Exhibit 10.9
FINAL SEVERANCE AGREEMENT AND RELEASE
THE STATE OF TEXAS
KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF XXXXXX
This Final Severance Agreement and Release is made and entered into
between G. Xxxxxxxxxxx Xxxxxxxx (hereinafter "Colville"), and Consolidated
Graphics, Inc., and each of its subsidiaries and affiliates, their respective
shareholders, successors, affiliated entities and parent corporations, current
and former directors, current and former officers, current and former employees,
consultants, agents and assigns (hereinafter collectively referred to as
"Consolidated"). This Final Severance Agreement and Release is made in light of
the following:
RECITALS:
WHEREAS, Colville has been employed by Consolidated as its Executive
Vice President; and
WHEREAS, Colville has submitted his resignation from employment with
Consolidated and each of its subsidiaries and affiliates effective October 8,
2000; and
WHEREAS, Consolidated is willing to afford Colville certain severance
benefits to which he would not otherwise be entitled if Colville agrees to enter
into this Final Severance Agreement and Release; and
THEREFORE, Colville and Consolidated make the following Final Severance
Agreement and Release:
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AGREEMENT:
1. For good and valuable consideration, the receipt of which is
acknowledged, including, but not limited to, the signing of this Final Severance
Agreement and Release, Colville, on behalf of himself, and any other person
claiming by, through or under him, unconditionally and forever RELEASES, ACQUITS
and DISCHARGES Consolidated Graphics, Inc., and each of its subsidiaries and
affiliates, its shareholders, successors, affiliated entities, current and
former directors, current and former officers, current and former employees,
consultants, agents and assigns (hereinafter referred to as "RELEASED PARTIES")
from any and all claims, whether based on contract, tort or statute or any other
legal or equitable theory of recovery, which Colville now has or may have, of
any kind or character. This Final Severance Agreement and Release includes all
claims arising from, related to, or which were or could have been brought in
connection with:
x. Xxxxxxxx'x employment with Consolidated;
x. Xxxxxxxx'x separation of employment with Consolidated;
c. any alleged discriminatory, retaliatory, tortious
and/or improper actions of RELEASED PARTIES;
d. any insurance coverage Colville had by virtue of his
employment with Consolidated including but not limited
to life insurance; and
e. any and all other acts or omissions related to any
matter arising from or relating to the employment or
termination of employment of Colville with
Consolidated by RELEASED PARTIES occurring on or
before the date of the execution of this Final
Severance Agreement and release.
This Final Severance Agreement and Release includes, but is not limited to, any
claims under:
a. The Age Discrimination in Employment Act of 1967, as
amended, 29 U.S.C.ss.621, et. seq.;
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b. Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C.ss.2000e, et.seq.;
c. 42 U.S.C.ss.1981;
d. The Employee Retirement Income Security Act, as
amended, 29 U.S.C.ss.1001, et. seq.;
e. The Americans With Disabilities Act of 1990,
42 U.S.C.ss.12101, et. seq.;
f. Texas Commission on Human Rights Act, Chapter 21 of
the Texas Labor Code (formerly Tex. Rev. Civ. Stat.
Xxx. Art. 5221k);
g. Chapter 451 of the Texas Labor Code, (formerly Article
8307c of the Texas Revised Civil Statutes Annotated);
h. The Civil Rights Act of 1991, 42 U.S.C.ss.1981a; and
i. Any claims of wrongful termination, retaliatory
discharge, discrimination, retaliation, libel,
slander, intentional and/or negligent infliction of
emotional distress, invasion of privacy, mental
anguish, breach of contract, tortious interference
with a contract, breach of an implied covenant of
good faith and fair dealing, negligent training or
supervision, conspiracy and/or any other alleged
unlawful or wrongful conduct, whether arising under
any federal or state statute, contract, or tort of
any jurisdiction.
2. Xxxxxxxx xxxxx acknowledges and agrees the Release set forth above
is a general release and he further expressly waives and assumes the risk of any
and all claims for damages which may exist as of this date but of which he does
not know or suspect to exist, whether through ignorance, oversight, error,
negligence, or otherwise, and which, if known, would materially affect
Colville's decision to enter into this Final Severance Agreement and Release. He
further agrees he accepts payment of the sums specified herein as a complete
compromise of matters involving disputed issues of law and fact and he assumes
the risk that the facts or law may be otherwise than he believes. It is
understood and agreed by Colville and Consolidated that this severance package
is a compromise of all doubtful and disputed claims, and the payments are not to
be construed as an admission of liability on the part of RELEASED PARTIES, by
whom liability is expressly denied.
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3. As a part of this Final Severance Agreement and Release, Colville
promises to relinquish any and all rights to present or future employment with
RELEASED PARTIES or any other company currently owned or controlled by RELEASED
PARTIES, except as expressly provided herein. Colville further promises not to
seek re-employment with RELEASED PARTIES, nor with any other company currently
owned or controlled by RELEASED PARTIES.
4. In consideration of the promises and covenants made by Colville
herein, Consolidated agrees to continue to pay Colville an amount equal to his
full regular pay through October 7, 2000 and on-half of his regular pay from
October 8, 2000 through December 31, 2000, payable on the same pay days which
Colville would have been paid had he remained employed by Consolidated.
Consolidated also agrees that, on or before September 14, 2000, it will pay
Colville's August expenses as reflected by his expense report previously turned
in. Colville agrees that, as part of the consideration for the payments made to
him under this paragraph, he will perform as follows:
A. Through September 14, 2000, Colville will continue to work
full-time in his position for Consolidated and will perform all
duties and activities necessary to the transition from his
position with Consolidated including but not limited to such
things as continuing to perform the duties which he had been
performing for Consolidated prior to his resignation as necessary
during the transition of his position to his replacement,
completing or turning over projects on which he is currently
working, providing any necessary or requested documentation on
matters which he has been handling to assist in the transition of
duties, attending meetings and engaging in other communication
necessary to the transition of his duties, and assisting in the
training of the person or persons assuming his duties. The parties
agree that Colville's hours during the period through September
14, 2000 will be consistent with his past practice at Consolidated
and he will not be required to travel during that period.
B. After September 14, 2000 and through December 31, 2000, Colville
will make himself reasonably available to provide
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counsel to Consolidated with respect to the affairs of
Consolidated as to which Colville had knowledge, by telephone or,
if convenient to Colville, in person. Colville will provide such
counsel at times reasonably convenient to Colville considering
that Colville will have full-time responsibilities and obligations
to his new employer.
C. After December 31, 2000, for any time requested of Colville by
Consolidated, Consolidated will pay Colville a fee of $100.00
per hour plus expenses, subject to Colville's availability.
X. Xxxxxxxx recognizes the amounts paid to him by virtue of this
Final Severance Agreement and Release constitute compensation and,
accordingly, he understands taxes must be withheld from the checks
he receives. Colville further acknowledges he has received no
opinion or advice from anyone associated with Consolidated, with
respect to any matter contained herein.
5. Colville covenants and agrees that, through December 31, 2001, he
will not directly or indirectly solicit, induce, hire, recruit, take away,
employ, endeavor to employ (on his own behalf or on behalf of any other persons
or entity) or attempt to influence any employee of Consolidated Graphics or the
RELEASED PARTIES to terminate his/her employment with Consolidated Graphics.
6. Colville promises not to xxx or initiate any action or proceeding
against Consolidated or the RELEASED PARTIES relating in any manner whatsoever
to Colville's employment with Consolidated, termination of that employment, or
any matter covered by the releases contained in this Final Severance Agreement
and Release.
7. Colville and Consolidated agree that Colville shall receive all
applicable notices and forms required by the Consolidated Omnibus Budget
Reconciliation Act based on his October 8, 2000 resignation. Colville shall have
the
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right to elect to continue coverage or family health care for himself and
his dependents and Consolidated will make its contribution toward the premiums
for all such coverage in accordance with its normal practice for employees
through December 31, 2000. After December 31, 2000, Colville shall have the
right to continue such coverage at his own expense and discretion until the
expiration of his continuation rights under COBRA.
8. Colville accepts this Agreement in lieu of any other benefits to
which he might otherwise be entitled, unless specified to the contrary herein.
9. Colville has informed himself of the terms, contents, conditions and
effects of this Final Severance Agreement and Release. Colville further
acknowledges; (1) he has been previously informed that he may consider the
original Severance Agreement and Release for up to twenty-one (21) days from
September 6, 2000, the date on which he was presented the original Severance
Agreement and Release, and may accept that offer at any time on or before the
conclusion of the aforementioned 21-day period by executing the original
Severance Agreement and Release and returning same to Xx. Xxx X. Xxxxx at
Consolidated's offices located at 0000 Xxxxxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx
00000; (2) he has been advised to consult with an attorney prior to executing
this Final Severance Agreement and Release; (3) he has received no opinion or
advice from Consolidated or its attorney with respect to the advisability of
accepting or rejecting this settlement offer; (4) he is over the age of eighteen
(18) years, of sound mind and otherwise competent to execute this Final
Severance Agreement and Release; and (5) he is entering into this Final
Severance Agreement and Release knowingly and voluntarily and without any undue
influence or pressures.
10. Colville and Consolidated acknowledge Colville has seven (7)
calendar days following his execution of this Final Severance Agreement and
Release to revoke the Final Severance Agreement and Release and the Final
Severance Agreement and Release shall not become effective or enforceable and no
payments shall be made until the revocation period has expired. Any revocation
by Colville must be in writing and received by Consolidated Graphics, Inc.,
Attn: Xx. Xxx X. Xxxxx at its offices located at 0000 Xxxxxxxxxx, Xxxxx 000,
Xxxxxxx, Xxxxx 00000, on or before the seventh calendar day after the date of
execution of the Final Severance Agreement and Release by Colville. If such
revocation is not received pursuant to the terms and conditions of this
Agreement, the effective date of this Final Severance Agreement and Release
shall remain the date of execution.
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11. Colville acknowledges that by entering into this Final Severance
Agreement and Release, RELEASED PARTIES are not admitting to any unlawful or
tortious conduct or other wrongdoing in connection with Colville's employment
and his termination from employment. Neither this Final Severance Agreement and
Release nor any action or acts taken in connection with this Final Severance
Agreement and Release will constitute an admission of any evidence of unlawful
or tortious conduct or other wrongdoing on the part of RELEASED PARTIES.
RELEASED PARTIES, in fact, deny that they or any of their officers, directors or
employees committed unlawful, tortious or improper acts against Colville at any
time.
12. Colville is bound to this Final Severance Agreement and Release.
Anyone who succeeds to his rights or responsibilities, such as the heirs or the
executors of his estate, is also bound.
13. Colville agrees to maintain in strictest confidence the terms of
this Final Severance Agreement and Release. Colville further agrees, with the
exception of the parties hereto, his wife, and any attorney with whom Colville
may consult concerning this Final Severance Agreement and Release, he will not
reveal or disclose, directly or indirectly, the terms of this Final Severance
Agreement and Release or any communications (written, verbal or otherwise),
concerning the negotiation of this Final Severance Agreement and Release, to any
other company, entity or person, specifically but not limited to any past,
present or potential customers of RELEASED PARTIES, any future employers of
Colville, and any past, present and future employees of RELEASED PARTIES.
Colville further agrees no copy or any portion of the Final Severance Agreement
and Release will be disclosed to any company, person or entity, and he further
specifically agrees never to mention to any company, person or entity any amount
of money whatsoever as having been paid as a consequence of this Final Severance
Agreement and Release. Colville agrees if he fails to comply with matters set
out in this paragraph, his actions will constitute a material breach of the
Final Severance Agreement and Release and will automatically render Colville
liable to
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Consolidated for injunctive relief and for all other damages flowing from breach
thereof and all court costs and legal fees required to enforce such provision.
14. It is understood this Final Severance Agreement and Release will be
executed in duplicate, each of which shall be deemed an original for all
purposes.
15. If any provision of this Final Severance Agreement and Release is
held invalid or unenforceable, the remainder of this Final Severance Agreement
and release shall remain in full force and effect in its other provisions and in
all other circumstances.
16. This Final Severance Agreement and Release shall be construed and
interpreted in accordance with the laws of the State of Texas.
IN WITNESS WHEREOF, the parties execute duplicate originals of this
Final Severance Agreement and Release on this 6 day of September, 2000.
CONSOLIDATED GRAPHICS, INC.
By
/s/G. Xxxxxxxxxxx Xxxxxxxx /s/Xxx X. Xxxxx
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G. Xxxxxxxxxxx Xxxxxxxx Xxx X. Xxxxx
Date: September 6, 2000 Date: September 6, 2000
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