Exhibit 10.1
TERMINATION AGREEMENT
THIS TERMINATION AGREEMENT (the "Agreement") dated this 1st day of May,
2000 is by and between ANACOMP INC., an Indiana corporation having its principal
offices at 12365 Crosthwaite Circle, Poway, California ("Anacomp") and RALPH W.
KOEHRER, President and Chief Executive Officer of Anacomp ("Koehrer"). Anacomp
and Koehrer together are sometimes referred to herein as the "Parties".
RECITALS
WHEREAS, Anacomp and Koehrer are parties to that certain Employment
Agreement, dated December 7, 1997, and Addenda I, II and III thereto,
(collectively the "Employment Agreement"). All capitalized terms used herein and
not otherwise defined herein shall have the meaning given to such terms in the
Employment Agreement;
WHEREAS, pursuant to the Employment Agreement, Koehrer has served as
President and Chief Executive Officer of Anacomp and is entitled to certain
payments to be made upon the mutual termination of the Employment Agreement;
WHEREAS, Anacomp and Koehrer each has determined that it is in their
mutual best interests to terminate the Employment Agreement, subject to the
terms and conditions contained in this Agreement ("Termination"); and
WHEREAS, pursuant to Section 5.1(a) of the Employment Agreement, Anacomp
and Koehrer have agreed to terminate the Employment Agreement on the terms and
conditions set forth herein, and to enter into this Termination Agreement in
furtherance of such termination.
AGREEMENT
NOW, THEREFORE, pursuant to the provisions contained in the Employment
Agreement and in consideration of the promises contained herein, and other good
and valuable consideration, Anacomp and Koehrer agree as follows:
1. Except to the extent of the provisions thereof referred to herein or
specifically incorporated herein by reference, the Employment Agreement shall
terminate on May 5th, 2000 (the "Effective Date").
2. In addition to any amounts due to Koehrer for services rendered through the
Effective Date, including Base Salary, Fringe Benefits, Incentive Compensation
and accrued vacation, pursuant to Section 5.1 of the Employment Agreement and in
full satisfaction and settlement of all such amounts due, Koehrer shall receive
the following after Termination:
a. Salary. Anacomp will pay Koehrer his normal Salary as set
forth in the Employment Agreement through May 31, 2000.
b. Severance. Anacomp will pay Koehrer a severance allowance of
$1,000,000 payable in a lump sum by wire transfer made by the
Business Day following the execution of this Agreement.
c. Stock Options. Upon the Effective Date of the Termination, all
non-qualified stock options previously granted to Koehrer
pursuant to the Anacomp Inc. Amended and Restated 1996
Long-Term Incentive Plan shall vest immediately and shall be
exercisable through May 31, 2001.
d. Health Benefits. Anacomp will at its expense provide Koehrer
with health benefits as set forth in Section 3.1 of the
Employment Agreement, including all benefits currently
provided, until Koehrer has secured other full-time employment
providing Koehrer comparable health benefits or for
twenty-four full calendar months, whichever is sooner. Nothing
herein shall be deemed to require Koehrer to accept any
employment within said twenty-four month period.
3. The provisions of Section 2.3, 5.1, 5.2 and 5.5 and VI of the Employment
Agreement, and the Confidentiality, Non-Competition and Non-Disclosure Agreement
appended to the Employment Agreement, shall survive and shall continue in full
force and effect upon Termination.
4. No Severance Payments or, except as provided in Section 2.d. of this
Agreement, other benefits made or granted by Anacomp to Koehrer pursuant to
Section 2 of this Agreement shall be diminished or otherwise affected by virtue
of Koehrer's securing employment after the Effective Date.
5. Koehrer hereby fully and forever irrevocably releases, waives and forgives
Anacomp and any other entity to which Koehrer has performed services under the
Employment Agreement and their respective directors, officers, employees,
agents, subsidiaries, stockholders, and affiliates, and successors and assigns
(collectively, "Released Parties"), from any and all rights, interests, liens or
claims of any kind whatsoever, at common law, equity, by statute or otherwise,
whether they may be asserted individually or collectively, directly,
derivatively or indirectly, whether known or unknown, concealed or hidden, and
whether suspected or unsuspected, which Koehrer ever had, currently has or
hereafter may have against the Released Parties with respect to any of such
services performed by Koehrer or with respect to any of the transaction
contemplated by the Employment Agreement and all activities of Koehrer
thereunder, such release to be effective automatically without further action by
any party upon execution of this Agreement.
6. Anacomp hereby fully and forever irrevocably releases, waives and forgives
Koehrer, from any and all rights, interests, liens or claims of any kind
whatsoever, at common law, equity, by statute or otherwise, whether they may be
asserted individually or collectively, directly, derivatively or indirectly,
whether known or unknown, concealed or hidden, and whether suspected or
unsuspected, which Anacomp ever had, currently has or hereafter may have against
Koehrer with respect to any of the transaction contemplated by the Employment
Agreement and all activities of Anacomp thereunder, such release to be effective
automatically without further action by any party upon execution of this
Agreement.
7. Except for obligations of each party described in this Agreement, each party
further irrevocably and absolutely agrees that he or it will not prosecute, nor
allow to be prosecuted on behalf of such party, before any arbitrator, in any
administrative agency (whether federal, state or local) or in any court (whether
federal or state), any claim or demand of any type, related to the transactions
and occurrences between them to date. Each party acknowledges that there is a
risk that subsequent to the execution of this Agreement, one or more parties
will incur or suffer loss, damages or injuries which are in some way caused by
or related to the transactions referred to in this Agreement, but which are
unknown and unanticipated at the time this Agreement is signed. The parties do
hereby assume the above-mentioned risks and understand that this Agreement shall
apply to all unknown or unanticipated results of the transactions and
occurrences described above, as well as those know and anticipated, and upon
advice of legal counsel, the parties do hereby waive any and all rights under
California Civil Code Section 1542. To the fullest extent permissible by law,
each party to this Agreement expressly waives all benefits and rights granted to
such person pursuant to California Civil Code Section 1542, which section has
been fully explained and provides and reads as follows:
"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."
Each of the parties hereby expressly waives and relinquishes all rights and
benefits which it has or may have under Section 1542 of the Civil Code of the
State of California to the full extent that he or it may lawfully waive all such
rights and benefits. The parties hereby acknowledge that they are aware that
they or their attorneys may hereafter discover facts different from or in
addition to those which they or their attorneys now know or believe to be true
with respect to the claims, demands, liabilities, obligations and causes of
action of every kind herein released, and they each agree that this instrument
shall be and remain in effect as a full and complete release notwithstanding any
such different or additional facts. In furtherance of such intention, the
releases herein given shall be and remain in effect as full and complete mutual
general releases notwithstanding the discovery or existence of any such
additional or difference claims or facts.
Each of the parties warrants that it has not sold, transferred or assigned, by
operation of law or otherwise, any of the released matters.
8. The releases contained herein shall not apply to claims arising out of this
Agreement.
9. The advise of legal counsel has been obtained by all parties, and each of
them, prior to signing this Agreement. All parties execute this Agreement
voluntarily, with full knowledge of its significance, and with the express
intention of effecting the legal consequences provided by Civil Code Section
1542, i.e., the extinguishment of all obligations.
10. This Agreement supercedes all prior agreements, including the Employment
Agreement except to the extent certain of its provisions are specifically
referred to herein or incorporated herein by reference, and contains the entire
understanding of the Parties hereto. It may only be modified in writing signed
by the Parties.
11. The validity and construction of this Agreement shall be governed and
construed under the laws of the State of California.
<PAGE>
IN WITNESS WHEREOF, as of the date first above-written, the undersigned
Parties, acting through their duly authorized representatives, have executed
this Termination Agreement in multiple counterparts.
ANACOMP INC.
By: /s/ Richard D. Jackson
Name: Richard D. Jackson
Title: Co-Chairman
RALPH W. KOEHRER
/s/ Ralph W. Koehrer
