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EXHIBIT 10.1
EARLY RETIREMENT AGREEMENT AND RELEASE
This Early Retirement Agreement and Release ("Agreement") is entered
into by and between Xxx X. Xxxxxxxx ("Executive"), Xxxxx Products Company, a
Delaware corporation, its subsidiaries, successors, assigns and affiliates
("Company") and DPC Acquisition Corp., a Delaware corporation ("DPC").
RECITALS:
WHEREAS, Executive, at various times, has been an executive and
officer of Company;
WHEREAS, Executive is voluntarily retiring as of 5:00 p.m. (C.S.T.) on
June 30, 1998, and resigns from any and all positions he holds with Company, in
the capacity of executive, officer, trustee, advisor, or any other position or
capacity he holds by virtue of his employment by Company except as set forth
herein;
WHEREAS, Executive and Company desire to avoid the expense, delay and
uncertainty attendant to any claims which may arise from Executive's retirement
from Company;
WHEREAS, Executive desires to release any claims or causes of action
he may have arising from or relating to his employment or service with Company;
and
WHEREAS, Company and Executive desire to clarify and modify certain
agreements they have arising from or relating to Executive's employment or
service with Company;
NOW, THEREFORE, for and in consideration of the mutual covenants and
promises hereinafter set forth, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, Executive and
Company hereby agree:
1. RESIGNATION BY MUTUAL AGREEMENT. Executive acknowledges and
agrees he is voluntarily retiring and resigning from employment with, and as an
officer of, Company and any other entity affiliated with Company as of 5:00
p.m. (C.S.T.) on June 30, 1998 (the "Retirement Date") pursuant to mutual
agreement with Company. Company hereby confirms its acceptance of Executive's
resignation pursuant to such mutual agreement.
2. CERTAIN OBLIGATIONS OF COMPANY AND EXECUTIVE
A. SALARY AND ANNUAL BONUS. Company shall continue to
pay Executive his base salary, at the rate in effect on the Retirement Date,
through December 31, 1998. Such payments shall be made in accordance with
Company payroll practices as in effect from time to time and such payments
shall be reduced by customary withholding for taxes and applicable deductions.
Company shall also pay Executive an annual bonus for 1998, in lieu of the bonus
provided for in section 4.(a) of the "Employment Agreement" as defined below,
in an agreed amount of $800,000, within 90 days after delivery of Company's
annual financial statements by Company's independent auditors. Except as
otherwise provided in this Agreement, Executive acknowledges that the payments
to be made
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pursuant to this paragraph are in full satisfaction of all wages, benefits and
other compensation owed by Company for employment or service through the
Retirement Date. For purposes of this Paragraph 2. A. and subject to any
contrary order or judgment of a court of competent jurisdiction, the payments,
if any, payable under this Paragraph 2. A. subsequent to Executive's death
shall be paid to the beneficiary or beneficiaries, designated by Executive
(with such designation to be made in accordance with procedures established by
Company) to receive such payments upon his death, or if Executive fails to
designate such beneficiary or beneficiaries, to the executor or administrator
of Executive's estate, or to Executive's heirs at law if there is no
administration of Executive's estate. The rights of Executive and his estate,
beneficiaries or heirs shall be solely those of an unsecured creditor of
Company, and nothing in this Agreement gives Executive, his estate,
beneficiaries or heirs any right, title or interest in or to any specific
assets, funds, reserve, account or property of any kind whatsoever owned by
Company or in which Company has or may have any right, title or interest.
B. EMPLOYMENT AGREEMENT. As of the Retirement Date,
Executive and Company expressly agree by mutual consent that that certain
employment agreement by and between Executive and Company, effective as of
September 1, 1994, (the "Employment Agreement"), shall be superseded in all
respects by this Agreement, except as expressly provided otherwise by this
Agreement. Executive also expressly agrees that he shall not be entitled to
any payments based upon such Employment Agreement, including without
limitation, the following items as set forth in such Employment Agreement: (i)
any salary continuation amounts (other than as provided in Subparagraphs A and
E), (ii) any transaction bonus arising from or related to any control
transaction, (iii) any deferred compensation payments (other than as provided
in Subparagraphs D and E), and (iv) any rights to annual base salary or annual
bonus for 1999.
C. GROUP MEDICAL PLAN. Executive and his covered
dependents shall be allowed to continue participation in the Company's group
medical plan at active employee rates until Executive's wife attains age 65 if
Executive remains a director of DPC during such period. In the event Executive
ceases to be a director of DPC, Executive and his covered dependents shall be
allowed to continue participation in the Company's group medical plan at the
COBRA rate until Executive's wife attains age 65. The foregoing
notwithstanding, Company reserves the right to terminate or change health
benefits provided under such group medical plan without notice.
D. ANNUAL SUPPLEMENTAL RETIREMENT PAYMENTS. Executive
shall be entitled to receive annual supplemental retirement payments in
accordance with the terms and conditions for receiving such payments set forth
in section 5.(b) of the Employment Agreement. For purposes of this Paragraph
2. D. and subject to any contrary order or judgment of a court of competent
jurisdiction, the payments, if any, payable under this Paragraph 2. D.
subsequent to Executive's death shall be paid to the beneficiary or
beneficiaries, designated by Executive (with such designation to be made in
accordance with procedures established by Company) to receive such payments
upon his death, or if Executive fails to designate such beneficiary or
beneficiaries, to the executor or administrator of Executive's estate, or to
Executive's heirs at law if there is no administration of Executive's estate.
The rights of Executive and his estate, beneficiaries or heirs shall be solely
those of an unsecured creditor of Company, and nothing in this Agreement gives
Executive, his estate, beneficiaries or heirs any right, title or interest in
or to any specific assets, funds, reserve, account
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or property of any kind whatsoever owned by Company or in which Company has or
may have any right, title or interest.
E. NON-QUALIFIED SALARY CONTINUATION AGREEMENT.
Executive shall be entitled to receive the benefits provided for by the
Non-Qualified Salary Continuation Agreement dated July 13, 1990 in accordance
with its terms except that the early retirement percentage provided for in
Section 3(c) of such agreement shall be 81.2% and payments shall commence
January 1, 1999.
F. DPC STOCK AND DPC STOCK OPTIONS. DPC agrees that it
shall not purchase any shares of DPC stock owned by Executive pursuant to DPC's
right to purchase such stock upon Executive's termination of employment with
Company and shall not designate any other employees of the Company to
repurchase such DPC stock, but DPC hereby expressly reserves its right of first
refusal with respect to any such stock in the event Executive and any
third-party enter into an agreement for the sale and purchase of any such
stock. DPC shall cause Executive to be vested effective as of June 30, 1998 in
an additional 9,000 shares of stock under each of the two stock option
agreements dated November 1, 1996 covering 50,000 shares of stock each. No
further vesting of such options shall accrue to Executive thereafter.
Executive's right to exercise such options shall be governed by the stock
option agreements.
G. NON-COMPETITION COVENANTS, CONFIDENTIALITY AND
PROPRIETARY INFORMATION, AND REMEDIES FOR BREACH. Executive shall remain
subject to the provisions of sections 6, 7, and 8 of the Employment Agreement.
H. EXPENSES. Executive shall, within 30 days of the
Retirement Date, submit all actual, reasonable and customary expenses incurred
by him in the course of his employment with proper documentation, which, upon
verification, Company shall reimburse promptly. Executive acknowledges and
agrees that he has not and has no authority to incur any expenses after the
Retirement Date, and further agrees that Company shall have no obligation to
reimburse expenses not submitted within the time set forth above or incurred
after that date.
3. COOPERATION. Executive shall cooperate with Company to the
extent reasonably required in all matters relating to the winding up of his
pending work on behalf of Company, or any of its affiliates, and the orderly
transfer of any such pending work as designated by Company. Executive shall
take such further action and execute such further documents as may be
reasonably necessary or appropriate in order to carry out the provisions and
purposes of this Agreement.
4. EXECUTIVE'S REPRESENTATION. Executive represents, warrants
and agrees that he has not filed any claims, appeals, complaints, charges or
lawsuits against Company, its predecessors, successors, parent companies,
subsidiaries or affiliates, or their respective executives, officers,
directors, shareholders, owners, agents, and representatives (collectively,
including Company, the "Company Parties") with any governmental agency or court
and that he will not file or permit to be filed or accept benefit from any
claim, complaint or petition filed with any court by him or on his behalf at
any time hereafter with respect to the claims released by Executive in
Paragraph 5 below; provided, however, this shall not limit Executive from
enforcing any of his other rights against the Company Parties, including
without limitation, any of his rights under this Agreement and any other
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documents entered into in connection herewith or referred to herein. Further,
Executive represents and warrants that no other person or entity has any
interest in, or assignment of, any claims or causes of action he may have
against any Company Party and which he now releases in their entirety pursuant
to Paragraph 5 below.
5. RELEASES. Executive agrees to release, acquit and discharge
and does hereby release, acquit and discharge Company, and all Company Parties,
collectively and individually, from any and all claims and from any and all
causes of action, of any kind or character, whether now known or not known, he
may have against any of them arising under the Age Discrimination in Employment
Act, as amended, 29 U.S.C. Section 621, et seq. ("ADEA"), and any and all
claims or causes of action arising under any other federal, state or local laws
pertaining to discrimination in employment or equal employment opportunity;
except that the parties agree that Executive's release, acquittal and discharge
shall not relieve Company from any of the other obligations that they may have
with respect to Executive, including without limitation, their obligations
under this Agreement and any other documents entered into in connection
herewith or referred to herein. This release also applies to any claims
brought by any person or agency or class action under which Executive may have
a right or benefit.
6. NO ADMISSIONS. Executive expressly understands and agrees
that the terms of this Agreement are contractual and not merely recitals and
that the agreements herein and consideration paid is to compromise doubtful and
disputed claims, avoid litigation, and buy peace, and that no statement or
consideration given shall be construed as an admission of any claim by any
Company Party, all such admissions being expressly denied.
7. ENFORCEMENT OF AGREEMENT. No waiver or nonaction with respect
to any breach by the other party of any provision of this Agreement shall be
construed to be a waiver of any succeeding breach of such provision, or as a
waiver of the provision itself. Should any provisions hereof be held to be
invalid or wholly or partially unenforceable, such holdings shall not
invalidate or void the remainder of this Agreement. Portions held to be
invalid or unenforceable shall be revised and reduced in scope so as to be
valid and enforceable, or, if such is not possible, then such portion shall be
deemed to have been wholly excluded with the same force and effect as if they
had never been included herein.
8. CHOICE OF LAW. This Agreement shall be governed by and
construed and enforced, in all respects, in accordance with the laws of the
State of Missouri, without regard to principles of conflict of law, unless
preempted by federal law, in which case federal law shall govern.
9. MERGER. This Agreement supersedes, replaces and merges all
previous agreements and discussions relating to the same or similar subject
matters between Executive and Company and constitutes the entire agreement
between Executive and Company with respect to the subject matter of this
Agreement, except for those sections of the Employment Agreement that are
expressly incorporated herein by reference and any other agreements expressly
preserved herein. This Agreement may not be changed or terminated orally, and
no change, termination or waiver of this Agreement or any of the provisions
herein contained shall be binding unless made in writing and signed by all
parties, and in the case of Company, by an authorized officer.
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10. AMENDMENT. This Agreement may not be changed or terminated
orally, and no change, termination or waiver of this Agreement or any of the
provisions herein contained shall be binding unless made in writing and signed
by the affected parties.
11. CONFIDENTIALITY. Executive agrees that he has not disclosed
and will not disclose the terms of this Agreement, or the consideration for it
received from Company, to any other person, except his spouse, attorney or
financial advisors and only on the condition that they keep such information
strictly confidential; provided, however, that the foregoing obligation of
confidence shall not apply to information that is required to be disclosed as a
result of any applicable law, rule or regulation of any governmental authority
or any court.
12. ADEA RIGHTS. Executive acknowledges and agrees:
(a) that he has at least twenty-one days to review this
Agreement before accepting;
(b) that he has been advised in writing by Company to
consult with an attorney regarding the terms of this Agreement;
(c) that, if he accepts this Agreement, he has seven days
following the execution of this Agreement to revoke this Agreement.
13. TERMINATION AGREEMENT AND RELEASE VOLUNTARY. Executive
acknowledges and agrees that he has carefully read this Agreement and
understands that, except as expressly reserved herein, it is a release of all
claims, known and unknown, past or present including all claims under the ADEA.
He further agrees that he has entered into this Agreement for the above stated
consideration. He warrants that he is fully competent to execute this
Agreement which he understands to be contractual. He further acknowledges that
he executes this Agreement of his own free will, after having a reasonable
period of time to review, study and deliberate regarding its meaning and
effect, and after being advised to consult an attorney, and without reliance on
any representation of any kind or character not expressly set forth herein.
Finally, he executes this Agreement fully knowing its effect and voluntarily
for the consideration stated above.
14. EFFECTIVE DATE. The Effective Date shall be ten days after
the execution of this Agreement by Executive, Company and DPC, provided
Executive has not exercised his right of revocation pursuant to Paragraph 12(c)
above.
15. HEADINGS. The section headings contained herein are for the
purpose of convenience only and are not intended to define or limit the
contents of such sections.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed in multiple counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same instrument.
Date: June 30, 1998 XXXXX PRODUCTS COMPANY
By: /s/ XXXXXX X. HEINDENTHAL
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NAME: Xxxxxx X. Heindenthal
TITLE: Senior Vice President and Chief
Financial Officer
Date: June 30, 1998 DPC ACQUISITION CORP.
By: /s/ XXXXXX X. HEINDENTHAL
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NAME: Xxxxxx X. Heindenthal
TITLE: Senior Vice President and Chief
Financial Officer
Date: June 30, 1998 "EXECUTIVE"
By: /s/ XXX X. XXXXXXXX
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XXX X. XXXXXXXX
