EXHIBIT 10.14
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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 25th day of
October, 2000, by and between Xxxxxx X. Xxxxxxxx (hereinafter referred
to as "Xxxxxxxx") and Xxxxxx Rubbermaid, Inc. (hereinafter referred to
as "Newell").
WHEREAS, Newell decided to terminate Xxxxxxxx'x employment and at
Xxxxxx'x request Xxxxxxxx thereafter submitted his resignation as an
employee and director of Newell to be effective October 20, 2000; and
WHEREAS, Xxxxxxxx'x resignation shall for all purposes pertaining
to compensation and benefits be treated as if his employment was
terminated by Newell; and
WHEREAS, Xxxxxxxx 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 affect a final settlement of all
matters relating to Xxxxxxxx'x 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 Xxxxxxxx the
following severance benefits in final settlement of all
claims Xxxxxxxx may have against Newell:
x. Xxxxxxxxx pay will be paid to Xxxxxxxx at his base
salary in effect on October 20, 2000, plus Twelve
Thousand Five Hundred Dollars ($12,500) per month, on
normal pay periods less all legally required
withholding for taxes and social security through
October 20, 2003. Such payments will begin after the
passage of seven (7) days following Xxxxxxxx'x
execution of this Agreement.
x. Xxxxxxxx will be eligible for a full year 2000 bonus
based upon his participation in the Xxxxxx Rubbermaid
Bonus Plan pursuant to the provisions of that Plan and
will be paid that bonus, if any, at the same time other
participants are paid.
c. For purposes of Section 3.3 of the Xxxxxx Operating
Company Supplemental Retirement Plan for Key Executives
(Plan) as restated effective January 1, 1999, which
provides for a forfeiture of benefits under the Plan in
the event a participant voluntarily terminates
employment prior to the attainment of age 60, and for
all other purposes pertaining to compensation and
benefits, Xxxxxxxx shall be treated as if his
employment were involuntarily terminated by Newell.
Therefore, under the terms of the Plan there is no
forfeiture of Xxxxxxxx'x benefit.
d. Medical and dental group coverage will be continued for
Xxxxxxxx through October 20, 2003, or the date Xxxxxxxx
secures other employment that provides equivalent or
better coverage, whichever event occurs first on the
same basis as such benefits are provided to existing
employees at his level. Xxxxxxxx will remain
responsible for the partial payment of premiums to the
extent that existing employees at his level pay such
premiums and such payments will be deducted from
severance payments. With regard to medical and dental
coverage, Xxxxxxxx and his covered dependents have been
offered and have elected to continue medical and dental
coverage under the Consolidated Omnibus Budget
Reconciliation Act (COBRA). For those purposes, the
date of the qualifying event will be October 20, 2000.
Payments made by Newell toward such coverage during the
period of continuation will run concurrently with
COBRA.
e. All stock options held by Xxxxxxxx pursuant to the
Xxxxxx Rubbermaid Stock Option Plan as of October 20,
2000, that are not vested will become immediately
vested and Xxxxxxxx may exercise stock options held at
any time prior to the expiration date of such options.
x. Xxxxxxxx will be allowed the use of his Newell lease
car until the earlier of October 20, 2001 or the date
he becomes reemployed. Xxxxxxxx may, at his
discretion, purchase his Newell leased car at any time
prior to October 20, 2001 or his date of reemployment,
whichever occurs first, at the buy-out price as
established by the leased automobile program as of the
date of purchase.
g. With regard to his rights to distribution of his
account in the Xxxxxx Co. Deferred Compensation Plan,
Xxxxxxxx will have the right to request either a lump
sum distribution or distribution in substantially equal
annual installments over ten (10) years as soon as
reasonably practicable after the effective date of his
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termination as an employee and member of the Board of
Directors.
x. Xxxxxxxx will be provided a personal income tax service
for his year 2000 returns and if be is not employed at
the time his year 2001 returns are to be prepared, tax
preparation service for those returns will likewise be
provided.
x. Xxxxxxxx shall receive vacation pay for five weeks of
accrued but unused vacation.
x. Xxxxxxxx shall be provided with outplacement services
at Xxxxxx'x expense with a professional outplacement
firm reasonably selected by Xxxxxxxx with the approval
of Newell, which approval shall not be unreasonably
withheld.
x. Xxxxxxxx will be paid no further wages, bonuses,
benefits, compensation or remuneration of any kind
subsequent to October 20, 2000, other than those
specifically provided above.
3. Xxxxxxxx hereby resigns from Newell as an employee effective
October 20. 2000 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 Xxxxxx Rubbermaid, Inc. or any of its
subsidiaries, affiliated businesses or divisions in the
future. Xxxxxxxx further hereby resigns from the Newell
Board of Directors and from the Board of Directors of any
subsidiary of Newell of which he is a member also effective
October 20, 2000.
4. Xxxxxxxx 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 Xxxxxxxx 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 and that a
breach of the paragraph by Xxxxxxxx'x spouse, legal counsel
or tax advisor shall be considered a breach of the paragraph
by Xxxxxxxx.
5. Xxxxxxxx represents that he has not tiled any pending
complaint, charge, claim or grievance against Newell with
any local, state or federal agency, court or commission.
6. (a) Xxxxxxxx acknowledges that:
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(i) As a result of his employment with Newell and as a
member of its Board of Directors 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 Xxxxxxxx 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 or his participation on its
Board of Directors; and
(iii) The provisions of this Agreement are reasonable
and necessary for the protection of the business
of Newell and its subsidiaries and divisions.
(b) Xxxxxxxx agrees that he will not for a period of one
(1) year following the date Xxxxxxxx signs this
Agreement 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 and sales 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 information is in or
becomes part of the public domain other than as a
result of Xxxxxxxx'x breach of any of his obligations
hereunder.
(c) Except as provided herein, Xxxxxxxx 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,
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reports, manuals, drawings, blueprints, credit cards
and other documents (and all copies thereof) and other
tools provided to Xxxxxxxx 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. Xxxxxxxx further
represents that he has neither kept, created, nor
downloaded any copy of Xxxxxx'x computer records.
(d) For a period of one (1) year following the date
Xxxxxxxx signed this Agreement, Xxxxxxxx, without the
prior express written permission of Xxxxxx Rubbermaid,
Inc., 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 Xxxxxx Rubbermaid, Inc. or any of its
subsidiaries or divisions which directly or indirectly
compete with the business of Xxxxxx Rubbermaid, Inc. or
any of its subsidiaries or divisions as presently
conducted as of the date Xxxxxxxx signed this Agreement
(a "Competitive Business"); (ii) engage in any
Competitive Business for his own account; (iii)
solicit, induce or entice, or cause any other person or
entity to solicit, recruit, induce or entice to leave
the employ of Newell any person employed or retained by
Newell; or (iv) solicit, interfere with, or endeavor to
entice away from Newell any of its customers with which
Xxxxxxxx had contact or communications during his
employment with Newell, The covenants contained in
paragraphs 6(d)(i) and (ii) shall apply only as to
Competitive Business located or doing business in the
United States or Canada.
(e) If Xxxxxxxx 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 from any
court having jurisdiction; and
(ii) following adjudication by the court of competent
jurisdiction (including exhaustion of all appeals)
that a breach of any of the provisions of
paragraph 6 has occurred, to require Xxxxxxxx to
pay over to Newell all xxxxxxxxx benefits provided
in paragraphs 2.a. and b. of this Agreement; and
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(iii) discontinue the payment of any further severance
benefits under paragraphs 2.a., b., and d of this
Agreement.
(f) 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.
7. Xxxxxxxx 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.
8. Following his resignation and throughout his period of
severance pay, Xxxxxxxx shall, upon reasonable notice and at
reasonable times, (having due regard for the conflicting
obligations arising from any other employment or engagement
of Xxxxxxxx), 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, Xxxxxxxx agrees to cooperate with Newell
at Xxxxxx'x request in prosecuting or defending 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. Xxxxxxxx shall be
reimbursed for any and all out-of-pocket expenses reasonably
incurred by him in connection with fulfilling his
obligations under this paragraph 8.
9. As a material inducement to Newell to enter the Agreement,
Xxxxxxxx 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
Xxxxxxxx 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
Xxxxxxxx'x employment and termination of employment by
Newell and all claims for severance benefits. The release
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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.
10. The Agreement shall be binding upon Xxxxxxxx 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.
11. As a further material inducement to Newell to enter into
this Agreement, Xxxxxxxx hereby agrees to indemnify and hold
each and all of the Releasees harmless from and against any
and all attorneys' fees incurred by Releasees, not to exceed
Fifty Thousand Dollars ($50,000.00), arising out of the
breach of the Agreement by Xxxxxxxx. In the event that
Newell commences litigation against Xxxxxxxx for breach of
the Agreement and it is ultimately determined by a court of
competent jurisdiction that Xxxxxxxx did not breach the
Agreement, Newell agrees to indemnify and hold Xxxxxxxx
harmless from and against any and all attorneys' fees
incurred by Xxxxxxxx in connection with defending such
litigation not to exceed Fifty-Thousand Dollars
($50,000.00). Xxxxxx'x right to indemnification in this
paragraph 11 is independent from and in addition to all of
its rights to relief, and to recover damages and severance
benefits, and to discontinue severance benefits as provided
in paragraph 6 of this Agreement.
12. 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. Xxxxxxxx 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
supplemented except by a subsequent written Agreement signed
by the party against whom enforcement of the modification is
sought.
13. 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.
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14. Xxxxxxxx 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.
[The rest of this page has been left purposely blank.]
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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: October 25, 2000
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/s/ Xxxxxxx X. Xxxxxxx
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XXXXXXX X. XXXXXX, VICE-PRESIDENT
PERSONNEL RELATIONS
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: October 25, 2000
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/s/ Xxxxxx X. Xxxxxxxx
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XXXXXX X. XXXXXXXX
STATE OF ILLINOIS )
) SS.
COUNTY OF XXXXXXXXXX )
On the 25th day of October, 2000, Xxxxxx X. Xxxxxxxx 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/ Xxxxxx Xxxx Xxxxx
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Notary Public
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