Exhibit 10.1
WAIVER OF CLAIMS AND ACKNOWLEDGMENT AGREEMENT
This Waiver of Claims and Acknowledgment Agreement ("Agreement") is
entered into between Xxxx Xxxxxxxxxx ("Releasing Party") and The Dial
Corporation (the "Company").
Releasing Party and the Company are entering into this Agreement to
resolve any disagreements that they may have regarding Releasing Party's
employment and the cessation of his employment. It is further understood and
agreed that after said date, the Company shall not owe any duty or obligation to
Releasing Party other than those set forth in this Agreement.
1. Releasing Party knowingly, voluntarily, and irrevocably releases and
discharges The Dial Corporation, its stockholders, officers, directors, agents,
representatives, employees, predecessors, successors, other corporate
affiliates, and assigns (hereafter collectively referred to as "Released
Parties") from any and all claims, demands, liabilities, judgments, damages,
expenses, or causes of action of any kind or nature whatsoever which Releasing
Party, his heirs, personal representatives, and assigns, and each of them, may
now or hereafter have or assert, whether now known or unknown. The claims which
are waived, released and discharged include but are not limited to breach of
express or implied contract; breach of the covenant of good faith and fair
dealing; wrongful discharge; intentional and negligent infliction of emotion
distress; public policy torts of any kind or nature; discrimination on the basis
of age, sex, religion, disability, race, or any other reason prohibited by
applicable law; and claims under the Age Discrimination in Employment Act
("ADEA"); the Older Workers Benefit Protection Act; Title VII of the Civil
Rights Act of 1964; the Employee Retirement Income Security Act; Family and
Medical Leave Act; the Americans with Disabilities Act; Fair Labor Standards
Act; Occupational Safety and Health Act; all as amended; or any other federal,
state or local law; tort claims of any kind whatsoever; and any other common law
or statutory claims.
Nothing in the above language or any other part of this Agreement is
intended to release claims which cannot lawfully be waived, including the right
to file an administrative charge of discrimination. Releasing Party
acknowledges, however, that he is not entitled to recover money in connection
with any such charge.
2. Releasing Party understands and expressly agrees that this Agreement
extends to all claims of every nature and kind whatsoever, known or unknown,
suspected or unsuspected, past or present, which Releasing Party has or may have
against Released Parties. Thus, Releasing Party also waives any and all rights
under any federal, state or common law, which would otherwise purport to
preclude a general release from extending to claims which the releasor does not
know or suspect to exist in his favor at the time of executing the release,
which if known by him might have materially affected his settlement with the
releasee. Releasing Party understands and acknowledges that he may hereafter
discover facts different from or in addition to those he now believes to be true
with respect to the matters released in this Agreement. Releasing Party assumes
any and all risk of mistake (or discovery of additional facts) in connection
with the circumstances involved in the matters giving rise to this Agreement.
3. By signing this Agreement, Releasing Party does not waive rights or
claims that may arise after Releasing Party signs this Agreement. Releasing
Party acknowledges that the severance pay and other benefits described in
Paragraph 9 are in addition to anything of value to which Releasing Party is
otherwise entitled.
4. Releasing Party agrees not to commence or maintain any action or
proceeding against any of Released Parties arising out of or connected in any
way with his employment by the Company; provided, however, that this provision
does not bar the filing of a claim under the ADEA that challenges the validity
of this Agreement.
5. Releasing Party agrees that he will not at any time disparage, The
Dial Corporation or any of Released Parties' employees, products, operations,
policies, decisions, advertising or marketing programs, if the effect of such
disparagement reasonably could be anticipated to cause material harm to the
Company's reputation, business, interests or to the morale among its work force,
or the reputation of any Dial employee. Additionally, Releasing Party will refer
all inquiries that he receives (whether written or oral) regarding the business
or operations of Released Parties to The Dial Corporation's General Counsel (or
his designee).
6. Releasing Party agrees to cooperate with the Company on all
outstanding issues and current or subsequent legal matters with which Releasing
Party has been involved with during his employment with the Company, including
but not limited to the sale of Dial's Specialty Personal Care business unit to
FASMA LLC. This obligation includes, but is not limited to, spending adequate
time cooperating with the Company or its attorneys in gathering information
regarding any such matter or for preparation to testify or give depositions. If
a scheduling conflict arises, the Company will make good faith efforts to
accommodate Releasing Party's schedule to the extent possible. Releasing Party's
cooperation will be provided without additional compensation; however,
travel-related expenses will be reimbursed. Nothing in this Agreement shall
affect Releasing Party's right to indemnification in accordance with the
Company's certificate of incorporation and by-laws and under Delaware law.
7. Releasing Party reaffirms and agrees to comply with the Employee's
Patent and Trade Secret Agreement previously signed by him and not to disclose
confidential, technical and trade secret information proprietary to Released
Parties.
"Confidential Information" means any and all information relating to
the Company, which is not generally known by others with whom the Company does
(or plans to) compete or do business. Confidential Information includes, but is
not limited to, information relating to the terms of this Agreement, as well as
the Company's: (a) research and development activities; (b) inventions,
discoveries, designs and ideas; (c) products and services; (d) manufacturing
processes and methods, quality control measures and logistics; (e) sources of
supply; (f) customer lists; (g) strategic marketing plans; (h) forecasts, sales,
profits and pricing methods; (i) personnel information; (j) terms of its
business relationships; (k) strategic and acquisition plans and activities; and
(l) intellectual property (including without limitation, the filing or pendency
of patent applications). Confidential Information also includes, but is not
limited to, comparable information: (i) that belongs to any subsidiary of the
Company; or (ii) that the Company has received belonging to customers,
suppliers, consultants or others who do business with them.
Notwithstanding the foregoing, "Confidential Information" does not
include any information that is: (a) at the time of disclosure, available (or
readily discoverable) from sources which are in the public domain through no
fault of Releasing Party; (b) received by Releasing Party from a third party
without breach of such third party's non-disclosure obligation to The Dial
Corporation; (c) shown to have been developed independently by Releasing Party
prior to his employment with The Dial Corporation; or (d) required by a judicial
tribunal or similar governmental body to be disclosed under law (provided that
Releasing Party has first promptly notified The Dial Corporation of such
disclosure requirement and has cooperated fully with The Dial Corporation in
exhausting all appeals objecting to such requirement).
8. Releasing Party agrees that for a period of twelve (12) months after
his last day worked, he shall not, nor shall he provide assistance to any other
person, either directly or indirectly, solicit or encourage any current Dial
employee to leave their employment with Dial. Any current Dial employee refers
to any employee with whom Releasing Party had contact during his employment or
about whom Releasing Party acquired knowledge or information while employed at
Dial.
9. In exchange for the general release, waiver of claims and other
commitments set forth herein, Releasing Party shall receive the following
consideration:
(i) Severance in the amount of $248,000.00 (less statutory
deductions), representing twelve (12) months pay, payable in bi-weekly
installments on regular payroll dates beginning on the next regular payroll date
after Releasing Party's last day worked;
(ii) Company-paid COBRA continuation of up to twelve (12) months,
commencing April 1, 2003, if elected; with such Company paid continuation
ceasing upon Releasing Party being eligible for coverage through his new
employer. Any rights Releasing Party may have under COBRA will be offset by this
period of continued health coverage;
(iii) Continued Company-sponsored financial consulting benefit for
the remainder of 2003;
(iv) An executive physical at Scottsdale Mayo Clinic by no later
than December 31, 2003; and
(v) Outplacement assistance for a period of up to twelve (12)
months.
10. If Releasing Party does not revoke this Agreement in the time
period provided for in Paragraph 17, Releasing Party will receive the benefits
provided under this Agreement within ten (10) business days following the
expiration of Agreement's revocation period, or as otherwise provided for in
Paragraph 9, whichever is later. Payments will be mailed to Releasing Party's
home address of record with the Company.
11. Releasing Party may exercise his options that are vested as of his
date of termination, March 14, 2003, for a three (3) month period following his
date of termination. Except as provided for in this Paragraph, the terms of the
applicable stock option plans and agreements remain in effect and are not
superseded by this Agreement.
12. Releasing Party understands and agrees that any violation of the
material obligations contained in this Agreement, including Paragraphs 1, 4, 5,
6, 7 and 8, may result (to the maximum extent allowable by law) in forfeiture of
all payments under this Agreement, in addition to any other legal or equitable
remedies that The Dial Corporation may have against Releasing Party.
13. It is understood and agreed that neither the Agreement itself, nor
the furnishing of the consideration for this Agreement, shall be deemed or
construed at anytime for any purpose as an admission of the Company's liability
or responsibility for any wrongdoing of any kind.
14. Releasing Party agrees that this is a private agreement and that he
will not, at any time, discuss publicly the fact that an Agreement exists or its
terms, except with his accountant, governmental taxing authorities or his
attorney, including the attorney with whom Releasing Party may choose to consult
regarding his consideration of this Agreement, or as otherwise compelled by law.
15. This Agreement is entered into and shall be interpreted, enforced
and governed by the law of the State of Arizona. Any action regarding this
Agreement shall be brought in a court in Maricopa County, Arizona. The parties
further agree that if, for any reason, any provision is unenforceable, the
remainder of this Agreement shall nonetheless remain binding and in effect. In
any proceeding to enforce this Agreement, the prevailing party shall be entitled
to costs and reasonable attorneys' fees.
16. Releasing Party had up to twenty-one (21) calendar days to consider
whether to sign this Agreement. Further, Releasing Party was advised in writing
to consult with an attorney and had an opportunity to do so.
17. Releasing Party has seven (7) calendar days after signing this
Agreement to revoke this Agreement. Any revocation must be in writing addressed
to Xxxxx Xxxxx, Vice President, Human Resources, The Dial Corporation, 00000 X.
Xxxx Xxxx., Xxxxx 0000, Xxxxxxxxxx, Xxxxxxx 00000-0000, and post-marked within
seven (7) calendar days following the signing of this Agreement.
18. This Agreement contains the entire agreement between the parties
and supersedes any and all other agreements or understandings relating to the
subject matter of this Agreement.
RELEASING PARTY HAS CAREFULLY READ THE FOREGOING WAIVER OF CLAIMS AND
ACKNOWLEDGMENT AGREEMENT, KNOWS THE CONTENTS THEREOF, HAS BEEN ADVISED TO
CONSULT WITH AN ATTORNEY AND HAS HAD THE OPPORTUNITY TO DO SO, AND SIGNS THIS
AGREEMENT VOLUNTARILY, BEING AWARE OF ITS FINAL AND BINDING EFFECT.
/s/ Xxxx Xxxxxxxxxx 4/1/03
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Xxxx Xxxxxxxxxx Date
/s/ Xxxxxxx X. Xxxxx 4/1/03
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Xxxxxxxx X. Xxxxx Date
Executive Vice President - Shared Services
for The Dial Corporation
