EXHIBIT 10.2


 


June 14, 2005


 


 


Mr. Robert Rueckl


14813 White Oak
Drive


Burnsville, MN
55337


 


Re:                               Separation
Agreement and Release


 


Dear Rob:


 


We have agreed that your
employment with Zomax Incorporated (“Zomax” or the “Company”) will terminate
effective as of August 12, 2005.  The
purpose of this Separation Agreement and Release letter (“Agreement”) is to set
forth the specific separation pay and benefits that Zomax will provide you in
exchange for your agreement to the terms and conditions of this Agreement.


 


By your signature below,
you agree to the following terms and conditions:


 


1.                                       End
of Employment.


 


a.                                       Your
employment with Zomax will terminate effective at the close of business August
12, 2005 or at such other time as the parties mutually agree.


 


b.                                      Your
last day in the office will be no later than August 12, 2005.  During the remaining period of your
employment, you will be allowed to spend a reasonable amount of time at your
new employer.  The specifics of this
arrangement will be agreed upon by you and I from time
to time, and we both agree to be reasonable in implementing this
arrangement.  In the event that your
replacement is hired before August 12, 2005, your last day may be on the day
the replacement is hired, although you may be required to stay on through
August 12, 2005, to enable you to certify the second quarter 2005 financials on
form 10-Q.  You will be paid through your
last day of employment within thirty (30) days thereafter.


 


c.                                       You
agree to continue to perform your duties in a professional manner and execute
the duties of the CFO during your remaining tenure with the Company.  You understand that if you fail to perform
and execute your duties in a professional manner, this failure may cause the
Company to terminate this agreement in which case the separation payments
described in Section 2.b. would not be paid.


 


d.                                      You
will plan to certify the Company’s form 10-Q for the second quarter of 2005 and
do the necessary diligence to ensure the certification of the financial
statements is in accordance with applicable law and regulations.


 


e.                                       You
agree to assist the company in a reasonable manner after the termination of
your employment regarding inquiries related to Zomax financial reporting
matters during your tenure as CFO of Zomax.


 


f.                                         By
signing this Agreement, you agree and acknowledge that you are not eligible for
any other payments or benefits except for those expressly described in this
Agreement, provided that you sign and do not rescind this Agreement.


 


2.                                       Separation
Payments.  Specifically, in
consideration of your signing this Agreement and subject to the limitations,
obligations, and other provisions contained in this Agreement, Zomax agrees to
pay you the following amounts, in addition to your salary, through termination.


 


a.                                       Accrued
and unpaid vacation allowances which shall be paid in full on the date of
termination.


 


b.                                      Severance
equal to .7 times your base salary in effect on the last day of your
employment.  You will receive a check for
this amount, less all required taxes and charges, within thirty (30) days after
the termination of your employment.


 


c.                                       All
outstanding stock options shall be fully vested on the termination date of your
employment.


 


Neither of the payments
in a. and b. above will be eligible for 403(b) matching as contributions.  Both payments will be less applicable
withholding and deductions.


 





















 


The payments described in
this Section 2 shall be considered timely if placed in the U.S. Mail, postage
prepaid, and postmarked on the date payment is due.  If the date payment would be due falls on a
weekend or holiday, payment shall be considered timely if is placed in the U.S.
Mail, postage prepaid, on the next business day following such weekend or
holiday.


 


3.                                       Release
of Claims.  Specifically in
consideration of the separation payments described in Section 2.b., and to
which you would not otherwise be entitled, by signing this Agreement you, for
yourself and anyone who has or obtains legal rights or claims through you,
agree to the following:


 


a.                                       You
and Zomax hereby do release, agree not to sue, and forever discharge each other
of and from any and all manner of claims, demands, actions, causes of action,
administrative claims, liability, damages, claims for punitive or liquidated
damages, claims for attorney’s fees, costs and disbursements, individual or
class action claims, or demands of any kind whatsoever, they have or might have
against each other, whether known or unknown, in law or equity, contract or
tort, arising out of or in connection with your employment with Zomax, or the
termination of that employment, or otherwise, and however originating or
existing, from the beginning of time through the date of your signing this
Agreement.


 


b.                                      This
release includes, without limiting the generality of the foregoing, any claims
you may have for wages, bonuses, commissions, penalties, deferred compensation,
vacation pay, separation benefits, defamation, invasion of privacy, negligence,
emotional distress, improper discharge (based on contract, common law, or
statute, including any federal, state or local statute or ordinance prohibiting
discrimination or retaliation in employment), violation of the United States
Constitution, the Minnesota Constitution, the Age Discrimination in Employment
Act, 29 U.S.C. § 621 et  seq., the Minnesota Human Rights Act,
Minn. Stat. § 363.01 et  seq., Title VII of the Civil Rights Act,
42 U.S.C. § 2000e et  seq., the Americans with Disabilities Act,
42 U.S.C. § 12101 et  seq., the Employee Retirement Income
Security Act of 1976, 29 U.S.C. § 1001 et  seq., the Family and
Medical Leave Act, 29 U.S.C. § 2601 et  seq., any claim arising
under Minn. Stat. Chapters 177 and 181, Minn. Stat. § 176.82, and any claim for
retaliation or discrimination based on sex, race, color, creed, religion, age,
national origin, marital status, sexual orientation, disability, status with
regard to public assistance or any other protected class, or sexual or other
harassment.  You hereby waive any and all
relief not provided for in this Agreement. 
You understand and agree that, by signing this Agreement, you waive and
release any past, present, or future claim to employment with Zomax and you
agree not to seek employment with Zomax.


 


c.                                       You
affirm that you have not caused or permitted, and to the full extent permitted
by law will not cause or permit to be filed, any charge, complaint, or action
of any nature or type against Zomax, including but not limited to any action or
proceeding raising claims arising in tort or contract, or any claims arising
under federal, state, or local laws, including discrimination laws.  If you file, or have filed on your behalf, a
charge, complaint, or action, you agree that the payments described above in
Section 2 are in complete satisfaction of any and all claims in connection with
such charge, complaint, or action.


 


d.                                      You
are not, by signing this Agreement, releasing or waiving (1) any vested
interest you may have in any 403(b) plan by virtue of your employment with
Zomax, (2) any rights or claims that may arise after the Agreement is signed,
(3) the post-employment payments specifically promised to you under this
Agreement, or (4) the right to institute legal action for the purpose of
enforcing the provisions of this Agreement.


 


4.                                       Notice
of Right to Consult Attorney and Twenty-One (21) Day Consideration Period.  By signing this Agreement, you acknowledge
and agree that Zomax has informed you by this Agreement that (1) you have the
right to consult with an attorney of your choice prior to signing this
Agreement, and (2) you are entitled to twenty-one (21) days from the receipt of
this Agreement to consider whether the terms are acceptable to you.  Zomax encourages you to use the full 21-day
period to consider this Agreement but you have the right, if you choose, to sign this Agreement prior to the expiration of the
twenty-one (21) day period.


 


5.                                       Notification
of Rights under the Minnesota Human Rights Act (Minn. Stat. Chapter 363) and
the Federal Age Discrimination in Employment Act (29 U.S.C. § 621 et seq.).  You are hereby notified of your right to
rescind the release of claims contained in Section 4 with regard to claims
arising under the Minnesota Human Rights Act, Minnesota Statutes Chapter 363,
within fifteen (15) calendar days of your signing this Agreement, and with
regard to your rights arising under the federal Age Discrimination in
Employment Act, 29 U.S.C. § 621 et  seq., within seven (7)
calendar days of your signing this Agreement. 
The two rescission periods shall run concurrently.  In order to be effective, the rescission must


 


a.                                       Be
in writing; and


 


b.                                      Delivered
to Anthony Angelini, Zomax Incorporated, 5353 Nathan Lane, Plymouth, MN 55442.


 


c.                                       If
delivered by mail, the rescission must be postmarked within the required
period, properly addressed to Anthony Angelini, as set forth above, and sent by
certified mail, return receipt requested.


 





















 


This Agreement will be
effective upon the expiration of the 15-day period without rescission.  You understand that if you rescind this
Agreement in accordance with this Section 5, you will not receive the
separation payments described in Section 2 and you will be obligated to return
any such payments if already received.


 


6.                                       Noncompetition.  You agree that, from and after the Effective
Date and continuing until the one-year anniversary of termination or cessation
of your employment with the Company, you will not, alone or in any capacity
with another legal entity:


 


(i)                                     directly
or indirectly, own any interest in, control, be employed by or associated with,
or render services to (including but not limited to services in research), any
person, entity, or subsidiary, subdivision, division, or joint venture of such
entity in connection with the design, development, manufacture, marketing, or
sale of a Competitive Product that is sold or intended for use or sale in any
geographic area in which the Company actively markets a Company Product or
intends to actively market a Company Product of the same general type or
function;


 


(ii)                                  directly or indirectly, solicit any of the Company’s present
or future employees for the purpose of hiring them or inducing them to leave
their employment with the Company;


 


(iii)                               directly
or indirectly, solicit, attempt to solicit, interfere, or attempt to interfere
with the Company’s relationship with its customers or potential customers, on
behalf of himself or any other person or entity engaged in the design,
development, manufacture, marketing, or sale of a Competitive Product; or


 


(iv)                              directly
or indirectly design, develop, manufacture, market, or sell any Competitive
Product that is sold or intended for use or sale in any geographic area in
which the Company actively markets a Company Product or intends to actively
market a Company Product of the same general type or function.


 


By signing this
Agreement, you acknowledge and agree that the restrictions in this Agreement
are reasonable and shall not prevent you from earning a living.


 


7.                                       Return
of Property.  By signing this
Agreement, you acknowledge and agree that all documents and materials relating
to the business of, or the services provided by, Zomax are the sole property of
Zomax.  By signing this Agreement you
further agree and represent that you have returned to Zomax all of its
property, including but not limited to, all Company records and other documents
and materials, whether on computer disc, hard drive or other form, and all
copies thereof, within your possession or control, which in any manner relate
to the business of, or the duties and services you performed on behalf of
Zomax.


 


8.                                       Confidential
and Proprietary Information.  By
signing this Agreement, you acknowledge and agree that you have had access in
your employment with Zomax to confidential information of Zomax and further
acknowledge and agree that the release or disclosure of any confidential
information of Zomax will cause Zomax irreparable injury.  By signing this Agreement, you acknowledge
that you have not used or disclosed, and agree that you will not at any time
use or disclose, to any other entity or person, directly or indirectly, any
confidential information of Zomax.  For
purposes of this Agreement, the term “confidential information” shall include,
but not be limited to, information or compilation of information that you have
learned or developed during the course of your employment with the Company that
derives independent economic value from not being generally known, or readily
ascertainable by proper means, by other persons who can obtain economic value
from its disclosure or use.  It includes
but is not limited to trade secrets, inventions, discoveries, and may relate to
such matters as research and development, manufacturing processes, management
systems and techniques and sales and marketing plans and information.


 


9.                                       Claims
involving the Company.  Employee will
not voluntarily aid, assist, or cooperate with any claimants or plaintiffs or
their attorneys or agents in any claims or lawsuits commenced in the future
against the Company; provided, however, that nothing in this Agreement will be
construed to prevent the Employee from truthfully testifying at an
administrative hearing, a deposition, or in court in response to a lawful
subpoena or as otherwise required by law, in any litigation or proceeding
involving the Company.


 


10.                                 Non-Disparagement.  You promise and agree not to disparage Zomax
or discuss, directly or indirectly, in any manner whatsoever, any information
regarding the contents and terms of this Agreement.  You agree that the only people with whom you
may discuss this confidential information are your legal and financial advisors
and your spouse or as otherwise required by law.


 


11.                                 Post-Employment
Litigation or Arbitration Expenses. 
After termination of employment, you will be available to give testimony
and assistance in connection with any future litigation or arbitration
proceedings arising from activities of Zomax during the period of your
employment.  Such testimony and
assistance will be scheduled at times and locations convenient for you and not
inconsistent with your health and the responsibilities that you then may have
in connection with subsequent employment or other rendering of services.  Zomax shall reimburse you for all reasonable
out-of-pocket travel and other expenses, including legal fees, incurred by you
in connection with your testimony and assistance pursuant to this Section
11.  Such fees and reimbursements shall
be paid promptly after your submission to Zomax of statements in such
reasonable detail as to enable Zomax to make such payment.


 





















 


12.                                 Resignation
as Officer and/or Director of Affiliated Organization.  On the Effective Date of this Agreement, it
is understood that you will no longer represent any affiliated organization of
Zomax as an officer or director.


 


13.                                 Remedies.  If you breach any term of this Agreement,
Zomax shall be entitled to its available legal and equitable remedies,
including but not limited to suspending and recovering any and all payments
made or to be made under this Agreement. 
You further agree that, if you breach or threaten to breach Sections 6,
7, 8, 9 or 10 of this Agreement, Zomax shall be entitled as a matter of right
to injunctive relief and reasonable attorneys’ fees, costs, and expenses, in
addition to any other remedies available at law or equity.  The parties further agree that, if you breach
any restriction contained in this Section 6, then the time period for such
restriction(s) shall be extended by the length of time that you were in
breach.  If Zomax seeks and/or obtains
relief from an alleged breach of this Agreement, all of the provisions of this
Agreement shall remain in full force and effect.


 


14.                                 Successors
and Assigns.  This Agreement is
personal to you and may not be assigned by you without the written agreement of
Zomax.  The rights and obligations of
this Agreement shall inure to the successors and assigns of Zomax.


 


15.                                 Enforceability.  If a court finds any term of this Agreement
to be invalid, unenforceable, or void, the parties agree that the court shall
modify such term to make it enforceable to the maximum extent possible.  If the term cannot be modified, the parties
agree that the term shall be severed and all other terms of this Agreement
shall remain in effect.


 


16.                                 Law
Governing.  This Agreement shall be
governed and construed in accordance with the laws of the State of Minnesota.


 


17.                                 Full
Agreement.  This Agreement contains
the full agreement between you and Zomax and may not be modified, altered, or
changed in any way except by written agreement signed by both parties.  The parties agree that this Agreement
supersedes and terminates any and all other written and oral agreements and
understandings between the parties.


 


18.                                 Acknowledgment
of Reading and Understanding.  By
signing this Agreement, you acknowledge that you have read this Agreement,
including the release of claims contained in Section 3, and understand that the
release of claims is a full and final release of all claims you may have
against Zomax and the other entities and individuals covered by the
release.  By signing, you also
acknowledge and agree that you have entered into this Agreement knowingly and
voluntarily.


 


19.                                 Legal
Fees and Expenses.  Zomax shall pay
for all legal fees and expenses incurred by you in connection with the
negotiation, preparation and interpretation of the proposed employment
agreement between you and Zomax, dated effective as of November 1, 2004, which
was never executed.


 


After you have reviewed
this Agreement and obtained whatever advice and counsel you consider
appropriate regarding it, please evidence your agreement to the provisions set
forth in this Agreement by dating and signing both copies.  Please then return one copy of this Agreement
in the envelope provided.  You should
keep the other copy for your records.


 


	
  Sincerely,

  
	
   

  
	
  ZOMAX INCORPORATED

  
	
   

  
	
   

  
	
  By 

  	
   /s/ Anthony Angelini

  	
   

  
	
   

  	
   Anthony Angelini

  	
   

  
	
   

  	
   Its President and Chief Executive Officer

  	
   

  



 





















 


ACKNOWLEDGMENT AND SIGNATURE


 


                                                By
signing below, I, Robert Rueckl, acknowledge and agree to the following:


 


•                  I
have had adequate time to consider whether to sign this Separation Agreement
and Release.


•                  I
have read this Separation Agreement and Release carefully.


•                  I
understand and agree to all of the terms of the Separation Agreement and
Release.


•                  I
am knowingly and voluntarily releasing my claims against Zomax.


•                  I
have not, in signing this Agreement, relied upon any statements or explanations
made by Zomax except as for those specifically set forth in this Separation
Agreement and Release.


•                  I
intend this Separation Agreement and Release to be legally binding effective as
of the date set forth below in this acknowledgement.


 


 


Accepted
effective as of this 14th day of June, 2005.


 


 


	
   /s/ Robert Rueckl

  	
   

  
	
  Robert Rueckl