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Exhibit 10.13
GENERAL RELEASE AND SEVERANCE AGREEMENT
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This General Release and Severance Agreement (hereafter "Agreement") is hereby
entered into between Xxxxxxx X. Xxxxxxx ("Executive"), and Easco, Inc., a
Delaware corporation ("Parent"), Easco Corporation, a Delaware corporation
("Company"), and Dolton Aluminum Company, Inc., a Wisconsin corporation
("Dolton") (collectively the "Employers").
WHEREAS, Executive is, or prior to the execution of this Agreement has
been, an employee of Parent, Company and Dolton and a Director of each;
WHEREAS, Executive and Employers now desire to terminate this
employment and directorship relationship and fully and finally to resolve all
matters between them;
THEREFORE, in exchange for the good and valuable consideration set
forth herein, the adequacy of which is specifically acknowledged, Executive and
Employers ("the parties") hereby agree as follows:
1. TERMINATION OF EMPLOYMENT AND DIRECTORSHIP. Executive hereby
irrevocably agrees to resign his employment with each Employer, and his
positions as Director of each Employer, effective November 26, 1996 (the
"Effective Date of Resignation"); PROVIDED, HOWEVER, that Executive agrees and
acknowledges that his status as an officer and Director of each Employer has
been terminated prior to the execution of this Agreement, as previously agreed
by the parties.
2. SALARY AND BENEFIT CONTINUATION. Employers shall continue to pay
Executive his base salary at the rate of $235,000 per annum for thirteen months
from the Effective Date of Resignation (such period the "Continuation Period").
During the Continuation Period Employers shall also continue to provide at their
expense coverage for Executive and his family under Employers' health and
insurance plans then in effect for their senior executives and provide Executive
with the continued use, without charge, of his Employer-provided automobile,
together with automobile insurance coverage in scope and amount equal to that in
force on the Effective Date of Resignation.
3. ACCRUED VACATION PAY. On the Closing, Employers will pay Executive
for his accrued but unused vacation the sum of $7,231.
4. ADDITIONAL BENEFITS. Employers shall pay or cause to be paid to
Executive (or, to the extent permitted by law, to an Individual Retirement
Account designated by him) all of his benefits accrued under Employers' employee
benefit plans as of Effective Date of Resignation. Except as provided in Section
2 hereof, all other compensation, benefits or perquisites shall cease upon the
Effective Date of Resignation.
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5. OUTPLACEMENT. Employers shall provide Executive with outplacement
services with a mutually agreeable nationally known outplacement firm from
January 1, 1997 until the earlier of (a) December 31, 1997 or (b) the date the
Executive obtains other full-time employment. In lieu of such outplacement
services, Executive may elect in writing, no later than January 8, 1997, to
receive cash payments, equal in amount and timing, to the payments that the
Companies would otherwise have made to obtain such services.
6. PARENT STOCK OPTIONS. On the Closing Employers shall pay Executive
the amount of $282,607.32 in exchange for Executive's surrender for cancellation
all options he holds with respect to the stock of Parent.
7. SALE AND PURCHASE OF SHARES; REPAYMENT OF LOAN SECURED BY STOCK.
Executive owns an aggregate of 53,474 shares of common stock $.01 par value of
Parent (collectively, the "Stock"). At the Closing (as defined in Section 26
below), Executive shall sell, transfer and deliver the Stock to Parent and
Parent shall purchase the Stock and pay to Executive therefor an amount equal to
(a) $401,055.00, minus
(b) the amount then outstanding (including accrued interest)
on his note made payable to Extrusion Holdings, Inc., in the original
principal amount of $213,880.00 dated December 21, 1993 (the "Note" the
outstanding principal balance on which, assuming that all payments
thereon were current, was, as of September 30, 1996, $160,950.00, with
interest accruing thereafter at the rate of $26.825 per day),
whereupon Employers shall return to Executive the Note, marked "cancelled."
8. RESIDUAL DUTIES. The parties agree and intend that any and all
duties of loyalty, fidelity, and confidentiality running from Executive to each
Employer and arising out of the common law as a consequence of the parties'
employment relationship shall continue in full force and effect between the
parties until the Effective Date of Resignation; PROVIDED, HOWEVER, that neither
this paragraph nor any other portion of this Agreement shall be interpreted to
diminish any residual duties or obligations of Executive to each Employer that
may arise or continue in effect under the common law after Executive's Effective
Date of Resignation.
9. INSURANCE BENEFITS. Executive shall have the opportunity to elect
COBRA continuation health care coverage for a period beginning no earlier than
the Effective Date of Resignation, and continuing for so long as otherwise
required by law. If Executive is entitled to elect COBRA, Employers shall,
pursuant to Section 2 hereof, pay Executive's COBRA premium for the Continuation
Period, which period shall count toward Executive's COBRA entitlement. Executive
recognizes and understands that obtaining group coverage through Executive's
spouse's employment may adversely affect COBRA eligibility. To the extent
permitted under the terms of applicable employee benefit plans, Employers have
paid and will continue to pay, for periods up to and including the Effective
Date of Resignation, any life and disability insurance premiums pertaining to
Executive which would be necessary
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to maintain such coverage for Executive as Employers provide to otherwise
similarly-situated employees. However, Employers make no representation that
such coverage will be available to Executive for periods while he is or has not
been actively employed. To the extent provided by the terms of the applicable
employee benefit plans, Executive will be offered the opportunity to convert his
group benefits to individual coverage at non-group rates.
10. RELEASE OF CLAIMS BY EMPLOYERS. Employers agree, for Employers,
their affiliates, successors and assigns, hereby forever to release, discharge,
and covenant not to xxx Executive, from any and all claims, debts, demands,
accounts, judgments, rights, causes of action, equitable relief, damages, costs,
charges, complaints, obligations, promises, agreements, controversies, suits,
expenses, compensation, responsibility and liability of every kind and character
whatsoever (including attorneys' fees and costs), whether in law or equity,
known or unknown, asserted or unasserted, suspected or unsuspected
(collectively, "Claims"), which Employers have or may have had against Executive
based on any events or circumstances arising or occurring on or prior to the
Effective Date of Resignation including without limitation any and all claims
arising out of Executive's employment with Employers or the termination thereof
PROVIDED, HOWEVER, notwithstanding anything to the contrary set forth herein,
that this Release shall not extend to (a) any Claim which relates to or arises
from any criminal activity of Executive, and (b) any obligation assumed under
this Agreement by any party hereto.
11. NO OTHER PAYMENTS. Executive understands and agrees that Employers
shall make no other payments to Executive, and shall have no other obligations
to Executive except as described in this Agreement.
12. CONSULTATION AFTER EFFECTIVE DATE OF RESIGNATION. Executive agrees
that for 30 days following his Effective Date of Resignation he will continue to
make himself available for reasonable part-time consultation with Employers and
Employers' agents and employees regarding his prior work for Employers. Such
consultation shall include Executive's making himself reasonably available for
interviews by Employers' counsel, depositions, and/or court appearances upon
Employers' request, in Ohio or elsewhere in the continental United States.
Executive will not perform any services for Employers except as explicitly and
specifically authorized by the Employer in question, and will not enter the
premises of any Employer or communicate with government agencies, labor unions,
adverse parties in actual or potential litigation, suppliers, service providers,
customers, or employees of any Employer regarding any Employer's business or
Executive's employment status without the express written authorization of the
applicable Employer. Employers agree that they will reimburse Executive for
reasonable expenses, such as telephone, travel, lodging, and meal expenses,
incurred by Executive at Employers' request or with Employers' approval,
consistent with Employers' generally applicable policies for employee expenses.
Executive agrees that he will notify Employers of all pertinent facts if he is
contacted by any government agency with reference to any Employer's business, or
by any person contemplating or maintaining any claim or legal action against any
Employer, or by any agent or attorney of such person.
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13. TRADING IN STOCK OF PARENT. Until the date three months from the
Effective Date of Resignation, Executive shall comply with Employers' policy
relating to trading in the stock of Parent. Employers acknowledge that the
purchase and sale of stock provided for in this Agreement does not contravene
such policy.
14. NEUTRAL REFERENCE. Employers agree that they will provide a neutral
reference regarding Executive and Executive's employment, which reference may
consist of confirmation of employment, dates thereof, salary levels, and job
title, in response to inquiries directed to an Employer's President or Human
Resources Director.
15. GENERAL RELEASE OF CLAIMS BY EXECUTIVE. Executive agrees for
Executive, Executive's spouse and child or children (if any), Executive's heirs,
beneficiaries, devisees, executors, administrators, attorneys, personal
representatives, successors and assigns, hereby forever to release, discharge,
and covenant not to xxx any Employer, any Employer's past, present, or future
parent, affiliated, related, and/or subsidiary entities, and all of their past
and present directors, shareholders, officers, general or limited partners,
employees, agents, and attorneys, and agents and representatives of such
entities, and employee benefit plans in which Executive is or has been a
participant by virtue of his employment with any Employer, from any and all
claims, debts, demands, accounts, judgments, rights, causes of action, equitable
relief, damages, costs, charges, complaints, obligations, promises, agreements,
controversies, suits, expenses, compensation, responsibility and liability of
every kind and character whatsoever (including attorneys' fees and costs),
whether in law or equity, known or unknown, asserted or unasserted, suspected or
unsuspected, which Executive has or may have had against such entities based on
any events or circumstances arising or occurring on or prior to the Effective
Date of Resignation (or, with respect to claims of disparagement, arising or
occurring on or prior to the date this Agreement is executed), arising directly
or indirectly out of, relating to, or in any other way involving in any manner
whatsoever, (a) Executive's employment with any Employer or the termination
thereof or (b) the Executive's status at any time as a holder of any securities
of any Employer, and any and all claims arising under federal, state, or local
laws relating to employment, or securities, including without limitation claims
of wrongful discharge, breach of express or implied contract, fraud,
misrepresentation, defamation, or liability in tort, claims of any kind that may
be brought in any court or administrative agency, any claims arising under Title
VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act,
the Americans with Disabilities Act, the Fair Labor Standards Act, the Employee
Retirement Income Security Act, the Family and Medical Leave Act, the Securities
Act of 1933, the Securities Exchange Act of 1934, and similar state or local
statutes, ordinances, and regulations, PROVIDED, HOWEVER, notwithstanding
anything to the contrary set forth herein, that this General Release shall not
extend to (x) benefit claims under employee pension benefit plans in which
Executive is a participant by virtue of his employment with any Employer or to
benefit claims under employee welfare benefit plans for occurrences (e.g.,
medical care, death, or onset of disability) arising after the execution of this
Agreement by Executive, and (y) any obligation assumed under this Agreement by
any party hereto.
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16. RELEASE OF AGE DISCRIMINATION CLAIMS; PERIODS FOR REVIEW AND
RECONSIDERATION.
a. Executive understands that this Agreement includes a
release of claims arising under the Age Discrimination in Employment Act (ADEA).
Executive understands and warrants that he has been given a period of twenty-one
(21) days to review and consider this Agreement. Executive is hereby advised to
consult with an attorney prior to executing the Agreement. By his signature
below, Executive warrants that he has had the opportunity to do so and to be
fully and fairly advised by that legal counsel as to the terms of the Agreement.
Executive further warrants that he understands that he may use as much or all of
his 21-day period as he wishes before signing, and warrants that he has done so.
b. Executive further warrants that he understands that he has
seven (7) days after signing this Agreement to revoke the Agreement by notice in
writing to Xxxxxxxx X. Xxxxxx, American Industrial Partners, 000 Xxxxx Xxxxxx,
Xxxxx 0000, Xxx Xxxx, X.X. 00000. This Agreement shall be binding, effective,
and enforceable upon both parties upon the expiration of this seven-day
revocation period without Xx. Xxxxxx having received such revocation, but not
before such time.
17. TRADE SECRETS.
a. Executive shall maintain in confidence and shall not
directly, indirectly or otherwise, use, disseminate, disclose or publish, or use
for his benefit or the benefit of any person, firm, corporation or other entity
any confidential or proprietary information or trade secrets of or relating to
any Employer (or which any Employer has a right to use), including, without
limitation, confidential or proprietary information with respect to any
Employer's operations, processes, products, inventions, business practices,
finances, principals, vendors, suppliers, customers, potential customers,
marketing methods, costs, prices, contractual relationships, regulatory status,
compensation paid to employees or other terms of employment, or deliver to any
person, firm, corporation or other entity any document, record, notebook,
computer program or similar repository of or containing any such confidential or
proprietary information or trade secrets. The parties hereby stipulate and agree
that as between them the foregoing matters are important, material and
confidential proprietary information and trade secrets and affect the successful
conduct of the businesses of Employers (and any successor or assignee of any
Employer).
b. Executive acknowledges that he has delivered to Employers
all correspondence, drawings, manuals, letters, notes, notebooks, reports,
programs, plans, proposals, financial documents, or any other documents
concerning any Employer's customers, business plans, marketing strategies,
products or processes and/or which contain proprietary information or trade
secrets.
18. CONFIDENTIALITY. Executive agrees not to disclose the terms or
existence of this Agreement to any person, agency, institution, company, or
other entity unless Employers agree to such disclosure in advance and in
writing, provided that Executive may, without such permission, disclose that
Executive resigned from his employment and make such
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disclosures as are required by courts or government agencies or appropriate
jurisdiction or otherwise by law, including disclosures to taxing agencies, and
disclose the terms of this agreement to his attorney(s), accountant(s), tax
advisor(s), and other professional service provider(s), as reasonably necessary,
and to his spouse and immediate family. However, to the extent Executive
discloses information about the terms of his Agreement, Executive agrees to
instruct such person(s) that the terms of this Agreement are strictly
confidential and are not to be revealed to anyone else except as required by
law, and Executive guarantees that such person(s) shall make no further
disclosure of such information and accepts responsibility for any such
disclosure as such person(s) may make as though the disclosure were made
directly by Executive. Executive further represents and warrants that he has not
violated the confidentiality of this Agreement by disclosing its terms,
existence, or negotiation prior to its being signed or becoming effective.
Employers agree that they will respect the confidentiality of this Agreement by
not disclosing its terms, existence, or negotiation to any person not employed
by Employers or one of their present or future parents, subsidiaries, or
affiliates, provided that Employers may disclose such information to any bona
fide potential purchaser of all or any part of any Employer's business and may
disclose that Executive resigned from his employment and make such disclosures
as are required by courts or government agencies of appropriate jurisdiction or
otherwise by law, including disclosures to taxing agencies, and disclose the
terms of this agreement to their attorney(s), accountant(s), tax advisor(s), or
other professional service provider(s), as reasonably necessary. In the event
any inquiry regarding the existence, terms, or negotiation of this Agreement is
made by any outside person, Executive and Employers (or others to whom
disclosure has been made) shall limit their response, either verbatim or in
substance, to the statement that the matter has been resolved by mutual
agreement or to the satisfaction of the parties. The obligations of each the
parties pursuant to the provisions of this Section 18 shall continue in force
until the earlier of (a) the tenth anniversary of the Effective Date of
Resignation or (b) the filing of a copy of this Agreement with, or the
disclosure of the material terms of this Agreement to, the Securities and
Exchange Commission.
19. NON-DISPARAGEMENT. Each of the parties agrees that it will not
disparage or denigrate to any person any aspect of his or its past relationship
with the other, nor the character of the other or the other's agents,
representatives, products, or operating methods, whether past, present, or
future, and whether or not based on or with reference to their past
relationship; PROVIDED, HOWEVER, that this paragraph shall have no application
to any evidence or testimony requested of either party hereto by any court or
government agency. In the event any government agency or any of Employers'
present or future labor unions, adverse parties in actual or potential
litigation, suppliers, service providers, employees or customers initiate
communications with Executive, Executive agrees that he will inform any such
persons, consistent with this paragraph, of his change in status and direct such
persons to an appropriate office or current employee of Employers.
20. CONDITION ON CERTAIN OBLIGATIONS OF THE EMPLOYERS. Executive agrees
that Employers are likely to suffer adverse financial and/or employee relations
consequences in the event either of the above confidentiality or
non-disparagement provisions is breached and that Executive's agreement to each
is a material portion of the consideration received by the Employers hereunder.
Executive therefore agrees that in the event Executive commits such
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breach, Employers shall have all rights and remedies under law or equity
including, without limitation, the right upon discovery of such breach to obtain
an injunction against any further breaches. This paragraph is not intended to
limit any other remedies, in damages or otherwise, that may be available to
Employers for such breach.
21. TAXES. To the extent any taxes may be due on the payments to
Executive provided in this Agreement beyond any withheld by Employers, Executive
agrees to pay them himself and to indemnify and hold Employers and other
entities released by Executive herein harmless for any tax claims or penalties
resulting from such payments. Executive further agrees to provide any and all
information pertaining to Executive upon request as reasonably necessary for
Employers and other entities released herein to comply with applicable tax laws.
22. NO ADMISSION. Executive understands and agrees that Employers have
admitted no liability or obligation to provide the consideration contemplated
herein, and that Employers have entered into this Agreement solely for the
purpose of avoiding possible controversy.
23. SEVERABILITY. Except as otherwise specified below, should any
portion of this Agreement be found void or unenforceable for any reason by a
court of competent jurisdiction, the court should attempt to limit or otherwise
modify such provision so as to make it enforceable, and if such portion cannot
be modified to be enforceable, the unenforceable portion shall be deemed severed
from the remaining portions of this Agreement, which shall otherwise remain in
full force and effect. If any portion of this Agreement is so found to be void
or unenforceable for any reason in regard to any one or more persons, entities,
or subject matters, such portion shall remain in full force and effect with
respect to all other persons, entities, and subject matters. This paragraph
shall not operate, however, to sever either party's obligation to provide the
binding release to all entities intended to be released hereunder. In the event
Executive should in the future contend that Executive's release of claims is for
any reason void, imperfect, or incomplete, Executive may not pursue any claim
against any Employer (or any other party intended to be released herein) to
establish the invalidity of the release or premised (in whole or in part) on the
invalidity of the release before or without repaying to Employers the full
amount of such cash payments he has received, less the reasonable value of
services actually provided pursuant to this Agreement, and applicable statutes
of limitations shall be deemed to run in regard to Executive's claims without
regard to the parties' entry into this Agreement. The preceding sentence shall
not operate to limit the scope or effect of Executive's covenant not to xxx.
24. CONDITIONS OF VALIDITY. This Agreement shall not be deemed valid,
binding or effective unless and until (1) both parties have signed, (2)
Executive's signature is notarized, and (3) both parties have executed the
Agreement within a single thirty (30) day period.
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25. UNDERSTANDING AND AUTHORITY. The parties understand and agree that
all terms of this Agreement are contractual and are not a mere recital, and
represent and warrant that they are competent to covenant and agree as herein
provided.
26. CLOSING AND PAYMENTS HEREUNDER.
(a) All payments to be made by any one or more of the
Employers hereunder pursuant to the provisions of Sections 3, 6 and 7
shall be by wire transfer to Executive's bank account (the name and
number of which have been furnished to Employers) at 11:00 A.M. Eastern
Time on December 19, 1996 (the "Closing").
(b) All salary continuation and other payments to be made
hereunder shall be made in accordance with the Employers' payroll
schedule now in effect for its Executives or as otherwise provided in
this Agreement.
27. INDEMNIFICATION. To the extent that Employers may do so
without any material cost to any of them, then, for the entire period from the
Effective Date of Resignation until at least six years thereafter (a) Executive
shall receive the benefit of whatever indemnification protection is afforded
generally to the directors and officers of each of the Employers, including the
benefit of those provisions of Parent's certificate of incorporation, by-laws
and Employers' applicable charter documents with respect to indemnification and
exculpation from liability, and (b) to the extent that same is permitted under
the terms of such policies, the Employers shall cover Executive under any
officers or directors liability insurance policies that the Employers generally
provide for its own directors and officers.
Executive understands, agrees and represents that the covenants made
herein and the releases herein executed may affect rights and liabilities of
substantial extent and agrees that the covenants and releases provided herein
are in Executive's best interest. Executive represents and warrants that in
negotiating and executing this Agreement Executive has had an adequate
opportunity to consult with competent legal counsel of his choosing concerning
the meaning and effect of each term and provision hereof, and that there are no
representations, promises, or agreements between any Employer and Executive
other than those expressly set forth in writing herein.
The parties have carefully read this Agreement in its entirety; fully
understand and agree to its terms and provisions; and intend and agree that it
is final and binding on all parties.
IN WITNESS WHEREOF, and intending to be legally bound, the parties have
executed the foregoing on the dates shown below.
/s/ Xxxxxxx X. Xxxxxxx December 11, 1996
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City/County of Cuyahoga
State of Ohio
The foregoing instrument was signed and acknowledged before me by
Xxxxxxx X. Xxxxxxx this 11th day of December, 1996.
/s/ Xxxx Xxx Xxxxxx
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Notary Public
My Commission Expires: November 30, 1997
EASCO, INC.
EASCO CORPORATION
DOLTON ALUMINUM COMPANY, INC.
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By: /s/ Xxxxx X. Xxxx December 18, 1996
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Title: Executive Vice President, Administration
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