Exhibit 10.26
PART-TIME EMPLOYMENT, RETIREMENT
AND CONSULTING SERVICES
AGREEMENT
This Part-Time Employment, Retirement and Consulting Services Agreement
("Agreement") between Xxxxx X. Xxxxxxx ("Xxxxxxx"), on the one hand, and Ball
Corporation ("Ball"), on the other hand, is made with respect to the following
facts.
X. Xxxxxxx is employed by Ball as Senior Vice President and Chief
Administrative Officer, and has provided written notification to
Ball of his intent to be employed on a part-time basis beginning
February 1, 1997, and ending July 31, 1997, and to retire
effective at the close of business on July 31, 1997.
X. Xxxxxxx and Ball have agreed to enter into this Agreement for the
purpose of facilitating Xxxxxxx'x part-time employment and
subsequent retirement.
Based on the foregoing facts, and in exchange for the covenants
contained herein, and other good and valuable consideration, the receipt of
which is hereby acknowledged by Xxxxxxx, the parties hereto agree as follows:
1. Effective February 1, 1997, Xxxxxxx shall be employed on a part-time
basis, approximately eighty (80) hours per month, as Consultant to the
Chairman, President and Chief Executive Officer, and not as a corporate
officer.
2. During the period February 1, 1997, and ending July 31, 1997 ("Part-Time
Period"), Xxxxxxx will be employed to provide services in the area of
executive compensation and to advise Ball management in areas related to
his prior responsibilities as Senior Vice President and Chief
Administrative Officer. During the Part-Time Period, Xxxxxxx'x services
will be provided on a schedule and in locations to be mutually agreed
between Xxxxxxx and Xxxxxx X. Xxxxxx, Chairman, President and Chief
Executive Officer. Xxxxxxx'x compensation for the Part-Time Period shall
be Fourteen Thousand Three Hundred and Forty Dollars ($14,340.00) per
month, to be paid on a biweekly basis. Xxxxxxx will not participate in
Xxxx'x XXX IC Plan on or after the commencement of the Part-Time Period.
3. During the Part-Time Period, Xxxxxxx will be an employee but not a
corporate officer of Ball. However, Xxxxxxx will be considered to have
retired as a corporate officer for all intents and purposes effective at
the close of business on July 31, 1997, as outlined in the following.
4. Until December 31, 1997, Xxxxxxx shall be provided an appropriate office
in Ball's headquarters building in Muncie, Indiana, and shall be entitled
to such garage parking and automobile maintenance services as are
provided to corporate officers. Xxxxxxx will also continue to have the
use of the personal computer he is presently using as well as the
facsimile machine in his home until December 31, 1997.
5. Effective at the close of business on July 31, 1997, Xxxxxxx'x employment
shall terminate and he shall retire from employment with Ball.
6. During the period beginning August 1, 1997, and ending December 31, 1997
("Consulting Period"), Xxxxxxx will provide consulting services to Ball,
its subsidiaries and joint venture companies. During the Consulting
Period, Xxxxxxx agrees to provide as an independent contractor and not as
an employee of Ball, consulting services not to exceed eighty (80) hours
per month. Xxxxxxx'x consulting services will be provided upon
reasonable notice provided by Xxxxxx X. Xxxxxx, Chairman, President and
Chief Executive Officer. Xxxxxxx will be paid Fourteen Thousand Three
Hundred and Forty Dollars ($14,340.00) per month during this period
beginning August 1, 1997, and on the first day of each month thereafter
until the last payment is made on December 1, 1997.
Upon approval by Xxxxxx X. Xxxxxx or his designee, Ball will pay or
reimburse Xxxxxxx for his reasonable out-of-pocket expenses such as
meals, lodging or transportation, incurred in the performance of his
services. Xxxxxxx must obtain the written approval of Xxxxxx X. Xxxxxx or
his designee before incurring such expenses. Single items of expense
(such as airline tickets, hotel bills and restaurant expenses) of $25 or
more, including taxi fares, must be supported by appropriate receipts.
Ball may withhold reimbursement for any expenses not supported in
accordance with the requirements of this paragraph.
7. Ball further agrees that Xxxxxxx and his eligible dependents will
continue to be covered, as if he were continuing as a regular full-time
employee, under Ball's active Medical and Dental Plan for Salaried
Employees for the period January 1, 1997 through July 31, 1997, after
which time Xxxxxxx and his eligible dependents will be eligible for
Ball's Retiree Medical Program or COBRA coverage, as elected by Xxxxxxx
or his eligible dependents. If either Ball's Retiree Medical Program or
COBRA is elected, such coverage shall be provided to Xxxxxxx without
premium contribution from August 1, 1997 through December 31, 1997.
Thereafter, Xxxxxxx shall make required contributions to continue
coverage.
8. Xxxxxxx shall continue to be covered under Ball's Long Term Disability
plans (including the Supplemental LTD Plan) during the Part-Time Period
and any benefits payable will be based on the compensation in effect on
January 1, 1997.
9. Ball also agrees that Xxxxxxx will continue to be covered under Ball's
Directors and Officers insurance coverage through December 31, 1997, as
if he were continuing as an officer of Ball for that period.
10. Change in Control and Severance Benefit Agreements entered into on
January 24, 1996, and on May 1, 1996, respectively, will remain in effect
during the Part-Time Period, it being understood that the agreed
reduction in compensation resulting from the part-time employment shall
not constitute Constructive Termination under these agreements; provided,
however, any benefits under such agreements shall be calculated based on
compensation and benefits in effect as of January 1, 1997.
11. As of the execution date of this Agreement, Xxxxxxx acknowledges that he
has no claim or cause of action arising out of or in connection with
Xxxxxxx'x employment with or retirement from Ball, including, but not
limited to, actions under Title VII of the Civil Rights Act of 1964, the
Age Discrimination in Employment Act, the Rehabilitation Act of 1973, the
Civil Rights Act of 1866, Executive Order 11246, the Civil Rights Act of
1991, the Americans with Disabilities Act, or any other federal, state or
local statute or regulation regarding employment or termination of
employment or other such common law right.
12. During the Consulting Period, Xxxxxxx shall not, directly or indirectly,
offer, sell, advise, or provide any consulting services to any person or
entity which Ball deems to be its competitor in plastic container, metal
food or beverage containers, or beverage technology or equipment in any
market in which Ball, its subsidiaries or joint venture companies
compete. Xxxxxxx shall not, directly or indirectly, as an employee of a
competitor or otherwise, compete with Ball, its subsidiaries or joint
venture companies, in the manufacture, sale or development of plastic
containers, metal food or beverage containers or compete with Ball, its
subsidiaries and joint venture companies, in the manufacture, sale or
development of plastic, metal food or beverage container technology or
equipment during the Consulting Period. Xxxxxxx agrees that Ball shall
have no obligation to make payments for consulting services if Xxxxxxx
competes against Ball, its subsidiaries or joint venture companies, or
assumes employment with a competitor during the Consulting Period.
13. Xxxxxxx agrees that unless he first secures Ball's written consent, he
will keep confidential and will not divulge, communicate, disclose, copy,
destroy or use at any time, any secret or confidential information or
technology (including matters of a technical nature, such as know-how,
formulae, secret processes or machines, inventions, discoveries,
improvements, secret data, and research projects, and matters of a
business nature, such as information processing systems input, output,
instructions and object or source codes, information about costs,
profits, markets, sales, lists of customers, and any other information of
a similar nature to the extent not available to the public) of Ball or
third parties to whom Ball has obligations of confidence of which he
became informed during, or as a result of, his employment with Ball; and
Xxxxxxx further agrees to abide by the terms of Ball's Employee
Proprietary Agreement executed by him on November 8, 1996.
14. Xxxxxxx'x rights to vested retirement benefits under the applicable Ball
Corporation Pension Plan for Salaried Employees and the Ball Corporation
Salary Conversion and Employee Stock Ownership Plan shall not be altered
by this Agreement. Xxxxxxx'x right to receive payment for earned, unused
vacation, less legally required withholdings, shall not be altered by
this Agreement. Further, the Agreement shall not alter Xxxxxxx'x rights
to benefits and entitlements under applicable Stock Option, Restricted
Stock, Long Term Cash Incentive, Executive Retirement Benefit Protection
Program, Split Dollar Life Insurance, Deferred Compensation, Ayco
Financial Counseling or similar plans in which he is now a participant.
15. Xxxxxxx acknowledges Ball has no obligation to hire, rehire, or reinstate
him, and agrees to not seek employment with Ball at any time hereafter.
16. Xxxxxxx agrees not to disclose the details of this Agreement, including
the nature or the amount of the benefit that he has received to any
person other than his lawyer, accountant, income tax preparer, or
immediate family member, whether directly or indirectly. To the extent
that Xxxxxxx must disclose any information about the Agreement to any of
the above-named persons, he agrees that he will instruct that person or
those persons to keep this information confidential.
17. Xxxxxxx represents that he has not filed any lawsuits, claims, or
charges, or complaints against Ball with any local, state, or federal
agency or court.
18. The existence and execution of this Agreement shall not be considered,
and shall not be admissible in any proceeding, as an admission by Ball,
or its agents or employees, of any fact, liability, error, violation, or
omission.
19. This Agreement shall be binding upon and shall be for the benefit of Ball
and Xxxxxxx, as well as their respective heirs, personal representatives,
successors, and assigns.
20. This Agreement shall be construed in accordance with the laws of the
State of Indiana.
21. The provisions of this Agreement shall be severable, and the invalidity
of any provision shall not affect the validity of the other provision.
22. Xxxxxxx acknowledges that Ball is hereby advising him in writing to
consult with an attorney prior to signing this Agreement. He understands
that he has the right to consult with local, state and federal equal
employment opportunity agencies, such as the Equal Employment Opportunity
Commission, regarding this Agreement prior to signing it. Ball has
provided him with at least 21 days to consider signing this Agreement.
He understands that he may revoke this Agreement within seven days after
the date that he signs the Agreement by notifying Ball, Xxxxx X.
Xxxxxxxxxx, 000 Xxxxx Xxxx Xxxxxx, Xxxxxx, Xxxxxxx 00000-0000, in writing
of his intent to revoke. He understands that the Agreement is not
effective or enforceable until the seven-day revocation period has
expired.
BALL CORPORATION
/s/Xxxxx X. Xxxxxxx By: /s/Xxxxxx X. Xxxxxx
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Xxxxx X. Xxxxxxx Xxxxxx X. Xxxxxx
Chairman, President and
Chief Executive Officer
Dated: January 14, 1997 Dated: January 14, 1997
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