EXHIBIT 10(cc)
SEPARATION AGREEMENT AND RELEASE
THIS SEPARATION AGREEMENT AND RELEASE ("Agreement"), is made
and entered into by and between METATEC International, Inc., an Ohio corporation
and the successor corporation to Metatec Corporation, with its principal place
of business at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ (the "Company"), and
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ("Executive") on
the Effective Date defined herein.
W I T N E S S E T H:
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WHEREAS, pursuant to an Amended and Restated Employment
Agreement dated March 23, 1993 between Executive and Metatec Corporation, as
amended by the First Amendment to Amended and Restated Employment Agreement
dated March 21, 1996 (the "First Amendment") and the Second Amendment to
Restated Employment Agreement dated February 17, 1999 (the "Second Amendment")
("the Employment Agreement"), Executive is employed by the Company as its Chief
Executive Officer and serves as Chairman of the Board of Directors; and
WHEREAS, the Company and Executive desire to provide for the
termination of Executive's employment by the Company upon the terms and
conditions set forth below;
NOW, THEREFORE, in consideration of the mutual promises and
covenants contained herein, Executive and the Company hereby agree as follows:
ARTICLE I -- CONSIDERATION
Section 1.1. Termination of Employment. Executive and the
Company agree that Executive's employment with the Company and all of its
subsidiaries (together, the "Metatec Companies") shall terminate effective
December 7, 2001 ("Date of Termination"). In addition, effective as of the Date
of Termination, Executive will cease to be an officer of the Metatec Companies,
except that Executive will continue to serve as a director of the Company and
hold the non-executive office of Chairman of the Board, until such time as he is
removed or resigns from such positions.
Section 1.2. Separation Pay.
(a) Commencing on the first regular Company payday following the Date
of Termination and continuing on each regular bi-monthly Company payday
thereafter until the payment obligation is completed, the Company will make
twenty-four (24) bi-monthly payments to Executive in the amount of $18,750.00
each, less applicable payroll taxes and withholdings. If the Company should
changes its normal payroll cycle so that payments are no longer made on a
bi-monthly basis, the Company shall thereafter continue to make the payments
provided for in this Section 1.2(a) on a bi-monthly basis, with the payments
being due on the first and fifteenth day of each month.
(b) Within thirty (30) days after the due date of the last payment
owing under Section 1.2(a) above, the Company shall make a lump sum payment to
Executive in the amount of
$450,000.00 (the "Lump Sum Payment"), less applicable payroll taxes and
withholdings. Notwithstanding the foregoing, if the Company is prohibited from
making the Lump Sum Payment by the Company's loan covenants, the Company will
continue to make bi-monthly payments to Executive in the amount of $18,750.00
each, less applicable payroll taxes and withholdings until (i) the total of all
such payments (before deductions for payroll taxes and withholdings) received by
Executive equals $450,000.00 or (ii) the date upon which the Company is
permitted under the Company's loan covenants to pay to Executive in a lump sum
amount (less applicable payroll taxes and withholdings) the remaining unpaid
portion of the Lump Sum Payment (after deducting the aggregate amount (before
deduction for payroll taxes and withholdings) of all bi-monthly payments
previously made pursuant to this Section 1.2(b)). If the Company is prohibited
from making the Lump Sum Payment by the Company's loan covenants, the Company
further agrees to use commercially reasonable efforts to obtain a waiver of said
covenants.
Section 1.3. Group Health and Group Life Insurance. Executive
agrees and understands that his rights under the Consolidated Omnibus Budget
Reconciliation Act, as amended ("COBRA"), part VI of Subtitle B of the
Employment Retirement Income Security Act of 1974 ("ERISA") are effective as of
the Date of Termination and that this Agreement shall constitute all of the
required notice that he is entitled to under COBRA. The Company agrees to pay
Executive's COBRA coverage for a period of eighteen months following the Date of
Termination. Following the conclusion of this eighteen month period, the Company
shall have no continuing obligations as to Executive's COBRA coverage. For a
period of twelve months following the Date of Termination, the Company also
agrees to provide to Executive, or cause to be provided to him, group life
insurance benefits at the same level and to the same extent such benefits were
provided to him immediately prior to the Date of Termination. The Company shall
not be obligated to provide these health and group life insurance coverages to
the extent that the Company is prohibited from doing so by applicable law or by
the applicable Company policy or plan.
Section 1.4. Incentive Bonus Payments. The Company and
Executive agree that Executive's right to any annual Incentive Bonuses described
in Section 2 of the Second Amendment is hereby terminated and that the Company
will not be obligated to make any Incentive Bonus payments to Executive.
Section 1.5. Stock Options. The Company will take all such
action as is necessary or appropriate to amend the terms and conditions of all
stock options granted to Executive under the Company's 1990 Stock Option Plan,
as amended (the "Plan") which are outstanding and vested on the Date of
Termination (the "Stock Options") to provide that the terms of the Stock Options
will not expire 90 days following Executive's termination of employment, but
will continue to be exercisable for the entire term or terms of the Stock
Options (unless the Stock Options terminate earlier in accordance with the Plan
or the relevant stock option agreements for reasons other than termination of
employment).
Section 1.6. D&O Liability Coverage and Indemnification. For a
period of two (2) years following the Date of Termination, the Company will
maintain Directors & Officers Liability Insurance coverage for Executive to
insure Executive against any claims arising out of his employment as an officer
of the Company if and to the extent that the same insurance coverage is
maintained by the Company for its officers and directors during such time
period. Such Directors & Officers Liability Insurance provided to Executive
shall be the same amount of
coverage and containing terms that are no less advantageous to Executive as the
coverage provided by the Company to its directors and officers during such
period. The Company further agrees to defend and indemnify Executive against any
claims arising out of his employment as an officer of the Company, to the
fullest extent provided under the Company's or its subsidiaries' articles of
incorporation or regulations on the Date of Termination.
Section 1.7. Expenses. The Company will reimburse Executive
for all reasonable out-of-pocket expenses incurred by him in his employment as
Chief Executive Officer through the Date of Termination in accordance with the
Company's policies and procedures in effect on such date.
Section 1.8. Attorney's Fees. The Company will pay or
reimburse Executive's reasonable and actual attorney's fees incurred by
Executive in connection with negotiation of this Agreement up to a maximum
amount of $15,000. Such payment shall be made within a reasonable time after
presentment of an invoice for said fees to the Company.
Section 1.9. Adequacy of Consideration. Executive hereby
agrees and acknowledges that the payments and other benefits described in this
Article I of this Agreement constitute adequate consideration for all of
Executive's covenants and obligations set forth herein, including, but not
limited to, the Release of Claims set forth in Article II of this Agreement, as
well as the noncompetition covenant and consulting arrangement describe in
Article III of this Agreement.
ARTICLE II -- MUTUAL RELEASE OF CLAIMS
Section 2.1. Executive's Release. In consideration of the
promises and agreements set forth herein, Executive does hereby for himself and
for his heirs, executors, successors and assigns, release and forever discharge
the Company, its parent company(ies), subsidiaries, divisions, and affiliated
businesses, direct or indirect, if any, together with its and their respective
officers, directors, shareholders, management, representatives, agents,
employees, successors, assigns, and attorneys, both known and unknown, in both
their personal and agency capacities (collectively, "the Company Entities") of
and from any and all claims, demands, damages, actions or causes of action,
suits, claims, charges, complaints, contracts, whether oral or written, express
or implied and promises, at law or in equity, of whatsoever kind or nature,
including but not limited to any alleged violation of any state or federal
anti-discrimination statutes or regulations, including but not limited to Title
VII of The Civil Rights Act of 1964 as amended, the Americans With Disabilities
Act, the Age Discrimination in Employment Act, the Older Workers Benefit
Protection Act, breach of any express or implied contract or promise, wrongful
discharge, violation of public policy, or tort, all demands for attorney's fees,
back pay, holiday pay, vacation pay, bonus, group insurance, any claims for
reinstatement, all employee benefits and claims for money, out of pocket
expenses, and any claims for emotional distress, degradation, or humiliation,
that Executive has or may have, whether known or unknown, suspected or
unsuspected, by reason of any matter or thing, arising out of or in any way
connected with, directly or indirectly, any acts or omissions of any of the
Company Entities or any of their respective directors, officers, shareholders,
employees and/or agents arising out of Executive's employment and separation
from employment or his service as an officer of any of the Company Entities
which have occurred prior to and including the Effective Date of this Agreement,
except those matters specifically set forth herein and claims
based upon conduct as to which release cannot be effected under applicable law
and except for any pension or retirement benefits which may have vested on
Executive's behalf, if any.
Section 2.2 Release by Company Entities. The Company Entities
do hereby release and forever discharge Executive, his heirs, executors,
successors, and assigns, from any and all claims, demands, actions or causes of
action, damages or suits at law or equity, of whatsoever kind or nature, both
known or unknown, that the Company Entities have or may have by reason of any
matter or thing arising out of, or in any way connected with, Executive's
employment and separation of employment from any of the Company Entities, except
that this release does not apply to (i) rights and entitlements of the Company
under this Agreement, (ii) rights of the Company under any pension, retirement,
stock option or other employee benefit plans or programs or agreements under
which Executive is entitled to benefits or (iii) claims based upon conduct as to
which release cannot be effected under applicable law or public policy.
Section 2.3. Older Workers Benefit Protection Act ("OWBPA").
Executive recognizes and understands that, by executing this Agreement, he shall
be releasing the Company Entities from any claims that he now has or may have
under the Age Discrimination in Employment Act of 1967, 29 U.S.C. Sections 621,
et seq., as amended, by reason of any matter or thing arising out of, or in any
way connected with, directly or indirectly, any acts or omissions which have
occurred prior to and including the Effective Date of this Agreement. In other
words, Executive will have none of the legal rights against the aforementioned
that he would otherwise have under the Age Discrimination in Employment Act of
1967, 29 U.S.C. Sections 621, et seq., as amended, by signing this Agreement.
Section 2.4. Consideration Period. The Company hereby notifies
Executive of his right to consult with his chosen legal counsel before signing
this Agreement. The Company shall afford, and Executive acknowledges receiving,
not less than twenty-one (21) calendar days in which to consider this Agreement
to insure that his execution of this Agreement is knowing and voluntary.
Notwithstanding the fact that the Company has afforded Executive twenty-one (21)
days to consider this Agreement, Executive may knowingly and voluntarily elect
to execute this Agreement prior to the end of said twenty-one (21) day period.
By signing this Agreement prior to the end of said twenty-one (21) day
"Consideration Period," Executive represents that his decision to accept
shortening of this time was not induced by fraud, misrepresentation, or any
threat to withdraw or alter the benefits provided by the Company herein, nor by
the Company providing different terms to any similarly-situated employee
executing a like agreement prior to the end of the twenty-one (21) day
"Consideration Period." In signing below, Executive expressly acknowledges that
he has had at least twenty-one (21) days to consider this Agreement and that his
execution of same is with full knowledge of the consequences thereof and is of
his own free will.
Section 2.5. Revocation Period. Both the Company and Executive
agree and recognize that, for a period of seven (7) calendar days following
Executive's execution of this Agreement, Executive may revoke this Agreement by
providing written notice revoking the same, within this seven (7) day period,
delivered by hand or by certified mail, addressed to ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq, ▇▇▇▇▇
& ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, delivered or postmarked
within such seven (7) day period. In the event Executive so revokes this
Agreement, each party will receive only those entitlements and/or benefits that
he/it would have received in the absence of this Agreement.
Section 2.6. Acknowledgments. Executive acknowledges that
Executive has carefully read and fully understands all of the provisions of this
Agreement, that Executive has not relied on any representations of the Company
or any of its representatives, directors, officers, employees and/or agents to
induce Executive to enter into this Agreement, other than as specifically set
forth herein and that Executive is fully competent to enter into this Agreement
and has not been pressured, coerced or otherwise unduly influenced to enter into
this Agreement and that Executive has voluntarily entered into this Agreement of
Executive's own free will.
ARTICLE III -- OTHER OBLIGATIONS OF EXECUTIVE
Section 3.1. Noncompetition; Confidentiality and
Non-Solicitation.
(a) The Company and Executive acknowledge and agree that the
termination of Executive's employment pursuant to Section 1.1 of this Agreement
does not trigger the noncompetition covenant set forth in Section 13 of the
Employment Agreement. Nonetheless, Executive hereby agrees that for a three (3)
year period beginning on the Date of Termination, he will not directly or
indirectly engage or participate in any business which competes directly with
any business carried on by the Company or any of its subsidiaries at the Date of
Termination in any geographic area in which the Company or any of its
subsidiaries is then doing business.
(b) Executive agrees that he will not at any time from and after the
date hereof, divulge, furnish or make accessible to any person, or himself make
use of, any confidential information obtained by him while in the employee of
any of the Metatec Companies including, without limitation, nonpublic
information with respect to any products, improvements, designs, processes,
suppliers, methods of manufacture, finances, financial condition, personnel,
business activities, budgets, plans, objectives or strategies of any of the
Metatec Companies.
(c) Executive agrees that for a period of three (3) years beginning on
the Date of Termination, he will not, directly or indirectly, approach, counsel
or attempt to induce any person who is then in the employ of any of the Metatec
Companies to leave the employ of any of the Metatec Companies, or employ or
attempt to any such person; provided that this Section 3.1(c) will not apply to
any person who is a member of the family of Executive.
Section 3.2. Consulting. Executive agrees to cooperate
reasonably and to make himself reasonably available to answer questions
concerning the Company's business, operations, and/or finances, and to render
such other special assistance as may be reasonably required by the Company, for
a period of two (2) years following the Date of Termination; provided, however,
that Executive's obligations as set forth in this Section 3.2 shall not require
him to perform any services on Company premises, nor shall Executive have a
Company-provided office, staff, computer, voice and e-mail access, or other
Company-provided equipment and/or materials, unless mutually agreed otherwise;
and provided further that the Company shall not require more than eight (8)
hours of services per month from Executive. Executive agrees that he will
provide consulting services pursuant to this Section 3.2 as a non-agent
independent contractor, and that Executive will not be deemed an employee of the
Company for any purpose whatsoever.
Section 3.3. No Disparagement.The Company and Executive each
agree to refrain from making any statements, written or oral, in respect of the
other or any of its or his subsidiaries or affiliates, their respective
directors and officers, or any business or services
engaged in or performed by any of them, which would tend to detract from the
Company's or Executive's commercial, personal or professional reputations,
except that nothing in this Section 3.3 shall prevent the Company from making
any disclosures to professionals retained by the Company or that may be required
by law, regulation or legal process.
ARTICLE IV -- MISCELLANEOUS PROVISIONS
Section 4.1. Entire Agreement. Except as provided in Section
1.5 with respect to Stock Options and the Company's 1990 Stock Option Plan, as
amended, and Section 1.6 with respect to Directors & Officers Liability Coverage
and Indemnification, this Agreement contains the entire agreement between the
parties hereto and replaces and supersedes any prior agreements, contracts
and/or promises, whether written or oral, with respect to the subject matters
included herein, including but not limited to the Employment Agreement which
will terminate and be null and void as of the Effective Date of this Agreement.
This Agreement may be amended only in a writing signed by both parties hereto.
Section 4.2. Warranty/Representation. Executive and the
Company each warrant and represent that, prior to and including the Effective
Date of this Agreement, no claim, demand, cause of action, or obligation which
is subject to this Agreement has been assigned or transferred to any other
person or entity, and no other person or entity has or has had any interest in
any such claims, demands, causes of action or obligations, and that each has the
sole right to execute this Agreement.
Section 4.3. Invalidity. The parties to this Agreement agree
that the invalidity or unenforceability of any one (1) provision or part of this
Agreement shall not render any other provision(s) or part(s) hereof invalid or
unenforceable and that such other provision(s) or part(s) shall remain in full
force and effect. If any of the provisions of Section 3.1 of this Agreement
shall be held to be unenforceable because of the duration of such provision, the
area covered thereby, or the type of conduct restricted therein, the parties
agree that the court or arbitral body making such determination shall have the
power to modify the duration, geographic area and/or other terms of such
provision and, as so modified, said provision shall then be enforceable.
Section 4.4. No Assignment. This Agreement is personal in
nature and shall not be assigned by Executive. All payments provided Executive
herein shall be made to his estate in the event of his death prior to his
receipt thereof.
Section 4.5. Originals. Two (2) copies of this Agreement shall
be executed as "originals" so that both Executive and the Company may possess an
"original" fully executed document. The parties hereto expressly agree and
recognize that each of these fully executed "originals" shall be binding and
enforceable as an original document representing the agreements set forth
herein.
Section 4.6. Governing Law. This Agreement shall be governed
under the laws of the State of Ohio.
Section 4.7. Effective Date. This Agreement shall become
effective only upon the expiration of the seven (7) day period for revocation of
this Agreement by Executive described in Section 2.5 of this Agreement (the
"Effective Date").
Section 4.8. Arbitration. Any controversy or claim arising out
of or relating to this Agreement, or the breach thereof, shall be settled by
arbitration in Columbus, Ohio, in accordance with the rules of the American
Arbitration Association, and judgment upon the award rendered by the
arbitrator(s) may be entered in any court having jurisdiction thereof. Any award
entered in favor of Executive shall include expenses, including reasonable legal
fees, incurred by Executive, and any award entered in favor of the Company shall
include expenses, including reasonable legal fees, incurred by the Company.
Nothing contained in this Section 4.8 shall prevent the Company from filing suit
in a court having jurisdiction over the matter to seek injunctive relief for a
violation or threatened violation by Executive of the provisions of Section 3.1
of this Agreement.
CAUTION TO EXECUTIVE: READ BEFORE SIGNING. THIS DOCUMENT CONTAINS A RELEASE OF
ALL CLAIMS AGAINST THE COMPANY ENTITIES PRIOR TO THE EFFECTIVE DATE OF THIS
AGREEMENT.
IN WITNESS WHEREOF, Executive and the Company agree as set
forth above:
DATE OF RECEIPT BY EXECUTIVE SIGNATURE OF EXECUTIVE
ACKNOWLEDGING DATE OF
RECEIPT:
December 21, 2001 /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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RECEIPT WITNESSED BY:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇
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DATE OF EXECUTION BY EXECUTIVE: AGREED TO AND ACCEPTED BY:
December 21, 2001 /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
EXECUTION WITNESSED BY:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇
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DATE OF EXECUTION BY COMPANY: AGREED TO AND ACCEPTED BY
METATEC INTERNATIONAL,
INC.:
December 21, 2001 BY: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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TITLE: CEO
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EXECUTION WITNESSED BY:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇
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