EXHIBIT 10
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CONFIDENTIAL SEPARATION AGREEMENT AND GENERAL RELEASE
This Confidential Separation Agreement and General Release
(hereinafter referred to as "Agreement") is made this 20th day of
March, 2001, by and between Xxxxxx XxxxxXxxxx (hereinafter referred to
as "DalleMolle") and Xxxxxx Rubbermaid Inc. (hereinafter referred to
as "Newell").
WHEREAS, Newell decided to terminate DalleMolle's employment and
DalleMolle thereafter submitted his resignation as an employee of
Newell to be effective February 28, 2001; and
WHEREAS, DalleMolle desires to secure the severance benefits as
provided below; and recognizes that this package includes valuable
consideration to which he would not otherwise be entitled; and
WHEREAS, the parties desire to effect a final settlement of all
matters relating to DalleMolle's employment and his relationship with
Newell and have arrived at a compromise of all such matters.
NOW, THEREFORE, based upon the foregoing and in consideration of
the mutual covenants and promises contained herein and other good and
valuable consideration, the parties agree as follows:
1. Neither this Agreement nor any action taken by Newell
pursuant to it shall in any way be construed as an admission
by Newell of any liability, wrongdoing or violation of law,
regulation, contract or policy.
2. Newell agrees to pay and/or provide to DalleMolle the
following severance benefits in final settlement of all
claims DalleMolle may have against Newell:
x. Xxxxxxxxx pay will be paid to DalleMolle at his base
salary in effect on February 28, 2001 on normal pay
periods less all legally required withholding for taxes
and social security through November 30, 2001. Such
payments will begin after the passage of seven (7) days
following DalleMolle's execution of this Agreement.
b. Medical group coverage, including coverage under the
Newell Medical Reimbursement Plan, will be continued
for DalleMolle through February 28, 2002, or, the date
DalleMolle secures other employment that provides
equivalent or better coverage, whichever event occurs
first. The above-mentioned coverages will be provided
on the same basis as such benefits are provided to
existing employees at his level. DalleMolle will
remain responsible for the partial payment of premiums
to the extent that existing employees pay such
premiums. With regard to medical and dental coverage,
for the purposes of the Consolidated Omnibus Budget
Reconciliation Act (COBRA), the date of the qualifying
event will be February 28, 2002.
c. All vested stock options held by DalleMolle pursuant to
the Xxxxxx Rubbermaid Stock Option Plan as of February
28, 2001 may be exercised by DalleMolle at any time
prior to November 30, 2001, including those that vest
during the period from February 28, 2001 to November
30, 2001. No further stock options will be granted to
DalleMolle.
x. XxxxxXxxxx will be allowed the use of his Newell lease
car until November 30, 2001. DalleMolle may, at his
discretion, purchase his Newell leased car at any time
prior to November 30, 2001 at the buy-out price as
established by the leased automobile program as of the
date of purchase.
x. XxxxxXxxxx'x rights to distribution from his account in
the Xxxxxx Co. Deferred Compensation Plan, if any, are
governed by the terms of that Plan.
f. In lieu of providing DalleMolle executive level out
placement services, Newell will pay DalleMolle $50,000.
x. XxxxxXxxxx shall receive twelve (12) weeks vacation
pay.
x. XxxxxXxxxx will be paid no further wages, bonuses,
benefits, compensation or remuneration of any kind
subsequent to February 28, 2001, other than those
specifically provided above.
3. DalleMolle hereby resigns from Newell as an employee
effective February 28, 2001 and expressly declines
reinstatement, employment and rehire by Newell and waives
all rights to claim such relief and agrees never to seek or
apply for employment with Newell or any of its subsidiaries,
divisions, affiliated businesses or parent companies in the
future.
4. DalleMolle agrees that this Agreement and all its terms and
provisions are strictly confidential and shall not be
divulged or disclosed in any way to any person other than
his spouse, legal counsel and tax advisor if he so desires,
and that he will protect the confidentiality of the
Agreement in all regards. Should DalleMolle choose to
divulge the terms and conditions of the Agreement to his
spouse, legal counsel or tax advisor, he shall ensure that
they will be similarly bound to protect its confidentiality
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and that a breach of the paragraph by DalleMolle's spouse,
legal counsel or tax advisor shall be considered a breach of
the paragraph by DalleMolle.
5. DalleMolle represents that he has not filed any pending
complaint, charge, claim or grievance against Newell with
any local, state or federal agency, court or commission.
6. (a) DalleMolle acknowledges that:
(i) As a result of his employment with Newell he has
obtained secret and confidential information
concerning the business of Newell and its
subsidiaries and divisions, including, without
limitation, the operations and finances, the
business plan, the identity of potential
acquisitions, the identity of customers and
sources of supply, their needs and requirements,
the nature and extent of contracts with them,
product and process specifications and related
costs, price, profitability and sales information;
(ii) Newell and its subsidiaries and divisions will
suffer substantial damage which will be difficult
to compute if DalleMolle should enter into a
Competitive Business (as defined below), unless
approved by Newell in writing and in advance, or
if he should divulge secret and confidential
information relating to the business of Newell
heretofore acquired by him in the course of his
employment with Newell; and
(iii) The provisions of this Agreement are reasonable
and necessary for the protection of the business
of Newell and its subsidiaries and divisions.
x. XxxxxXxxxx agrees that he will not for a period of one
(1) years following the date of his resignation divulge
to any person, firm or corporation, or use for his own
benefit, any secret or confidential information
obtained or learned by him in the course of his
employment with Newell with regard to the operational,
financial, business or other affairs of Newell or its
subsidiaries and divisions, including, without
limitation, proprietary trade "know how" and secrets,
financial information and models, customer lists,
business, marketing, sales and acquisition plans,
identity and qualifications of Xxxxxx'x employees,
sources of supply, pricing policies, proprietary
operational methods, product specifications or
technical processes, except (i) with Xxxxxx'x express
written consent; or (ii) to the extent that any such
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information is in or becomes part of the public domain
other than as a result of DalleMolle's breach of any of
his obligations hereunder.
c. Except as provided herein, DalleMolle represents that
he has no later than the date he signs this Agreement,
delivered to Newell all memoranda, notes, files,
computers, software, discs, memory storage records,
reports, manuals, drawings, blueprints, credit cards
and other documents (and all copies thereof) and other
tools provided to DalleMolle by Newell relating to the
business of Newell and its subsidiaries and divisions
and all property associated therewith which he may
possess or have under his control. DalleMolle further
represents that he has neither kept, created, nor
downloaded any copy of Xxxxxx'x computer records.
d. For a period of one (1) years following the date of his
resignation, DalleMolle, without the prior express
written permission of Newell, shall not solicit, induce
or entice, or cause any other person or entity to
solicit, recruit, induce or entice to leave the employ
of Newell or any of its subsidiaries or divisions any
person employed or retained by Newell or any of its
subsidiaries or divisions. Nothing in this provision
prevents DalleMolle from hiring any individual who has
without encouragement or suggestion by DalleMolle
initiated the contact with DalleMolle and who has on
his/her own accord affirmatively communicated to
DalleMolle that he/she has finalized a decision to
leave Newell or one of its subsidiaries or divisions.
e. For a period of two (2) years following the date
DalleMolle signed this Agreement, DalleMolle, without
the prior express written permission of Newell, shall
not (i) enter into the employ of or render any
services, in an executive, managerial, sales, financial
or strategic planning capacity, to any person, firm, or
corporation engaged in the manufacture, sale or
distribution of products currently being designed,
developed, manufactured, sold or distributed by Newell
or any of its subsidiaries or divisions which directly
or indirectly compete with the LeeRowan, BernzOmatic,
Amerock, Newell Hardware Europe, EZ Paintr, Anchor
Hocking Consumer Glass, and Anchor Hocking Specialty
Glass business operations as conducted as of the date
DalleMolle signed this Agreement (a "Competitive
Business"), or (ii) engage in any Competitive Business
for his own account or (iii) solicit, interfere with or
endeavor to entice away from Newell any of its
customers with which DalleMolle had contact or
communication during his employment with Newell. The
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covenants contained in paragraphs 6(e)(i) and (ii)
shall apply only as to Competitive Business located or
doing business in the United States, Canada or Europe.
x. XxxxxXxxxx agrees that he will conduct himself in a
professional manner and not make any disparaging or
negative statements regarding Newell, its subsidiaries
or divisions or their officers, directors or employees
at any time in the future.
g. If DalleMolle commits a breach, or threatens to commit
a breach, of any of the provisions of paragraph 6,
Newell shall have the right:
(i) to have the provisions of this Agreement
specifically enforced by and obtain any other
relief to which it is entitled by law or equity
from any court having jurisdiction; and
(ii) to require DalleMolle to pay over to Newell and/or
forfeit all severance benefits provided in
paragraph 2 of this Agreement and to account for
and pay over to Newell all compensation, profits,
monies, accruals, increments or other benefits
(collectively "Benefits") derived or received by
him as the result of any transactions constituting
a breach of any of the provisions of paragraph 6,
and DalleMolle hereby agrees to account for and
pay over such Benefits to Newell.
(iii) discontinue the payment of any further severance
benefits.
h. Each of the rights and remedies enumerated in this
paragraph 6 shall be independent of the other, and
shall be severally enforceable, and such rights and
remedies shall be in addition to, and not in lieu of,
any other rights and remedies available to Newell in
law or equity at any time in the future.
7. Following his resignation and throughout his period of
severance pay, DalleMolle shall, upon reasonable notice and
at reasonable times, (having due regard for the conflicting
obligations arising from any other employment or engagement
of DalleMolle), advise and assist Newell in preparing such
operational, financial or other reports or other filings as
Newell may reasonably request, and to respond to inquiries
concerning the operations, finances and business of Newell
and otherwise cooperate with Newell and its affiliates as
Newell shall reasonably request. Furthermore, upon
reasonable notice, DalleMolle agrees to cooperate with
Newell at Xxxxxx'x request in prosecuting or defending
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against any litigation, complaints or claims against or
involving Newell or any of its subsidiaries, divisions or
affiliated businesses at any time in the future.
8. As a material inducement to Newell to enter the Agreement,
DalleMolle hereby irrevocably and unconditionally releases,
acquits and forever discharges Newell, its successors,
assigns, agents, directors, officers, employees,
representatives, subsidiaries, divisions, parent
corporations and affiliates, and all other persons acting
by, through or in concert with any of them (collectively
"Releasees") from any and all charges, complaints, claims,
liabilities, obligations, promises, agreements, actions,
damages, expenses (including attorneys' fees and costs
actually incurred), or any rights of any and every kind or
nature, accrued or unaccrued, known and unknown, which
DalleMolle has or claims to have against each or any of the
Releasees. This release pertains to but is in no way
limited to all matters relating to or arising out of
DalleMolle's employment and termination of employment by
Newell and all claims for severance benefits. The release
further pertains to but is in no way limited to rights and
claims under the Age Discrimination in Employment Act of
1967 (29 U.S.C. 621, et seq.), Title VII of the Civil
Rights Act, as amended, the Americans With Disabilities Act,
and all state, local or municipal fair employment laws.
9. The Agreement shall be binding upon DalleMolle and upon his
heirs, administrators, representatives, executors,
successors, and assigns and shall inure to the benefit of
the Releasees and to their heirs, administrators,
representatives, executors, successors, and assigns.
10. As a further material inducement to Newell to enter into
this Agreement, DalleMolle hereby agrees to indemnify and
hold each and all of the Releasees harmless from and against
any and all loss, cost, damage or expense, including,
without limitation, attorneys' fees incurred by Releasees,
arising out of the breach of the Agreement by DalleMolle.
11. The parties understand and agree that the Agreement is final
and binding and constitutes the complete and exclusive
statement of the terms and conditions of settlement, that no
representations or commitments were made by the parties to
induce the Agreement other than as expressly set forth
herein and that the Agreement is fully understood by the
parties. DalleMolle further represents that he has had the
opportunity and time to consult with legal counsel
concerning the provisions of the Agreement and that he has
been given twenty-one (21) days within which to execute the
Agreement and seven (7) days following his execution to
revoke the Agreement. The Agreement may not be modified or
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supplemented except by a subsequent written Agreement signed
by the party against whom enforcement of the modification is
sought.
12. The validity, construction and enforceability of this
Agreement shall be governed in all respects by the laws of
the State of Illinois, without regard to its conflicts of
laws rules.
13. DalleMolle acknowledges that he has carefully read the
entire document, that a copy of the document was available
to him prior to execution, that he knows and understands the
provisions of the document, and that he has signed the
document as his own free act and deed.
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IN WITNESS WHEREOF, the parties herein executed the Agreement as
of the date appearing next to their signatures.
XXXXXX RUBBERMAID INC.
Date: March 23, 2001 By: /s/ Xxxx X. Xxxxxxxxxxx
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Name: Xxxx X. Xxxxxxxxxxx
Title: Vice President General
Counsel
CAUTION: THIS IS A RELEASE. CONSULT WITH AN ATTORNEY AND READ IT
BEFORE SIGNING. THIS AGREEMENT MAY BE REVOKED IN WRITING BY YOU
WITHIN SEVEN (7) DAYS OF YOUR EXECUTION OF THE DOCUMENT.
Date: March 21, 2001 /s/ Xxxxxx XxxxxXxxxx
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Xxxxxx XxxxxXxxxx
STATE OF ARIZONA )
) SS.
COUNTY OF MARICOPA )
On the 21st day of March, 2001, Xxxxxx XxxxxXxxxx appeared before
me and, after being duly sworn, did say that he acknowledged the
instrument to be his voluntary act.
In witness whereof, I hereunto set my hand and
official seal:
/s/ Xxxx X. Xxxxx
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Notary Public
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