EXHIBIT 10.2
AGREEMENT
THIS AGREEMENT (this "Agreement") is made, entered into and
effective as of September 2, 2004 (the "Effective Date"), by and between PVC
Container Corporation (the "Company"), located at 000 Xxxxxxxxxx Xxx Xxxx,
Xxxxxxxxx, Xxx Xxxxxx 00000 and Xxxxxxx X. Xxxxxxxx ("Executive"), residing at
00 Xxxxx Xxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000.
WITNESSETH:
WHEREAS, Executive is currently employed by the Company as President
and Chief Executive Officer and is a member of the Board of Directors of the
Company (the "Board");
WHEREAS, it has been determined to be in both parties' interests for
Executive to voluntarily resign as President and Chief Executive Officer as of
the Effective Date;
WHEREAS, effective on December 31, 2004, (the "Retirement Date"),
Executive will resign as an employee of the Company;
WHEREAS, from the Effective Date until the Retirement Date (the
"Working Period"), Executive will continue as an employee of the Company and
thereafter will serve as a consultant to the Company as provided herein;
WHEREAS, following the Effective Date, Executive will remain as a
member of the Board and will commence serving as the Chairman of the Board as
provided in this Agreement;
WHEREAS, the Company accepts Executive's resignation as President
and Chief Executive Officer as of the Effective Date;
WHEREAS, the Company and Executive desire to set forth the payments
and benefits that Executive will be entitled to receive from the Company in
connection with his retirement and resignation from employment with the Company;
and
WHEREAS, the Company and Executive wish to resolve, settle and/or
compromise certain matters, claims and issues between them, including, without
limitation, Executive's retirement and resignation from his employment with the
Company.
NOW, THEREFORE, in consideration of the promises and agreements
contained herein and other good and valuable consideration, the sufficiency and
receipt of which are hereby acknowledged, and intending to be legally bound, the
Company and Executive hereby agree as follows:
1. Employment During Working Period. The Company agrees to continue the
employment of Executive during the Working Period and, during such time,
Executive will devote his
best efforts and skill to the duties required of him by the Company.
During the Working Period, the Company shall continue to pay the
Executive's cash base salary, less applicable withholdings, in
installments pursuant to the Company's normal and customary payroll
practices. During the Working Period, Executive will be entitled to
participate on the same basis as other executives of the Company, in those
benefits (including insurance, vacation, and other benefits) for which
substantially all of the executives of the Company are from time to time
generally eligible, as determined from time to time by the Board.
2. Retirement and Resignation.
(a) Executive hereby resigns, effective on the Effective Date from his
position as President and Chief Executive Officer of the Company.
Executive hereby further resigns (other than as Chairman of the
Board of the Company), effective as of the Effective Date, from (i)
all offices of any entity that is a parent of, a subsidiary of, or
is otherwise related to or affiliated with, the Company; (ii) all
administrative, fiduciary or other positions he may hold with
respect to arrangements or plans for, of or relating to, the
Company; and (iii) any other directorship, office, or position of
any corporation, partnership, joint venture, trust or other
enterprise insofar as Executive is serving in the directorship,
office, or position of such entity at the request of the Company.
The Company hereby consents to and accepts said resignations.
(b) Executive will resign, effective on the day after the Retirement
Date, his employment with the Company. The Company will consent to
and accept such resignation.
(c) Following the Effective Date, Executive shall remain a member of the
Board. He shall become the Chairman of the Board as of the Effective
Date and shall remain as Chairman of the Board through June 30,
2005. The Company shall cause Executive to be nominated as a member
of the Board for all periods following June 30, 2005, so long as
Executive continues to own at least fifty percent (50%) of the
shares of the Company's common stock that he owns on the date of
this Agreement.
3. Consulting Period. Following the Retirement Date, Executive will be
available as a consultant to the Company until June 30, 2005 (the "Term of
Consulting"). During the Term of Consulting, Executive shall act as a
consultant to the Company and shall provide and perform such reasonable
consulting services in connection with the business activities formerly
carried on by the Company as may be determined from time to time by the
Chief Executive Officer of the Company or the Board. During the Term of
Consulting, Executive agrees that he shall be available to serve on an
as-needed basis, at a rate of $1,500 per day; provided, however, for two
(2) days per month, Executive agrees to provide such consulting services
to the Company without charge to the Company.
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4. Compensation and Benefits. Subject to the conditions hereof, the Company
and Executive agree to the following:
(a) Bonus. In consideration of Executive's performance during the fiscal
year ending June 30, 2004, Executive will be entitled to receive a
bonus in amount equal to $50,000, which bonus shall be paid to
Executive no later than September 30, 2004.
(b) Severance Compensation. As severance compensation, the Company shall
pay Executive an amount equal to $710,000. One-half of such amount
($355,000) shall be paid to Executive on December 30, 2004 and the
other half of such amount ($355,000) shall be paid to Executive on
the later of (i) the day following the end of the Revocation Period
(as defined below), provided that Executive has signed the Release
Agreement (as defined below) and (ii) June 29, 2005.
(c) Stock Options.
(i) Executive has certain stock options that were granted to
Executive prior to the Effective Date (the "Stock Options").
Except as otherwise provided in this paragraph 4(c),
Executive's eligibility to exercise such Stock Options is
governed and will continue to be governed by the terms and
conditions of the Company's 1996 Stock Option Plan (the
"Plan") and the agreements previously entered into between the
Company and Executive with respect to such Stock Options.
Notwithstanding the foregoing and except as provided in
paragraph 6 of this Agreement, Executive shall have until the
earlier of (A) January 15, 2007 (the "Stock Option Expiration
Date") or (B) the expiration date of such Stock Option (as
identified in the agreement evidencing such Stock Option) to
exercise or forfeit the vested Stock Options, and the Plan and
each agreement evidencing any such Stock Option is hereby
amended accordingly.
(ii) Executive agrees and acknowledges that (i) due to the
extension of the post-termination exercise period relating to
his outstanding Stock Options as provided above, such Stock
Options will become non-qualified stock options under Section
422 of the Internal Revenue Code of 1986, as amended; (ii) he
is ineligible for any other stock options, grants or awards;
and (iii) he forfeits upon the Retirement Date any rights in
or to any other stock option grants, including, without
limitation, any right to vest after the Retirement Date in any
stock options that are not already vested as of the Retirement
Date.
(d) Medical Coverage. Following the Retirement Date, Executive and his
spouse shall be allowed to continue as a plan participant in the
Company's group health plan (medical, dental and vision coverage)
for the remainder of their respective lives, on the same basis that
Executive is currently participating in such plans (e.g., Executive
will be responsible for payment of twenty-five percent (25%) of the
total premiums paid to the insurer in connection with such insurance
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coverage). If and to the extent that any benefit described in this
paragraph 4(d) is not or cannot be paid or provided under any
policy, plan, program or arrangement of the Company, then the
Company will itself pay, or provide for the payment of, such
benefits to Executive and Executive's spouse. Notwithstanding the
provisions of this paragraph 4(d), the Company's obligation to
provide medical coverage pursuant to this paragraph 4(d) shall be
suspended during the time that Executive and his spouse are covered
under another employer's plan, and upon the Executive and his spouse
ceasing to be eligible under any such plan, the Company's
obligations under this paragraph 4(d) shall be reinstated
automatically on notice to the Company.
(e) 401(k) Plan. As of the Retirement Date, Executive's participation in
the Company's 401(k) Plan will cease, and Executive's account will
be valued as of that date. Executive may elect to leave the money in
his 401(k) Plan in accordance with the 401(k) Plan's provisions.
(f) Split Dollar Life Insurance. The Company will continue to pay the
premiums attributable to the Executive's Split-Dollar Life Insurance
Policy until June 30, 2005, and on that date the Company shall be
entitled to any cash surrender value of such policy. Following June
30, 2005, Executive will have the right to continue the policy, but
the Company will have no obligation to pay any portion of the
premiums.
(g) Automobile. Through June 30, 2005, the Company shall continue to
make the lease payments, and shall reimburse Executive for all
maintenance and insurance expenses incurred, on Executive's
automobile. Following June 30, 2005, Executive shall have the option
to assume the lease at his own expense.
(h) Business Expenses. The Company will reimburse Executive for any
reasonable business expenses incurred by Executive prior to the
Retirement Date and during the Consulting Period, that are
reimbursable pursuant to the Company's expense reimbursement
policies. The Company shall also reimburse Executive for business
expenses related to Executive's service as a director, in accordance
with the policies applicable to all directors of the Company.
(i) Accrued Salary. Executive shall be paid in accordance with the
Company's normal payroll cycle any base salary amount earned but
unpaid as of the Retirement Date.
(j) Professional Fees. The Company shall be responsible for the payment
of Executive's legal fees and costs (and related disbursements)
incurred in connection with Executive's retirement and resignation
and all matters relating to the negotiation and execution of the
releases and all other matters covered by this Agreement, in an
amount not to exceed $5,000.
(k) Withholding. The Company shall withhold such amounts from the
payments described herein as are required by applicable tax or other
law.
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(l) Release. Executive and the Company agree that following the
Retirement Date, they shall sign and return the Release Agreement,
attached to this Agreement as Exhibit A (the "Release Agreement"),
and Executive shall not revoke such Release Agreement in the time
provided therein (the "Revocation Period").
(m) Executive's Death. In the event of Executive's death prior to the
payment of benefits under paragraphs 4(a) and 4(b), the Company
shall pay such benefits (regardless of whether Executive has signed
the Release Agreement), at the time they would otherwise be paid, to
Executive's estate.
5. Confidential Information.
(a) Executive acknowledges and agrees that in the performance of his
duties as an officer and employee of the Company he was brought into
frequent contact with, had or may have had access to, and/or became
informed of confidential and proprietary information of the Company
and/or information which is a competitive asset of the Company
(collectively, "Confidential Information") and the disclosure of
which would be harmful to the interests of the Company or its
subsidiaries. Such Confidential Information is more fully described
in subparagraph (b) of this paragraph 5. Executive acknowledges that
the Confidential Information of the Company gained by Executive
during his association with the Company was developed by and/or for
the Company through substantial expenditure of time, effort and
money and constitutes valuable and unique property of the Company.
(b) Executive will keep in strict confidence, and will not, directly or
indirectly, at any time, disclose, furnish, disseminate, make
available, use or suffer to be used in any manner any Confidential
Information of the Company without limitation as to when or how
Executive may have acquired such Confidential Information. Executive
specifically acknowledges that Confidential Information includes any
and all information, whether reduced to writing (or in a form from
which information can be obtained, translated, or derived into
reasonably usable form), or maintained in the mind or memory of
Executive and whether compiled or created by the Company, which
derives independent economic value from not being readily known to
or ascertainable by proper means by others who can obtain economic
value from the disclosure or use of such information, that
reasonable efforts have been put forth by the Company to maintain
the secrecy of confidential or proprietary or trade secret
information, that such information is and will remain the sole
property of the Company, and that any retention or use by Executive
of confidential or proprietary or trade secret information after the
termination of Executive's employment with and services for the
Company shall constitute a misappropriation of the Company's
Confidential Information.
(c) Executive will immediately return to the Company (to the extent he
has not already returned), equipment, software, electronic files,
computers, including any laptop, in good condition, all property of
the Company, including, without limitation, property, documents
and/or all other materials (including copies,
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reproductions, summaries and/or analyses) which constitute, refer or
relate to Confidential Information of the Company.
(d) Executive further acknowledges that his obligation of
confidentiality shall survive, regardless of any other breach of
this Agreement or any other agreement, by any party hereto, until
and unless such Confidential Information of the Company shall have
become, through no fault of Executive generally known to the public
or Executive is required by law (after providing the Company with
notice and opportunity to contest such requirement) to make
disclosure. Executive's obligations under this paragraph 5 are in
addition to, and not in limitation or preemption of, all other
obligations of confidentiality which Executive may have to the
Company under general legal or equitable principles or statutes.
(e) Notwithstanding the other provisions of this paragraph 5, this
paragraph 5 shall not be deemed to prevent Executive, in connection
with any subsequent employment of Executive in a business that is
similar to that of the Company's, from using information learned by
him during the course of his performing his duties at the Company;
provided, however, that for a period of six (6) months following the
Retirement Date, Executive will not disclose or use any pricing
information of the Company.
6. Non-Competition.
(a) Covenants Following Termination. Until the earlier of (A) the Stock
Option Expiration Date; and (B) the date on which Executive
voluntarily forfeits all rights to and under his Stock Options,
Executive will not:
(i) enter into or engage in any business which competes with the
Company's business within the United States;
(ii) solicit customers, business, patronage or orders for, or sell,
any products and services in competition with, or for any
business, wherever located, that competes with, the Company's
business within the United States;
(iii) divert, entice or otherwise take away any customers, business,
patronage or orders of the Company within the United States,
or attempt to do so; or
(iv) promote or assist, financially or otherwise, any person, firm,
association, partnership, corporation or other entity engaged
in any business which competes with the Company's business
within the United States.
(b) Indirect Competition. For the purposes of paragraph 6(a), but
without limitation thereof, Executive will be in violation thereof
if Executive engages in any or all of the activities set forth
therein directly as an individual on Executive's own account, or
indirectly as a partner, joint venturer, employee, agent,
salesperson, consultant, officer and/or director of any firm,
association, partnership, corporation or other entity, or as a
stockholder of any corporation in which
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Executive or Executive's spouse, child or parent owns, directly or
indirectly, individually or in the aggregate, more than five percent
(5%) of the outstanding stock.
(c) The Company. For purposes of this paragraph 6, the Company shall
include any and all direct and indirect subsidiary, parent,
affiliated, or related companies of the Company .
(d) The Company's Business. For the purposes of paragraphs 6(a), the
Company's business is defined to be the manufacture and sale of
plastic bottles and containers, as further described in any and all
manufacturing, marketing and sales manuals and materials of the
Company as the same may be altered, amended, supplemented or
otherwise changed from time to time, or of any other products or
services substantially similar to or readily suitable for any such
described products and services.
(e) Violation. If it shall be judicially determined that Executive has
violated any of Executive's obligations under paragraph 6(a), then
the period applicable to each obligation that Executive shall have
been determined to have violated shall automatically be extended by
a period of time equal in length to the period during which such
violation(s) occurred. In addition, upon any violation by Executive
of his obligations under paragraph 6(a), the Stock Options shall,
without further action, terminate.
(f) Non-Solicitation. For a period of one (1) year following the
Retirement Date, Executive will not directly or indirectly at any
time solicit or induce or attempt to solicit or induce any
employee(s), sales representative(s), agent(s) or consultant(s) of
the Company and/or its subsidiaries, affiliated or related companies
to terminate their employment, representation or other association
with the Company and/or its subsidiaries, affiliated or related
companies; provided, however, that this paragraph 6(f) shall not
apply to Executive's solicitation of any immediate family members of
Executive.
(g) Reasonableness. Executive acknowledges that Executive's obligations
under this paragraph 6 are reasonable in the context of the nature
of the Company's business and the competitive injuries likely to be
sustained by the Company if Executive was to violate such
obligations. Executive further acknowledges that this Agreement is
made in consideration of, and is adequately supported by the
agreement of the Company to perform its obligations under this
Agreement and by other consideration, which Executive acknowledges
constitutes good, valuable and sufficient consideration.
7. Disclosure.
(a) Executive will communicate the contents of paragraphs 5, 6, 8 and 10
of this Agreement to any person, firm, association, or corporation
other than the
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Company which he intends to be employed by, associated in business
with, or represent.
(b) Executive shall take no action with respect to the Company's Shares
that is in violation of the federal securities laws.
8. Continued Availability and Cooperation.
(a) Executive shall cooperate fully with the Company, the Company's
counsel and the Company's insurer in connection with any present and
future actual or threatened litigation or administrative proceeding
involving the Company that relates to events, occurrences or conduct
occurring (or claimed to have occurred) during the period of
Executive's employment by the Company. This cooperation by Executive
shall include, but not be limited to:
(i) making himself reasonably available for interviews and
discussions with the Company's counsel as well as for
depositions and trial testimony;
(ii) if depositions or trial testimony are to occur, making himself
reasonably available and cooperating in the preparation
therefor as and to the extent that the Company or the
Company's counsel reasonably requests;
(iii) refraining from impeding in any way the Company's prosecution
or defense of such litigation or administrative proceeding;
and
(iv) cooperating fully in the development and presentation of the
Company's prosecution or defense of such litigation or
administrative proceeding.
(b) In connection with such cooperation, Executive shall (i) be entitled
to payment by the Company of the lesser of (A) $1,500 per day and
(B) the actual income lost by Executive, if any, for providing such
cooperation; and (ii) be reimbursed by the Company for reasonable
travel, lodging, telephone and similar expenses incurred in
connection with such cooperation. The Company shall reasonably
endeavor to schedule the need for such cooperation at times not
conflicting with the reasonable requirements of any employer of
Executive, or with the requirements of any third party with whom
Executive has a business relationship permitted hereunder that
provides remuneration to Executive. Executive shall not unreasonably
withhold his availability for such cooperation.
9. Successors and Binding Agreement.
(a) This Agreement shall be binding upon and inure to the benefit of the
Company and any successor of or to the Company, including, without
limitation, any persons acquiring, directly or indirectly, all or
substantially all of the business and/or assets of the Company
whether by purchase, merger, consolidation, reorganization, or
otherwise (and such successor shall thereafter be deemed included in
the definition of "the Company" for purposes of this Agreement), but
shall not otherwise be assignable or delegable by the Company.
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(b) This Agreement shall inure to the benefit of and be enforceable by
Executive's personal or legal representatives, executors,
administrators, successors, heirs, distributees, and/or legatees.
(c) This Agreement is personal in nature and none of the parties hereto
shall, without the consent of the other parties, assign, transfer or
delegate this Agreement or any rights or obligations hereunder
except as expressly provided in subparagraphs (a) and (b) of this
paragraph 9.
(d) This Agreement is intended to be for the exclusive benefit of the
parties hereto, and except as provided in subparagraphs (a) and (b)
of this paragraph 9, no third party shall have any rights hereunder.
10. Non-Disclosure; Statements to Third Parties.
(a) Except as otherwise provided in paragraph 7 and except to potential
employers if required in connection with future employment of
Executive, all provisions of this Agreement and the circumstances
giving rise hereto are and shall remain confidential and shall not
be disclosed to any person not a party hereto (other than (i)
Executive's spouse and (ii) each party's attorney, financial advisor
and/or tax advisor to the extent necessary for such advisor to
render appropriate legal, financial and tax advice, except as
necessary to carry out the provisions of this Agreement, and except
as may be required by law. Notwithstanding the foregoing, this
Agreement may be disclosed and described as well as filed with or
provided to the Securities and Exchange Commission or any other
governmental instrumentality or agency, including the Internal
Revenue Service, if the Company deems such filing or provision to be
necessary.
(b) Because the purpose of this Agreement is to settle amicably any and
all potential disputes or claims among the parties, neither
Executive nor the Company shall, directly or indirectly, make or
cause to be made any statements to any third parties criticizing or
disparaging the other or commenting on the character or business
reputation of the other. Executive further hereby agrees not: (i) to
comment to others concerning the status, plans or prospects of the
business of the Company, or (ii) to engage in any act or omission
that would be detrimental, financially or otherwise, to the Company,
or that would subject the Company to public disrespect, scandal, or
ridicule. For purposes of this subparagraph 10(b), the "Company"
shall mean the Company and its directors, officers, predecessors,
parents, subsidiaries, divisions, and related or affiliated
companies, officers, directors, stockholders, members, employees,
heirs, successors, assigns, representatives, agents, accountants and
counsel.
11. Notices. For all purposes of this Agreement, all communications provided
for herein shall be in writing and shall be deemed to have been duly given
when delivered, addressed to the Company (to the attention of the Chief
Executive Officer) at its principal executive offices and to Executive at
his principal residence, as set forth in the preamble to this Agreement,
or to such other address as any party may have furnished to the other
9
in writing and in accordance herewith. Notices of change of address shall
be effective only upon receipt.
12. Miscellaneous. No provision of this Agreement may be modified, waived or
discharged unless such modification, waiver or discharge is agreed to in
writing signed by Executive and the Company. No waiver by either party
hereto at any time of any breach by the other party hereto or compliance
with any condition or provision of this Agreement to be performed by such
other party shall be deemed a waiver of similar or dissimilar provisions
or conditions at the same or at any prior or subsequent time. No
agreements or representations, oral or otherwise, expressed or implied
with respect to the subject matter hereof have been made by any of the
parties that are not set forth expressly in this Agreement and every one
of them (if, in fact, there have been any) is hereby terminated without
liability or any other legal effect whatsoever.
13. Entire Agreement. This Agreement shall constitute the entire agreement
among the parties hereto with respect to the subject matter hereof and
shall supersede all prior verbal or written agreements (including the
employment agreement between the Company and Executive unless this
Agreement is revoked), covenants, communications, understandings,
commitments, representations or warranties, whether oral or written, by
any party hereto or any of its representatives pertaining to such subject
matter.
14. Governing Law. Any dispute, controversy, or claim of whatever nature
arising out of or relating to this Agreement or breach thereof shall be
governed by and under the laws of the State of New York. The parties agree
that any and all disputes, controversies, or claims of whatever nature
arising out of or relating to this agreement or breach thereof shall be
resolved by a court of general jurisdiction in the State of New York, and
the parties hereby consent to the exclusive jurisdiction of such court in
any action or proceeding arising under or brought to challenge, enforce,
or interpret any of the terms of this Agreement.
15. Validity. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall nevertheless remain in full force
and effect.
16. Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall be deemed to be an original, but all of which together
shall constitute one and the same Agreement.
17. Captions and Paragraph Headings. Captions and Paragraph headings used
herein are for convenience and are not part of this Agreement and shall
not be used in construing it.
18. Further Assurances. Each party hereto shall execute such additional
documents, and do such additional things, as may reasonably be requested
by the other party to effectuate the purposes and provisions of this
Agreement.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date first set forth above.
PVC CONTAINER CORPORATION
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Chief Financial Officer
/s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------
EXECUTIVE - XXXXXXX X. XXXXXXXX
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EXHIBIT A
RELEASE AGREEMENT
This Release Agreement (this "Release Agreement") is made, entered into
and effective as of __________________, by and between PVC Container Corporation
(the "Company") and Xxxxxxx X. Xxxxxxxx ("Executive"). In consideration of the
promises and agreements contained in the Severance Agreement, dated as of
September 2, 2004, between Executive and the Company (the "Agreement"), the
parties agree as follows:
1. Executive for himself and his dependents, successors, assigns, heirs,
executors and administrators (and his and their legal representatives of
every kind), hereby releases, dismisses, remisses and forever discharges
the Company from any and all arbitrations, claims (including claims for
attorney's fees), demands, damages, suits, proceedings, actions and/or
causes of action of any kind and every description, whether known or
unknown, which Executive now has or may have had for, upon, or by reason
of any cause whatsoever (except that this release shall not apply to (x)
the obligations of the Company arising under the Agreement and (y)
Executive's rights of indemnification by the Company, if any, pursuant to
the Company's certificate of incorporation or by-laws, any agreement
between the Company and Executive or any insurance policy or other
existing rights to indemnification), against the Company ("claims"),
including but not limited to:
(a) any and all claims, directly or indirectly, arising out of or
relating to: (A) Executive's past employment or service with the
Company; and (B) Executive's retirement and resignation as President
and Chief Executive Officer of the Company;
(b) any and all claims of discrimination, including but not limited to
claims of discrimination on the basis of sex, race, age, national
origin, marital status, religion or disability, including,
specifically, but without limiting the generality of the foregoing,
any claims under the Age Discrimination in Employment Act, as
amended (the "ADEA"), Title VII of the Civil Rights Act of 1964, as
amended, the Americans with Disabilities Act of 1990, the Family and
Medical Leave Act of 1993 and New Jersey's civil rights statute(s);
(c) any and all claims of wrongful or unjust discharge or breach of any
contract or promise, express or implied; and
(d) any and all claims under or relating to any and all employee
compensation, employee benefit, employee severance or employee
incentive bonus plans and arrangements, all of which Executive
agrees are forfeited upon his retirement and resignation; provided
that he shall remain entitled to the amounts and benefits described
in paragraph 4 of the Agreement.
2. Executive understands and acknowledges that the Company does not admit any
violation of law, liability or invasion of any of his rights and that any
such violation, liability or
invasion is expressly denied. The consideration provided under the
Agreement is made for the purpose of settling and extinguishing all claims
and rights (and every other similar or dissimilar matter) that Executive
ever had or now may have or ever will have against the Company to the
extent provided in this Release Agreement. Executive further agrees and
acknowledges that no representations, promises or inducements have been
made by the Company other than as appear in the Agreement.
3. Executive further understands and acknowledges that:
(a) The release provided for in this Release Agreement, including claims
under the ADEA to and including the date of this Release Agreement,
is in exchange for the additional consideration provided for in the
Agreement, to which consideration he was not heretofore entitled;
(b) He has been advised by the Company to consult with legal counsel
prior to executing the Agreement and this Release Agreement, has had
an opportunity to consult with and to be advised by legal counsel of
his choice, fully understands the terms of this Release Agreement,
and enters into this Release Agreement freely, voluntarily and
intending to be bound;
(c) He has been given a period of twenty-one days to review and consider
the terms of this Release Agreement, and the release contained
herein, prior to its execution and that he may use as much of the
twenty-one day period as he desires; and
(d) He may, within seven days after execution, revoke this Release
Agreement. Revocation shall be made by delivering a written notice
of revocation to the Chief Executive Officer at the Company. For
such revocation to be effective, written notice must be actually
received by the Chief Executive Officer at the Company no later than
the close of business on the seventh day after Executive executes
this Release Agreement. If Executive does exercise his right to
revoke this Release Agreement, all of the terms and conditions of
the Agreement shall be of no force and effect and the Company shall
have no obligation to satisfy the terms or make any payment to
Executive as set forth in paragraph 4 of the Agreement.
4. Executive and the Company acknowledge that his retirement and resignation
is by mutual agreement between the Company and Executive, and that
Executive waives and releases any claim that he has or may have to
reemployment.
5. For purposes of the above provisions of this Release Agreement, the
"Company" shall include its present and former predecessors, subsidiaries,
divisions, related or affiliated companies, officers, directors,
stockholders, members, employees, heirs, successors, assigns,
representatives, agents, accountants and counsel.
6. The Company hereby releases, dismisses, and forever discharges Executive,
his successors, assigns, heirs, executors, and administrators from any and
all claims, demands, damages, suits, actions and/or causes of action of
any kind and every description, which the Company now has or may have had
for, upon or by reason of any cause against Executive. This release shall
not however, apply to the obligations of
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Executive arising under the Agreement and shall not apply to any claims,
demands, damages, suits, actions and/or causes of action in connection
with any violation by Executive of the U.S. securities laws.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties have executed and delivered this
Release Agreement as of the date first set forth above.
PVC CONTAINER CORPORATION
By:
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Name:
Title:
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EXECUTIVE - XXXXXXX X. XXXXXXXX
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