Exhibit 10.15
WAIVER AND RELEASE AGREEMENT
This Waiver and Release Agreement ("Agreement") is entered into by and
between Xxxxxx Dodge Corporation ("Company") and Xxxxxx X. Xxxxxx ("Xxxxxx").
This Agreement is entered into for the purpose of providing Company with
protection against any claims by Xxxxxx.
WHEREAS, Company and Xxxxxx have entered into that certain Retirement
Agreement, dated the 6th day of March, 2002; and
WHEREAS, among other things, the Retirement Agreement provides that
Company will pay Xxxxxx certain special pay and benefits as a result of Xxxxxx'x
retirement from the Company; and
WHEREAS, pursuant to the terms and conditions of the Retirement Agreement,
the Company's payment of any such special pay and benefits to Xxxxxx, and all
other obligations of the parties under the Retirement Agreement, are
specifically contingent on Company and Xxxxxx executing and delivering this
Agreement.
NOW THEREFORE, in consideration of the obligations set forth in the
Retirement Agreement, the payment of the special pay and benefits described
therein, and such other good and valuable consideration, the adequacy and
sufficiency of which are hereby acknowledged by the parties, Company and Xxxxxx
agree as follows:
1. Consideration for Agreement. Xxxxxx acknowledges and agrees that the
payment of the special pay and benefits as provided for under the
terms and conditions of the Retirement Agreement are fair and
adequate consideration for this waiver, release, agreement not to
xxx, and other obligations of Xxxxxx under this Agreement. Xxxxxx
acknowledges and agrees that the special pay and benefits to be
provided under the terms and conditions of the Retirement Agreement
are not required by Company policy and that Xxxxxx is not otherwise
entitled to the receipt of any such special pay and benefits.
2. Waiver and Release. Xxxxxx agrees not to bring any suit or claim
against the Company or any of its related entities or individuals
with respect to any matter, including those related to his
employment with the Company or his retirement from the Company.
Therefore, Xxxxxx, for himself and his heirs, executors,
administrators, representatives, agents, and assigns, forever
releases the Company and its parents, subsidiaries, successors,
predecessors, and affiliated entities, and their officers,
directors, agents, employees, shareholders, attorneys, and
representatives, from any and all claims, demands, liabilities,
obligations, suits, charges, actions, and causes of action, whether
known or unknown, past or present, accrued or not accrued, as of the
date Xxxxxx signs this Agreement. The items released
include, but are not limited to, matters relating to or arising out
of his employment or retirement from the Company. Some examples of
items released are claims under federal, state, or local laws, such
as the Age Discrimination in Employment Act, as amended; Title VII
of the Civil Rights Act of 1964, as amended; the Employee Retirement
Income Security Act of 1974, as amended; the Americans with
Disabilities Act, the Family and Medical Leave Act, the Arizona
Civil Rights Act (or any similar statute of any other jurisdiction
that may be applicable in this case), any common law, tort, or
contract claims, and any claims for attorneys' fees and costs. This
provision, of course, does not affect Xxxxxx'x rights, if any, to
benefits under the Company's benefit plans in accordance with the
terms of those plans, or to make a complaint to any state or federal
agency with respect to issues related to his employment with the
Company.
3. Agreement not to Challenge. Xxxxxx agrees not to challenge this
Agreement. If he attempts to do so, he must first return to the
Company all of the pay and benefits he received as consideration for
entering into this Agreement within 14 days of the Company's written
demand for payment. Notwithstanding any other provision of this
Paragraph 3 to the contrary, the parties acknowledge and agree that
Xxxxxx'x rights to challenge the validity of this Agreement under
the ADEA, as amended by the Older Workers Benefit Protection Act,
including any challenge of the knowing and voluntary nature of this
Agreement, are not otherwise affected by the above provisions of
this Paragraph 3 or any other provision of this Agreement. Company
and Xxxxxx acknowledge and agree that Xxxxxx is not required to
return or tender back any consideration received for this Agreement
in the event he brings a claim challenging the validity of this
Agreement under the ADEA, as amended. In the event Xxxxxx
successfully challenges the validity of this Agreement and prevails
on the merits of any ADEA claim, the Company is entitled to set-off,
recoupment, or restitution against any consideration paid Xxxxxx
under this Agreement or the Retirement Agreement to the extent of
the consideration paid or the damages awarded, whichever is the
lesser.
4. Consultation with an Attorney. Xxxxxx has been advised by the
Company to talk with an attorney of his choice before signing this
Agreement. He has been given a period of at least 21 days to
consider this Agreement, and he has had an opportunity to talk with
an attorney about this Agreement.
5. Revocation of Agreement. Xxxxxx may revoke this Agreement. Xxxxxx
may do so during the seven calendar days after the date he signs it.
The Agreement will not become effective until the eighth calendar
day after Xxxxxx signs it. If Xxxxxx wishes to revoke the Agreement,
he must do so in writing and his written notice of revocation must
be sent to Xxxxx X. Xxxxxxx ("Xxxxxxx"), Senior Vice President,
Human Resources, Xxxxxx
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Dodge Corporation, Xxx Xxxxx Xxxxxxx Xxxxxx, Xxxxxxx, XX 00000. To
be effective, Pulatie must receive the revocation of the Agreement
during the seven calendar days after the day Xxxxxx signs it.
6. Understanding of Purpose. Xxxxxx has carefully considered his
obligations as stated in this Agreement and agrees that the
restrictions contained in this Agreement are fair and reasonable and
are reasonably required for the Company's protection. Xxxxxx has
carefully read this Agreement, he has had an opportunity to ask
questions about it, he understands it, and he agrees to all of its
provisions. Xxxxxx understands that by signing this Agreement, he
agrees not to xxx or bring any claim against the Company or any
other entity or person he has released from claims. Xxxxxx has made
this Agreement voluntarily and without any duress.
7. Miscellaneous.
a. The provisions of this Agreement are severable. This means
that if any provision is invalid, it will not affect the
validity of the other provisions. If the scope of any
restrictions of this Agreement should ever be deemed to exceed
that permitted by applicable law or be otherwise overbroad,
Xxxxxx agrees that a court of competent jurisdiction shall
enforce that restriction to the maximum scope permitted by law
under the circumstances.
b. The laws of the State of Arizona will apply to this Agreement.
c. This agreement supercedes and replaces all prior discussions,
understandings, and oral agreements between the parties and
contains the entire agreement between them on the matters
herein contained.
d. This Agreement may not be changed orally, but only by a
written agreement signed by Xxxxxx and Company.
Xxxxxx X. Xxxxxx Xxxxxx Dodge Corporation
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Xxxxx X. Xxxxxxx
Senior Vice President
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Date Date
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