RELEASE
Exhibit 10.2
This Release (“Agreement”) is made and entered into this 15th day of August, 2005, by and
between Xxxxxx X. Xxxxx, his heirs, executors/administrators, successors, and assigns (collectively
“Xxxxx”) and the Xxxxxx Aluminum & Chemical Corporation, its successors, assigns, officers,
directors, shareholders, members, employees, agents, and counsel (collectively “Kaiser”).
WHEREAS, Xxxxx and Kaiser agree that Xxxxx’x last day of active employment with Kaiser will be
August 15, 2005;
WHEREAS, Kaiser and Xxxxx have reached certain agreements with respect to the terms of his
severance and the continuing availability of Xxxxx’x services after his termination of employment
as more fully set forth in Xxxxx’x 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 Xxxxx’x Non-Exclusive Consulting Agreement executed to be effective as of
August 16, 2005 (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. Xxxxx and Kaiser agree that Xxxxx’x employment with Kaiser will terminate effective August
15, 2005.
2. Pursuant to the terms of the Severance Agreement, Xxxxx 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 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.
3. Kaiser will pay to Xxxxx the amounts contemplated by his Severance Agreement, less all
authorized deductions and required legal withholdings. Xxxxx 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 Xxxxx within three (3) business days
following August 15, 2005.
4. Kaiser will pay Xxxxx all accrued, but unused vacation as of August 15, 2005, meaning
unused vacation for 2005 and vacation accrued in 2005 for 2006.
5. Except as otherwise set forth in the Severance Agreement, Xxxxx’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 August 15, 2005. Pursuant to any applicable
plan documents, Xxxxx’x participation in Xxxxxx’x retirement and/or 401(k) plans terminated
effective August 15, 2005. Xxxxx will be entitled to those amounts in which he is vested, if any,
under the terms of the retirement and/or 401(k) plans.
6. Xxxxx 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 Xxxxx acknowledges and agrees that:
(a) By signing this Agreement, Xxxxx is knowingly and voluntarily waiving his rights
under the Age Discrimination in Employment Act, as amended;
(b) Kaiser has advised Xxxxx to consult with an attorney of his choosing regarding
the terms of this Agreement including the waiver of rights, and Xxxxx has done so;
(c) Kaiser has given Xxxxx twenty-one (21) calendar days to consider this Agreement,
and hereby voluntarily waives the 21-day consideration period;
(d) Xxxxx has the right to revoke this Agreement within seven (7) calendar days
after execution, and hereby voluntarily waives the 7-day revocation period;
(e) Kaiser has advised Xxxxx 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) Xxxxx has read and fully understands the terms of this Agreement.
7. Xxxxx 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.
8. This Agreement, the Severance Agreement, the Consulting Agreement and Xxxxx’x Retention
Agreement entered into in connection with the KERP constitute the entire
| 2 | Xxxxxx X. Xxxxx Release |
agreement and supersedes all prior agreements and understandings, both written and oral,
between the parties relating to Xxxxx’x activities as a Consultant and the termination of
Consultant’s employment with Kaiser, including, but not limited to the effect of such termination
under the KERP and related agreements.
9. This Agreement may not be amended, supplemented or superseded except by a written agreement
signed by both parties.
10. This Agreement shall be interpreted, construed, governed, and enforced under the laws of
the State of Texas.
11. 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 and Severance Agreement, in
counterpart originals or otherwise, as of the dates set forth below.
| XXXXXX X. XXXXX | ||||||
Date: |
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| XXXXXX ALUMINUM & CHEMICAL CORPORATION | ||||||
Date:
|
By | |||||
| Name: Xxxx X. Xxxxxx | ||||||
| Its: Vice President and General Counsel | ||||||
| 3 | Xxxxxx X. Xxxxx Release |
