunal of competent
jurisdiction to be illegal, void or unenforceable in such jurisdiction, the
remainder of such provisions shall not thereby be affected and shall be given
full effect, without regard to the invalid portion. It is the intention of
the parties that, if any court construes any provision or clause of this
Agreement, or any portion thereof, to be illegal, void or unenforceable
because of the duration of such provision or the area or matter covered
thereby, such court shall reduce the duration, area or matter of such
provision and, in its reduced form, such provision shall then be enforceable
and shall be enforced.
8. BINDING EFFECT. The rights and obligations of this Agreement shall inure
to and be binding upon the parties and their respective heirs, successors and
assigns.
9. ATTORNEYS' FEES. In the event of any dispute, proceeding or litigation
concerning any controversy, claim or dispute between the parties hereto,
arising out of or relating to this Agreement or the interpretation or breach
thereof, each party shall pay its own expenses, attorneys' fees, expert fees,
and costs incurred therein or in the enforcement or collection of any
judgment or award rendered therein.
10. NO WAIVER. Anacomp's failure to enforce any provision of this Agreement
shall not in any way be construed as a waiver of any such provision, or
prevent Anacomp thereafter from enforcing each and every provision of this
Agreement.
11. ENTIRE AGREEMENT. This Agreement represents the entire agreement between
EMPLOYEE and Anacomp, with respect to the subject matter hereof, superseding
all previous oral and written communications, representations, understandings
or agreements.
12. EMPLOYEE'S UNDERSTANDING. EMPLOYEE represents and warrants that he/she has
read each and every term of this Agreement and understands the serious duties
and obligations imposed upon EMPLOYEE thereby. EMPLOYEE further represents and
warrants that he/she has had full and ample opportunity to question Anacomp
about this Agreement and each of its terms and to consult an attorney regarding
this Agreement and each of its terms. EMPLOYEE represents that he/she is free to
enter this Agreement and to perform each
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of its terms and covenants. EMPLOYEE represents that he/she is not restricted
or prohibited, contractually or otherwise, from entering into and performing
this Agreement, and that his or her execution and performance of this
Agreement is not a violation or breach of any other agreement between
EMPLOYEE and any other person or entity.
DATED: , 19
-----------------------
ANACOMP, INC.
By:
Xxxx X. Xxxxxxxx EMPLOYEE (signature)
Its: Vice President
EMPLOYEE (printed)
Current position
Current location
Social Security Number
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