EXHIBIT 10.2
MUTUAL RELEASE AGREEMENT
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This Mutual Release Agreement (this "Agreement") is entered into as of July
16, 1995 between Xxxxx Paper Company, a Pennsylvania corporation ("Xxxxx"),
Xxxxxxxx-Xxxxx Corporation, a Delaware Corporation ("Xxxxxxxx-Xxxxx"), and
Xxxxxx X. Xxxxxx (the "Executive").
WHEREAS, the Executive is presently a director of Xxxxx, and is presently
employed by Xxxxx in the capacity of Chairman of the Board and Chief Executive
Officer;
WHEREAS, Xxxxxxxx-Xxxxx, Rifle Merger Co. and Xxxxx have entered into an
Agreement and Plan of Merger dated as of July 16, 1995 (the "Merger Agreement"),
pursuant to which Rifle Merger Co. will merge with and into Xxxxx and Xxxxx will
thereby become a wholly-owned subsidiary of Xxxxxxxx-Xxxxx;
WHEREAS, the parties hereto have entered into a Consulting Agreement, a
Noncompetition Agreement, a Rescission Agreement and a Stock Option Exchange
Agreement (the "Other Agreements") as of the date hereof;
WHEREAS, as of the Effective Time of the Merger (as such terms are defined
in the Merger Agreement), the Executive will cease to be a director, officer and
employee of Xxxxx and its subsidiaries and affiliates; and
WHEREAS, Xxxxx, Xxxxxxxx-Xxxxx and the Executive desire to make appropriate
arrangements for the release by the Executive of any and all outstanding claims
he may have against Xxxxx and Xxxxxxxx-Xxxxx and for the release by Xxxxx and
Xxxxxxxx-Xxxxx of any and all outstanding claims they may have against the
Executive;
NOW, THEREFORE, in consideration of the mutual promises and agreements
contained herein, the adequacy and sufficiency of which are hereby acknowledged,
Xxxxx, Xxxxxxxx-Xxxxx and the Executive hereby agree as follows:
1. Voluntary Act. The Executive hereby represents to Xxxxx and Xxxxxxxx-
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Xxxxx that this Agreement is entered into voluntarily, and with a full
understanding of and agreement with its terms, for the purpose of releasing all
claims the Executive may have against Xxxxx and Xxxxxxxx-Xxxxx.
2. Cessation of Employment. The Executive's employment with Xxxxx and
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with all subsidiaries and affiliates thereof will cease as of the Effective Time
of the Merger, as of which date he will be retained by Xxxxx as a consultant.
3. Agreements and Acknowledgment of Executive. As of the Effective Time
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of the Merger, the Executive hereby releases and forever discharges Xxxxx and
Xxxxxxxx-Xxxxx, their respective subsidiaries and affiliates and the
predecessors, successors or assigns of any thereof, and their respective
officers, directors, agents and employees (collectively, the "Company Related
Persons") of and from all actions, causes of action, suits, debts, contracts,
promises, damages, claims and demands, whether known or unknown, asserted or
unasserted, including but not limited to all rights or claims under the Age
Discrimination in Employment Act, which he, his past, present or future
attorneys, authorized representatives, heirs, executors, administrators, spouses
and family and the successors or assigns of any thereof (collectively, the
"Executive Related Persons") ever had, may have in the future or now have
against the Company Related Persons; provided, however, that nothing contained
herein shall relieve Xxxxx or Xxxxxxxx-Xxxxx from any obligation under (i) this
Agreement; (ii) any employee benefit plan, stock option plan or the like that
the Executive is a participant in or entitled to the benefits of; (iii)
compensation for services previously provided; or (iv) the Other Agreements.
4. Agreement of Xxxxx and Xxxxxxxx-Xxxxx. Effective as of the Effective
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Time of the Merger, Xxxxx and Xxxxxxxx-Xxxxx and their respective subsidiaries
and affiliates and the predecessors, successors or assigns of any thereof
(collectively, the "Company Related Releasing Persons") hereby release the
Executive Related Persons from all claims, whether known or unknown, which any
of the Company Related Releasing Persons may currently have, have in the past
had or may in the future have against the Executive for or in connection with
any act or failure to act occurring prior to the Effective Time of the Merger
with respect to the Executive's employment with Xxxxx or any of its subsidiaries
or affiliates. No legal action or other proceeding shall be initiated by any
Company Related Releasing Person with respect to any claim hereby released.
5. Consultation with Attorney. The Executive represents that he was
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advised to consult with an attorney before signing this Agreement, and that he
has consulted with an attorney and/or other persons to the extent the Executive
desired to do so before signing this Agreement.
6. No Representations or Inducements. The Executive agrees that no
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promises, representations or inducements have been made which caused the
Executive to sign this Agreement other than those expressly set forth above.
7. Successors; Binding Agreement. This Agreement shall inure to the
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benefit of and be enforceable by the Executive and by his personal or legal
representatives, executors, administrators, heirs, distributees, devisees and
legatees, and
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by Xxxxx and Xxxxxxxx-Xxxxx, and their respective successors and assigns.
8. Notices. All notices and other communications required or permitted
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under this Agreement shall be in writing and shall be deemed to have been duly
given when personally delivered, when delivered by courier or overnight express
service or five days after having been sent by certified or registered mail,
postage prepaid, addressed (a) if to the Executive, to the Executive's address
set forth in the records of the Company, or if to Xxxxx or Xxxxxxxx-Xxxxx, to
Xxxxx X. Xxxxxxx, Chairman of the Board and Chief Executive Officer, 000 Xxxxxx
Xxxxx, Xxxxxx, Xxxxx 00000, with a copy to O. Xxxxxx Xxxxxxxx, Senior Vice
President - Law and Government Affairs, 000 Xxxxxx Xxxxx, Xxxxxx, Xxxxx 00000,
or (b) to such other address as any party may have furnished to the other
parties in writing in accordance herewith, except that notices of change of
address shall be effective only upon receipt.
9. Governing Law; Validity. The interpretation, construction and
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performance of this Agreement shall be governed by and construed and enforced in
accordance with the internal laws of the State of Delaware without regard to the
applicable principles of conflicts of laws. The invalidity or unenforceability
of any provision of this Agreement shall not affect the validity or
enforceability of any of the other provisions of this Agreement, which other
provisions shall remain in full force and effect.
10. Review Period. Executive represents that he was given at least forty-
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five (45) days to consider the terms of this Agreement.
11. Revocation. Executive has seven (7) days from the signing of this
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Agreement to revoke this Agreement. If Executive does not revoke this Agreement
within seven (7) days of the date of this Agreement, this Agreement will become
final and binding.
12. Counterparts. This Agreement may be executed in two or more
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counterparts, each of which shall be deemed to be an original and all of which
together shall constitute one and the same instrument.
13. Miscellaneous. No provision of this Agreement may be modified or
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waived unless such modification or waiver is agreed to in writing and executed
by the Executive and by a duly authorized officer of Xxxxx and Xxxxxxxx-Xxxxx.
No waiver by any party hereto at any time of any breach by another party hereto
of, or failure to comply with, any condition or provision of this Agreement to
be performed or complied with by such other party shall be deemed a waiver of
any similar or dissimilar conditions or provisions at the same or at any prior
or subsequent time.
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Failure by the Executive, Xxxxx or Xxxxxxxx-Xxxxx to insist upon strict
compliance with any provision of this Agreement or to assert any right which the
Executive, Xxxxx or Xxxxxxxx-Xxxxx may have hereunder shall not be deemed to be
a waiver of such provision or right or any other provision of or right under
this Agreement.
14. Effectiveness. The provisions of Section 2, 3 and 4 hereof shall be
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effective only upon the Effective Time of the Merger and shall be null and void
if the Merger is not consummated.
IN WITNESS WHEREOF, each of Xxxxx and Xxxxxxxx-Xxxxx has caused this
Agreement to be executed by its duly authorized officer and the Executive has
executed this Agreement as of the day and year first above written.
Xxxxx Paper Company
By
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Xxxxxxxx-Xxxxx Corporation
By
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Executive
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Xxxxxx X. Xxxxxx
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