XXXXX PLASTICS CORPORATION
000 XXXXXX XXXXXX
XXXXXXXXXX, XXXXXXX 00000
July 5, 2001
Xxxxxx X. Xxxxxx
0000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Dear Xxxxx:
The purpose of this letter agreement is to memorialize the
understandings we have reached regarding your retirement from employment with
Xxxxx Plastics Corporation (the "Corporation").
1. RETIREMENT. Effective May 31, 2001 (the "Effective Date") you have
retired and resigned as an employee, officer and a member of the Board of
Directors of the Corporation and its affiliates. As of the Effective Date, your
Employment Agreement dated December 24, 1990, as amended (the "Employment
Agreement") terminated, except for those provisions that by their own terms or
the terms of this letter agreement, survive termination.
2. RETURN OF PROPERTY. You confirm that you have returned any and all
of the Corporation's (and any of its affiliates') property (including all
automobiles, computers, electronic equipment of any kind, computer software,
keys, key cards, credit cards, identification tags, documents, data and other
proprietary material) and all other materials required to be returned under the
terms of your Employment Agreement. You agree to take the necessary measures to
immediately terminate or transfer to your account, your membership in the
Petroleum Club.
3. SEVERANCE. Provided that you comply with the terms and provisions
of this letter agreement and any other agreements in effect between or among you
and the Corporation and/or its affiliates and/or any other parties, each as in
effect from time to time, your retirement and resignation shall be treated as a
Voluntary Termination (as defined in your Employment Agreement), and you shall
be entitled to receive the following payments:
(a) the portion of any unpaid Base Salary1, if any, which
you had accrued as of the Effective Date;
(b) the aggregate amount of any unpaid Reimbursable Expenses
incurred prior to the Effective Date;
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Captilaized terms not otherwise herein have the meaning assigned to them
in the Employment Agreement.
Xxxxxx X. Xxxxxx
July 5, 2001
Page 2
(c) $36,402 in lieu of accrued and unused vacation time,
payable on June 15, 2001;
4. NON-COMPETE PAYMENTS. Provided that you comply with your
obligations set forth in Section 11 of this letter agreement, you shall be
entitled to receive the following payments:
(a) twenty-four (24) twice monthly payments of $17,212,
commencing on June 15, 2001 and ending on May 31, 2002;
(b) six (6) twice monthly payments of $17,212, commencing on
June 15, 2002 and ending on August 31, 2002; and
eighteen (18) twice monthly payments of $8,606,
commencing on September 15, 2002 and ending on May 31,
2003, provided however, that no such payments under this
section 4(b) shall be made on or after a Sale of the
Corporation2; and
(c) an additional payment of $158,695, payable on March 15,
2002.
5. OPTIONS. Provided that you comply with the terms of this letter
agreement and the terms of all the agreements in effect between or among you and
the Corporation and/or its affiliates and/or any other parties, each as in
effect from time to time, notwithstanding any provision of any of your option
agreements (collectively, the "Option Agreements") to the contrary, (i) any
options issued to you which are unvested will vest if, as, and when determined
by the Board of Directors of the Corporation, but not inconsistent with the
Board's determinations made with respect to the senior executives of the
Corporation (the "Extended Vesting Period"), and (ii) the exercise period for
any options issued to you and which have vested shall be extended until the
earlier to occur of a Sale of the Corporation or the termination date in the
Option Agreements or any extension thereof that might be agreed to for the
benefit of the senior executives of the Corporation (the "Extended Exercise
Period", and together with the Extended Vesting Period and the benefits
conferred upon you by the provisions of Section 4 hereof, the "Special
Termination Benefits"). You acknowledge and agree that as of the Effective Date
you hold vested options to purchase 6,778 shares of Class B Non-Voting Common
Stock ("Shares") of BPC Holding Corporation ("Holding") and additional unvested
options to purchase 1,694 Shares. You further confirm that no other options have
been issued to you under any other agreements.
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"Sale of the Corporation" means (A) the sale of the Corporation or Holding
to one or more independent third parties, pursuant to which such party or
parties acquire (i) beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of capital stock or other securities of
the Corporation or Holding possessing the combined voting power to elect a
majority of the Corporation's or Holding's, respectively, Board of
Directors (whether by merger, consolidation or issuance, sale or transfer
of the Corporation's or Holding's capital stock) or (ii) all or
substantially all of the Corporation's or Holding's assets determined on a
consolidated basis or (B) where Atlantic Equity Partners International II,
L.P. or its affiliates fail to hold capital stock or other securities of
Holding possessing the combined voting power to elect a majority of the
Holding's Board of Directors.
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July 5, 2001
Page 3
6. STOCK. You acknowledge and agree that as of the Effective Date, you
or members of your family are the holders of the following number of shares of
Holding's stock:
(a) Class B Voting Stock: 5,494
(b) Class B Non-Voting Stock 15,636
(c) Class C Non-Voting Stock 1,795
and that neither you nor any member of your family owns any other shares of the
Corporation's stock. You hereby agree to amend Section 6 of the Amended and
Restated Stockholders Agreement dated as of June 18, 1996 among Holding, you and
certain other shareholders (the "Stockholders Agreement") to extend the period
for the exercise of the repurchase right provided for therein such that in the
event that a Sale of the Corporation has not occurred prior to December 31,
2003, then Holding or its designee shall have 90 days thereafter to exercise
that repurchase right.
7. CONSULTING. You agree to provide consulting services to the
Corporation on the following terms:
(a) TERM. Subject to earlier termination as provided below,
your retention as a consultant shall commence June 1,
2001 and terminate on May 31, 2002 (the "Consulting
Period").
(b) DUTIES. During the Consulting Period, you will render to
the Corporation such services as the Chief Executive
Officer or Board of Directors of the Corporation may
reasonably request. You will perform such services as an
independent contractor to, and not as an employee or
agent of, the Corporation. You will not have any
authority to bind the Corporation in any way.
(c) TIME TO BE DEVOTED TO CONSULTING DUTIES. During the
Consulting Period, you will perform consulting services
at such times and in such manner as are mutually agreed
to by you and the Corporation.
(d) COMPENSATION; REIMBURSEMENT. The Special Termination
Benefits shall constitute the compensation for all
services rendered by you as a consultant. You agree not
to incur any travel expenses or other disbursements in
connection with the performance of your consulting
duties except with the advance written approval of the
Chief Financial Officer of the Corporation. The
Corporation will reimburse you for any approved expenses
or disbursements incurred by you upon presentation to
the Corporation of appropriate documentation.
(e) TERMINATION. The Consulting Period may be terminated by
the Corporation at any time and for any or no reason.
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Xxxxxx X. Xxxxxx
July 5, 2001
Page 4
8. HEALTH BENEFITS. You are eligible to continue to participate in the
health benefit program presently offered by the Corporation in accordance with
its terms governing retirees.
9. TAX PREPARATION SERVICES. You will be permitted to continue to
utilize the services of Ernst & Young in connection with the preparation of your
income tax returns until the earlier of a Sale of the Corporation or May 31,
2003.
10. ASSISTANCE IN SALE OF CORPORATION. You agree to provide such
assistance and cooperation in connection with any Sale of the Corporation at
such times and in such manner as are mutually agreed to by you and the
Corporation.
11. RESTRICTIVE COVENANTS. In consideration of your receipt of the
Special Termination Benefits, you agree that the provisions of Section 13(a) of
your Employment Agreement shall survive the termination of your employment with
the Corporation and shall continue until the earlier of one-year following a
Sale of the Corporation or December 31, 2003, PROVIDED HOWEVER, that in the
event there has not been a Sale of Corporation by May 31, 2003, the provision of
Section 13(a) of your Employment Agreement, shall terminate on that day.
12. RELEASE. In consideration of the foregoing provisions of this
letter, including the Special Termination Benefits, the sufficiency of which is
hereby acknowledged, you, for yourself, your successors, assigns, heirs,
executors and administrators (individually and collectively, the "Releasors"),
hereby release and forever discharge the Corporation, Holding and First Atlantic
Capital, Ltd. ("FACL") and each of their respective affiliates, subsidiaries,
divisions, shareholders, members, partners, predecessors, directors, employees,
managers, officers, agents, and attorneys, past and present and/or each of their
respective successors, assigns, heirs, executors, and administrators,
(individually and collectively, the "Releasees") from any and all manner of
action, claims, suits, causes of action, rights, dues, accounts, bonds, bills,
debts, sums of money, contracts, controversies, omissions, agreements, promises,
variances, trespasses, damages, liabilities, executions, judgments, and demands
whatsoever, in law, admiralty, or equity which the Releasors ever had, now have,
or hereafter can, shall or may have against the Releasees, whether or not now
known, for, upon, or by reason of any matter, cause, or thing whatsoever from
the beginning of time (the "Released Claims").
The Released Claims specifically exclude (i) any claims arising under
this letter agreement; (ii) any claims relating to the Option Agreements as
modified herein; and (iii) any claims you have or may have under the
Corporation's certificate of incorporation and bylaws (as each may be amended
from time to time) and the laws of Delaware to indemnification from the
Corporation for claims arising out of or relating to actions or omissions in the
course of your employment and your service as a director of the Corporation
prior to June 1, 2001.
The Released Claims include, without limitation, any facts or
circumstances arising out of or in any way connected with, or relating to, your
employment with the Corporation, or any of its affiliates, or its termination,
including but not limited to, breach of contract, defamation, impairment of
economic opportunity, intentional infliction of emotional harm or distress or
any other tort, discrimination, harassment and/or retaliation on account of
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Xxxxxx X. Xxxxxx
July 5, 2001
Page 5
age, sex, sexual orientation, race, color, religion, marital status, disability,
height, weight, national original, or any other classification recognized under
any law, or violations of the Civil Rights Act of 1866, as amended, the Civil
Rights Act of 1964, as amended, the Civil Rights Act of 1991, as amended, the
Age Discrimination in Employment Act of 1967 ("ADEA"), as amended, the Americans
With Disabilities Act of 1990, the Rehabilitation Act of 1973, as amended, the
Older Workers Benefit Protection Act, as amended, the Medical Leave Act of 1993,
as amended, the Indiana Civil Rights Act, I.C. 22-9-1-1, ET SEQ., the Indiana
Age Discrimination In Employment Act, I.C. 22-9-2-1, ET SEQ, and the Employment
Discrimination Against Disabled Persons Act, I.C. 22-9-5-1, ET SEQ., or any
other federal, state, local, or municipal constitution, statute, ordinance,
executive order, regulation, or the common law relating to employment or
employment discrimination, or claims growing out of any legal restrictions on
the rights of the Releasees to discharge their employees, that the Releasors now
have or claim to have, or which the Releasors heretofore had, or which the
Releasors may have or claim to have at any time hereafter, and the Releasors
expressly waive any and all remedies that may be available thereunder.
You hereby agree to (i) indemnify and hold harmless all of the
Releasees with respect to any and all losses, costs, expenses or damages
(including attorney's and advisor's fees) in any way related to any claims
asserted against any Releasees (including third party claims), in connection
with any Released Claim or any breach by you of your obligations under any
agreement with any of the Releasees or their affiliates, including but not
limited to this letter agreement and your Employment Agreement, the Stockholders
Agreement and the Option Agreements and (ii) (excluding only claims asserted
under the ADEA) covenant not to commence, prosecute, pursue or give any aid in
connection with, any action or proceeding against any of the Releasees with
respect to any of the Released Claims.
YOU EXPRESSLY ACKNOWLEDGE THAT THE SPECIAL TERMINATION BENEFITS
CONSTITUTE AND THE OTHER AGREEMENTS HEREUNDER CONSTITUTE ADEQUATE AND SUFFICIENT
CONSIDERATION FOR THE FOREGOING RELEASE AND INDEMNITY.
You acknowledge that were you not to enter into this letter agreement,
upon your separation of employment from the Corporation you would receive only
the payments described at Sections 3(a) through (c) of this letter agreement.
13. SURVIVAL. All provisions of all agreements which you have entered
into with the corporation and/or its affiliates that by their terms survive the
termination of your employment with the corporation (including, without
limitation, Section 12 NONDISCLOSURE OF CONFIDENTIAL INFORMATION, Section 13
RESTRICTIVE COVENANTS, AND Section 14 CORPORATION RIGHT TO INVENTIONS, ETC. of
your Employment Agreement) shall remain in full force and effect in accordance
with their terms except as explicitly modified hereby.
14. CONFIDENTIALITY. You agree that you will keep the terms and the
fact of this letter agreement completely confidential, except solely as may be
required for the filing of any applicable income tax return, for the enforcement
of any provision of this agreement or pursuant
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Xxxxxx X. Xxxxxx
July 5, 2001
Page 6
to a valid subpoena, court or administrative order. In the event that any person
or government agency seeks to compel disclosure of this agreement by you
pursuant to a valid subpoena, court or administrative order, you shall use your
best efforts to notify the Corporation at least 20 days prior to disclosure or
as soon as possible if a shorter period is imposed by law or circumstances.
15. STATEMENTS. Each party agrees that it shall not, directly or
indirectly, make or cause others to make any statement or take any action that
could reasonably be construed to be a false or misleading statement of fact or a
libelous, slanderous or disparaging statement of or concerning you, the
Corporation, Holding, FACL, or any of their respective affiliates, businesses or
any of their respective employees, officers, directors, agents, consultants,
members or stockholders. The Corporation and you will agree upon the content of
a Press Release announcing your retirement.
16. GOVERNING LAW, SUBMISSION TO JURISDICTION, VENUE. This letter
agreement shall be governed by, and construed and enforced in accordance with,
the laws of the State of New York applicable to contracts made and to be
performed wholly therein. Each of the parties hereto irrevocably (i) consents to
the exclusive jurisdiction of the state or federal Court in the State of New
York in connection with the resolution of any action arising as a result of the
breach by any of the parties hereto of any of the provisions hereunder; and (ii)
waives any objection it may have to the laying of venue of any proceeding
brought in such court or to the inconvenience of the forum.
17. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ITS RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY DEALINGS BETWEEN THE PARTIES
HERETO RELATING TO THE SUBJECT MATTER HEREOF OR THEREOF. EACH OF THE PARTIES
HERETO ALSO WAIVES ANY BOND OR SURETY OR SECURITY UPON SUCH BOND THAT MIGHT, BUT
FOR THIS WAIVER, BE REQUIRED OF THE OTHER PARTY. THE SCOPE OF THIS WAIVER IS
INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY
COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING,
WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL
OTHER COMMON LAW AND STATUTORY CLAIMS. EACH OF THE PARTIES HERETO ACKNOWLEDGES
THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO THIS AGREEMENT. EACH OF
THE PARTIES HERETO FURTHER WARRANTS AND REPRESENTS THAT IT HAS REVIEWED OR HAD
THE OPPORTUNITY TO REVIEW THIS WAIVER WITH ITS RESPECTIVE LEGAL COUNSEL, AND
THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING
CONSULTATION WITH SUCH LEGAL COUNSEL. IN THE EVENT OF LITIGATION, THIS AGREEMENT
MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
18. SEVERABILITY. Whenever possible, each provision of this letter
agreement will be interpreted in such a manner as to be effective and valid
under applicable law, but if any provision of this letter agreement is held to
be invalid, illegal or unenforceable in any respect
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Xxxxxx X. Xxxxxx
July 5, 2001
Page 7
under any applicable law or rule in any jurisdiction, such invalidity,
illegality or unenforceability will not affect any other provision or any other
jurisdiction, and such invalid, void or otherwise unenforceable provisions shall
be null and void. It is the intent of the parties, however, that any invalid,
void or otherwise unenforceable provisions be automatically replaced by other
provisions which are as similar as possible in terms to such invalid, void or
otherwise unenforceable provisions but are valid and enforceable to the fullest
extent permitted by law.
19. ENTIRE AGREEMENT; AMENDMENTS. This letter agreement and the other
agreements referenced herein, contains the entire agreement between the parties
with respect to the subject matter contained herein and therein. This letter
agreement may be amended only by an agreement in writing signed by the parties
hereto. This letter agreement may be executed in separate original or facsimile
counterparts, each of which shall be deemed an original document but both of
which shall constitute but one agreement.
20. REVIEW WITH COUNSEL. The parties to this letter agreement have
read this letter agreement and have had the opportunity to review the same with
their chosen legal counsel.
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If the terms and conditions of this letter agreement are agreeable to
you, please indicate your acceptance by signing your name where indicated below.
Yours sincerely,
XXXXX PLASTICS CORPORATION
By: /s/ Xxx X. Boots
Name: Xxx X. Boots
Title: President and Chief Executive Officer
I hereby confirm my resignation, effective May 31, 2001, as an
employee and an officer and member of the Board (and all committees thereof) of
BPC Holding Corporation, Xxxxx Plastics Corporation and each of its subsidiaries
and I agree to the terms, conditions and agreements set forth in this letter
agreement. To the extent that I am an officer, director, manager, board
committee member, or employee of any entity affiliated with Xxxxx Plastics
Corporation, I hereby resign all of such positions.
My signature below indicates that I have been offered at least 21 days
to consider the terms and conditions of this letter agreement and that I have
been advised to consult with an attorney prior to executing this letter
agreement. I understand that for a period of seven days following the execution
of this letter agreement, I may revoke this letter agreement by delivering a
written notice to Xxxxx Plastics Corporation to that effect. I hereby waive my
right to the statutory 21 day consideration period. I make this waiver
willingly, voluntarily, free from duress and upon and with the advice of counsel
of my choosing. Lastly, my signature below indicates that I have carefully read
and reviewed this letter agreement, that I fully understand all of its terms and
conditions and that I have not relied upon any representations by Xxxxx Plastics
Corporation or any of its affiliates, employees or agents concerning the terms
of this letter agreement, and execute and deliver this letter agreement freely
and voluntarily.
/s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
Dated 7/5/01
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