Exhibit 10.65
AGREEMENT AND GENERAL RELEASE
(NOTE: YOU ARE ADVISED TO CONSULT WITH AN ATTORNEY PRIOR TO
EXECUTING THIS AGREEMENT)
This Separation Agreement and General Release ("Agreement"), is entered
into by and between Pliant Corporation (the term "the COMPANY" shall be used in
this Agreement to refer in both Pliant Corporation and its predecessor Huntsman
Packaging Corporation) and Xxxxx X. Xxxxxxx ("EMPLOYEE"). COMPANY has adopted a
severance plan, the Pliant Corporation Severance Plan for Non-Union Employees
(the "Severance Plan"), to offer severance benefits to eligible employees who
experience a loss of employment with respect to certain Workforce Reductions.
COMPANY has identified EMPLOYEE has being eligible for receipt of severance
benefits under the Severance Plan, subject to the satisfaction of the terms and
conditions identified in this Agreement and in the Severance Plan. For
additional information about such severance benefits and the Severance Plan,
please see the enclosed Pliant Corporation Severance Pay Plan for Non-Union
Employees, Summary Plan Description.
1. SEPARATION. The employment relationship between the COMPANY and EMPLOYEE
is terminated as of August 29, 2003 ("Separation Date"). As of that date,
EMPLOYEE has no authority to make, has not made, and will not make any
representations, offers, promises, commitments, obligations, agreements,
adjustments, or contracts on behalf of the COMPANY, its related companies or
affiliates.
2. SEPARATION PAYMENT. Provided EMPLOYEE has executed, delivered and not
later rescinded this Agreement within the time periods specified in Paragraphs
17 and 18 and satisfied the other terms and conditions set forth herein and in
the Severance Plan, the COMPANY agrees to pay to EMPLOYEE the gross amount of
Two Hundred Forty Seven
Thousand and 00/100 Dollar ($247,000.00), less appropriate tax withholdings.
Payment shall be made in approximately equal installments on regular Company
paydays and shall begin on the first payday occurring at least 20 days following
the date of EMPLOYEE's execution of this Agreement. EMPLOYEE agrees that s/he
would not otherwise be entitled to this payment except for his or her execution
of this Agreement.
3. SEPARATION BENEFITS.
A. If EMPLOYEE currently has group health coverage with the COMPANY and
elects to continue such coverage under COBRA or under the Pliant Corporation
Coverage Provisions after the Separation Date, the COMPANY agrees to pay or
waive, as applicable, the premiums and employer administrative fees that
otherwise would be charged to EMPLOYEE for the EMPLOYEE, and/or if the spouse
and/or the dependent(s) of the EMPLOYEE were insured under one or more group
health care insurance plans sponsored by COMPANY on the Separation Date, for
EMPLOYEE's spouse and/or dependent(s) during a period of time which shall be
referred to as "the Subsidized Coverage Period." The Subsidized Coverage Period
shall commence on the Separation Date and end on the earliest of the following:
(i) the end of the ninth calendar month next following the calendar month in
which the Participant's employment was terminated; or (ii) the date EMPLOYEE
secures or becomes eligible to secure other health coverage by reason of his/her
employment, by eligibility for Medicare or the employment of his/her spouse.
After the end of the Subsidized Coverage Period and to the extent applicable law
so requires, EMPLOYEE may continue his/her health coverage entirely at his/her
own expense for the remainder of the COBRA period, an additional nine (9)
months, pursuant to COBRA. Under no circumstances shall the COMPANY'S
obligations under COBRA be extended or prolonged by reason of the provisions of
this
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Paragraph. EMPLOYEE acknowledges and agrees that the benefits herein supersede,
replace and are in lieu of any other separation, severance or other benefits to
which you might otherwise be entitled under any policy, other plan or practice
of COMPANY specifically including, but not limited to, the Pliant Corporation
Severance Pay Policy dated December 1, 1997, as revised March 8, 2001.
B. The COMPANY also agrees to continue the group term life insurance
provided by the COMPANY to EMPLOYEE during the lesser of: (i) nine months from
and after the Separation Date; or (ii) the date EMPLOYEE is eligible for group
term life insurance coverage by reason of employment. Except as set forth in
this Agreement, participation by EMPLOYEE in all fringe or other separation,
pension, retirement or insurance plans, policies, practices or agreements which
the COMPANY may from time to time make available to its employees shall cease as
of the Separation Date.
4. ACCRUED RETIREMENT BENEFITS.
(NOTE: You will be entitled to your accrued retirement benefits, if any,
whether or not you execute this Agreement.)
A. If EMPLOYEE is a participant in the COMPANY's Pension Plan (the "Pension
Plan"), then the value of EMPLOYEE's vested account balance in the Pension Plan,
if any, shall be determined in accordance with the terms and provisions of said
Plan. In no event shall there be any contribution to the Pension Plan
attributable to any payments made under this Agreement.
B. If EMPLOYEE is a participant in the COMPANY's Salary Deferral Plan
(401(k) Plan) (the "Salary Deferral Plan"), then the value of EMPLOYEE's account
balance in the Salary Deferral Plan shall be determined in accordance with the
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applicable provisions of the Salary Deferral Plan and shall be paid to EMPLOYEE
as s/he may elect in accordance with such terms and provisions. In no event
shall there be any contribution to the Salary Deferral Plan attributable to any
payments made under this Agreement.
5. RETURN OF PROPERTY. EMPLOYEE represents that s/he has returned or,
within five days of executing this Agreement, agrees s/he will return to the
COMPANY any and all property of the COMPANY, its related companies of
affiliates. Said property includes, but is not limited to, any and all financial
records and data; automobile; credit cards; keys; product lists and data;
contracts; personnel information; project development information; written
proposals and studies; and proprietary software developed by or for the benefit
and use of the COMPANY.
6. CONFIDENTIAL BUSINESS INFORMATION. EMPLOYEE shall not at any time use or
disclose any trade secrets or other confidential information of the COMPANY, its
related companies or affiliates. "Confidential information" means information
not generally known outside the COMPANY, its related companies or affiliates
relating to their finances, methods or manner of doing business, pricing,
products, customers, personnel policies or information, planning, processes or
other similar matters. The covenants and agreements contained in this Paragraph
6 are in addition to, and not in place of, those contained in any Employee
Assignment of Inventions and Confidentiality Agreement that may have been
executed by EMPLOYEE.
7. FUTURE CONDUCT/BREACH. EMPLOYEE agrees that s/he shall not at any time
engage in any form of conduct, or make any statements or representations, that
disparage or otherwise impair the reputation, goodwill or commercial interest of
the COMPANY, its management, directors, shareholders, related companies or
affiliates.
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EMPLOYEE acknowledges and agrees that if s/he breaches any terms of this
Agreement or the Severance Plan, s/he shall immediately forfeit any further
severance benefits provided under this Agreement and the Severance Plan and
shall be required to repay to or reimburse COMPANY for any severance benefits
received by EMPLOYEE prior to the breach.
8. CONFIDENTIALITY OF AGREEMENT. EMPLOYEE agrees to keep the terms and
conditions of this Agreement and any communications or negotiations regarding
this Agreement confidential. EMPLOYEE agrees not to discuss this Agreement, its
terms and conditions, or any matter relating to it with anyone except his/her
attorney, financial advisor, or immediate family members, provided however, that
these individuals also agree to keep these matters confidential.
9. COOPERATION. EMPLOYEE agrees to make himself or herself reasonably
available to the COMPANY to respond to requests by the COMPANY for information
pertaining to or relating to the COMPANY, any entity related to the COMPANY, or
any of its (their) agents, officers, directors or employees which may be within
the knowledge of EMPLOYEE. EMPLOYEE will cooperate fully with the COMPANY in
connection with any and all existing or future depositions, litigation, or
investigations brought by or against the COMPANY, any entity related to the
COMPANY, or any of its (their) agents, officers, directors or employees, whether
administrative, civil or criminal in nature, in which and to the extent the
COMPANY deems EMPLOYEE's cooperation necessary. In the event that EMPLOYEE is
subpoenaed in connection with any litigation or investigation, EMPLOYEE will
immediately notify the COMPANY. COMPANY will reimburse EMPLOYEE for all
reasonable expenses associated with EMPLOYEE's cooperation, provided EMPLOYEE
promptly submits such expenses, along with back up documentation to COMPANY.
Additionally, if COMPANY
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requests EMPLOYEE's cooperation at any time following the first anniversary of
the Separation Date, for every hour reasonably associated with EMPLOYEE's
cooperation efforts COMPANY shall remit to EMPLOYEE payment in the amount
equivalent to EMPLOYEE's most recent hourly pay during EMPLOYEE's employment
with COMPANY. EMPLOYEE shall be responsible for all taxes associated with said
hourly cooperation payment.
10. IRREPARABLE HARM. EMPLOYEE acknowledges that: (A) his or her compliance
with this Agreement is necessary to preserve and protect the proprietary rights,
confidential information and goodwill of the COMPANY as a going concern; (B) any
failure by him or her to comply with the provisions of this Agreement shall
result in irreparable and continuing injury to the COMPANY for which there will
be no adequate remedy at law; and (C) in the event that s/he should fail to
comply with the provisions of this Agreement, the COMPANY shall be entitled, in
addition to such other relief as may be proper, to all types of equitable relief
(including, but not limited to, the issuance of an injunction or temporary
restraining order) as may be necessary to cause him or her to comply with this
Agreement or make the COMPANY whole.
11. REPRESENTATION ABOUT OTHER CLAIMS. EMPLOYEE represents that s/he has
not filed any claims, complaints, charges, or lawsuits against the COMPANY, its
employees, or agents or any affiliate with any governmental agency or any state
or federal court, and that EMPLOYEE will not do so at any time hereafter for any
matter, claim, or incident, known or unknown, that occurred or arose out of
occurrences on or prior to the date of EMPLOYEE's execution of this Agreement.
12. RELEASE. EMPLOYEE, with the intention of binding himself or herself,
his or her heirs, executors, administrators and assigns and to the fullest
extent permitted under
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applicable law, does hereby release and forever discharge the COMPANY and all of
its parents, related companies, affiliates and joint ventures; all predecessors
of and successors to all such entities; and all of the administrators, agents,
officers, directors, partners, employees (including leased, temporary and
regular), joint venturers, shareholders, representatives, assigns and attorneys
of and from all manner of liability, claims, damages, actions, cause or causes
of action, suits, debts, agreements, promises, charges, claims and demands,
whatsoever, in law or in equity, that EMPLOYEE now has or may have, both known
and unknown, arising out of his or her employment with the COMPANY or his or her
termination from the COMPANY. This includes, but is not limited to, any claims
under the Employee Retirement Income Security Act, Title VII of the Civil Rights
Act of 1964, the Post-Civil War Civil Rights Act (42 USCA (S)(S) 1981-88), the
Civil Rights Act of 1991, the Americans With Disabilities Act, the Family and
Medical Leave Act of 1993, the Equal Pay Act of 1963, Executive Order 11246, the
Rehabilitation Act of 1973, the Uniformed Services Employment and Reemployment
Rights Act of 1994, the Worker Adjustment and Retraining Notification Act, the
Contract Work Hours and Safety Standards Act, the Xxxxx-Xxxxx Act, the Age
Discrimination in Employment Act, the Older Workers' Benefit Protection Act, the
Fair Labor Standards Act, and all comparable state and municipal laws, all as
amended, any regulations under such authorities, and any other applicable
statutory contract, tort, or common law theories, or any other local, state or
federal law relating to employment discrimination or harassment.
EMPLOYEE understands and agrees that the release set forth herein does not
in any way affect the rights of either party to take whatever steps may be
necessary to enforce the terms of this AGREEMENT or to obtain appropriate relief
in the event of any breach of the terms of this AGREEMENT.
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13. SCOPE OF RELEASE. This release shall not affect any vested rights
EMPLOYEE may have under any health insurance plans or any stock or retirement
plans maintained by COMPANY or any claims that arise after the date EMPLOYEE
signs this Agreement.
Notwithstanding the foregoing, for purposes of implementing a full and
complete release and discharge, EMPLOYEE expressly acknowledges (i) that the
release of claims provided for in this Agreement is intended to include in its
effect, without limitation, all claims that EMPLOYEE does not know or suspect to
exist in his or her favor at the time of execution and (ii) that this Agreement
contemplates the extinguishing of any such claim or claims.
14. ENTIRE AGREEMENT. The COMPANY and EMPLOYEE each represent and warrant
that no promise or inducement has been offered or made except as herein set
forth and that the consideration stated herein is the sole consideration for
this Agreement. This Agreement and any Employee Assignment of Inventions and
Confidentiality Agreement that may have been executed by EMPLOYEE are the
complete agreements between the parties and state fully all agreements,
understandings, promises and commitments as between the COMPANY and EMPLOYEE and
as to the termination of their employment relationship. This Agreement shall be
construed and enforced in accordance with the laws of the State of Illinois,
without giving effect to its conflicts of laws provisions. This Agreement may be
amended, modified, superseded, or cancelled and its terms or covenants may be
waived, only by a written instrument executed by both parties hereto, or, in the
case of a waiver, by the party waiving compliance.
15. NO TRANSFER. EMPLOYEE represents and warrants that s/he has not sold,
assigned, transferred, conveyed or otherwise disposed of to any third-party, by
operation of
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law or otherwise, any action, cause of action, suit, debt, obligation, account,
contract, agreement, covenant, guarantee, controversy, judgment, damage, claim,
counterclaim, liability or demand of any nature whatsoever relating to any
matter covered by this Agreement.
16. SEVERABILITY. If any provision of this Agreement shall be found by a
court of competent jurisdiction to be invalid or unenforceable, in whole or in
part, then such provision shall be deemed modified or restricted to the extent
and in the manner necessary to render the same valid and enforceable, or shall
be deemed excised from this Agreement, as the case may require, and this
Agreement shall be construed and enforced to the maximum extent permitted by
law. However, if the release contained in Paragraph 12 is deemed for any reason
to be invalid or unenforceable, EMPLOYEE shall promptly execute such documents
as may be presented to him or her by the COMPANY and as may be necessary to make
the release valid and enforceable or will repay promptly the value of the
separation benefits provided in Paragraph 2.
17. REVIEW AND ADVICE. EMPLOYEE acknowledges that s/he has been advised in
writing to consult an attorney before signing this Agreement. EMPLOYEE
represents and warrants that s/he has read this Agreement; has been given a
period of forty-five (45) days to consider the Agreement; understands its
meaning and application; and is signing of his or her own free will with the
intent of being bound by it. If EMPLOYEE elects to sign this AGREEMENT prior to
the expiration of forty-five (45) days, EMPLOYEE will have done so voluntarily
and knowingly. For additional information about certain conditions that are
required by law with respect to EMPLOYEE's valid release of claims, please refer
to the attached Notice to Participants (Attachment A), and any exhibits.
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18. REVOCATION. Anything in this Agreement to the contrary notwithstanding,
the parties acknowledge that at any time within seven (7) days of the date on
which EMPLOYEE executes this Agreement, EMPLOYEE may revoke and rescind this
Agreement. If EMPLOYEE elects to revoke and rescind this Agreement within the
time period specified, EMPLOYEE shall not be entitled to receive the special
benefits offered herein and:
(a) EMPLOYEE shall give written notice of revocation and rescission to
Pliant Corporation, Human Resources, 0000 Xxxxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx
00000, Attn: Xxxxx X. Xxxxxxx, Vice President;
(b) This Agreement shall be revoked and rescinded upon receipt by Pliant of
that notice;
(c) All rights, duties, and obligations of the parties under this Agreement
shall, upon revocation and rescission, become null and void and of no further
force and effect; and
(d) Any payments or benefits conferred upon EMPLOYEE under this Agreement
prior to the date of revocation and rescission shall promptly be repaid by
EMPLOYEE.
Unless EMPLOYEE revokes this Agreement, it will be effective on the eighth
(8th) day after EMPLOYEE has signed it and only then will EMPLOYEE be entitled
to the benefits offered herein.
IN WITNESS WHEREOF, the undersigned have executed this Separation Agreement
and General Release consisting of eleven (11) pages.
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EMPLOYEE PLIANT CORPORATION
/s/ Xxxxx X. Xxxxxxx /s/ Xxx Xxxxxx
--------------------------------- -----------------------------------------
Employee Signature Signature of Corporate Representative
Xxxxx X. Xxxxxxx President Flexible Packaging
--------------------------------- -----------------------------------------
Employee Printed Name Title of Representative
Dated: 8/27/03 Dated: 8/27/03
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