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Exhibit 10.3
WAIVER OF CLAIMS AND ACKNOWLEDGMENT AGREEMENT
This Waiver of Claims and Acknowledgment Agreement ("Agreement") is
entered into between Xxxxxxx X. Xxxx ("Releasing Party") and The Dial
Corporation ("Dial").
Releasing Party's employment with The Dial Corporation is terminated
effective September 29, 2000. Releasing Party and Dial are entering into this
Agreement to resolve any disagreements that they may have regarding Releasing
Party's employment and the cessation of his employment. It is further
understood and agreed that after said date, Dial shall not owe any duty or
obligation to Releasing Party other than those set forth in this Agreement.
Similarly, Releasing Party shall not owe Dial any duty or obligation other than
those set forth herein.
1. Releasing Party knowingly, voluntarily, and irrevocably releases and
discharges The Dial Corporation, their stockholders, officers, directors,
agents, representatives, employees, predecessors, successors, other corporate
affiliates, and assigns (hereafter collectively referred to as "Released
Parties") from any and all claims, demands, liabilities, judgments, damages,
expenses, or causes of action of any kind or nature whatsoever which Releasing
Party, his heirs, personal representatives, and assigns, and each of them, may
now or hereafter have or assert, whether now known or unknown. The claims which
are waived, released and discharged include but are not limited to breach of
express or implied contract; breach of the covenant of good faith and fair
dealing; wrongful discharge; intentional and negligent infliction of emotion
distress; public policy torts of any kind or nature; discrimination on the
basis of age, sex, religion, disability, race, or any other reason prohibited
by applicable law; Title VII of the Civil Rights Act of 1964; the Age
Discrimination in Employment Act ("ADEA"); the Older Workers Benefit Protection
Act; Family and Medical Leave Act; the Americans with Disabilities Act; Fair
Labor Standards Act; Occupational Safety and Health Act; all as amended; or any
other federal, state or local law; tort claims of any kind whatsoever; and any
other common law or statutory claims.
2. Releasing Party understands and expressly agrees that this Agreement
extends to all claims of every nature and kind whatsoever, known or unknown,
suspected or unsuspected, past or present, which Releasing Party has or may
have against Released Parties. Thus, Releasing Party also waives any and all
rights under any federal, state or common law, which would otherwise purport to
preclude a general release from extending to claims which the releasor does not
know or suspect to exist in his favor at the time of executing the release,
which if known by him might have materially affected his settlement with the
releasee. Releasing Party understands and acknowledges that he may hereafter
discover facts different from or in addition to those he now believes to be
true with respect to the matters released in this Agreement. Releasing Party
assumes any and all risk of mistake (or discovery of additional facts) in
connection with the circumstances involved in the matters giving rise to this
Agreement.
3. By signing this Agreement, Releasing Party does not waive rights or
claims under the ADEA that may arise after Releasing Party signs this
Agreement. Releasing Party acknowledges that the waiver of claims under the
ADEA is only in exchange for consideration described in Paragraph 8 to which
Releasing Party is not otherwise entitled.
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4. Releasing Party waives his right to commence or maintain any action or
proceeding against any of Released Parties arising out of or connected in any
way with his employment with Dial; provided, however, that this provision does
not bar the filing of a claim with an agency if Releasing Party agrees that he
will accept no relief or recovery therefrom.
5. Releasing Party agrees that he will not at any time disparage, The
Dial Corporation or any of Released Parties' other current or former employees,
products, operations, policies, decisions, advertising or marketing programs, if
the effect of such disparagement reasonably could be anticipated to cause
material harm to Dial's reputation, business, interests or to the morale among
its work force, or to the reputation of any current or former Dial employee.
Additionally, Releasing Party will refer all inquiries that he receives (whether
written or oral) regarding the business or operations of Released Parties to The
Dial Corporation's General Counsel (or her designee). Releasing Party recognizes
that any violation of this obligation may result (to the maximum extent
allowable by law) in forfeiture of all payments under this Agreement, in
addition to any other legal or equitable remedies that The Dial Corporation may
have against Releasing Party. Similarly, The Dial Corporation agrees that it
will not disparage Releasing Party.
6. Releasing Party further reaffirms and agrees to comply with the
Employee's Patent and Trade Secret Agreement previously signed by Releasing
Party and not to disclose confidential, technical and trade secret information
proprietary to Released Parties.
"Confidential Information" means any and all information relating to
The Dial Corporation which is not generally known by others with whom The Dial
Corporation does (or plans to) compete or do business. Confidential Information
includes, but is not limited to, information relating to the terms of this
Agreement, as well as The Dial Corporation's: (a) research and development
activities; (b) inventions, discoveries, designs and ideas; (c) products and
services; (d) manufacturing processes and methods, quality control measures and
logistics; (e) sources of supply; (f) customer lists; (g) strategic marketing
plans; (h) forecasts, sales, profits and pricing methods; (i) personnel
information; (j) terms of its business relationships; (k) intellectual property
(including without limitation, the filing or pendency of patent applications);
(l) accounting records and any information used to prepare, support or analyze
accounting records and financial reporting information; and (m) any confidential
or proprietary information gained through internal auditing activities.
Confidential Information also includes, but is not limited to, comparable
information: (i) that belongs to any subsidiary of The Dial Corporation; or
(ii) that The Dial Corporation has received belonging to customers, suppliers,
consultants or others who do business with The Dial Corporation.
Notwithstanding the foregoing, "Confidential Information" does not
include any information that is: (a) at the time of disclosure, available (or
readily discoverable) from sources which are in the public domain through no
fault of Releasing Party; (b) received by Releasing Party from a third party
without breach of such third party's non-disclosure obligation to The Dial
Corporation; (c) shown to have been developed independently by Releasing Party
prior to his employment with The Dial Corporation; or (d) required by a
judicial tribunal or similar governmental body to be disclosed under law
(provided that Releasing Party has first promptly notified The Dial Corporation
of such disclosure requirement and has cooperated fully with The Dial
Corporation in exhausting all appeals objecting to such requirement).
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7. Releasing Party agrees to return his laptop computer to the Company
no later than October 1, 2001.
8. In exchange for the general release and waiver of claims, covenant
not to xxx and other commitments set forth herein, The Dial Corporation agrees
to pay Releasing Party:
(i) the sum of $325,000 (less statutory deductions), representing one (1)
year of severance pay. Such amount will be paid in bi-weekly installments (via
direct deposit) to commence on the next regular payday after the conditions
described in Paragraph 9 have been satisfied;
(ii) Releasing Party will vest in 1,934.11 Restricted Stock Units upon his
termination, plus the dividend on those units recorded in September 2000. In
addition, Releasing Party will vest in 145.19 Restricted Stock Units upon his
termination, 50% of the premium on the Restricted Stock Units, plus 50% of the
dividend on those units recorded in September 2000;
(iii) payment for unused 2000 vacation;
(iv) payment for pro rata 2001 vacation accrued through September 30, 2000;
(v) executive level outplacement assistance for a period of up to one (1)
year;
(vi) twelve (12) months of Company-paid COBRA commencing October 1, 2000,
if elected; with such payments ceasing upon Releasing Party accepting new
employment. Any rights Releasing Party may have under COBRA will be offset by
this period of continued health coverage;
(vii) Dial's Financial Planning benefit for 2000 and 2001, not to exceed
$5,000 per year. This benefit expires at the end of 2001;
(viii) reimbursement for closing costs incurred by Releasing Party on the
sale of his primary residence located in Scottsdale, Arizona, not to exceed
$30,000. The Company will reimburse such costs upon receipt of documented
expenses;
(ix) reimbursement for costs associated with relocating Releasing Party's
household goods and personal belongings, not to exceed $25,000. The Company
will reimburse such costs upon receipt of documented expenses; and
(x) reimbursement for non-refundable school tuition or insurance premiums
incurred by Releasing Party, not to exceed $15,000. The Company will reimburse
such costs upon receipt of documented expenses.
9. If Releasing Party does not revoke this Agreement in the time period
provided for in Paragraph 16, which Releasing Party understands he may do so
within seven (7) calendar days after signing it, Releasing Party will receive
the benefits provided for in Paragraph 8 of this Agreement within ten (10)
business days following the expiration of the revocation period unless
otherwise provided for in Paragraph 8. Unless otherwise indicated, payments
shall be by check mailed to Releasing Party at his address of record with the
Company.
10. It is understood and agreed that neither the Agreement itself, nor
the furnishing of the consideration for this Agreement, shall be deemed or
construed at anytime for any purpose as an admission of the Company's or Xxxx'
liability or responsibility for any wrongdoing of any kind.
11. Releasing Party agrees that this is a private agreement and that he
will not, at any time, discuss publicly the fact that an Agreement exists or
its terms, except with his accountant, governmental taxing authorities or his
attorney, including the attorney with whom Releasing
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Party may chose to consult regarding his consideration of this Agreement, or as
otherwise compelled by law.
12. Releasing Party recognizes that any violation of his obligations
described in this Agreement may result (to the maximum extent allowable by law)
in forfeiture of all payments under this Agreement, in addition to any other
legal or equitable remedies that The Dial Corporation may have against Releasing
Party.
13. This Agreement is entered into and shall be interpreted, enforced and
governed by the law of the State of Arizona. Any action regarding this Agreement
shall be brought in a court in Maricopa County, Arizona. In any proceeding to
enforce this Agreement, the non-prevailing party will pay the costs and
reasonable attorneys' fees of the prevailing party.
14. Releasing Party waives any and all reemployment rights Releasing Party
may have with Released Parties and agrees not to present himself for employment
or seek employment with Released Parties.
15. Releasing Party had up to and including twenty-one (21) calendar days
to consider whether to sign this Agreement. Releasing Party was advised in
writing to consult with an attorney and had an opportunity to do so.
16. Releasing Party has seven (7) calendar days after signing this
Agreement to revoke this Agreement. Any revocation must be in writing addressed
to Xxxx Xxxx, Chief Executive Officer, The Dial Corporation, 00000 Xxxxx Xxxx
Xxxxxxxxx, Xxxxx 0000, Xxxxxxxxxx, Xxxxxxx 00000-0000, and postmarked within
seven (7) calendar days following the signing of the Agreement.
17. The parties further agree that if, for any reason, any provision or
clause of this Agreement is declared illegal or unenforceable by any court of
competent jurisdiction and cannot be modified to be enforceable, that provision
will immediately become null and void, leaving the remainder of this Agreement
in full force and effect.
18. This Agreement contains the entire agreement between the parties and
supersedes any and all other agreements or understandings relating to the
subject matter of this Agreement.
RELEASING PARTY HAS CAREFULLY READ THE FOREGOING WAIVER OF CLAIMS AND
ACKNOWLEDGMENT AGREEMENT, KNOWS THE CONTENTS THEREOF, HAS HAD THE OPPORTUNITY TO
CONSULT WITH AN ATTORNEY, AND SIGNS THIS AGREEMENT VOLUNTARILY, BEING AWARE OF
ITS FINAL AND BINDING EFFECT.
/s/ Xxxxxxx X. Xxxx Sept. 14, 2000
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Xxxxxxx X. Xxxx Date
/s/ Xxxx Xxxx 9/25/00
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Xxxx Xxxx Date
Chief Executive Officer for
THE DIAL CORPORATION
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