Item 14(c) Exhibit (i) 10 (i)
TERMINATION AGREEMENT AND RELEASE
This TERMINATION AGREEMENT AND RELEASE ("Agreement") is made
and entered into as of October 7, 1998 between the M.A.
XXXXX COMPANY, a Delaware corporation (the "Company") and
XXXXXXX X. XxXXXXXX ("Executive").
WITNESSETH:
WHEREAS, Executive has advised the Company he wishes to
terminate his employment as a full-time executive of the
Company and retire;
WHEREAS, in connection with the foregoing, the parties
desire to make provision for (a) granting a leave of absence
to the Executive; (b) the payments and benefits that
Executive is entitled to receive prior to and after his
termination of employment and retirement, (c) a covenant by
the Executive not to compete with the Company and (d) a
release of any claims Executive may have against the
Company;
NOW, THEREFORE, in consideration of the promises and
agreements contained herein and other good and valuable
consideration, the sufficiency and receipt of which are
hereby acknowledged, and intending to be legally bound, the
Company and the Executive agree as follows:
1. Executive elects to resign the positions of Chairman of
the Board and Chief Executive Officer June 30effective
October 7, 1998 (the "Resignation Date") and to remain as an
employee of the Company until January 3, 2001 (the
"Retirement Date"), at which time the Executive shall
retire. The Company hereby accepts Executive's resignation
and consents to his retirement on the Retirement Date. The
Company hereby grants the Executive a leave of absence from
October 7, 1998 through January 3, 2001. During the leave
of absence Executive's duties and responsibilities shall be
to assist the Company in defense of any litigation or
proceeding relating to matters in which Executive was
involved prior to October 7, 1998 and to undertake such
other tasks as the parties shall mutually agree
2. On the Resignation Date all of Executive's rights to
payments and benefits from the Company shall terminate
except as specifically provided herein.
A. The Company shall continue payment of Executive's
salary at the annual rate in effect on the Resignation Date
for six months after the Resignation Date and shall make a
severance payment to the Executive in the amount of $590,000
in January, 1999, all subject to the required withholdings.
B. Until the Retirement Date Executive and his
dependents shall continue to have a right to participate in
the Company's medical benefits and dental plans pursuant to
the terms of those plans, as they may be amended from time
to time. The Executive agrees that, in the event he fails
to make his semi-monthly participant contribution to such
plans, the Company may deduct such contribution from the
payments yet to be made pursuant to subsection A. above.
After the Retirement Date Executive and his dependents shall
participate in the Company's salaried retiree health care
plan in accordance with the terms of that plan, as it may be
amended from time to time.
C. In accordance with the respective Stock Option
Agreements entered into between the Company and the
Executive, the options granted to the Executive will
continue to vest under the terms prescribed in such
Agreements until the close of business on November 5, 2000,
and Executive may exercise the options granted to him to
purchase the Company's Common Stock for up to the earlier of
(i) the expiration date of each grant or (ii) three (3) or
five (5) years as prescribed by the respective Stock Option
Agreement.
D. For purposes of the awards of LTIP Units under the
M. A. Xxxxx Company 1988 Long-Term Incentive Plan for the
1996-'97-'98, 1997-`98-'99 and 1998-`99-2000 performance
periods, the Executive shall have the right to payouts at
the same time and same payout percentage as the corporate
executive officers, pro-rated to reflect the Executive's
service in the respective performance periods from the
beginning of the periods to the Resignation Date
E. The restricted stock agreements entered into
between the Company and the Executive will continue to be in
full force and effect and operate in accordance with the
terms thereof and on the Retirement Date any shares which
are still restricted will become vested and free of
restrictions.
F. The Executive's accounts in the Company's
Voluntary Non-Qualified Deferred Compensation Plan and the
Deferral of Stock Options Gain Plan shall be paid out after
the Retirement Date in accordance with the terms of the
Plans and the Executive's elections thereunder.
G. The Executive may continue to participate in the
Company's split-dollar insurance and retirement program, in
accordance with the terms of that program, and may make his
scheduled premium payments in 1999 and 2000, and if he so
participates, the Company will make available to him the
benefits prescribed by such program.
H. The Executive's rights to any additional
contributions to the Company's Capital Accumulation Plan
shall terminate on the Resignation Date and all other rights
under such Plan will continue in accordance with the terms
and provisions of such Plan as such Plan may be amended from
time to time.
I. The Executive shall have the right to convert his
Company-provided life insurance coverage on the Retirement
Date to a whole life policy in the principal amount of
$550,000.
J. After the Resignation Date the Executive shall
continue to participate as a deferred vested participant in
the Salaried Employees Retirement Income Plan according to
the terms of the Plan, as amended as of November 4, 1998,
and as may be amended from time to time in the future, and
upon attaining age 65 shall be eligible for benefits
thereunder as prescribed by the Plan, as amended.
K. The Executive shall cease participation in the
Supplemental Retirement Benefit Plan effective on the
Resignation Date and shall be paid a lump sum SERIP benefit
under the Plan of $1,814,000 on the effective date of this
Agreement, as defined in Section 7 hereof, and a CAP benefit
under the Plan of $2,037,679 in ten annual installments
commencing on January 1, 1999.
L. The Company shall provide third-party financial
counseling services to the Executive in accordance with its
program for executive officers, as that program may be
amended from time to time, through Executive's 1999 tax
year.
3. In consideration of the promises, agreements and the
payments described herein, the parties agree that except as
otherwise specifically provided herein, all of the
agreements, arrangements or understandings between the
Company and the Executive are hereby terminated and canceled
and shall be of no further force or effect whatsoever.
4. Executive acknowledges and confirms that the Agreement
between the Company and the Executive dated August 5, 1996
with respect to intellectual property rights is binding and
in full force and effect and after the Resignation Date will
continue to be binding and in full force and effect.
5. Unless he receives written waiver from the Chief
Executive Officer of the Company, Executive agrees that
prior to January 3, 2001 he shall not, whether directly as
an individual or on his own account, or indirectly as a
partner, joint venturer, employee, agent, sales
representative, consultant, officer, director or stockholder
of any firm or corporation, directly or indirectly engage in
any or all of the following activities within North America:
(a) enter into or engage in any business which
competes with the Company's business, as defined below;
(b) promote or assist, financially or otherwise, any
person, firm, association or corporation engaged in any
business which competes with the Company's business, as
defined below;
(c) solicit customers and/or sources of referral for
the same, business, patronage or orders for, or sell, any
products or services in competition with, or for any
business that competes with the Company's business, as
defined below; or
(d) divert, entice, or take away any customers and/or
sources of referral for the same, business, patronage or
orders of the Company's business, as defined below, or
attempt to do so;
provided, however, that neither beneficial ownership by
Executive of not more than five percent (5%) of the
outstanding equity securities of any publicly traded company
or Executive's investment in Metapoint Partners shall be
deemed to be a violation of this Section 5.
For purposes of this Section 5, the Company's business
is defined as the compounding of plastics and rubber, the
manufacture and sale of color and additive systems and the
distribution of resin and engineered plastic shapes.
6. Executive acknowledges that his obligations under this
Agreement are reasonable in the context of the nature of the
business of the Company and the competitive injuries likely
to be sustained by the Company if Executive violated such
obligations.
Executive acknowledges and agrees that the remedy at
law available to the Company for breach of any of
Executive's obligations under this Agreement would be
inadequate, and agrees and consents that in addition to any
other rights or remedies which the Company may have at law
or in equity, including offsetting any amounts due hereunder
or terminating any additional payments due hereunder,
temporary and permanent injunctive relief may be granted in
any proceeding which may be brought to enforce any provision
contained in this Agreement without the necessity of proof
of actual damage.
7. (a) In consideration of the promises, agreements and
the payments described herein to which Executive would not
otherwise be entitled by virtue of his leave of absence,
termination of employment and retirement, Executive will
execute and deliver to the Company upon the execution of
this Agreementon the Termination Date a release
substantially in the form of Exhibit A hereto (the
"Release"). Failure to deliver the Release as prescribed
shall operate to release the Company from any obligation
hereunder to pay compensation and benefits to which
Executive would not otherwise be entitled by virtue of his
termination of employment.
(b) Executive further agrees and acknowledges that:
(i) He has been advised by the Company to consult with
legal counsel prior to executing the Agreement and the
release provided for in this Section; has had an
opportunity to consult with and has been advised by
legal counsel of his choice, fully understands the
terms of this Agreement, enters into this Agreement
freely and voluntarily and intending to be legally
bound.
(ii) He has received in exchange for this Agreement and
for the release consideration above and beyond that to
which he otherwise would be entitled, including but not
limited to, a portion of the payments described in
Section 2.A. hereof and the payments
described in Section 2.K. hereof.
(iii) He may have available to him a period of
twenty-one (21) days to review and consider the terms
of this Agreement, and the release contained herein,
prior to its execution and that he may use as much of
the twenty-one (21) days period as he desires.
(iv) He may, within seven (7) days after his execution
hereof, which 7-day period may not be shortened, revoke
this Agreement. Revocation shall be made by delivering
a written notice of revocation to Xxxx X. Xxxx, Xx.,
Vice President, General Counsel and Secretary of the
Company. For such revocation to be effective, written
notice must be actually delivered to Xx. Xxxx'x office
by no later than the close of business on the seventh
(7th) day after Executive executes this Agreement. If
Executive exercises his right to revoke this Agreement,
all of the terms and conditions of the Agreement shall
be of no force and effect, including, but not limited
to, the obligation of the Company to make any payments
to Executive pursuant to the Agreement.
(v) This Agreement shall not become effective and
enforceable until after expiration of the seven (7) day
revocation period described above and Executive's
delivery to the Vice President, General Counsel and
Secretary of the Company of a certificate in the form
of Exhibit B hereto (the "Certificate") executed by
Executive after such time, if there has been no
revocation of the Agreement, and upon delivery of the
executed Certificate, the Company shall become
obligated to make the payments to Executive provided
for in this Agreement and this Agreement shall be fully
enforceable and effective.
8. For all purposes of this Agreement, all communications
provided for herein shall be in writing and shall be deemed
to have been duly given when delivered, addressed to the
Company (to the attention of the Vice President, General
Counsel and Secretary) at Suite 36-5000, 000 Xxxxxx Xxxxxx,
Xxxxxxxxx, XX 00000-0000, and to the Executive at his
principal residence, 0 Xxxxxxx Xxxx, Xxxxxx Xxxx, Xxxx
00000, or to such other address as any party may have
furnished to the other in writing and in accordance
herewith. Notices of change of address shall be effective
only upon receipt.
9. The validity, interpretation, construction and
performance of this Agreement (and every other issue arising
hereunder) shall be governed by the laws of the State of
Ohio, without giving effect to the principles of conflict of
laws of such state.
10. Any dispute arising out of or relating to this
Agreement or the breach, termination or validity thereof,
shall be settled by arbitration in accordance with the then-
current Center for Public Resouces Rules for Non-
Administered Arbitration of Business Disputes by a panel of
three (3) arbitrators. Each party shall appoint an
arbitrator and the Center for Public Resouces shall appoint
the third arbitrator. The arbitration shall be governed by
the United States Arbitration Act, U.S.C. 1-16, and
judgment upon the award rendered by the arbitration panel
may be entered by any court having jurisdiction thereof.
The place of arbitration shall be Cleveland, Ohio. The
arbitrators are not empowered to award damages in excess of
compensatory damages and each party hereby waives any right
to recover such damages with respect to any dispute resolved
by arbitration. The parties shall equally share the fees
and costs of the arbitrators.
11. No provision of this Agreement may be modified, waived
or discharged unless such waiver, modification or discharge
is agreed to in writing signed by Executive and the Company.
No waiver by any party hereto at any time of any breach by
any other party hereto or compliance with any condition or
provision of this Agreement to be performed by such other
party shall be deemed a waiver of similar or dissimilar
provisions or conditions at the same or at any prior or
subsequent time. No agreements or representations, oral or
otherwise, expressed or implied with respect to the subject
matter hereof have been made by any of the parties that are
not set forth expressly in this Agreement and every one of
them (if, in fact, there have been any) is hereby terminated
without liability or any other legal effect whatsoever.
12. This Agreement together with its Exhibits shall
constitute the entire agreement among the parties hereto
with respect to the subject matter hereof and shall
supersede all prior verbal or written agreements, covenants,
communications, understandings, commitments, representations
or warranties, whether oral or written, by any party hereto
or any of its representatives pertaining to such subject
matter.
IN WITNESS WHEREOF, the parties have entered into this
Agreement as of the
first date written above.
M. A. XXXXX COMPANY
By:____________________________
Vice President
_______________________________
Xxxxxxx X. XxXxxxxx
EXHIBIT A
TO
TERMINATION AGREEMENT AND RELEASE
DATED AS OF OCTOBER 7, 1998
RELEASE
This RELEASE is made and entered into pursuant to a certain
TERMINATION AGREEMENT AND RELEASE dated as of October 7,
1998 between M. A. XXXXX COMPANY and XXXXXXX X. XxXXXXXX
(the "Agreement").
1. The terms defined in the Agreement shall have the same
meaning herein, unless the context otherwise requires.
2. Executive for himself and his dependents, successors,
assigns, heirs, executors and administrators (and his and
their legal representatives of every kind), hereby releases,
dismisses and forever discharges the Company and its
successors and assigns and its directors, officers, agents
and employees in their capacities as such (collectively, the
"Released Parties") from any and all arbitrations, claims,
demands, damages, suits, actions and/or causes of action of
any kind and every description, whether known or unknown,
which now has or may have had, or may have in the future,
for, upon, or by reason of any cause whatsoever arising out
of fact or events occurring prior to the Termination Date
(except that this release shall not apply to the obligations
of the Company arising under the Agreement, and certain
claims specifically excepted in clause (v) below), against
any of the Released Parties, including, but not limited to:
(i) any and all claims, including claims for
attorneys' fees, causes of action, suits, proceedings,
damages or demands arising out of or relating to any
agreements, arrangements or understandings between the
Executive and the Company (other than certain claims
specifically excepted in clause (v) below);
(ii) any and all claims, including claims for
attorneys' fees, causes of action, suits, proceedings,
damages or demands arising out of or relating to
Executive's employment by and/or service with the
Company, in any capacity, and his termination from the
Company;
(iii) any and all claims, including claims for
attorneys' fees, demands, and causes of action,
including all claims of discrimination, including, but
not limited to, claims of sex, race, age, national
origin, religious and/or handicapped discrimination,
including, specifically, but without limiting the
generality of the foregoing, any claims under the Age
Discrimination in Employment Act, as amended, 29 U.S.C.
621 to 634, Title VII of the Civil Rights Act of 1964,
as amended, and the Americans with Disabilities Act of
1990, as amended;
(iv) any and all claims, demands, causes of
action, including, but not limited to, claims of
wrongful or unjust discharge or breach of any contract
or promise, express or implied; and
(v) any and all claims, demands or causes of
action, including claims for attorneys' fees, under the
Employee Retirement Income Security Act of 1974, as
amended, or relating to any and all employee benefit
plans, programs or arrangements of the Company, other
than claims incurred and properly payable under the
terms of the Company's health benefit plan or under the
terms of any other benefits plan specified in Section 3
of the Agreement.
_________________________
Xxxxxxx X. XxXxxxxx
Dated: 199_
EXHIBIT B
TO
TERMINATION AGREEMENT AND RELEASE
DATED AS OF OCTOBER 7, 1998
I hereby certify that I have not revoked and/or canceled my
obligations pursuant to that certain Termination Agreement
and Release between M. A. Xxxxx Company and Xxxxxxx X.
XxXxxxxx entered into as of October 7, 1998.
__________________________
Xxxxxxx X. XxXxxxxx
Dated: 199_
