EXHIBIT 10.1
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RETIREMENT AGREEMENT AND GENERAL RELEASE
This Retirement Agreement and General Release (the
"AGREEMENT") is entered into by and between Playtex Products, Inc. (the
"COMPANY") and Xxxxxxx X. Xxxxxxxxx (the "EXECUTIVE") effective as of
June 22, 2004 (the "EFFECTIVE DATE").
In consideration of the mutual covenants and agreements
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Executive and the Company (the
"PARTIES") hereby agree as follows:
1. ENTIRE AGREEMENT.
The Agreement, together with the exhibits annexed hereto, is the entire
agreement between the Parties with respect to the subject matter hereof and
contains all agreements, whether written, oral, express or implied, between the
Parties relating thereto and supersedes and extinguishes any other agreement
relating thereto, whether written, oral, express or implied, between the
Parties, including, without limitation, the complete extinguishment of the
Memorandum of Understanding entered into between the Parties, dated April 15,
2003 (the "MOU") and the Retention Agreement entered into between the Parties,
dated July 22, 1997 (the "RETENTION AGREEMENT") together with any and all
amendments and modifications thereto. Other than the Agreement, there are no
agreements of any nature whatsoever between the Executive and the Company that
survive the Agreement. The Agreement may not be modified or amended, nor may any
rights under it be waived, except in a writing signed and agreed to by the
Parties.
2. SERVICES AND RETIREMENT.
A. RETIREMENT. The Executive and the Company hereby agree that
the Executive's employment and any and all appointments he holds with the
Company and any of its affiliates or subsidiaries (collectively, the "COMPANY
GROUP"), whether as officer, director, employee, consultant, agent, fiduciary of
any employee benefit plan or arrangement sponsored or maintained by the Company,
or otherwise shall cease as of the earlier of: (a) the date the Board of
Directors of the Company (the "BOARD") appoints a successor Chief Executive
Officer and such successor Chief Executive Officer commences employment with the
Company or (b) December 15, 2004 (the "RETIREMENT DATE"). From the Effective
Date through the Retirement Date, the Executive shall continue to serve as the
Chief Executive Officer of the Company.
B. SERVICES AND COMPENSATION. From the Effective Date through
December 15, 2004, the Company will continue to pay the Executive's annual base
salary, at the rate in effect on the Effective Date, in accordance with the
Company's usual payroll practices. The Executive will also be entitled to earn
an incentive bonus with respect to 2004, based upon the attainment of the
financial objectives of the Company previously established by the Compensation
Committee of the Board (without proration for a partial year of employment) as
determined by the Compensation Committee. Such 2004 incentive bonus, if any,
will be paid to the Executive as and when the 2004 incentive bonuses are paid to
the senior most executives of the Company. In addition, through the Retirement
Date, the Executive will continue to participate in the Company's employee
benefit plans and arrangements (including the Profit-Sharing Retirement
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Plan and the Deferred Benefit Equalization Plan) in accordance with their terms
to the same extent as the Executive participated in such plans and arrangements
immediately prior to the Effective Date.
C. AUTHORITY. Effective from and after the Retirement Date, the
Executive shall have no authority to act on behalf of the Company or any other
member of the Company Group, and shall not hold himself out as having such
authority or otherwise act in an executive or other decision making capacity.
3. ENTITLEMENTS.
In consideration of the Executive's entering into the
Agreement, and expressly conditioned upon the Executive's continued compliance
with the confidentiality, non-solicitation, and non-competition provisions of
Sections 5, 6 and 7 of this Agreement, the Company shall provide the Executive
with the following post Retirement Date compensation and benefits:
A. SPECIAL RETIREMENT PAYMENT. The Executive shall be entitled to
receive a special retirement payment equal to three times his base salary and
annual incentive bonus (based on the highest annual incentive bonus paid to the
Executive during the three fiscal years preceding the Effective Date) which
equals $7,590,000 (the "SPECIAL RETIREMENT PAYMENT"). One-third (or $2,504,700)
of the Special Retirement Payment shall be paid to the Executive in a lump sum
payment on the eighth (8th) day following the Retirement Date. The remaining
two-thirds (or $5,085,300) of the Special Retirement Payment shall be paid to
the Executive ratably over twenty-four (24) months, as of the first of each
month, the first such month being January 2005. The payment of the Special
Retirement Payment is conditioned upon the Executive (i) signing and delivering
to the Company on the Retirement Date a release in the form of Exhibit A hereto
(the "EXECUTIVE GENERAL RELEASE") and (ii) not having revoked the Executive
General Release. Accordingly, on the Retirement Date, the Executive shall
execute and deliver to the Company the Executive General Release.
B. MEDICAL COVERAGE. Commencing on the Retirement Date and ending
on the later of the Executive's death and the death of his spouse, the Executive
shall be entitled to Company provided medical, dental, life insurance and
similar welfare benefits for himself and his dependents comparable to the
benefits provided to the then currently active senior most executives of the
Company, subject to the Executive's payment of and satisfaction of all
applicable premiums, co-pays and deductibles, all in accordance with the plans,
programs, practices and policies of the Company as such plans, programs,
practices and policies of the Company may be in effect from time to time. The
Executive acknowledges that the Company may satisfy its obligations pursuant to
this Section 3B through the purchase of one or more insurance policies.
C. COMPANY CAR. The Company, at its expense, following the
Retirement Date, shall continue to provide the Executive with the company car
that he was utilizing immediately prior to the Retirement Date through the
expiration of the term (without renewal) of the current lease covering such car
on the same terms and conditions as in effect immediately prior to the
Retirement Date.
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D. OTHER EMPLOYEE BENEFITS. As of and after the Retirement Date,
the Executive shall no longer participate in, accrue service credit or have
contributions made on his behalf under any employee benefit plan sponsored or
contributed to by the Company in respect of periods commencing on and following
the Retirement Date (other than as explicitly provided by the Agreement),
including without limitation, any plan which is intended to qualify under
Section 401(a) of the Internal Revenue Code of 1986, as amended. The Executive
shall be entitled to all benefits accrued up to the Retirement Date, to the
extent vested under all employee benefit plans of the Company (including,
without limitation, the Profit-Sharing Retirement Plan and the Deferred Benefit
Equalization Plan), and his rights with respect to such plans shall be governed
by the terms of such plans taking into account the Executive's service with the
Company through the Retirement Date. In addition, as soon as practicable
following the Retirement Date, the Executive shall be paid a lump sum equal to
any unused but accrued vacation which has accrued as of the Retirement Date in
accordance with the Company's regular policies. Notwithstanding the foregoing,
the customary Company contributions to the Profit-Sharing Retirement Plan and
the Deferred Benefit Equalization Plan with respect to the Executive's 2004
salary and incentive bonus, if any, shall be made entirely to the Deferred
Benefit Equalization Plan and accordingly no Company contributions shall be made
to the Profit-Sharing Retirement Plan in respect of any period after the
Retirement Date, it being further agreed that, notwithstanding any provisions in
the Agreement or any employee benefit plan to the contrary, all contributions to
such plans with respect to the Executive's salary and bonus, if any, for 2004,
shall be deemed fully vested.
E. EQUITY. Notwithstanding anything in the Agreement to the
contrary, any and all outstanding options to purchase the Company's common stock
("OPTIONS") granted to the Executive, pursuant to the Company's 2003 Stock
Option Plan, or any predecessor or successor plan, whether or not such Options
are exercisable (vested) as of the Retirement Date, shall be surrendered and
cancelled and shall expire on the Retirement Date without any further action by
the Company or the Executive. For the avoidance of doubt, from and after the
Retirement Date, the Executive shall have no rights, title or interest in any of
the Options or shares of common stock underlying such Options.
F. INDEMNIFICATION. To the fullest extent permitted under the
Company's By-Laws, any applicable officers and directors insurance arrangements
as may be in effect on the Retirement Date, and applicable law, for six (6)
years following the Retirement Date, the Executive shall continue to have the
rights of indemnification the Executive had immediately prior to the Retirement
Date, with respect to officer and director acts or omissions occurring prior to
the Retirement Date; PROVIDED, HOWEVER, that the Executive's rights to
indemnification do not prohibit or prevent the Company from amending its By-Laws
or modifying, amending or terminating any directors or officers insurance policy
or arrangement as long as any such action is generally applicable and does not
discriminate against the Executive.
4. RETURN OF COMPANY PROPERTY.
All memoranda, notes, lists, records and other documents (and all
copies thereof, in any medium, including electronic media) made or compiled by
the Executive or made available to the Executive concerning the business of the
Company Group shall be the Company's property and shall be delivered to the
Company promptly upon the Retirement Date. All equipment and
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property of the Company Group (other than the Company provided automobile) which
may be in the Executive's possession or under his control, whether at the
Company's offices, the Executive's home or elsewhere, including all such papers,
work papers, notes, documents and equipment in the possession of the Executive
and his counsel shall be delivered to the Company promptly upon the Retirement
Date. On the Retirement Date, all telephone and other accounts being paid by the
Company on the Executive's behalf, shall be terminated and all Company issued
credit cards shall be returned to the Company and canceled.
5. CONFIDENTIALITY.
The Executive acknowledges and agrees that all confidential information
acquired about any member of the Company Group and each of their officers,
directors, employees and agents, and all material reflecting such confidential
information, is highly confidential and that disclosure of such information or
material could cause serious and irreparable injury to the Company. The
Executive acknowledges and agrees that confidential information includes,
without limitation, trade "know-how", secrets, consultant contracts, customer
lists, subscription lists, details of consultant contracts, pricing policies,
operational methods, marketing plans or strategies, product development
techniques or plans, business acquisition plans, new personnel acquisition
plans, methods of manufacture, technical processes, designs and design projects,
inventions and research projects and other business affairs of the Company Group
learned by the Executive during his employment with the Company. The Executive
agrees that he will not after the Effective Date disclose any such information
or make any such material available to anyone without the written consent of the
Company, unless such information (i) becomes publicly known other than as a
result of a breach by the Executive of this Section 5 or (ii) is required to be
disclosed pursuant to an order of a court, governmental agency or other
authorized tribunal; provided that upon receipt of such an order, the Executive
shall promptly notify the Company thereof and, at the request of the Company and
at the Company's expense, the Executive shall assist the Company in obtaining a
protective or similar order in respect of such confidential information.
6. NON-COMPETITION AND NON-SOLICITATION.
A. NON-COMPETITION. The Executive acknowledges and agrees that
the principal businesses of the Company Group are the production and sale of
tampons, infant feeding and sun protection products (collectively, the "COMPANY
BUSINESS"); (i) he is one of the limited number of persons who has developed
such business; (ii) the Company Business is national and international in scope;
and (iii) his work for the Company has brought him and may continue to bring him
into close contact with many confidential affairs not readily available to the
public. The Executive covenants and agrees that, for a period commencing on the
Retirement Date and ending on the fifth anniversary of the Retirement Date (the
"RESTRICTED PERIOD"), the Executive shall not in the United States of America or
in any foreign country, directly or indirectly, (i) engage in the Company
Business for his own account; (ii) enter the employ of, or render any services
to, any person or entity engaged in such activities; or (iii) become interested
in any person engaged in the Company Business, directly or indirectly, as an
individual, partner, shareholder, officer, director, principal, agent, employee,
trustee, consultant or in any other relationship or capacity; PROVIDED, HOWEVER,
that the Executive may own, directly or indirectly, solely as an investment,
securities of any person which are traded on any national securities
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exchange if the Executive (a) is not a controlling person of, or a member of a
group which controls, such person and (b) does not, directly or indirectly, own
1% or more of any class of securities of such person.
B. NON-SOLICITATION. The Executive hereby agrees that during the
Restricted Period he shall not, for himself or on behalf of any other person or
entity, or by action in concert with any other person or entity, directly or
indirectly, (i) solicit, induce or encourage any person who is an employee of
any member of the Company Group to terminate his or her employment or other
contractual relationship with such member of the Company Group, (ii) hire any
person who is an employee of any member of the Company Group, or who was such an
employee at any time during the one-year period preceding such hiring, or (iii)
solicit, encourage or induce any person or entity, including without limitation
any customer or supplier of the Company, known by him to have a contractual
relationship with any member of the Company Group to discontinue, terminate,
cancel or refrain from entering into any contractual relationship with such
member of the Company Group. In addition, the Executive agrees that during the
Restricted Period he will not solicit, entice or encourage any employee or
independent contractor of any member of the Company Group to initiate or
threaten to initiate any legal proceeding against any member of the Company
Group at any time after the Effective Date.
7. NON-DISPARAGEMENT AND COOPERATION.
A. NON-DISPARAGEMENT. The Executive hereby agrees not to defame,
disparage or criticize any member of the Company Group, its products, services,
finances, financial condition, capabilities or other aspect of its business, or
any former or existing employees, managers, directors, officers or agents of, or
contracting parties with, any member of the Company Group in any medium to any
person or entity without limitation in time. Notwithstanding this provision, the
Executive may confer in confidence with his legal representative and make
truthful statements as required by law. The Company agrees that no director of
the Company will make any defamatory or disparaging statements about the
Executive (including, but not limited to statements to the press or other media
or to prospective employers of the Executive). Notwithstanding the foregoing
provision, the Company may confer in confidence with its legal representatives
and make truthful statements as required by law. The Company and the Executive
shall mutually agree upon the timing and content of any and all aspects of its
internal, external and media communication concerning the Executive's retirement
from the Company.
B. COOPERATION. Following the Retirement Date, the Executive
shall continue to make himself available at reasonable times, to the Company
Group and to advise the Company Group, at their request, about disputes with
third parties as to which the Executive has knowledge, and the Executive agrees
to cooperate fully with the Company Group in connection with litigation,
arbitration and similar proceedings (collectively "DISPUTE PROCEEDINGS") and to
provide testimony with respect to the Executive's knowledge in any such Dispute
Proceedings involving the Company and or any member of the Company Group. The
Company will use reasonable good faith efforts to schedule any such activities
so as not to interfere unreasonably with personal and professional obligations
that the Executive has disclosed to the Company. The Company agrees to reimburse
the Executive for his reasonable expenses. In addition, in the event any such
cooperative activities are performed by the Executive following the Retirement
Date and involve more than a de minimus amount of the Executive's time, the
Executive and the
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Company shall at such time enter into an arrangement to reasonably compensate
the Executive for his time dedicated to such activities.
8. ACKNOWLEDGMENT AND RELEASE.
A. RELEASE. In consideration of the Company's execution of the
Agreement, and except with respect to the Company's obligations arising under or
preserved in the Agreement, the Executive, for and on behalf of himself and his
heirs and assigns, hereby waives and releases any common law, statutory or other
complaints, claims, charges or causes of action arising out of or relating to
the Executive's employment or termination of employment with, or his serving in
any capacity in respect of, any member of the Company Group, both known and
unknown, in law or in equity, which the Executive may now have or ever had
against any member of the Company Group or any shareholder, employee, director
or officer of any member of the Company Group (collectively, the "RELEASEES"),
including, without limitation, any claim for any severance benefit, under any
severance plan, policy or arrangement of the Company which but for the Agreement
might have been due the Executive including under any previous agreement
executed by and between any member of the Company Group and the Executive,
including without limitation the MOU and the Retention Agreement, and any
complaint, charge or cause of action arising out of his employment with the
Company Group under the Age Discrimination in Employment Act of 1967 ("ADEA," a
law which prohibits discrimination on the basis of age), the National Labor
Relations Act, the Civil Rights Act of 1991, the Americans With Disabilities Act
of 1990, Title VII of the Civil Rights Act of 1964, the Employee Retirement
Income Security Act of 1974, all as amended; and all other federal, state and
local laws and regulations. By signing the Agreement the Executive acknowledges
that he intends to waive and release any rights known or unknown he may have
against the Releasees under these and any other laws; PROVIDED, that the
Executive does not waive or release claims with respect to the right to enforce
the Agreement. Notwithstanding the foregoing, the Executive does not release,
discharge or waive any rights to indemnification that he may have under the
By-Laws of the Company, the laws of the State of Delaware, any indemnification
agreement between the Executive and the Company or any insurance coverage
maintained by or on behalf of the Company.
B. PROCEEDINGS. The Executive acknowledges that he has not filed
any complaint, charge, claim or proceeding against any of the Releasees before
any local, state or federal agency, court or other body relating to his
employment or the termination or retirement therefrom (each individually a
"PROCEEDING"). The Executive represents that he is not aware of any basis on
which such a Proceeding could reasonably be instituted. The Executive (i)
acknowledges that he will not initiate or cause to be initiated on his behalf
any Proceedings and will not participate in any Proceeding, in each case, except
as required by law; and (ii) waives any right he may have to benefit in any
manner from any relief (whether monetary or otherwise) arising out of any
Proceeding, including any Proceeding conducted by the Equal Employment
Opportunity Commission ("EEOC"). Further, the Executive understands that by
entering into the Agreement, he will be limiting the availability of certain
remedies that he may have against the Company and limiting also his ability to
pursue certain claims against the Releasees. Notwithstanding the above, nothing
in this Section 8 shall prevent the Executive from (i) initiating or causing to
be initiated on his behalf any complaint, charge, claim or proceeding against
the Company before any local, state or federal agency, court or other body
challenging the validity of the waiver of his claims under ADEA contained in
Section 8 of the Agreement
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(but no other portion of such waiver); or (ii) initiating or participating in an
investigation or proceeding conducted by the EEOC.
C. TIME TO CONSIDER. The Executive acknowledges that he has been
advised that he has twenty-one (21) days from the date of receipt of the
Agreement to consider all the provisions of the Agreement and he does hereby
knowingly and voluntarily waive said given twenty-one day period. THE EXECUTIVE
FURTHER ACKNOWLEDGES THAT HE HAS READ THE AGREEMENT CAREFULLY, HAS BEEN ADVISED
BY THE COMPANY TO, AND HAS IN FACT, CONSULTED AN ATTORNEY, AND FULLY UNDERSTANDS
THAT BY SIGNING BELOW HE IS GIVING UP CERTAIN RIGHTS WHICH HE MAY HAVE TO XXX OR
ASSERT A CLAIM AGAINST ANY OF THE RELEASEES, AS DESCRIBED IN THIS SECTION 8 AND
THE OTHER PROVISIONS HEREOF. THE EXECUTIVE ACKNOWLEDGES THAT HE HAS NOT BEEN
FORCED OR PRESSURED IN ANY MANNER WHATSOEVER TO SIGN THE AGREEMENT AND THE
EXECUTIVE AGREES TO ALL OF ITS TERMS VOLUNTARILY.
D. REVOCATION. The Executive shall have seven (7) days from the
date of his execution of the Agreement to revoke the Agreement, including the
release given under this Section 8 with respect to all claims referred to herein
(including, without limitation, any and all claims arising under ADEA). If the
Executive revokes the Agreement including, without limitation, the release given
under this Section 8, the Executive will be deemed not to have accepted the
terms of the Agreement, and no action will be required of the Company under any
section of the Agreement.
9. AVAILABILITY OF RELIEF.
A. REMEDY. The Executive acknowledges and agrees that the remedy
at law available to the Company for breach of any of his post-Retirement Date
obligations under this Agreement, including but not limited to any of the
provisions of Sections 5, 6 or 7 of this Agreement (collectively the
"RESTRICTIVE COVENANTS"), would be inadequate and that damages flowing from such
a breach may not readily be susceptible to being measured in monetary terms.
Accordingly, the Executive acknowledges, consents and agrees that, in addition
to any other rights or remedies which the Company may have at law, in equity or
under the Agreement, upon adequate proof of his violation of any such provision
of the Agreement, the Company shall be entitled to immediate injunctive relief
and may obtain a temporary order restraining any threatened or further breach,
without the necessity of proof of actual damage.
In addition, and not in anyway limiting the Company's other rights
provided in this Section 9A, if the Executive breaches, or threatens to commit a
breach of, any of the Restrictive Covenants, the Company shall have the
following additional rights and remedies, each of which rights and remedies
shall be independent of the other and severally enforceable, and all of which
rights and remedies shall be in addition to, and not in lieu of, any other
rights and remedies available to the Company under law or in equity:
1. SPECIFIC PERFORMANCE. The right and remedy to have the
covenants provided in Restricted Covenants specifically enforced by any court
having equity jurisdiction, it being
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acknowledged and agreed that any such breach or threatened breach will cause
irreparable injury to the Company and that money damages will not provide an
adequate remedy to the Company.
2. ACCOUNTING. The right and remedy to require the Executive
to account for and pay over to the Company all compensation, profits, monies,
accruals, increments or other benefits (collectively, "BENEFITS") derived or
received by the Executive as the result of any transactions constituting a
breach of any of the Restrictive Covenants, and the Executive shall account for
and pay over such Benefits to the Company.
3. CESSATION OF PAYMENT. The right to discontinue the payment
of any amounts owing under this Agreement specifically including, without
limitation, the Special Retirement Payment.
10. MISCELLANEOUS.
A. NOTICES. Any notice given pursuant to the Agreement to any
party hereto shall be deemed to have been duly given when mailed by registered
or certified mail, return receipt requested, or by overnight courier, or when
hand delivered as follows:
If to the Company:
Playtex Products, Inc.
000 Xxxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Chairman of the Board
With copies to:
Chief Executive Officer of Playtex Products, Inc., at the
address above and Vice President, General Counsel and
Secretary of Playtex Products, Inc., at the address above
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx X. Xxxxx
and Xxxxxx X. Xxxxxx
If to the Executive: Xxxxxxx X. Xxxxxxxxx
00 Xxxxxx Xxxx Xxxx
Xxxxxx, XX 00000
With a copy to: Cravath, Swaine & Xxxxx LLP
Worldwide Plaza
000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxxxxxxx
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or at such other address as either Party shall from time to time designate by
written notice, in the manner provided herein, to the other party hereto.
B. SUCCESSOR. The Agreement shall be binding upon and inure to
the benefit of the Parties, their respective heirs, successors and assigns. In
the event of the Executive's death prior to the payment by the Company of all
amounts, benefits and obligations due hereunder, any such remaining amounts,
benefits and obligations shall be paid to or for the benefit of his estate or
his designated beneficiary under an employee benefit plan of the Company, as
applicable.
C. TAXES. The Executive shall be responsible for the payment of
any and all required federal, state, local and foreign taxes imposed on the
Executive and incurred, or to be incurred, in connection with any amounts
payable to the Executive under the Agreement. Notwithstanding any other
provision of the Agreement, the Company may withhold from amounts payable under
the Agreement, including without limitation the Special Retirement Payment, all
federal, state, local and foreign taxes that in the Company's sole determination
are required to be withheld by applicable laws and regulations.
D. SEVERABILITY. In the event that any provision of the
Agreement, including without limitation any Restrictive Covenant, is determined
to be invalid or unenforceable, the remaining terms and conditions of the
Agreement shall be unaffected and shall remain in full force and effect. In
addition, if any provision is determined to be invalid or unenforceable due to
its duration and/or scope, the duration and/or scope of such provision, as the
case may be, shall be reduced, such reduction shall be to the smallest extent
necessary to comply with applicable law, and such provision shall be
enforceable, in its reduced form, to the fullest extent permitted by applicable
law.
E. COUNTERPARTS. The Agreement may be executed by one or more of
the Parties hereto on any number of separate counterparts and all such
counterparts shall be deemed to be one and the same instrument. Each party
hereto confirms that any facsimile copy of such party's executed counterpart of
the Agreement (or its signature page thereof) shall be deemed to be an executed
original thereof.
F. NON-ADMISSION. Nothing contained in the Agreement shall be
deemed or construed as an admission of wrongdoing or liability on the part of
the Executive or on the part of the Company.
G. NO MITIGATION. The Executive shall not be required to mitigate
the amount of any payment provided for pursuant to the Agreement by seeking
other employment and, to the extent that the Executive obtains or undertakes
other employment, the payment will not be reduced by the earnings of the
Executive from the other employment.
H. GOVERNING LAW/VENUE. The Agreement shall be governed by, and
construed in accordance with the internal laws of the State of Connecticut
without regard to principles of conflicts of laws. Any dispute regarding the
Agreement shall be adjudicated in the state or Federal courts located in
Westport, Connecticut.
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IN WITNESS WHEREOF, the undersigned have executed the
Agreement on the date first written above.
PLAYTEX PRODUCTS, INC.
By: /s/ Xxxxxxx Xxxxx
---------------------------------
Title: Chairman
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THE EXECUTIVE
/s/ Xxxxxxx X. Xxxxxxxxx
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Xxxxxxx X. Xxxxxxxxx
EXHIBIT A
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GENERAL EXECUTIVE RELEASE AND WAIVER
Reference is made to that certain Retirement Agreement and
General Release (the "RETIREMENT AGREEMENT") entered into as of June __, 2004,
by and between Playtex Products, Inc. (the "COMPANY") and Xxxxxxx X. Xxxxxxxxx
(the "EXECUTIVE"). Capitalized terms not defined herein shall have the meaning
ascribed to such terms in the Retirement Agreement.
FOR GOOD AND VALUABLE CONSIDERATION, as set forth in the
Retirement Agreement (which is incorporated herein by reference as if set forth
fully herein and made a part hereof), the receipt, sufficiency and adequacy of
which is hereby acknowledged by the Executive's signature below, the Executive
agrees as follows:
1. ACKNOWLEDGMENT AND RELEASE.
A. In partial consideration of the Company's execution of the
Retirement Agreement, and except with respect to the Company's obligations
arising under or preserved in the Retirement Agreement, the Executive, for and
on behalf of himself and his heirs and assigns, hereby waives and releases any
common law, statutory or other complaints, claims, charges or causes of action
arising out of or relating to the Executive's employment or termination of
employment with, or his serving in any capacity in respect of, any member of the
Company Group, both known and unknown, in law or in equity, which the Executive
may now have or ever had against any member of the Company Group or any
shareholder, employee, director or officer of any member of the Company Group
(collectively, the "RELEASEES"), including, without limitation, any claim for
any severance benefit under any severance plan, policy or arrangement of the
Company which but for the Retirement Agreement might have been due the Executive
including under any previous agreement executed by and between any member of the
Company Group and the Executive, including without limitation the MOU and the
Retention Agreement, and any complaint, charge or cause of action arising out of
his employment with the Company Group under the Age Discrimination in Employment
Act of 1967 ("ADEA," a law which prohibits discrimination on the basis of age),
the National Labor Relations Act, the Civil Rights Act of 1991, the Americans
With Disabilities Act of 1990, Title VII of the Civil Rights Act of 1964, the
Employee Retirement Income Security Act of 1974, all as amended; and all other
federal, state and local laws. By signing this General Executive Release and
Waiver (the "RELEASE") the Executive acknowledges that he intends to waive and
release any rights known or unknown he may have against the Releasees under
these and any other laws; PROVIDED, that the Executive does not waive or release
claims with respect to the right to enforce the Retirement Agreement.
Notwithstanding the foregoing, the Executive does not release, discharge or
waive any rights to indemnification that he may have under the By-Laws of the
Company, the laws of the State of Delaware, any indemnification agreement
between the Executive and the Company or any insurance coverage maintained by or
on behalf of the Company.
B. The Executive acknowledges that he has not filed any
complaint, charge, claim or proceeding against any of the Releasees before any
local, state or federal agency, court or other body relating to his employment
or the termination or retirement therefrom (each individually a "Proceeding").
The Executive represents that he is not aware of any basis on which such a
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Proceeding could reasonably be instituted. The Executive (i) acknowledges that
he will not initiate or cause to be initiated on his behalf any Proceedings and
will not participate in any Proceeding, in each case, except as required by law;
and (ii) waives any right he may have to benefit in any manner from any relief
(whether monetary or otherwise) arising out of any Proceeding, including any
Proceeding conducted by the Equal Employment Opportunity Commission ("EEOC").
Further, the Executive understands that by entering into the Release, he will be
limiting the availability of certain remedies that he may have against the
Company and limiting also his ability to pursue certain claims against the
Releasees. Notwithstanding the above, nothing in this Section 1 shall prevent
the Executive from (i) initiating or causing to be initiated on his behalf any
complaint, charge, claim or proceeding against the Company before any local,
state or federal agency, court or other body challenging the validity of the
waiver of his claims under ADEA contained in Section 1A of the Release (but no
other portion of such waiver); or (ii) initiating or participating in an
investigation or proceeding conducted by the EEOC.
C. The Executive acknowledges that he has been advised that he
has twenty-one (21) days from the date of receipt of the Release to consider all
the provisions of the Release and he does hereby knowingly and voluntarily waive
said given twenty-one day period. THE EXECUTIVE FURTHER ACKNOWLEDGES THAT HE HAS
READ THE RELEASE CAREFULLY, HAS BEEN ADVISED BY THE COMPANY TO, AND HAS IN FACT,
CONSULTED AN ATTORNEY, AND FULLY UNDERSTANDS THAT BY SIGNING BELOW HE IS GIVING
UP CERTAIN RIGHTS WHICH HE MAY HAVE TO XXX OR ASSERT A CLAIM AGAINST ANY OF THE
RELEASEES, AS DESCRIBED IN THIS SECTION 1 AND THE OTHER PROVISIONS HEREOF. THE
EXECUTIVE ACKNOWLEDGES THAT HE HAS NOT BEEN FORCED OR PRESSURED IN ANY MANNER
WHATSOEVER TO SIGN THE AGREEMENT AND THE EXECUTIVE AGREES TO ALL OF ITS TERMS
VOLUNTARILY.
D. The Executive shall have seven (7) days from the date of his
execution of the Release to revoke the Release, with respect to all claims
referred to herein (including, without limitation, any and all claims arising
under ADEA). If the Executive revokes the Release, the Executive will be deemed
not to have accepted the terms of the Retirement Agreement, and no action will
be required of the Company under any section of the Retirement Agreement.
2. NO ADMISSION.
This Release does not constitute an admission of liability or
wrongdoing of any kind by the Executive or the Company.
3. GENERAL PROVISIONS.
A. This Release, when executed, and the Retirement Agreement,
contain the entire agreement between the Executive and the Company Group on the
subject matter hereof, and there are no other understandings or agreements,
written or oral, between them on the subject matter hereof. Except for the
Retirement Agreement this Release fully supersedes and replaces any and all
prior agreements or understandings, if any, between the Executive and the
Company
3
Group. This Release may not be changed or altered, except in a written document
signed by an authorized representative of the Parties.
B. A failure of the Company Group to insist on strict compliance
with any provision of this Release shall not be deemed a waiver of such
provision or any other provision hereof. If any provision of this Release is
determined to be so broad as to be unenforceable, such provision shall be
interpreted to be only so broad as is enforceable, and in the event that any
provision is determined to be entirely unenforceable, such provision shall be
deemed severable, such that all other provisions of this Release shall remain
valid and binding upon the Executive and the Company Releasees.
C. This General Executive Release shall be governed by and
construed in accordance with the laws of the State of Connecticut, without
reference to principles of conflict of laws. Any dispute regarding the General
Executive Release or Retirement Agreement shall be adjudicated in the State or
Federal courts located in Westport, Connecticut.
IN WITNESS WHEREOF, the Executive has hereunto set the
Executive's hand as of the day and year set forth opposite his signature below.
Dated:
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