EXHIBIT 10.4
PAY AGREEMENT AND RELEASE
OF XXXXX XXXXXXXXXX
This agreement effective on the last date executed below, contains all the
understandings between Xxxxx Xxxxxxxxxx and Corning Consumer Products Company
and its parents, subsidiaries or affiliates, including without limitation,
Xxxxxx, Inc., and their officers, employees and agents in their individual and
representative capacities, known collectively as the "Company" in connection
with your separation from employment. This agreement provides the specific
details of benefits to be received by you including those under the Company's
Employment and Benefits Upon Termination Plan and the conditions agreed to by
you for the receipt of those benefits.
1. The Company will pay you a gross amount of $1,640,000, to be paid to you in
a lump sum within 30 days of your termination date. This represents a
payment equivalent to two (2) years of gross annual salary, annual
incentive at target and goal sharing at target. Deductions for cash
advances, other money due the Company and as required by statute or
regulation, will be made from this payment. Your official termination date
is March 1, 2000. Between now and your termination date you will be
transitioning your responsibilities.
2. You will receive a consulting agreement for transition support and
continuation as a board member through the third quarter of 2000. It is
envisioned that this would take the form of an occasional telephone
conversation or meeting. You will receive $100,000 for your consulting
services. It will be paid upon your resignation from the board during the
third quarter of 2000. Deductions, as required by statute or regulation,
will be made from this allowance.
3. You will be paid for 3 weeks unused vacation for 1999 and 1 week of accrued
but unused vacation for 2000. You will be paid 25% of the 2000 perquisite
payment. This gross payment is $30,770 for vacation pay and $12,500 for
perquisite benefits less deductions required by statute or regulations.
4. Your participation in the Management Equity Plan will end with your
termination on March 1, 2000. As previously approved by the Compensation
Committee of the Board, payment under the Plan will be based on $3.50 per
share. This results in a payment of $630,000 based on 180,000 shares. All
options will be cancelled. This amount to be paid to you within thirty (30)
days of termination.
5. You agree to conduct yourself in a manner that does not disparage the
Company, or is damaging to or otherwise contrary to the Company's best
interests and you agree that this agreement is strictly confidential and
you will not reveal its terms except in connection with an official
investigation or legal process.
1
6. You also understand that by continuing to make your monthly contributions,
you may continue participation in the Medical, Dental and Life Insurance
programs sponsored by the Company for two (2) years following your
termination of employment. It is our understanding that you will be
eligible to continue medical and life coverage under Corning, Inc. plans
beyond this two (2) year period. All other health and welfare benefits,
including but not limited to long term disability and salary continuance,
will be discontinued upon your date of termination. In addition to the
amount paid under this Agreement, any money due from the Company benefit
plans, such as vested 401 (k) balances and vested pension benefits, will be
paid to you upon application for such benefits pursuant to the terms of
such plans. All benefits provided under this Section will be coordinated
with Corning, Inc.
You will receive from the Company pension benefits under the CCPC Pension
Plan and the Xxxxxx, Inc. Supplemental Pension Plan based on service
accrued from April 1, 1998 through date of termination. In addition, the
Company will provide you with three (3) additional years of service which
will be reduced by $9,666, 50% of the estimated benefit payable from
Corning, for these additional years of service. All benefits payable under
the CCPC Pension Plan and the Xxxxxx, Inc. Supplemental Pension Plan are
payable, upon your election, at age 55 with no actuarial reduction.
Attached memo dated January 19, 2000 from Xxxxxx Xxxxxx outlines method for
calculating benefits for the additional three (3) years of service. The
benefits payable under the Supplemental Pension Plan shall be payable at
your election as a single lump sum within thirty (30) days of termination.
7. You will be provided with "Signature Services" through Lee, Hecht,
Xxxxxxxx. The Company does not warrant or guarantee the results of the
services provided and you agree to hold the Company harmless from any
claims in connection with the services provided. You will be given $10,000
for travel to New York associated with the receipt of these services. The
$10,000, less deductions required by statute and regulations, to be paid
within thirty (30) days of termination.
8. You accept the money and benefits to be paid to you under this Agreement as
full settlement of all claims and causes of action arising out of your
employment by the Company and the termination of that employment, except
any vested pension rights.
9. You agree that you are entering into this agreement and release as your own
free decision in order to receive the payments and other benefits described
above. You understand that the Company would not make these payments or
extend these benefits to you without your voluntary consent to this
Agreement.
2
You understand that by signing this Agreement you are waiving all rights to
reinstatement or future employment with the Company and that you are giving
up your right to, and agreeing not to, file charges or lawsuits: (a) with
respect to any discrimination you believe you have suffered due to age,
disability, race, sex, religion, national origin or any other reason
related to your employment by the Company, or the termination of that
employment, including, but not limited to, any claims under Title VII of
the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the
Equal Pay Act, the Rehabilitation Act of 1973, Section 1981 of the Civil
Rights Act of 1866, the Civil Rights Act of 1991, the Americans with
Disabilities Act, the Family and Medical Leave Act of 1993, the Worker
Adjustment and Retraining Notification Act, the Older Workers Benefit
Protection Act, the Fair Labor Standards Act, and any other federal, state,
or local statute or regulation regarding employment, worker's compensation,
discrimination in employment or termination of employment; (b) with respect
to any theory of libel, slander, breach of contract, wrongful discharge,
detrimental reliance, infliction of emotional distress, tort, or any other
theory under the common law; and (c) with respect to any claims for
uncompensated expenses, severance pay, incentive or bonus pay, overtime pay
or any other form of compensation.
You intend that this Agreement will bar each and every claim, demand and
cause of action above specified, whether known or unknown to you at the
time of execution of this Agreement. As a result, you acknowledge that you
might, in the future, discover claims or facts in addition to or different
from those which you now know or believe to exist with respect to the
subject matters of this Agreement and which, if known or suspected at the
time of executing this Agreement, may have materially affected this
settlement. Nevertheless, you hereby waive any right, claim, or cause of
action that might arise as a result of such different or additional claims
or facts.
You also agree that should you breach this agreement by filing any charge
or beginning any suit as described in this paragraph you will immediately
repay to the Company the sums you have received under paragraph 1, above,
less $100.00 and further agree that in such event the Company will have no
further obligation to provide you with additional pay or benefits under
this agreement, but that all other provisions of this agreement will remain
in effect.
10. You agree that, prior to your termination date of March 1, 2000, you will
return to the Company all Company credit cards, keys, customer lists and
records, policy and procedure manuals, price lists, business contracts and
other documents and information belonging to the Company. You also agree to
return all Company property, including but not limited to cell phones, and
laptop/personal computers.
3
11. You recognize that the Company possesses certain business and financial
information about its operations, information about new or envisioned
products or services, manufacturing methods, product research, product
specifications, records, plans, prices, costs, customer lists, concepts and
ideas, and is the owner of proprietary rights in certain systems, methods,
processes, procedures, technical and non-technical information, inventions,
machinery, research and other things which constitutes valuable trade
secrets of the Company. You acknowledge that you have been employed in
positions in which you have had access to such information and that the
Company has a legitimate interest in protecting such confidential and
proprietary information in order to maintain and enhance a competitive edge
within its industries. Accordingly, you agree that you will not use or
remove, duplicate or disclose, directly or indirectly, to any persons or
entities outside the Company any information, property, trade secrets or
other things of value which have not been publicly disclosed. In the event
that you are requested or required in a judicial, administrative or
governmental proceeding to disclose any information that is the subject
matter of this Paragraph, you will provide the Company with prompt written
notice of such request and all related proceedings so that the Company may
seek an appropriate protective order or remedy or, as soon as practicable,
waive your compliance with the provisions of this Paragraph.
12. You agree that you will not, directly or indirectly, for a period of one
(1) year following the effective date of the Agreement, engage in work or
other activity the same or similar to work which you performed for the
Company, for any Kitchen Housewares producer or seller which competes with
the Company.
13. You agree that you will not, directly or indirectly, for a period of one
(1) year following the effective date of this Agreement solicit or recruit
other employees of the Company to leave their employment with the Company.
14. By entering into this Agreement, the Company does not admit to the breach
of any contractual or other promises to you, and does not admit to the
violation of any federal, state, local or other statute or law, including,
but not limited to, those laws referred to in Paragraph 10 of this
Agreement, and any claimed breaches or violations are hereby specifically
denied.
15. The Parties agree that this Agreement shall be construed in accordance with
New York law, and that any action brought by any party hereunder may be
instituted and maintained only in the appropriate court having jurisdiction
over New York.
16. In making your decision, you recognize that you have the right to seek
advice and counsel from an attorney, if you so choose. You also have
twenty-one (21) days from the date this agreement is presented to you to
decide whether to sign this agreement.
4
17. You have seven (7) calendar days from the date you sign this Agreement to
cancel it in writing. You also understand that this Agreement will not bind
either you or the Company until after the seven-day period you have to
cancel. No payments will be made under this Agreement until it becomes
binding. You may cancel this Agreement by signing the cancellation box
below (or by any other written signed notice) and delivering it to the
Company within seven days of your signing this Agreement.
Very truly yours,
C. Xxxxxx Xxxxxx
Chairman
Corning Consumer Products Company
January 27, 2000
ACCEPTED:
------------------------ ----------------------
Associate's Signature Date
WITNESS: ______________________ At: ____________________
Location
CANCELLATION NOTICE:
(To cancel this Agreement, sign below and deliver this copy of the Agreement to
the Company within 7 days of the date you signed the Agreement.) I hereby cancel
this Agreement.
------------------------ -----------------------------------
Date Signature
