Exhibit 10.3
SETTLEMENT AGREEMENT AND RELEASE
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THIS SETTLEMENT AGREEMENT AND RELEASE ("Agreement") is voluntarily entered
into by and between Xxxxx Xxxxxxxx (hereinafter "Xx. Xxxxxxxx") and ALLTRISTA
CORPORATION (hereafter "ALLTRISTA").
Recitals
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WHEREAS, Xx. Xxxxxxxx has heretofore been employed by ALLTRISTA since
October 23, 2000 as the President of the Alltrista Thermoformed Products
Division;
WHEREAS, Xx. Xxxxxxxx and ALLTRISTA have mutually determined it is in the
best interest of both parties that the employment relationship should end; and
WHEREAS, Xx. Xxxxxxxx and ALLTRISTA desire to amicably and mutually
compromise and fully settle, finally and completely, all claims, allegations and
assertions that may now or hereafter exist between them, known or unknown.
Agreement
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NOW, THEREFORE, In consideration of the mutual understandings and covenants
and the release contained herein, Xx. Xxxxxxxx and ALLTRISTA hereby voluntarily
agree as follows:
1. Vacation and Separation Pay. Xx. Xxxxxxxx acknowledges that his
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employment with ALLTRISTA ceased on September 14, 2001. ALLTRISTA has committed
to pay Xx. Xxxxxxxx all wages accrued and due and owing to him through September
14, 2001. Xx. Xxxxxxxx acknowledges he has no earned, unused vacation existing
at the time of termination. Xx. Xxxxxxxx also acknowledges that he is entitled
to two weeks of severance pay upon termination of his employment in the amount
of seven thousand eight hundred fifteen and 38/100 ($7,815.38). Such payment
shall be subject to deductions and tax withholdings as may be required by
applicable federal, state and local laws.
2. Additional Separation Benefits. In addition to the benefits ALLTRISTA
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has already agreed to provide to Xx. Xxxxxxxx as described above in paragraph 1,
ALLTRISTA agrees to provide the following additional consideration to Xx.
Xxxxxxxx in exchange for Xx. Xxxxxxxx' commitments as described in the remaining
paragraphs (3-20) of this Agreement:
(a) ALLTRISTA will pay to Xx. Xxxxxxxx additional severance pay in the
gross amount of forty-two thousand nine hundred eighty-four and 62/100 dollars
($42,984.62), payable in a single lump sum within thirty (30) calendar days
after the complete execution of this Agreement. Such payment shall be subject to
deductions and tax withholdings as may be required by applicable federal, state
and local laws.
(b) Xx. Xxxxxxxx'x participation in ALLTRISTA-sponsored employee benefit
plans shall expire on September 14, 2001. ALLTRISTA shall provide Xx. Xxxxxxxx
with the
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opportunity to elect extended medical coverage after September 14, 2001 in
accordance with applicable federal law. Provided Xx. Xxxxxxxx elects coverage
under COBRA, the entire cost of this extended medical coverage shall be paid by
Xx. Xxxxxxxx.
(c) ALLTRISTA agrees to provide additional consideration to Xx. Xxxxxxxx
in the amount of one thousand four hundred thirty-five dollars ($1,435.00). Such
payment shall be subject to deductions and tax withholdings as may be required
by applicable federal, state and local laws.
3. Release. In return for the additional consideration being provided to
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Xx. Xxxxxxxx by ALLTRISTA as set forth in paragraph 2 above, Xx. Xxxxxxxx (for
himself and his personal representatives, heirs and assigns) HEREBY KNOWINGLY
AND VOLUNTARILY WAIVES, RELEASES AND FOREVER DISCHARGES ALLTRISTA and its
predecessors, successors, parent company, divisions, subsidiaries and affiliates
(and their current or former officers, directors, employees, agents,
shareholders, successors and assigns), and any and all employee benefit plans
(and any fiduciary of such plans) sponsored by any of them, of and from any and
all claims (including, but not limited to, claims for attorneys' fees), demands,
losses, damages, agreements, actions, suits, debts, charges, complaints,
promises or causes of action (known or unknown) which he now has or may later
discover or which may hereafter exist against them, or any of them, in
connection with or arising directly or indirectly out of or in any way related
to any and all matters, transactions, events or other things occurring prior to
the date hereof, including all those arising out of or in connection with his
employment with ALLTRISTA or the cessation of his employment or his retirement,
or which occurred during the course of his employment with ALLTRISTA or
incidental thereto, and whether pursuant to common law, statute, ordinance,
regulation or other including claims of fraud or misrepresentation in the making
or execution of the Agreement. Claims or action released herein include, but are
not limited to, those based on allegations of wrongful discharge and/or breach
of contract, those alleging discrimination on the basis of race, color, sex,
religion, national origin, age or disability under Title VII of the Civil Rights
Act of 1964, the Age Discrimination in Employment Act of 1967, the Older Workers
Benefit Protection Act, the Rehabilitation Act of 1973, the Equal Pay Act of
1963, the Americans With Disabilities Act of 1990, the Civil Rights Act of 1991
(all as amended) or any other federal, state or local law, ordinance, rule or
regulation; and those arising under the Employee Retirement Income Security Act
of 1974, as amended. The parties intend this release to be broadly construed in
favor of ALLTRISTA. Xx. Xxxxxxxx agrees and understands that any claims he may
have under the aforementioned statutes or any other federal, state or local law,
ordinance, rule or regulation are effectively waived by the Agreement. This
Agreement does not, however, release any of Xx. Xxxxxxxx' rights under the ADEA
or workers' compensation rights or claims that may arise after the date on which
Xx. Xxxxxxxx may sign this Agreement, and does not release the rights and
obligations of the parties under this Agreement.
4. Actions. Xx. Xxxxxxxx agrees to take any action necessary to carry out
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the purpose and intent of this Agreement. The amounts to be paid to Xx. Xxxxxxxx
pursuant to paragraph 2 of this Agreement are a supplement to, and not in lieu
of, the amounts described in paragraph 1 of this Agreement.
5. Cooperation. Xx. Xxxxxxxx agrees that now and in the future he will
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provide his full and unqualified cooperation to ALLTRISTA in the preparation for
and the attendance at any and all legal proceedings that may arise out of any
matter that took place during his tenure.
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6. Covenant Not to Xxx. In consideration for the sum being provided to
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Xx. Xxxxxxxx by ALLTRISTA as set forth in paragraph 2 above, Xx. Xxxxxxxx AGREES
that: (a) he will never institute a legal or equitable action in any state or
federal court against ALLTRISTA, or any of the other persons or entities
released herein, with respect to the matters herein resolved and settled; (b) he
will not seek to participate in, nor will he accept any benefit from, any class
action or other action relating to the claims released herein; and, (c) he will
not offer assistance or testimony against ALLTRISTA or any of the other persons
or entities released herein brought by any other individual or individuals,
unless instructed to do so by a court, agency or other body and then only after
he has given ALLTRISTA prompt written notice of any such instruction.
7. Confidential Information. In further consideration for the sum being
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provided to Xx. Xxxxxxxx by ALLTRISTA as set forth in paragraph 2, above, Xx.
Xxxxxxxx AGREES:
(a) That as used herein "Confidential Information" shall mean all
financial data, reports, notes, spreadsheets, ideas, suggestions, innovations,
conceptions, discoveries, inventions, improvements, technological developments,
methods, processes, specifications, formulae, compositions, techniques, systems,
machines, devices, computer software and programs, memoranda, work sheets, lists
of actual or potential customers and suppliers, works of authorship, products,
data and information in any form and on any medium which ALLTRISTA treats as
confidential or that concern or relate to any aspect of the actual or
contemplated business of ALLTRISTA or its subsidiaries, including without
limitation, any market research, technical or scientific research, and business
or marketing plans.
(b) That as of the date of this Agreement, Xx. Xxxxxxxx has returned to
ALLTRISTA all Confidential Information, in whatever form, in his possession or
under his control and that he has not retained any portion of the Confidential
Information.
(c) That neither he nor any of his agents or representatives will
disclose, take or use any Confidential Information, either directly or
indirectly without the prior, written authorization of ALLTRISTA or as may be
required by any court or governmental agency, provided that Xx. Xxxxxxxx will
promptly notify ALLTRISTA of his receipt of any notice regarding disclosure of
Confidential Information requested by any Court order or governmental agency to
permit ALLTRISTA to oppose the disclosure of the Confidential Information.
(d) Xx. Xxxxxxxx agrees that ALLTRISTA would suffer severe, irreparable
harm in the event there is an unauthorized disclosure or use of Confidential
Information and that in addition to any other remedies, ALLTRISTA shall be
entitled to obtain injunctive relief with Xx. Xxxxxxxx being responsible for all
costs incurred by ALLTRISTA relating thereto, including but not limited to all
attorney's fees.
(e) This paragraph 6 shall only prohibit the taking, use or disclosure of
Confidential Information and shall not be construed as limiting Xx. Xxxxxxxx'x
right to undertake any other employment or business activity. The provisions of
this paragraph 6 shall survive this Agreement.
8. Employment Actions. In consideration for the sum being provided to Mr.
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Xxxxxxxx by ALLTRISTA as set forth in paragraph 2 above, Xx. Xxxxxxxx AGREES
that neither he nor any agent or representative of his will discuss or in any
fashion disclose to any third
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parties any issues pertaining to any employment action planned or contemplated
by ALLTRISTA involving any employee, agent or representative of ALLTRISTA.
9. Return of Property. Xx. Xxxxxxxx represents and warrants that he has
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returned, or will return to ALLTRISTA all employer information and related
reports, documents, files, memoranda, records, computer disks, door and file
keys, passwords and access codes, and other physical or personal property
(hereinafter referred to as "property") that Xx. Xxxxxxxx received, prepared or
helped prepare in connection with his employment, and Xx. Xxxxxxxx has not
retained and will not retain any copies, duplicates, reproductions, or excerpts
thereof. All such property must be returned to ALLTRISTA no later than September
17, 2001.
10. Liability. It is understood and agreed that ALLTRISTA denies that it
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is liable to Xx. Xxxxxxxx on any theory, and that nothing in this Agreement
constitutes an admission by ALLTRISTA of any fact, damage or liability to Xx.
Xxxxxxxx on any theory. It is expressly understood and agreed that this
Agreement was entered into by the parties solely to avoid the burden and expense
of litigation.
11. Confidentiality. Xx. Xxxxxxxx agrees that neither he nor any agent or
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representative of his will discuss or in any fashion disclose to any third
parties (except an attorney or accountant advising him) any of the terms of this
Agreement or the circumstances surrounding its making, unless required to do so
by law.
12. Non-Reliance. Xx. Xxxxxxxx represents and warrants that in the making
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and execution of this Agreement, he is not relying upon any representation,
statement or assertion of fact or opinion made by any agent, attorney, employee
or representative of the persons, parties or corporations being released herein,
and he hereby waives any right to rely upon all prior agreements and/or oral
representations made by any agent, attorney, employee or representative of such
persons, parties or corporation even though made for the purpose of inducing him
to enter into this agreement.
13. Severability. The parties stipulate and agree that all clauses and
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provisions of this Agreement are distinct and severable, and Xx. Xxxxxxxx
understands, and it is his intent, that in the event this Agreement is ever held
to be invalid or unenforceable (In whole or in part) as to any particular type
of claim or as to any particular circumstances, it shall remain fully valid and
enforceable as to all other claims and circumstances.
14. Entire Agreement. This Agreement contains the entire agreement of the
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parties and supersedes all previous negotiations, whether written or oral. This
Agreement may be changed only by an instrument in writing signed by the party
against whom the change, waiver, modification, extension or discharge is sought.
15. Successors and Assigns. This Agreement shall inure to the benefit of,
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may be enforced by and shall be binding on the parties and their heirs,
executors, administrators, personal representatives, assigns and successors in
interest.
16. Governing Law. In the event of any dispute about this Agreement, the
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laws of the State of Indiana shall govern the validity, performance, enforcement
and all other aspects of this Agreement.
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17. Headings. The headings placed before the several paragraphs of this
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Agreement are inserted for ease of reference only, and do not constitute a part
of this Agreement, and shall not be used in any way whatsoever in the
construction or interpretation of this Agreement.
18. Recitals. The recitals set forth above are incorporated by reference
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as if more fully set forth at length herein.
19. Additional Representations. Xx. Xxxxxxxx represents that he has read
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this Agreement; fully understands each and every provision of this Agreement;
and has voluntarily, on his own accord, executed this Agreement. Xx. Xxxxxxxx
acknowledges that in consideration of accepting the additional payment and other
additional consideration set forth in paragraph 2 above, he is giving up
possible future administrative and/or legal claims. XX. XXXXXXXX, ALSO
ACKNOWLEDGES THAT HE HAS BEEN ADVISED BY ALLTRISTA TO CONSULT AN ATTORNEY BEFORE
HE EXECUTES THIS AGREEMENT.
20. Review Period. The parties hereby acknowledge and agree that Mr.
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Xxxxxxxx has twenty-one (21) calendar days (through October 5, 2001) in which to
consider this Agreement and that this Agreement may be revoked by Xx. Xxxxxxxx
within seven (7) calendar days after he executes it. The parties also
acknowledge and agree that this Agreement shall not be effective or enforceable
until the seven-calendar-day revocation period has expired.
IN WITNESS WHEREOF, the parties have duly executed this Agreement on the
date set forth below:
DATE: October 3, 2001 /s/ A. Xxxxx Xxxxxxxx
Xxxxx Xxxxxxxx
ALLTRISTA CORPORATION
DATE: September 14, 2001 By: /s/ Xxxxxx X. Xxxxx
Its: Chairman, President and CEO
After consultation with my attorney, I have elected to waive the twenty-one
(21) days to consider this Agreement, and hereby voluntarily accept this
Agreement on the terms and conditions set forth above.
DATE: ____________________________ _________________________________
Xxxxx Xxxxxxxx
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