Exhibit 10.27
AGREEMENT AND GENERAL RELEASE
This Agreement and General Release ("Agreement") is entered into this
7th day of February, 1997, by and between Xxxxx X. Xxxxxxx ("Consultant"),
having a current address at 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxx 00000, and
Ball Corporation ("Ball"), having a current address at 000 Xxxxx Xxxx Xxxxxx,
Xxxxxx Xxxxxxx 00000-0000.
WITNESSETH
WHEREAS, Consultant is employed by Ball as Executive Vice President,
Packaging Operations; and
WHEREAS, Consultant has provided Ball with written notice of his intent
to retire effective March 1, 1997; and
WHEREAS, Contractor and Ball have entered into this Agreement for the
purpose of facilitating a independent contractor consulting arrangement,
terminating his employment with Ball, and fully and completely settling all
differences which have arisen or may arise between them without any party
conceding the correctness of the position of the other party in the interest of
saving themselves the burdens and vexation of litigation.
NOW, THEREFORE, IN CONSIDERATION of the covenants hereinafter contained
and other good and valuable consideration, the receipt of which is hereby
acknowledged by Consultant, the parties agree as follows:
1. Employment Termination. Effective March 1, 1997, Consultant's
employment shall terminate and he shall become an independent
contractor consultant to Ball.
2. Consulting Period. During the period beginning March 1, 1997,
and ending on December 31, 1998, ("Consulting Period"),
Consultant will provide consulting services as outlined on
Attachment A for Ball, its subsidiaries, affiliates, joint
venture companies, groups and divisions. References to "Ball"
shall hereafter include Ball Corporation, its subsidiaries,
affiliates, joint venture companies, groups, divisions and
assigns. During this period, Consultant agrees to provide as
an independent contractor and not as an employee of Ball,
consulting services for a period not to exceed one hundred
(100) hours per month. Consultant's consulting services will
be provided upon notice from Xxxxxx X. Xxxxxx, Chairman of the
Board, President and Chief Executive Officer, his successor(s)
or an employee of Ball reporting to Xx. Xxxxxx or his
successor(s). Consultant will be paid Thirty-Five Thousand
Four Hundred Seventeen ($35,417) a month during the period
beginning on March 1, 1997, and ending on December 31, 1997.
Consultant will be paid Twenty-One Thousand Four Hundred
Sixty-Five ($21,465) a month during the period beginning on
January 1, 1998 and ending on December 31, 1998. The first
payment will be made on or about March 31, 1997 and subsequent
payments will be made on or about the end of each month
thereafter until the last payment is made on or about December
31, 1998. Consultant may terminate the Consulting Period at
any time upon thirty (30) days written notice. In the event
of such termination, no further payment for consulting
services shall be due from Ball after the date of such
termination.
3. Billing. Consultant shall submit to Ball, for its approval, a
monthly statement of the services performed, including the
dates and hours worked and the expenses incurred by
Consultant in the performance of his consulting services,
including as appropriate, transportation, lodging, meals and
incidental expenses. Consultant must obtain Ball's approval
before incurring any expenses. Expenses incurred must be
supported by copies of airline tickets, hotel bills and
restaurant receipts. Single items of expense, including taxi
fares, of $25 or more, must be supported by appropriate
receipts. Ball may withhold reimbursement for any expenses
not supported in accordance with the requirements of this
Agreement. Should Ball require any of the consulting services
be performed at Ball's offices, Ball will provide office space
and secretarial service at no cost to Consultant.
4. Duties. Consultant shall have a duty of loyalty to Ball.
Consultant agrees to perform his consulting services promptly
with care, skill and diligence. Consultant understands that
Ball will be relying upon the accuracy, competence and
completeness of Consultant's services. Consultant shall not
disparage or criticize, orally or in writing, the performance
of Ball, or its officers, directors or employees to any
person, provided, however, this sentence shall not prevent
Consultant from rendering good faith objective advice to Ball
as part of confidential work product delivered to Ball in
response to requests for services from Ball.
5. Independent Contractor. During the Consulting Period,
Consultant shall operate as an independent contractor and
shall not act or be an agent or employee of Ball. All of
Consultant's activities will be at his own risk and Consultant
shall not be entitled to workers' compensation or similar
benefits or other employee benefit protection provided by
Ball. As an independent contractor Consultant will be solely
responsible for determining the means and methods for
providing consulting services described herein. Consultant
will determine the time, the place and the manner in which to
accomplish his services within an overall schedule date
established by Ball. Ball will receive only the results of
the consulting services.
6. Indemnity. Consultant shall indemnify and hold harmless Ball
from any and all claims, actions, causes of action, suits,
judgments, including costs and attorney's fees associated with
Consultant's failure to comply with applicable requirements
regarding workers' compensation coverage liability for
himself, his employees, his agents or subcontractors or the
employees of his agents or subcontractors. Consultant is not
entitled to unemployment insurance benefits, unless
unemployment compensation coverage is provided by Consultant
or by an entity other than Ball. Consultant is solely
responsible for reporting his income and for paying Federal
and State Income Tax on any monies paid by Ball to Consultant
pursuant to this Agreement.
7. Release. Consultant, on behalf of himself, his agents,
assignees, attorneys, heirs, executors and administrators,
fully releases Ball, its successors, assigns, parents,
subsidiaries, affiliates, joint venture companies, groups and
divisions, and all of their officers, directors, shareholders,
employees, agents and representatives, from any and all
liability and legal and equitable claims, demands, actions,
causes of action, suits, grievances, debts, sums of money,
controversies, agreements, promises, damages, back and front
pay, costs, expenses, attorney's fees, and remedies of any
type which Consultant now has or hereafter may have by reason
of any matter, cause, act or omission arising out of or in
connection with Consultant's employment with or termination of
employment from Ball including without limitation: actions
under Title VII of the Civil Rights Act of 1964; the Age
Discrimination in Employment Act; the Rehabilitation Act of
1973; the Civil Rights Act of 1866; Executive Order 11246;
the Civil Rights Act of 1991; the Americans with Disabilities
Act; Colorado state laws; any other federal, state or local
statute or regulation regarding employment, discrimination in
employment, or the termination of employment; wrongful
discharge from employment; breach of implied or express
contract or covenant; laws relating to employment contracts or
employment termination; or common law right. Consultant
understands that this release does not affect rights or claims
that Consultant may have under the Age Discrimination in
Employment Act that may arise from events after the effective
date of this Agreement.
8. Non Competition. During the Consulting Period and for a
period of nine (9) months thereafter, Consultant shall not,
directly or indirectly, offer, sell, advise, or provide any
consulting services to any person or entity which Ball deems
to be its competitor in the rigid container business or rigid
container technology or equipment business. Consultant shall
not, directly or indirectly, as an employee or otherwise,
compete with Ball, in the manufacture, sale or development of
rigid containers or compete with Ball in the manufacture,
sale or development of rigid container technology or equipment
during the Consulting Period and a period of nine (9) months
thereafter. Rigid container includes, without limitation:
plastic bottles and cans and closures therefore; metal cans
and ends and decorated metal for metal cans and ends.
Consultant agrees that Ball shall have no obligation to make
payments for consulting services if Consultant competes
against Ball, its subsidiaries or joint venture companies, or
assumes employment with a competitor during the Consulting
Period. Consultant shall repay to Ball any monies paid under
this Agreement from the time of any breach of this covenant
not to compete.
9. Nondisclosure of Data. Consultant agrees that unless he first
secures Ball's written consent, he will keep confidential
and will not divulge, communicate, disclose, copy, destroy or
use at any time, any secret or confidential information or
technology (including matters of a technical nature, such as
know-how, formulae, secret processes or machines, inventions,
discoveries, improvements, secret data, and research projects,
and matters of a business nature, such as information
processing systems input, output, instructions and object or
source codes, information about costs, profits, markets,
sales, lists of customers, and any other information of a
similar nature to the extent not available to the public)
of Ball or third parties to whom Ball has obligations
of confidence of which he became informed during, or as a
result of, his employment or consulting with Ball; and
Consultant further agrees to abide by the terms of Ball's
Employee Proprietary Agreement executed by him the last
time on November 11, 1996.
10. Return of Materials. Consultant agrees to return to Ball upon
request but in any event no later than termination of
Consultant's consulting services any: secret or confidential
information referred to in 9 above; manuals; documents;
drawings; equipment; vendor, customer or other third party
materials, computerized or hard copy files; computer hardware
and software; identification cards; credit cards; keys and
other Ball property.
11. Ownership of Work. Ball shall own any concept, product
or process, patentable or otherwise, furnished to Ball by
Consultant, or otherwise conceived or developed by Consultant
arising out of the performance of this Agreement. Consultant
agrees to do all things necessary, at Ball's request and at
its sole cost and expense, to obtain patents or copyrights
on any processes, products or writings conceived, developed or
produced by Consultant in the performance of this Agreement.
All materials prepared or developed by Consultant hereunder,
including without limitation: documents; calculations; maps;
sketches; notes; reports; data; models; and samples, shall
become the property of Ball when prepared, whether delivered
to Ball or not and shall be delivered to Ball upon request
and, in any event, upon termination of Consultant's consulting
services.
12. Rehire. Consultant acknowledges Ball has no obligation to
hire, rehire, or reinstate him; and Consultant agrees to not
seek employment with Ball at any time hereafter.
13. Agreement Confidential. Consultant agrees not to disclose the
details of this Agreement, including the nature or the amount
of the benefit that he has received to any person other than
his lawyer, accountant, income tax preparer, or spouse,
whether directly or indirectly. To the extent that Consultant
must disclose any information about the Agreement to any of
the above-named persons, he agrees that he will instruct that
person or those persons to keep the information confidential.
14. Dismissal Of Claims. Consultant represents that he has not
filed lawsuits, claims, or charges, or complaints against Ball
with any local, state, or federal agency or court; and he will
not do so at any time hereafter. If such agency or court ever
assumes jurisdiction of any such lawsuit, claim, charge, or
complaint, or attempts to bring any legal proceedings against
Ball, he will request said agency or court to withdraw from or
to dismiss the lawsuit, claim, charge or complaint.
15. No Admission. The existence and execution of this Agreement
shall not be considered, and shall not be admissible in any
proceeding, as an admission by Ball, or its agents or
employees, of any fact, liability, error, violation, or
omission.
16. Assignment. This Agreement and the obligations under it may
not be assigned or delegated by Consultant without Ball's
written permission. This Agreement and the obligations under
it may be assigned by Ball. In the event Consultant shall
become unable to perform the services agreed to be rendered
under this Agreement because of Consultant's illness,
incapacity or death, Ball shall have the option to terminate
payments provided under section 2 above.
17. Applicable Law. This Agreement shall be construed in
accordance with the laws of the State of Indiana, without
reference to principles of conflicts of laws.
18. Severability. The provisions of this Agreement shall be
severable, and the invalidity of any provision shall not
affect the validity of the other provisions. This Agreement
states the entire agreement between the parties with respect
to the subject matter hereof.
19. Arbitration. Any controversy or claim arising out of or
relating to this Agreement or the breach of this Agreement
shall be settled exclusively by arbitration conducted before a
panel of three arbitrators (one chosen by the Executive, one
by the Corporation and the third by the other two) in Muncie,
Indiana, in accordance with the rules of the American
Arbitration Association then in effect. The determination of
the arbitrators shall be conclusive and binding on the
Corporation and the Executive, and judgment may be entered on
the arbitrators' award in any court having appropriate
jurisdiction; provided, however, that the Corporation shall
be entitled to seek a restraining order or injunction in any
court of competent jurisdiction to prevent any violation of or
the continuation of any violation of Sections 5, 8, 9, 10, 11
and 13 of this Agreement. The prevailing party in any
arbitration proceeding pursuant to this section of this
Agreement shall be entitled to recover the reasonable out of
pocket costs incurred by the prevailing party in the
arbitration proceeding, including reasonable attorney's fees
of the prevailing party.
20. Consult An Attorney. Consultant acknowledges that Ball is
hereby advising him in writing to consult with an attorney
prior to signing this Agreement. Consultant understands that
he has the right to consult with local, state and federal
equal employment opportunity agencies, such as the Equal
Employment Opportunity Commission, regarding this Agreement
prior to signing it. Ball has provided Consultant with at
least 21 days to consider signing this Agreement. He
understands that he may revoke this Agreement within seven
days after the date that he signs the Agreement by notifying
Ball, Xxxxx X. Xxxxxxxxxx, 000 Xxxxx Xxxx Xxxxxx, Xxxxxx,
Xxxxxxx 00000-0000, in writing of his intent to revoke this
Agreement. He understands that this Agreement is not
effective or enforceable until the seven-day revocation period
has expired.
21. Modifications In Writing. This Agreement may only be modified
in writing and supersedes any and all prior oral or written
communications. Any waiver by Ball of nonperformance or
noncompliance on the part of Consultant of any term or
condition of this Agreement shall not constitute a continuing
waiver of such term or condition or any other term or
condition of this Agreement.
22. Titles. The titles to sections of this Agreement are provided
for convenience only and do not effect the interpretation of
this Agreement.
23. Termination. Unless terminated earlier for cause, this
Agreement shall terminate December 31, 1999. Sections 6, 7,
8, 9, 10, 11, 12, 13, 14, 15 and 17 of this Agreement shall
survive the termination of this Agreement for any reason.
XXXXX X. XXXXXXX XXXX CORPORATION
By: /s/Xxxxx X. Xxxxxxx By: /s/Xxxxx X. Xxxxxxxxxx
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Xxxxx X. Xxxxxxxxxx
Vice President, Administration
Dated: February 25, 1997 Dated: February 21, 1997
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Attachment A
Assist and advise as a consultant with the following projects and ongoing
activities:
Strategic relationships - merger, acquisition, divestiture, joint venture,
and technology arrangement projects
Industry affairs, including, but not limited to, CMI, NFPA, and Plastics
associations
Relationship with board membership with Phoenix Packaging, Inc.
Shareholder/institutional relations
Customer relations
Community relations in packaging operations locations
Strategic planning and analysis
Development of marketing and new business/new project concepts
The above subjects may be modified or eliminated by Ball, as may be necessary,
and similar but different subjects added by Ball as may be appropriate.
