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EXHIBIT 10.17(a)
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EKCO GROUP, INC.
00 Xxxx Xxxxx Xxxx
Xxxxxx, XX 00000
December 28, 1995
Xx. Xxxx X. Xxxxxx
00 Xxxxxxx Xxxxx
Xxxxxxx, XX 00000
RE: SETTLEMENT AND RELEASE OF CLAIMS AGREEMENT
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Dear Xxxx:
This letter sets forth the terms of your agreement with Ekco Group,
Inc. and its subsidiaries and affiliates ("Ekco") regarding the termination of
your employment with Ekco. We have agreed as follows:
1. TERMINATION OF EMPLOYMENT: The effective date of the
termination of your employment will be January 3, 1996 (the "Separation Date").
You hereby resign from your positions as an employee of and the Treasurer of
Ekco Group, Inc, as the Trustee of the Ekco Group, Inc. Employee Stock Ownership
Plan ("ESOP"), and from all other offices, directorships and other positions
which you hold with Ekco, in each case effective as of the Separation Date. You
agree to execute such documents as Ekco may reasonably request to evidence the
foregoing and to facilitate the transfer of property held by the ESOP to a
successor trustee. From and after the Separation Date you shall have no
authority to and shall not represent yourself as an officer, director, trustee,
employee or agent of Ekco or the ESOP.
2. SEVERANCE PAY: On the later of the Separation Date and the
eighth day following your execution of this Agreement, provided you have not
exercised your right of rescission described in Section 11 below, Ekco will pay
you by wire transfer a lump sum of Two Hundred Fifty Three Thousand Dollars
($253,000) less such amounts as Ekco customarily deducts and withholds from
compensation payments. In addition, Ekco shall also reimburse you for expenses
incurred by you in connection with your employment with Ekco in accordance with
past practice through the Separation Date, provided that you submit such expense
reimbursement request to the President, Chief Financial Officer or Controller of
Ekco Group, Inc. prior to January 15, 1996.
3. SEVERANCE BENEFITS: Until the earlier of (i) January 3, 1998
and (ii) the commencement of your full-time employment with an employer who
offers you at least comparable benefits in the particular benefit category at
the same or at a lower cost than is then being provided by Ekco, Ekco will
provide you with medical, dental and group life insurance coverage, in the same
amounts and on the same terms and conditions as it now provides such coverage to
you to the extent Ekco is able to continue the applicable coverage. You agree to
continue to pay Ekco for your share of the cost of such benefits by paying Ekco,
within thirty (30) days of the invoice thereof, for such amounts. In the event
that an employer offers you comparable benefits in a particular benefit category
at a greater cost than that which you are then paying to Ekco, at Ekco's option,
you will accept such benefit(s) in lieu of those provided by Ekco, and Ekco will
reimburse you for the difference in the cost. If Ekco changes its insurance
provider or the amount or terms of such coverage
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for its senior executives, including changes in contribution percentages or
cost, it may provide such substitute or changed coverage to you in full
satisfaction of its obligations under this Agreement, provided, however, that
following a Change of Control (as defined below), Ekco shall have not have the
right to change the amount or terms of such coverage from that existing
immediately prior to such Change of Control. In the event Ekco cannot continue
your coverage under the terms of the applicable policies, Ekco shall cooperate
with you in actions which may be reasonably necessary to allow you, to the
extent possible, either (i) to buy such insurance policies, or (ii) to continue
insurance coverage with the insurer writing Ekco's applicable group policy
outside of Ekco's group plan. In the event that Ekco does not or cannot provide
you with coverage under its group policies, it shall pay to you 140% of your
cost of obtaining comparable coverage, but in no event more than twice the cost
which Ekco paid for your coverage under its group policies prior to the
Separation Date. For purposes of calculating Ekco's costs of coverage, as to
which Ekco self insures, the costs shall be the amount that Ekco then charges
individuals who elect to purchase COBRA continuation coverage pursuant to the
Consolidated Omnibus Budget Reconciliation Act ("COBRA"), 42 USCS ss.1396a, et.
seq., following termination of their employment with Ekco.
For purposes of this Agreement "Change of Control" shall mean and shall
be deemed to have occurred (i) if any "person" (as such term is used in Sections
13(d) and 14(d)(2) of the Securities Exchange Act of 1934, as amended), other
than Ekco Group, Inc. ("Group") or any employee stock plan of Group, is or
becomes the beneficial owner, directly or indirectly, of securities of Group
representing fifteen percent (15%) or more of the outstanding Common Stock of
Group, or (ii) ten (10) days following the commencement of, or announcement of
an intention to make, a tender offer or exchange offer the consummation of which
would result in the beneficial ownership by any "person" of fifteen percent
(15%) or more of the outstanding Common Stock of Group, provided, however, that
at the conclusion of such ten (10) day period such person has not discontinued
or rescinded his intention to make such a tender or exchange offer or (iii) if
during any consecutive twelve (12) month period beginning on or after the date
on which this Agreement is executed individuals who at the beginning of such
period were directors of Group cease, for any reason, to constitute at least a
majority of the Board of Directors of Group; or (iv) if a merger of, or
consolidation involving, Group in which Group's stock is converted into
securities of another corporation or into cash shall be consummated, or a plan
of complete liquidation of Group (whether or not in connection with a sale of
all or substantially all of Group's assets) shall be adopted and consummated, or
substantially all of Group's operating assets are sold (whether or not a plan of
liquidation shall be adopted or a liquidation occurs), excluding in each case a
transaction solely for the purpose of reincorporating Group in a different
jurisdiction or recapitalizing Group's stock, PROVIDED, however, that any of the
transactions described above which shall have been approved by a resolution
adopted by the Board of Directors of Group with at least two-thirds (2/3) of the
then serving Group directors who are Group directors as of the date hereof
voting in favor, shall not constitute a Change of Control.
4. PERSONAL PROPERTY: On or before the Separation Date, Ekco will
transfer to you or your designee, free of all liens and claims other than any
incurred by you, the title to the Jeep automobile you are currently using and
the laptop computer, excluding any information stored thereon which belongs to
Ekco, and facsimile machine currently in your possession. Such transfers
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shall be "as is" and with no warranties.
On or before January 3, 1996, you will return to Ekco and not use all
property, except as set forth above, which belongs to it or which otherwise
pertains to its business, including without limitation any and all documents and
copies thereof, compilations of information in any form (including computer
storage), software, keys, security access cards, credit cards, and travel
letters. From this date forward, you shall not use any such credit card or
credit devices except in the ordinary course of business consistent with past
practice, and will reimburse Ekco promptly for any personal charges made to date
in accordance with the Company's practice.
On or before January 3, 1996, you will transfer the account for your
cellular phone (000-000-0000) from Ekco to you or your designee. From this date
forward, you shall not incur any charges with respect to such account except in
the ordinary course of business consistent with past practice.
5. ACKNOWLEDGEMENT/OTHER AGREEMENTS: The terms of this Agreement
shall replace any and all rights which you otherwise may have had pursuant to
the Employment Agreement dated November 6, 1991, as amended ("Employment
Agreement") between you and Ekco, which agreement is hereby terminated except as
specified below; Ekco severance, vacation accrual or other type of employment
policy; and any rights you may have pursuant to any federal, state or local law,
statute, ordinance or regulations, relating in any way to your employment with
Ekco, the termination of such employment, or severance or compensation benefits
incident to either.
Except for any monies and stock in which you are 100% vested pursuant
to the terms of the applicable plans due to you pursuant to Ekco's Supplemental
Employee Retirement Program (the "SERP"), 401(k) plan, Employee Stock Purchase
Plan ("ESPP"), and the ESOP, salary and expense reimbursement with respect to
the period through the Separation Date and except as expressly set forth in this
Agreement, you acknowledge that you have been paid all wages, commissions,
bonuses, vacation pay and any and all other forms of compensation or benefit
that may be due you now or in the future in connection with your employment or
the termination of your employment with Ekco, including, without limitation, any
rights you may have had to outplacement services, or reimbursement therefor,
pursuant to your existing Employment Agreement.
6. CONSULTATION/COOPERATION: You shall make yourself available,
upon reasonable notice, through January 3, 1998 either by telephone or, in
Ekco's discretion, in person, to assist Ekco in any matter relating to the
services performed by you during your employment or later consulting with Ekco.
You also shall cooperate fully with Ekco in the defense or prosecution of any
claims or actions now in existence or which may be brought or threatened in the
future against or on behalf of Ekco, including without limitation any claims or
actions against its officers, directors and employees. Your cooperation in
connection with such actions or claims shall include, without limitation, your
being available to meet with Ekco or its designees in connection with any
regulatory matters, to prepare for any proceeding (including, without
limitation, depositions, consultation, discovery or trial), to provide
affidavits, to assist with any audit, inspection, proceeding or other inquiry,
or to act as a witness in connection with any litigation or other legal
proceeding affecting Ekco. Should you be contacted (directly or indirectly) by
any person known by you to be adverse to Ekco with respect to any dispute with
Ekco, you shall promptly (within 48 hours) notify
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the President of Ekco Group, Inc. Ekco shall promptly reimburse you for
reasonable out of pocket expenses incurred by you at Ekco's request in complying
with your obligations hereunder. In the event that you provide more than twenty
(20) hours of service to Ekco, at Ekco's request pursuant to the terms of this
paragraph, Ekco will compensate you for your time for such excess services at
the rate of One Hundred Fifty Dollars ($150.00) per hour. Ekco agrees to
indemnify, defend and hold you harmless from damages incurred by you in
connection with providing such services to the same extent as Ekco indemnifies
its officers pursuant to the terms of Ekco Group, Inc.'s bylaws.
7. RESTRICTED STOCK AND OPTIONS: We mutually acknowledge that as
of the date hereof you are the holder of 10,022 shares of Ekco Group, Inc.
Common Stock, $.01 par value ("Shares") which are subject to Restricted Stock
Purchase Agreements (the "Restricted Shares") and Options to purchase 111,437
Shares pursuant to Stock Option Agreements (the "Option Agreements"). Effective
as of the later of the eighth day following your execution of this Agreement and
the Separation Date, Ekco Group, Inc.: (i) waives its rights to repurchase the
Restricted Shares and waives all restrictions on transfer with respect to such
shares other than those imposed by applicable federal and state securities laws
and (ii) amends each of the Option Agreements to provide that all options which
have not been exercised prior to the date hereof shall be exercisable from and
after the date hereof and shall remain exercisable until January 3, 1997.
Promptly upon payment of the full purchase price in accordance with the terms of
such Option Agreements, Ekco will deliver you the certificates representing such
Shares in accordance with the terms of the Option Agreements. You acknowledge
that upon waiver of the right of repurchase you will be deemed to have
compensation income for federal income tax purposes equal to the fair market
value of the Shares less the purchase price you paid for the Shares, and that
Ekco is required to withhold no less than 28% of the amount of such income.
Further, you acknowledge that upon exercise of the Options you will also be
deemed to have income for federal income tax purposes equal to the fair market
value of the Shares as of the date of exercise, less the purchase price paid
upon such exercise, and that similarly Ekco will be required to withhold on such
date in accordance with applicable federal regulations. You hereby agree to
cooperate with Ekco in such withholding, and to pay to Ekco amounts which are
required under applicable federal and state tax laws, and hereby agree that Ekco
may set-off from any amount it owes to you, or your affiliates, any amounts
which you have not paid to Ekco as so required.
8. NON-COMPETITION/NON-DISPARAGEMENT/CONFIDENTIALITY: The
obligations set forth in "Section 8, Confidentiality and Non-Competition" of
your Employment Agreement are reaffirmed and incorporated herein by reference,
except that such obligations shall continue until January 3, 1998, and except
that (i) the terms thereof shall not prohibit you from performing services for
X.X. Xxxxxx and Company, Inc. in connection with its services to Ekco, (ii) a
business shall only be deemed competitive if Ekco is now engaged in such
business, or has engaged in such business since October, 1987, and (iii) the
phrase "the Board of Directors" in the sixteenth line of page 16 of such
agreement is replaced with the phrase "an executive officer of Group".
Neither you nor Ekco shall make any statements that are disparaging
about or adverse to the business interests of the other (including Ekco's
officers, directors and employees) or which are intended to harm the reputation
of the other including, but not limited to, any statements that disparage any
product, service, finances, capability or any other aspect of
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the business of Ekco.
All information relating in any way to the subject matter of this
Agreement, including the terms and amount of this Agreement, shall be held in
confidence by you and Ekco and shall not be publicized or disclosed to any
person or entity (other than an immediate family member, legal counsel,
accountant or financial advisor, provided that any such individual to whom
disclosure is made agrees to be bound by these confidentiality obligations),
except as required by applicable law, or as may be required in connection with
disputes under this Agreement.
You acknowledge that the covenants set forth in this section are
reasonable and necessary to protect Ekco's confidential and proprietary
information and trade secrets, and that the specific time and scope provisions
set forth in this paragraph are reasonable and necessary to protect Ekco's
business interests. You further expressly acknowledge and agree that in the
event of your breach or threatened breach of the covenants set forth in this
paragraph, Ekco would suffer substantial irreparable harm and that Ekco would
not have an adequate remedy at law for such breach or threatened breach. You
therefore agree that in the event of a breach or threatened breach of any of
these covenants, in addition to such other remedies as Ekco may have at law,
Ekco, without posting any bond, shall be entitled to obtain, and you agree not
to oppose, a request for equitable relief in the form of specific performance,
or temporary, preliminary or permanent injunctive relief, or any other equitable
remedy which then may be available. The seeking of such injunction or order
shall not affect Ekco's right to seek and obtain damages or other relief at law
or in equity on account of any such actual or threatened breach. The breach of
any portion of this paragraph number 8 shall constitute a material breach of
this Agreement and, in addition to any other remedy available to Ekco, shall
entitle Ekco to recover all of its costs and expenses, including reasonable
attorneys' fees, in enforcing its rights and your obligations under this
Agreement.
9. RELEASE OF CLAIMS: You agree and acknowledge that by signing
this Agreement and accepting the Severance Payments and Benefits to be provided
to you, and other good and valuable consideration provided for in this
Agreement, you are waiving your right to assert any form of legal claim against
Ekco of any kind whatsoever for any matter occurring from the beginning of time
through the Separation Date. Your waiver and release herein is intended to and
shall bar any form of legal claim, charge, complaint or any other form of action
(jointly referred to as "Claims") against Ekco seeking any form of relief
including, without limitation, equitable relief (whether declaratory, injunctive
or otherwise), the recovery of any damages or any other form of monetary
recovery whatsoever (including, without limitation, back pay, front pay,
outplacement benefits or compensation, compensatory damages, emotional distress
damages, punitive damages, attorneys fees and any other costs) against Ekco
through the Separation Date.
Without limiting the foregoing general waiver and release, you
specifically waive and release Ekco from any Claim arising from or related to
your employment relationship with Ekco or the termination thereof, including,
without limitation:
** Claims under any state or federal discrimination, fair employment
practices or other employment related statute, regulation or executive
order (as they may have been amended through the date of this
Agreement)
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prohibiting discrimination or harassment based upon any protected
status including, without limitation, race, national origin, age,
gender, marital status, disability, veteran status or sexual
orientation. Without limitation, specifically included in this
paragraph are any Claims arising under the New Hampshire
anti-discrimination statute, the Federal Age Discrimination in
Employment Act, the Older Workers Benefit Protection Act, the Civil
Rights Acts of 1866 and 1871, Title VII of the Civil Rights Act of
1964, the Civil Rights Act of 1991, the Equal Pay Act and the Americans
With Disabilities Act.
** Claims under any other state or federal employment related statute,
regulation or executive order (as they may have been amended through
the date of this Agreement) relating to wages, hours or any other terms
and conditions of employment. Without limitation, specifically included
in this paragraph are any Claims arising under the Fair Labor Standards
Act, the Family and Medical Leave Act of 1993, the National Labor
Relations Act, the Employee Retirement Income Security Act and any
similar state statute.
** Claims under any state or federal common law theory including, without
limitation, wrongful discharge, breach of express or implied contract,
promissory estoppel, unjust enrichment, breach of a covenant of good
faith and fair dealing, violation of public policy, defamation,
interference with contractual relations, intentional or negligent
infliction of emotional distress, invasion of privacy,
misrepresentation, deceit, fraud or negligence.
** Any other Claim arising under state or federal law.
Notwithstanding the foregoing, this Section shall not release Ekco from
the obligations expressly set forth in this Agreement, any ongoing
indemnification obligation set forth in the Certificate of Incorporation or
ByLaws of Ekco Group, Inc. or any of its subsidiaries, or with respect to the
Indemnification Agreement dated as of July 30, 1986 between you and Ekco Group,
Inc. (the "Indemnification Agreement"), Option Agreements, or distributions not
yet made to you under the terms of the SERP, the ESOP, 401(k) or the ESPP.
While Ekco is not releasing you from any claims it may have against
you, and Ekco has made no specific investigation of the basis for any such
claims, Ekco represents to you that its executive officers do not as of the date
of this Agreement have actual knowledge of actions or omissions by you which
constitute the basis for any claims against you.
10. OLDER WORKERS BENEFITS PROTECTION ACT: Because you are over 40
years of age, you have specific rights under the Older Worker Benefits
Protection Act ("OWBPA") which prohibits discrimination on the basis of age. The
release set forth in this Agreement is intended to release any right you may
have against Ekco alleging discrimination on the basis of age.
11. RECISION RIGHTS: Consistent with the provisions of OWBPA, you
shall have twenty-one (21) days to consider and accept the terms of this
Agreement by signing below. In addition, you may rescind your assent to this
Agreement if, within seven (7) days after the date you sign this Agreement,
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you deliver a notice of rescission to the President of Ekco Group, Inc. To be
effective, such rescission must be postmarked or delivered in-hand within the
seven (7) day period to the President of Ekco Group, Inc.
12. SPLIT DOLLAR LIFE INSURANCE/LETTER OF CREDIT: On the
Separation Date you will return to Ekco that certain letter of credit issued by
Fleet Bank of Massachusetts, N.A. in accordance with your existing Employment
Agreement. Effective as of the Separation Date, you relinquish all right
(including your right to acquire), title and interest, if any, you may have
pursuant to that certain life insurance policy issued by The Guardian Life
Insurance Company of America, and hereby assign to Ekco Group, Inc. all of your
right, title and interest in and to such policy.
13. ENTIRE AGREEMENT: Except as expressly provided for herein,
this Agreement supersedes any and all prior oral and/or written agreements,
including without limitation your Employment Agreement, and sets forth the
entire agreement between Ekco and you, other than the terms of the Stock Option
and Restricted Stock Purchase Agreements referred to in paragraph 7, and the
terms of Article VII, Section 7 of Ekco's Bylaws and the Indemnification
Agreement which shall remain enforceable in accordance with their terms. No
variations or modifications hereof shall be deemed valid unless reduced to
writing and signed by the parties hereto. This Agreement shall take effect as an
instrument under seal and shall be governed and construed in accordance with the
laws of the State of New Hampshire. The terms of this Agreement are severable,
and if for any reason any part hereof shall be found to be unenforceable, the
remaining terms and conditions shall be enforced in full.
You are advised to consult an attorney before accepting this Agreement
and acknowledge that you have had an opportunity to do so.
This Agreement is executed and shall take effect as an instrument under
seal.
Very truly yours,
Ekco Group, Inc.
By: /S/XXXXXX X. XXXXXXXXXX
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Xxxxxx X. XxXxxxxxxx
Executive Vice-President
and chief Financial
Oficer
Agreed:
/S/XXXX X. XXXXXX
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Xxxx X. Xxxxxx
Date: 12/28/95
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