**Exhibit 10.15**

 

January 30, 2004

 

Mr. James T. Anderson

 

Re:          Separation Agreement and Release

 

Dear Jim:

 

As you know, for the past two months we have beendiscussing with you the change in leadership at Zomax.  In addition, there was a disagreementbetween you and Zomax as to the amount of your severance pay.  The disagreement has been resolved.  In consideration of this Agreement, both youand Zomax have agreed to the following terms.

 

1.             End of Employment.

 

a.                                       Your employment andofficership with Zomax will terminate effective at the close of businessJanuary 30, 2004 (the “Termination Date”); you will be paid your current salarythrough that date.  To reflect the factthat you are entitled to thirty (30) days notice, you will be paid anadditional thirty (30) days of compensation equal to your current monthlysalary.  This amount will be paid onFebruary 23, 2004.  In consideration forthis additional payment you release and waive any rights, claims and actionsyou may have for bonuses, vacation pay or any other benefits arising out ofthis notice period.

 

b.                                      Your last official dayin the office will be January 30, 2004. You will, however, be able to access your office as you and AnthonyAngelini reasonably agree, but not later than April 30, 2004, to attend to“clean-up issues” or personal matters. During this period you have agreed to assist Anthony Angelini in the CEOtransition, as he may reasonably request, without compensation.

 

c.                                       By signing thisAgreement, you agree and acknowledge that you are not eligible for any otherpayments 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 yoursigning this Agreement and subject to the limitations, obligations, and otherprovisions contained in this Agreement, Zomax agrees to pay you the followingamounts, in addition to your salary through January 30, 2004.

 

a.             Accrued vacation benefits equal to your accrued hours,as if your employment was terminated as of February 29, 2004, multiplied by thehourly rate on your most recent paycheck.

 

b.                                      Severance of $2.0million.

 

c.             You and your family shall be entitled to continued participationin Zomax’s group medical insurance plan, as it exists from time to time, atZomax’s expense for a five-year period following the Termination Date, subjectto termination of participation upon your becoming entitled to comparablebenefits on subsequent employment.  By your signature below, you acknowledge andagree that Zomax may modify or terminate its group medical insurance plan atany time and that you shall have the same right to participate in such planonly as is provided on an equivalent basis to Zomax’s employees.

 

Neitherof the payments described in this Section 2a and Section 2b above will beeligible for 403(b) matching contributions. Both payments will be less applicable withholding and deductions. Thevacation benefits will be paid in a lump sum on February 23, 2004.  The severance pay described in Section 2babove shall be paid within sixty (60) days after the expiration of therescission periods described in Section 8 of this Agreement.

 

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The payments described in this Section 1a and thisSection 2 shall be considered timely if delivered to you by Federal Express atyour home address in Florida and postmarked on the date payment is due.  If the date payment would be due falls on aweekend or holiday, payment shall be considered timely if delivered to you onthe next business day following such weekend or holiday.

 

3.             Chairman of the Board.  You will continue to serve as Chairman ofthe Board until the next annual meeting of shareholders.  You will receive Board fees equal totwenty-five percent (25%) of the current annual retainer paid to allnon-management directors not serving on committees.

 

4.             Other Board Positions.  Effective as of the Termination Date, youwill agree to resign as a director of Microgistix, Inc. and any subsidiary ofZomax.

 

5.             Stock Options.  You will be entitled to exercise yourincentive and nonqualified stock options in whole or in part at any time forone hundred twenty (120) days after the Termination Date.  You agree, however, that you will not buy orsell any Zomax securities during the black out periods, as described in theZomax Insider Trading Policy.  Once youare no longer serving as a director of Zomax you will no longer be bound byZomax’s Insider Trading Policy, but you should consult your personal attorneyshould you decide to make any trades of Zomax securities within six months ofthe last day of your service as a director of Zomax.  Zomax will continue to assist you in reporting any transactionsin Zomax securities under Section 16 for the period in which you remain boundby Section 16 reporting requirements. It will be your responsibility to provide Zomax on a timely basis thenecessary information required to adhere to the Section 16 reportingrequirements.

 

6.             Release of Claims.  Specifically in consideration of theseparation payments described in Section 2, and to which you would nototherwise be entitled, by signing this Agreement you and Zomax, for themselvesand anyone who has or obtains legal rights or claims through them, agree to thefollowing:

 

a.             Subject to the exceptions set forth below in thisSection 6a, you and Zomax (as defined in Section 6e below) hereby do release,agree not to sue, and forever discharge each other of and from any and allmanner of claims, demands, actions, causes of action, administrative claims,liability, damages, claims for punitive or liquidated damages, claims forattorneys’ fees, costs and disbursements, or demands of any kind whatsoever,they have or might have against each other, whether known or unknown, in law orequity, contract or tort, arising out of the termination of youremployment.  The foregoing release doesnot extend to the attorneys’ fees, costs and disbursements which Zomax hasagreed to advance to you in connection with any civil shareholders’ or SEC enforcementaction brought against you arising directly from the SEC’s currentinvestigation of Zomax, you and other parties. Your right to the advance of attorneys’ fees and costs is subject to thecontinuing validity of the Undertaking submitted by you in connection withZomax’s agreement to advance such attorneys’ fees and expenses.  In addition, this release does not precludeyou from seeking from Zomax or through legal action indemnification and/or anadvance of attorney’s fees and costs in any action relating to your time atZomax as an employee or director.  Suchwill also be the case should a criminal action be commenced against you arisingout of the current SEC investigation. Neither does anything in this Section 6 require Zomax without an orderof the court to advance to you attorneys’ fees and costs in any criminal actionbrought against you or adversely affect your right to any applicable insurancecoverage for officers, directors and employees or indemnification underapplicable statutes and the bylaws, policies and Board resolutions of Zomax formatters unrelated to the current SEC investigation.

 

b.             This release includes, without limiting the generalityof the foregoing, any claims you may have for wages, bonuses, commissions,penalties, deferred compensation, vacation pay, separation pay and/or benefits,defamation, invasion of privacy, negligence, breach of contract, estoppel,emotional distress, improper discharge (based on contract, common law, orstatute, including any federal, state or local statute or ordinance prohibitingdiscrimination or retaliation in employment), violation of the United StatesConstitution, the Minnesota Constitution, the Age Discrimination in EmploymentAct, 29 U.S.C. § 621 etseq., the Minnesota Human Rights Act,Minn. Stat. § 363.01 etseq., Title VII of the Civil Rights Act,42 U.S.C. § 2000e etseq., the Americans with Disabilities Act,42 U.S.C. § 12101 etseq., the Employee Retirement IncomeSecurity Act of 1976, 29 U.S.C. § 1001 etseq., the Family andMedical Leave Act, 29 U.S.C. § 2601 etseq., any claim arisingunder Minn. Stat. Chapters 177 and 181, Minn. Stat. § 176.82, and any claim forretaliation or discrimination based on sex, race, color, creed, religion, age,national origin, marital status, sexual orientation, disability, status withregard to public assistance or any other protected class, or sexual or otherharassment.

 

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You hereby waive anyand all relief not provided for in this Agreement.  You understand and agree that, by signing this Agreement, youwaive and release any past, present, or future claim to employment with Zomaxand you agree not to seek employment with Zomax.

 

c.             Subject to the exceptions set forth in Section 6a above,you affirm that you have not caused or permitted, and to the full extentpermitted 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 anyaction or proceeding raising claims arising in tort or contract, or any claimsarising under federal, state, or local laws, including discriminationlaws.  If you file, or have filed onyour behalf, a charge, complaint, or action, you agree that the payment andbenefits described above in Section 2 are in complete satisfaction of any and allclaims in connection with such charge, complaint, or action.

 

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

 

e.             Zomax, as used in this Section 6, shall mean ZomaxIncorporated and its subsidiaries, related and affiliated entities, and as toall matters relating to Zomax, its and their present and former officers,directors, shareholders, trustees, and employees, whether in their individualor official capacities, and the current and former trustees or administratorsof any pension or other benefit plan applicable to the employees or formeremployees of Zomax, in their official and individual capacities.

 

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

 

8.             Notification of Rights under theMinnesota Human Rights Act (Minn. Stat. Chapter 363) and the Federal AgeDiscrimination in Employment Act (29 U.S.C. § 621 et seq.).  You are hereby notified of your right torescind the release of claims contained in Section 6 with regard to claimsarising under the Minnesota Human Rights Act, Minnesota Statutes Chapter 363,within fifteen (15) calendar days of your signing this Agreement, and withregard to your rights arising under the federal Age Discrimination inEmployment Act, 29 U.S.C. § 621 etseq., 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, 5353Nathan Lane, Plymouth, MN 55442

 

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

 

This Agreement will be effective upon the expiration ofthe 15-day period without rescission. You understand that if you rescind this Agreement in accordance withthis Section 8, you will not receive the separation payments described inSection 2 and you will be obligated to return any such payments if alreadyreceived.

 

9.             Post-Employment Restrictions.  You are bound by certain post-employmentrestrictions contained in Sections 9, 12, and 13 of your Employment Agreementdated January 1, 1999 (the “Employment Agreement”).  In further consideration of the severance payment and benefitsdescribed in this Agreement, you agree that you are and you continue to bebound by the post-employment restrictions and obligations contained in Sections9, 12, and 13 of the Employment Agreement.

 

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10.           Return of Property.  By signing this Agreement, you acknowledgeand agree that all documents and materials relating to the business of, or theservices provided by, Zomax are the sole property of Zomax.  By signing this Agreement you further agreeand represent that you have returned to Zomax all of its property, includingbut not limited to, all Company records, emails, and other documents andmaterials, whether on computer disc, hard drive or other form, and all copiesthereof, within your possession or control, which in any manner relate to thebusiness of, or the duties and services you performed on behalf of Zomax,except that you are allowed to retain copies of such materials as you deemnecessary to defend yourself in any legal actions relating to or arising out ofyour employment by Zomax, including without limitation, those materials now inthe possession of you and your legal and financial advisers.  As to the materials in your possession, youwill advise Zomax in writing which materials are in your possession which maybe described by category rather than on an individual basis.  It is expressly agreed, moreover, that youmay copy the contents of any hard drive of the computer(s) you used while theCEO of Zomax.  To the extent that it isappropriate and to the extent that copies of Company records, emails, harddrives and other documents not retained by you are required by you or yourcounsel in connection with the SEC enforcement action or any Department ofJustice, shareholder or other legal and administrative action, you will beprovided with such copies in a timely manner, subject to your agreement, aswith the retained items mentioned above, to keep such records, emails, harddrives or documents confidential. Anthony Angelini will consult with you in connection with all mattersrelated to this Section 10.

 

11.           Confidential and ProprietaryInformation.  By signing thisAgreement, you acknowledge and agree that you have had access in youremployment with Zomax to confidential information of Zomax and furtheracknowledge and agree that the release or disclosure of any confidentialinformation of Zomax will cause Zomax irreparable injury.  By signing this Agreement, you acknowledgethat you have not used or disclosed, and agree that you will not at any timeuse or disclose, to any other entity or person, directly or indirectly, anyconfidential information of Zomax, except as may be required by legal process.  For purposes of this Agreement, the term“confidential information” shall include, but not be limited to, information or compilation of informationthat you have learned or developed during the course of your employment withthe Company that derives independent economic value from not being generallyknown, or readily ascertainable by proper means, by other persons who canobtain 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 andmarketing plans and information.

 

12.           Non-Disparagement andConfidentiality.  The parties herebyagree not to disparage the other or disclose or discuss, directly orindirectly, in any manner whatsoever, any information regarding the contentsand terms of this Agreement or the circumstances of your departure from Zomax,except as required by law and as set forth in the year-end press release whichyou have reviewed.  Notwithstanding theforegoing, you may discuss this confidential information with your legal andfinancial advisors and your spouse, provided they agree to keep the informationconfidential, or as otherwise required by law.

 

13.           Remedies.  If you or Zomax breach any term of thisAgreement, the other party shall be entitled to its available legal andequitable remedies against the breaching party, including but not limited tosuspending and recovering any and all payments made or to be made under thisAgreement.  Both parties further agreethat, if either breaches or threatens to breach Sections 10, and 12 of thisAgreement, the non-breaching party shall be entitled as a matter of right to injunctive relief andreasonable attorneys’ fees, costs, and expenses, in addition to any otherremedies available at law or equity. Moreover, Zomax will be entitled to those same remedies in the event youbreach Sections 9 or 11.  The partiesfurther agree that, if either breaches any restriction contained in Section 12of your Employment Agreement (as incorporated by reference in Section 9 of thisAgreement), then the time period for such restriction(s) shall be extended bythe length of time that you were in breach. If Zomax seeks and/or obtains relieffrom an alleged breach of this Agreement, all of the provisions of thisAgreement shall remain in full force and effect.

 

14.           Successors and Assigns.  This Agreement is personal to you and maynot be assigned by you without the written agreement of Zomax.  Should you die prior to the completion ofall of the terms of this Agreement, any remaining benefits will inure to yourheirs and/or the personal representative of your estate.  The rights and obligations of this Agreementshall inure to the successors and assigns of Zomax.

 

15.           Enforceability.  If a court finds any term of this Agreementto be invalid, unenforceable, or void, the parties agree that the court shallmodify such term to make it enforceable to the maximum extent possible.  If the term

 

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cannot be modified, theparties agree that the term shall be severed and all other terms of thisAgreement shall remain in effect.

 

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

 

17.           Full Agreement.  This Agreement contains the full agreementbetween you and Zomax and may not be modified, altered, or changed in any wayexcept by written agreement signed by both parties.  The parties agree that this Agreement supersedes and terminates anyand all other written and oral agreements and understandings between theparties, except for Sections 9, 12, and 13 of the Employment Agreement, whichshall remain in full force and effect.

 

18.           Acknowledgment of Reading andUnderstanding.  By signing thisAgreement, both parties acknowledge that they have read this Agreement,including the release of claims contained in Section 6, and understand itsterms and conditions.  By signing thisAgreement, the parties also acknowledge and agree that they have entered intothis Agreement knowingly and voluntarily.

 

19.           No Inference or Presumption

 

Nothing in this Agreementpresumes, infers or constitutes an acknowledgement of wrongdoing of any kind.

 

20.           Supercedes Previous Agreement.  It is expressly understood and agreed thatto the extent the terms of Anderson’s Employment Agreement (as cited above)conflict with the terms of this Agreement, the terms of this Agreement shallsupercede and displace the employment agreement and be in all respectscontrolling.

 

Afteryou have reviewed this Agreement and obtained whatever advice and counsel youconsider appropriate regarding it, please evidence your agreement to theprovisions set forth in this Agreement by dating and signing both copies.  Please then return one copy of thisAgreement in the envelope provided.  Youshould keep the other copy for your records.

 

Sincerely,

 
| ZOMAX INCORPORATED      |
|-------------------------|
|                    |
| By /s/ Anthony Angelini |   |
|                    | Anthony Angelini |
|                    | Its President and Chief Operating Officer |
|                         |  |  |

 

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**ACKNOWLEDGMENT AND SIGNATURE**

 

Bysigning below, I, James T. Anderson, acknowledge and agree to the following:

 

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

•                  I have read thisSeparation Agreement and Release carefully.

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

•                  I am knowingly andvoluntarily releasing my claims, as described in Section 6 of the SeparationAgreement and Release, against Zomax.

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

•                  I intend thisSeparation Agreement and Release to be legally binding.

•                  I am signing thisSeparation Agreement and Release on or after my last day of employment withZomax.

 

 

Acceptedthis 30th day of January , 2004.

 

 
| /s/  James T. Anderson |   |
|------------------------|--------|
| James T. Anderson      |   |

 

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