EXHIBIT 10.13
GENERAL RELEASE AND WAIVER AGREEMENT
This General Release and Waiver Agreement (Agreement) is entered into
this 25th day of October, 1997, between Xxxxxx X. Xxxx (hereinafter
defined as King) and Wausau Paper Xxxxx Company, including, but not
limited to, its present and future divisions, operations, parents,
subsidiaries, affiliates, predecessors, successors, assigns, employee
benefit plans, employee benefit plan administrators, employee benefit plan
sponsors, directors, officers, trustees, agents, employees or
representatives (collectively defined as Wausau Paper). The Parties have
entered into this Agreement to fully and finally settle any differences
between them that have arisen or might arise from King's employment
relationship and/or conclusion of that employment relationship, without
either party incurring further expense. The Parties have agreed to the
following terms and conditions:
1. It is understood and agreed upon by the Parties that King will
resign his employment and officer status and all positions with Wausau
Paper, effective February 15, 1998, and the sole purpose for Wausau Paper
entering into this Agreement is to confer certain transitional benefits to
King and to avoid any potential for time-consuming and costly litigation
in defending Wausau Paper's position that no unlawful acts occurred
related to King's employment or the conclusion of that employment. It is
further understood and agreed that neither the negotiations or signing of
this Agreement, nor any actions taken in fulfillment of the
representations contained herein, shall constitute an admission, in any
fashion, by Wausau Paper that it has acted wrongfully or unlawfully toward
King or any other person, and the parties recognize that King resigned,
effective February 15, 1998, for legitimate reasons. Wausau Paper
disclaims any liability to, or wrongful or unlawful conduct against King,
and King disclaims any liability to, or wrongful or unlawful conduct
against Wausau Paper.
2. In consideration for the promises set forth in this Agreement,
Wausau Paper will provide King with the following:
X. Xxxx will remain employed as provided in Paragraph 3A with
Wausau Paper through February 15, 1998. King shall be paid his current
annualized base salary of $290,000 on a bi-weekly basis through November
30, 1997. Each payment shall be in the amount of $11,153.85 (Eleven
Thousand One-Hundred Fifty-Three and 85/100th Dollars), less applicable
taxes and deductions withheld. Commencing December 1, 1997 and through
February 15, 1998, King shall be paid an annualized base salary of
$490,000, and it will be paid bi-weekly. Each payment shall be paid in
the amount of $18,846.15 (Eighteen Thousand Eight Hundred Forty-Six and
15/100th Dollars), less applicable taxes and deductions withheld. In
addition, through February 15, 1998, Wausau Paper will continue to provide
King and his spouse with his current active employee benefit package
(including 401(k) participation), as it may be amended from time to time
or any successor plan, and pursuant to the terms of the Plan documents.
Commencing February 16, 1998, and ending on November 30, 1998 (the
"Benefit Period"), King shall be paid severance pay in the total amount of
$395,769.25, and it shall be
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paid in equal installments, less applicable taxes and deductions
withheld, and consistent with Wausau Paper's normal and customary
payroll practices and periods. During the Benefit Period,
Wausau Paper will continue to provide King with health, dental and life
insurance benefits consistent with the plan(s) he is under at the time of
his termination and as those plans may be amended from time to time or
under any successor plan, and pursuant to the terms of the Plan documents.
Commencing November 30, 1997, Wausau Paper will provide King with
individual executive level assistance outplacement services with
Challenger, Xxxx, & Xxxxxxxxx until Xxxx secures employment as a senior
executive. These payments and benefits shall be made pursuant to
Subparagraphs 2B, 3C and 3H of this Agreement. No monies or benefits
other than those specifically set forth in this Agreement will be paid or
provided to King.
X. Xxxx is fully vested in Wausau Paper's qualified retirement
plan and shall be eligible for a lump sum or payment of benefits beginning
at age 55 in accordance with the terms of the qualified retirement Plan
documents. On or about December 1, 1997, King shall be eligible for a
lump sum payout of $766,134.38, less applicable taxes and deductions
withheld, pursuant to the Wausau Paper's Executive Officer Supplemental
Retirement Plan in accordance with the terms of the Supplemental
Retirement Plan documents. This payment and benefit shall be made on or
after December 1, 1997 but no later than December 15, 1997 and pursuant to
Subparagraphs 3(C) and 3(H) of this Agreement. Life, health and dental
insurance benefit coverage set forth in Subparagraph 2A of this Agreement
shall cease upon King's obtaining any employment in the capacity of a
senior executive.
C. Wausau Paper agrees that King has the full consent of the
Option Committee to exercise stock options by delivering other stock of
Wausau Paper at the purchase price pursuant to the terms of his option
agreements should he choose to do so. For purposes of exercising his
stock options, King shall have until May 15, 1998 in accordance with the
terms of his options. King preserves all existing rights to exercise his
stock options, stock appreciation rights, and dividend equivalent rights
consistent with the terms of those Plan document(s), except as otherwise
provided in this Paragraph.
3. In consideration for the terms and conditions set forth in this
Agreement, King and Wausau Paper further agree to the following:
X. Xxxx agrees that he will resign as a director of Wausau
Paper as of the effective date of the merger of Mosinee Paper Corporation
and WPM Holdings, Inc., or, if later, February 15, 1998. King agrees that
he will serve as President and Chief Executive Officer of Wausau Paper
through November 30, 1997 and as Vice Chairman of Wausau Paper through
February 15, 1998 and will resign his employment and officer status as
well as any other positions with Wausau Paper, effective February 15,
1998. Upon execution of this Agreement, King will sign and tender Exhibit
A to Wausau Paper.
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X. Xxxx agrees that his separation from employment with Wausau
Paper is complete and permanent; that he will not be reemployed by Wausau
Paper, and that he will not knowingly apply for, or otherwise seek,
employment with Wausau Paper at any time.
X. Xxxx understands and agrees that he has twenty-one (21) days
during which he can decide whether or not to enter into this Agreement and
during which time he may consult with an attorney regarding all aspects of
this Agreement, and agrees to the extent he desires, he will and/or has
availed himself of that right. Should King sign this Agreement before the
end of this twenty-one (21) day period, he represents that he has done so
voluntarily and without influence by Wausau Paper. King also understands
that he has seven (7) days following the signing of this Agreement to
revoke his agreement to its provisions. Any such revocation must be made
by delivering a written notice of revocation to Xxxxx X. Xxxxx, Senior
Vice President of Administration, Wausau Paper, Corporate Headquarters,
Xxx Xxxxx'x Xxxxxx, X.X. Xxx 0000, Xxxxxx, XX 00000-0000. For the
revocation to be effective, it must be received by Wausau Paper on or
before the seventh (7th) calendar day after King executes this Agreement.
Absent any such revocation, at the conclusion of the seven (7) day period,
this Agreement shall become effective and enforceable, and the
consideration set forth in Paragraph 2 of this Agreement shall be provided
to King at the latter of the expiration of the seven (7) day revocation
period or as otherwise provided herein.
X. Xxxx specifically warrants and represents that he has not
filed, nor will he file at any time hereafter, any claims, charges,
complaints, suits, or other actions against Wausau Paper with any Federal,
State, or Local agency or court other then claims, charges, complaints,
suits, or other actions to enforce the terms of this Agreement or which
accrue after the signing of this Agreement. King also expressly agrees
that he will withdraw with prejudice, or request the withdrawal with
prejudice, and/or dismissal with prejudice, or cause to be dismissed with
prejudice, any and all claims, charges, complaints, suits, or other
actions pending against Wausau Paper in any Federal, State, or Local,
agency or Court to the extent he has the power to do so, other than
claims, charges, complaints, suits or other actions that survive the
signing of this Agreement. King further agrees that should any claims,
charges, complaints, suits, or other actions have been filed or filed
hereafter on his behalf covering any of the claims released hereunder by
any Federal, State, or Local agency, that he will withdraw with prejudice,
or cause to be withdrawn with prejudice, and/or dismiss with prejudice, or
request the dismissal with prejudice any such claims, charges, complaints,
suits, or other actions filed against Wausau Paper to the extent he has
power to do so.
E(1). King agrees that by the signing of this Agreement, and his
acceptance of the benefits set forth in Paragraph 2 of this Agreement, he
irrevocably and unconditionally releases forever, with prejudice, Wausau
Paper from all damages, actions, lawsuits or claims King may have, whether
based on contract, tort, statute, or common law, arising from his
employment with Wausau Paper and/or the conclusion of that employment.
This includes a release of any rights or claims King may have under the
Age Discrimination in Employment Act of 1967, as amended, which prohibits
age discrimination in employment; Title VII of the Civil
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Rights Act of 1964, as amended, which prohibits discrimination in
employment based upon race, color, religion, national origin or sex; the
Americans with Disabilities Act; the Wisconsin Fair Employment Act, or
any other charges, complaints, claims, liabilities, obligations,
promises, agreements, controversies, damages, actions, suits, rights,
demands, losses, debts and/or expenses (including attorneys' fees and
costs actually incurred) of any nature, known or unknown, suspected or
unsuspected which King may have under any other federal, state or local
law. King also acknowledges and agrees that the payments and benefits
extended to him under the terms of this Agreement are in addition to
anything of value to which he is already entitled. This also includes a
release by King of any other known or unknown claims in contract, tort,
or common law, including, but not limited to, actions for libel, slander,
defamation, small claims, or wrongful discharge accruing through the date
of his signing this Agreement. THIS MEANS THAT KING IS GIVING UP ANY AND
ALL RIGHTS HE MAY HAVE TO XXX WAUSAU PAPER RELATED TO, IN ANY WAY, HIS
EMPLOYMENT WITH WAUSAU PAPER AND/OR THE CONCLUSION OF THAT EMPLOYMENT.
This waiver does not apply to claims or rights, including but not limited
to, those under the Age Discrimination in Employment Act of 1967, that
may accrue after this Agreement is executed, claims under the Wisconsin
Workers Compensation Act or claims to enforce the terms of this
Agreement. The Parties agree that King retains all existing
indemnification rights relating to his service as an employee, officer
and director of Wausau Paper, including any rights or claims he may have
under applicable insurance policies covering Directors or Officers
involving a claim by a third party. Wausau Paper and King have the right
to enforce this Agreement solely by way of lawsuit filed in either the
Circuit Court for Marathon County, State of Wisconsin, or the United
States District Court for the Western District of Wisconsin, pursuant
to the terms set forth in Paragraph 5 of this Agreement, and the only
cause of action that will remain will be to enforce the terms of this
Agreement, any claims accruing after the date of King's signing of this
Agreement, or any claims arising under the Wisconsin Worker's
Compensation Act.
E(2). The Board of Directors and Officers of Wausau Paper
warrants and represents that they have no knowledge, at the time of the
signing of this Agreement, that King has participated or engaged in any
type of misconduct, malfeasance, violation of Wausau Paper's policies or
illegal acts. King warrants and represents to Wausau Paper that he has
not participated or engaged in any type of misconduct, malfeasance,
violation of Wausau Paper's policies or illegal acts. In reliance on
these warranties and representations by King, Wausau Paper agrees to, by
the signing of this Agreement and its acceptance of King's resignations,
representations, covenants, releases, and waivers provided by King
hereunder, irrevocably and unconditionally releases forever, with
prejudice, King from all damages, actions, lawsuits or claims Wausau Paper
may have, whether based on contract, tort, statute, or common law, arising
from his employment with Wausau Paper and/or the conclusion of that
employment, or from his service as an Officer and Director of Wausau
Paper. This includes, but is not limited to, a release of any rights or
claims Wausau Paper may have under applicable law, or any other charges,
complaints, claims, liabilities, obligations, promises, agreements,
controversies, damages, actions, suits, rights, demands, losses, debts
and/or expenses (including attorneys' fees and costs actually incurred) of
any nature, known or unknown, suspected or unsuspected which Wausau Papers
may have under any federal, state or local law. This release also
includes a
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release by Wausau Paper of any other known or unknown claims in contract,
tort or common law, including, but not limited to, actions for
libel, slander, defamation or small claims accruing through the date of
its signing of this Agreement. Wausau Paper is giving up any and all
rights it may have to xxx Xxxx related to, in any way, his employment with
Wausau Paper and/or the conclusion of that employment, or his service as
an Officer or Director of Wausau Paper. This waiver does not apply to
claims or rights that accrue after the date Wausau Paper signs this
Agreement or claims to enforce the terms of this Agreement brought by
Wausau Paper.
F. Wausau Paper agrees that it will not intentionally disparage
King, and King agrees that he will not intentionally disparage Wausau
Paper or any of its officers, directors, trustees, agents and/or
employees, with anyone who is presently doing business with or employed by
Wausau Paper, or with anyone that could reasonably be expected to do
business with or be employed by Wausau Paper.
X. Xxxx agrees to direct all reference checks and business-
related communications to Xxxxx Xxxxx, Senior Vice President of
Administration of Wausau Paper, or his successor. Wausau Paper agrees to
provide King with an executed original of a mutually acceptable letter of
reference in the form attached to this Agreement as Exhibit B, and Wausau
Paper agrees to respond to any reference requests only by providing a
letter having the contents of Exhibit X.
X. Xxxx acknowledges and agrees that the severance pay and
benefits set forth in Paragraph 2 of this Agreement are subject to offset,
termination, cancellation or recoupment in the event that he takes any
action or engages in any conduct which a court of competent jurisdiction
holds to be a violation of subparagraphs 3J and 3K of this Agreement.
However, King retains his right to contest any such action by Wausau Paper
consistent with Paragraph 3(E) of this Agreement. Before Wausau Paper
takes action to offset, terminate, cancel or recoup any of the severance
pay or benefits set forth in Paragraph 2 of this Agreement, it will
provide King with a fourteen (14) day written notice so that the parties
can attempt to reach a mutually satisfactory solution. With respect to
any other alleged violations of this Agreement, Wausau Paper shall be
limited to recovering only its actual damages suffered, as determined by a
court of competent jurisdiction, as a result of the violation, as well as
any other damages or remedy provided in any other paragraph of this
Agreement or by law.
X. XXXX REPRESENTS AND AGREES THAT PRIOR TO THE EXECUTION OF
THIS AGREEMENT HE HAS BEEN FULLY ADVISED TO CONSULT WITH AN ATTORNEY TO
DISCUSS ALL ASPECTS OF THIS AGREEMENT. KING FURTHER REPRESENTS AND AGREES
THAT, TO THE EXTENT HE DESIRES, HE HAS AVAILED HIMSELF OF THAT RIGHT.
KING FURTHER REPRESENTS AND AGREES THAT HE HAS EXECUTED THIS AGREEMENT
WITH FULL KNOWLEDGE OF THE RIGHTS WAIVED HEREUNDER, AND THAT THIS
AGREEMENT CONSTITUTES A FULL AND FINAL SETTLEMENT OF ALL MATTERS BETWEEN
WAUSAU PAPER AND KING, INCLUDING, BUT NOT LIMITED TO, ATTORNEYS FEES AND
COSTS, AND
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THAT NO OTHER MONIES ARE DUE AND OWING TO HIM OTHER THAN THOSE SET FORTH
IN THIS AGREEMENT. KING FURTHER REPRESENTS AND AGREES THAT HE
HAS READ CAREFULLY AND FULLY UNDERSTANDS ALL OF THE PROVISIONS OF THIS
AGREEMENT AND THAT HE HAS KNOWINGLY AND VOLUNTARILY ENTERED INTO THIS
AGREEMENT.
X. Xxxx agrees that he shall not disclose to any person, copy,
retain, or use for his own benefit or the benefit of any other person, any
secret or confidential information, formulae, designs, drawings, programs,
specifications, processes, apparatus, research or other trade secrets
without prior written consent of Wausau Paper. King agrees that he shall
not disclose confidential information about Wausau Paper, its products,
financial status, or other similar information. The Parties further agree
that, unless otherwise required by law, they shall keep confidential the
settlement of this matter and this Agreement, including its terms, amounts
and conditions. The Parties agree that they will not reveal any
information concerning this Agreement, or information contained therein,
to anyone except King's spouse, prospective employers, the Officers and
Directors of Wausau Paper, tax advisors or accountants, legal counsel,
and/or those individuals at Wausau Paper who would have a need to know for
purposes of implementing or administering the terms of this Agreement,
provided that any such recipient agrees to keep the information
confidential.
X. Xxxx agrees that during his employment with Wausau Paper
and:
(a)(i) Through November 30, 1999, he shall not directly or
indirectly (so as to order or control the activities that
King is prohibited from doing directly) be employed or
render any types of services, whether as an employee,
officer, agent, representative, consultant, independent
contractor, or in any other capacity, by or on behalf of any
persons, entities, their parents, subsidiaries, divisions,
affiliates, operations or successors, related to the
manufacture and/or sale of technical specialty paper
products of the same type produced by the Rhinelander and
Xxxx Xxxxxx to the following Wausau Paper customers:
Fasson Roll Division MACtac
Xxxxx Bridge Technicote, Inc.
Kanzaki Specialty Paper Wausau Coated Products
(ii) Through November 30, 1998, directly or indirectly (so as to
order or control the activities that King is prohibited from
doing directly) be employed or render any types of services,
whether as an employee, officer, agent, representative,
consultant, independent contractor, or in any other
capacity, by or on behalf of any persons, entities, their
parents, subsidiaries, divisions, affiliates, operations or
successors, related to the
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manufacture and/or sale of uncoated printing and writing
paper products to the following Wausau Paper competitors:
International Paper board, imaging, offset, opaque, text &
cover
Georgia Pacific board, imaging, offset, opaque, text &
cover
Noranda (Fraser) board, imaging, offset, opaque, test &
cover
Xxxxxxx board, imaging, offset, opaque
SAPPI board, imaging, offset
Boise Cascade board, imaging, offset
Domtar offset, opaque
Neenah Paper, a
subsidiary of
Xxxxxxxx Xxxxx text & cover
Fox River text & cover
Xxxxxxx Paper, a
subsidiary of
Xxxx text & cover
Crown Vantage text & cover
Mohawk text & cover
Monadnock text & cover
French text & cover
Board - index, vellum bristol, tag
Imaging - multipurpose colors
Offset - offset colors
Opaque - white opaque
(iii) Nothing in this Subparagraph shall prevent King from
working with or for any merchant distributor, whether
independent or mill-owned, of any customer or competitor
identified in this Paragraph, subject to the same
limitations contained in Subparagraph (c) of this Paragraph.
(b) Through November 30, 1998, hire, seek to employ or induce
any employee of Wausau Paper to leave employment with Wausau
Paper;
(c) Through November 30, 1999, request, solicit or advise any of
the Wausau Paper customers listed in Subparagraph 3K(a)(i)
or serviced by a merchant distributor, with whom King is
working with or for, to withdraw, curtail, cease or cancel
business with Wausau Paper. Nothing in this Subparagraph 3K
of this Agreement shall be construed as limiting King's
right to accept employment with the entities listed in
Subparagraph 3K(a)(i) of this Agreement, subject to the
limitations set forth in this Subparagraph 3K(c).
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For the purposes of this Subparagraph 3K of this Agreement, King
acknowledges and the Parties agree that the entities listed in
Subparagraphs 3K(a)(i) and (h) of this Agreement are customers or
competitors of Wausau Paper. The Parties agree that the covenant not to
compete contained in Subparagraph 3K of this Agreement shall be the only
covenant not to compete governing King, and it is intended to supersede
any restrictive covenant inconsistent with the foregoing. The Parties
further agree that if King becomes employed by a competitor not listed in
Subparagraph 3(K)(ii) and that unlisted competitor is subsequently
purchased, acquired, merged or ownership is otherwise transferred to a
listed competitor, it shall not be a violation of this Agreement for King
to remain employed in the same capacity he held prior to the transaction;
however, King is still required to comply with all of his obligations
under this Agreement.
4. The consideration extended by Wausau Paper to King is contingent
upon his voluntarily and knowingly entering into this Agreement and is
not, in any manner, indicative of a continuing employment relationship
with Wausau Paper beyond February 15, 1998.
5. The parties agree and understand this Agreement was entered into
in the State of Wisconsin and that any claims or actions relating to this
Agreement shall be brought in the State of Wisconsin. The parties further
agree that Wisconsin law shall. apply to any dispute arising under this
Agreement.
6. King shall perform such duties as he deems reasonably necessary
and appropriate to carry out his duties as President and Chief Executive
Officer and, between December 1, 1997 and February 15, 1998, King will
assist Wausau Paper in an orderly transition and will not intentionally
engage in any action that would tend to disrupt or interfere with Wausau
Paper's business. Wausau Paper agrees to allow King a reasonable amount
of time to interview while he still is employed with Wausau Paper.
7. Following reasonable notice, and recognizing that King may be
employed elsewhere after February 15, 1998:
(i) King agrees to reasonably cooperate with regard to any matter
which King may have relevant information as a result of his
employment with Wausau Paper, and
(ii) King shall provide such reasonable cooperation from the date of
execution of this Agreement until termination of salary
continuation payments under Subparagraph 2A of this Agreement,
after which time Wausau Paper shall compensate King at the rate
of $200.00 (Two Hundred and No/100 Dollars) per hour for time
spent by King in providing his reasonable cooperation upon the
request of Wausau Paper.
(iii) Reasonable expenses incurred by King while reasonably
cooperating with Wausau Papers shall be promptly reimbursed by
Wausau Paper.
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8. Each party will indemnify and hold harmless the other party from
and against all losses, costs, fees, (including, but not limited to,
reasonable attorney fees) and damages incurred by each party as a result
of any breach of this Agreement by the other party, as determined by a
court of law.
9. This Agreement sets forth the entire agreement between the
Parties as of the date of its execution and fully supersedes any and all
prior discussions, letters, agreements or understandings between the
Parties, except the Wausau Paper Xxxxx Company Patent and Secrecy
Agreement dated June 20, 1983, Wausau Paper Xxxxx Company Employee Conduct
Agreement dated March 4, 1985, and the Wausau Paper Xxxxx Company
Corporate Compliance Manual and Code of Conduct, dated December 20, 1993.
10. The provisions of this Agreement are severable, and if any part
of the Agreement is to be found unenforceable, the other Paragraphs of
this Agreement shall remain valid and fully
enforceable.
WAUSAU PAPER XXXXX COMPANY
Dated: OCTOBER 28, 1997 By: XXXXX X. XXXXX
Xxxxx X. Xxxxx
Senior Vice-President, Administration
I HAVE READ AND UNDERSTAND THE ABOVE AND
KNOWINGLY AND VOLUNTARILY ENTER INTO THIS
GENERAL RELEASE AND WAIVER AGREEMENT
XXXXXX X. XXXX
Dated: OCTOBER 25, 1997 By: XXXXXX X. XXXX
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EXHIBIT A
[Date]
Board of Directors
Wausau Paper Xxxxx Company
X.0. Xxx 0000
Xxxxxx, XX 00000-0000
Re: RESIGNATION OF EMPLOYMENT AND ALL POSITIONS
Dear Board of Directors:
I hereby resign as a director of Wausau Paper Xxxxx Company as of the
effective date of the merger of Mosinee Paper Corporation and WPM
Holdings, Inc., or, if later, February 15, 1998. Effective as of
November 30, 1997, I hereby resign as President and Chief Executive
Officer and effective February 15, 1998, I hereby resign as an officer
and employee of Wausau Paper Xxxxx Company and any other positions I
hold with the Company, any of its affiliated entities, and any of their
employee benefit plans. Therefore, my employment with Wausau Paper
Xxxxx Company will terminate, in all respects, on February 15, 1998.
Very truly yours,
Xxxxxx X. Xxxx
