RELEASE
Exhibit 10.2
This Release (“Agreement”) is made and entered into to be effective as of the 1st
day of April, 2007, by and between Xxxxxx X. Xxxxxx, his heirs, executors/administrators,
successors, and assigns (collectively “Xxxxxx”) and the Xxxxxx Aluminum Fabricated Products, LLC,
its successors, assigns, officers, directors, shareholders, members, employees, agents, and counsel
(collectively “Kaiser”).
WHEREAS, Xxxxxx and Kaiser agree that Xxxxxx’x last day of active employment with Kaiser will
be April 1, 2007 (the “Termination Date”);
WHEREAS, Kaiser and Xxxxxx reached certain agreements with respect to the terms of his
severance after his termination of employment as more fully set forth in Xxxxxx’x Employment
Agreement dated as of July 6, 2006 (the “Employment Agreement”) and his Change in Control Severance
Agreement (the “Severance Agreement”) entered into in connection with the Kaiser Key Employee
Retention Program (the “KERP”) as well as benefits provided under the KERP, and his Consulting
Agreement executed to be effective as of the Termination Date (the “Consulting Agreement”);
NOW, THEREFORE, in consideration of the mutual promises contained in this Agreement, and other
good and valuable consideration, the parties agree as follows:
1. Xxxxxx and Kaiser agree that Xxxxxx’x employment with Kaiser will terminate effective as of
the Termination Date.
2. Pursuant to the terms of the Severance Agreement, Xxxxxx agrees to release and discharge
forever Kaiser from all causes of action, claims, demands, costs, and expenses for damages which he
now has or may have, whether known or unknown, against Kaiser on account of his employment with
and/or termination from such employment with Kaiser, except for any specific claims that might
arise out of the Severance Agreement, the KERP (including long term incentive payments), his
Employment Agreement and the Consulting Agreement. This release also includes, but is not limited
to, any claim of discrimination or harassment based upon any basis, including race, color, national
origin, religion, sex, age, or disability arising under any federal, state, or local statute,
regulation, ordinance, order, or law, including, without limitation, the Age Discrimination in
Employment Act, as amended; Title VII of the Civil Rights Act of 1964, as amended; the Equal Pay
Act; the Americans with Disabilities Act; the Family and Medical Leave Act; the Fair Labor
Standards Act; the Older Workers Benefit Protection Act; the Employee Retirement Income Security
Act; the National Labor Relations Act, as amended; the Civil Rights Acts of 1866 and 1871 (42
U.S.C. §§ 1981, 1983, 1985, et. seq.), as amended; the Civil Rights Act of 1991; any and
all claims under federal, state, or local law including, without limitation, any claim of the
existence or breach of an oral, implied, or written contract of employment; negligent or
intentional misrepresentations; wrongful discharge; interference with contract; defamation; assault
and battery; negligent or intentional infliction of emotional distress; violation of public policy;
whistle-blowing; promissory and/or equitable estoppel; and any other
federal, state, or local laws regarding rights or claims relating to employment. This release
does not apply to any claims that may arise after the effective date of this Agreement for
indemnity by Xxxxxx, including claims for indemnity under that certain indemnity agreement between
Xxxxxx and Kaiser dated as of July 6, 2006. Similarly, the foregoing shall not apply to claims
Xxxxxx that may arise after the effective date of this Agreement under Xxxxxx’x director and
officer insurance programs.
3. Kaiser will pay to Xxxxxx the amounts contemplated by his Severance Agreement, less all
authorized deductions and required legal withholdings. Xxxxxx agrees that this amount represents
consideration to which he is not otherwise entitled in the absence of execution of this Agreement.
The monies pursuant to this paragraph 3 will be delivered to Xxxxxx within three (3) business days
following the Termination Date.
4. Except as otherwise set forth in the Severance Agreement, Xxxxxx’x participation in or
receipt of any other benefits made available by the Kaiser, including, but not limited to all
insurance programs or plans will terminate effective as of the Termination Date. Pursuant to any
applicable plan documents, Xxxxxx’x participation in Xxxxxx’x retirement and/or 401(k) plans
terminated effective as of the Termination Date. Xxxxxx will be entitled to those amounts in which
he is vested, if any, under the terms of the retirement and/or 401(k) plans.
5. Xxxxxx and Kaiser acknowledge that it is their mutual intent that this Agreement comply
with the Age Discrimination in Employment Act, as amended by the Older Workers Benefit Protection
Act. Accordingly, this Agreement requires, and Xxxxxx acknowledges and agrees that:
(a) By signing this Agreement, Xxxxxx is knowingly and voluntarily waiving his
rights under the Age Discrimination in Employment Act, as amended;
(b) Kaiser has advised Xxxxxx to consult with an attorney of his choosing regarding
the terms of this Agreement including the waiver of rights, and Xxxxxx has done so;
(c) Kaiser has given Xxxxxx twenty-one (21) calendar days to consider this
Agreement, and hereby voluntarily waives the 21-day consideration period;
(d) Xxxxxx has the right to revoke this Agreement within seven (7) calendar days
after execution, and hereby voluntarily waives the 7-day revocation period effective
upon his receipt of the payments contemplated in Section 3;
(e) Kaiser has advised Xxxxxx that none of the terms and provisions of this
Agreement shall become effective or be enforceable until the seven (7) day
revocation period has expired; and
(f) Xxxxxx has read and fully understands the terms of this Agreement.
6. Xxxxxx represents and warrants that he has not filed or instituted any claim, complaint,
charge, or proceeding before any court, administrative agency, or any other tribunal regarding his
employment with Kaiser, the terms and conditions of such employment, the
termination of such employment, or any alleged violation of state, federal, or local law or
regulations by Kaiser.
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7. This Agreement may not be amended, supplemented or superseded except by a written agreement
signed by both parties.
8. This Agreement shall be interpreted, construed, governed, and enforced under the laws of
the State of Texas.
9. If any phrase, clause, term, item or provision of this Agreement is declared invalid or
unenforceable by a court, administrative agency, or arbitrator of competent jurisdiction; such
phrase, clause, term, item or provision shall be deemed severed from this Agreement, as applicable,
but will not affect any other provisions of this Agreement which shall otherwise remain in full
force and effect.
WHEREFORE, the parties hereto have executed this Release in counterpart originals or
otherwise, as of the dates set forth below.
| XXXXXX X. XXXXXX |
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| Date: March 30, 2007 | /s/ Xxxxxx X. Xxxxxx | ||||
| XXXXXX ALUMINUM FABRICATED PRODUCTS, LLC |
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| By | /s/ Xxxxx X. XxXxxxxxx, Xx. | ||||
| Date: March 30, 2007 | Name: | Xxxxx X. XxXxxxxxx, Xx. | |||
| Its: | Vice President -- Human Resources | ||||
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