Exhibit 10.4
GENERAL RELEASE OF LEGAL RIGHTS
This General Release of Legal Rights ("Agreement") is entered
into between GRAPHIC PACKAGING CORPORATION, including its
affiliated companies, and the officers, directors, agents and
employees thereof ("Company") and Gail A. Constancio
("Employee"). The purpose of this Agreement is to forever
resolve any disputes between Employee and the Company concerning
Employee's employment and separation from employment and to
provide Employee with severance benefits. In exchange for these
severance benefits Employee (1) knowingly and voluntarily gives
up all legal rights Employee may have in connection with his/her
employment and separation from employment; and (2) agrees to all
other covenants contained in this Agreement.
STIPULATIONS
1. In consideration for the full release by Employee of his/her
legal rights, as provided in this Agreement, the Company has
agreed to pay additional severance pay and benefits that
Employee would not otherwise be entitled to receive.
2. Employee understands that this is a legally-binding document
that surrenders all legal rights that he/she may have against
the Company in connection with his/her employment and separa-
tion from employment, except for worker's compensation
benefits, which may not be released without the approval of a
court of competent jurisdiction. Accordingly, Employee has
been advised to consult with a lawyer before signing this
Agreement.
3. Employee has been informed of his/her right to be free from
age discrimination and that the Age Discrimination in Employ-
ment Act of 1967 ("ADEA"), the Older Workers Benefit
Protection Act "OWBPA"), and State law prohibit such discri-
mination. Employee understands that he/she is giving up the
right to sue the Company for age discrimination by signing
this Agreement.
4. Employee acknowledges that the Company has given him/her
forty-five (45) days after the date this Agreement was given
to him/her to decide whether or not to sign this Agreement.
If he/she signs the Agreement before the expiration of the
45 days, he/she is not required to do so and could have taken
the entire 45 days to consider this matter. Employee also
has seven (7) days to revoke this Agreement as provided herein.
5. Employee understands and agrees that because of his/her
right to revoke, this Agreement shall not be effective or
enforceable, and no payments to Employee will be made, until
seven (7) days after he/she has signed this Agreement.
6. Employee acknowledges his/her last active day of employment
with the Company will be July 31, 2001 the "Termination Date",
and the Employee's employment with the Company will terminate
effective on that date. Employee understands, acknowledges
and agrees that the Company has no obligation whatsoever to
reinstate, recall, reemploy or rehire Employee to any position
with the Company et al. Employee further understands,
acknowledges and agrees that if Employee is offered
re-employment by the Company, in a comparable position and
rate of pay, at any point during the separation period follow-
ing Employee's Termination Date, Employee will be entitled to
no further separation payments and Employee's separation
payments automatically and immediately ceases as of the
Employee's reemployment date. The Employee agrees not to seek
reemployment with the Company. The Employee will receive payment
for any and all accrued but unused vacation.
7. Employee acknowledges that, with respect to the subject
matter hereof, this Agreement is his/her entire agreement with
Company superceding all prior written or oral communications,
representations, understandings or agreements with Company or
any officer or representative thereof, including any provision
within the Company's Confidentiality Nondisclosure, No Conflict,
and Noninterference Agreement which provides for cash payments,
except that all other provisions within that Agreement shall
remain in full force and effect.
8. Employee acknowledges that the Company has given him/her the
information required by Section 7(f)(1)(H) of the ADEA, and
that said information has been attached to this Agreement as
Exhibit A.
9. Employee understands that all payments paid under this
Agreement are stated in gross amounts, and are subject to
withholding or standard payroll deductions for FICA and federal
and state taxes.
10. Employee represents that in deciding to enter into this
Agreement, he/she has not relied in any way upon any statement,
representation, or omission from any person that is not set
forth expressly in this Agreement.
11. Employee acknowledges and agrees that the payments made
under this Agreement are inclusive of any notice payments to
which he/she might be entitled under any applicable law includ-
ing the Worker Adjustment and Retraining Notification Act and
any similar state law. Any pay due employee under the
Incentive Agreement signed by Graphic Packaging Corporation
in February 2001 is an exception to this stipulation.
12. This Agreement shall not in any way be construed as an
admission by the Company that it has acted wrongfully with
respect to Employee or any other person, and the Company
specifically denies any liability to or wrongful acts toward
Employee or any other person, on the part of itself, its
employees, or its agents.
CONSIDERATION
Employee will receive as severance benefits a payment equal to 52
weeks base pay (which equals a total gross payment $224,999.84)
less all legally required deductions for any federal, state or
local taxes. After expiration of the revocation period, the
payments will be made per the normal payroll cycle over the 52-
week period. The Company also agrees to provide outplacement
services to the employee in accordance with Exhibit B.
OBLIGATIONS OF EMPLOYEE
1. Employee agrees to keep confidential the terms and
conditions of this Agreement and will not disclose any terms and
conditions to any third party, except for legal counsel and/or
tax advisors retained by Employee to review the terms or effect
of this Agreement and any taxation issue related to this
Agreement. Employee agrees not to disparage the Company, its
officers, agents or employees, or any of the Company's products
or technical expertise or processes, or take any action
whatsoever that would have the purpose or effect of harming the
reputation and integrity of the Company. When asked about
his/her separation from employment, Employee shall simply state
the position was eliminated as part of a reduction in force.
2. Employee acknowledges that during his/her employment with
the Company or its predecessor he/she may have acquired
confidential information including, but not limited to,
information concerning the following: the Company's research,
development, patent and copyright development and licensing
thereof, trade secrets, inventions, formulas, designs, drawings,
specifications, engineering, production processes, or equipment;
the Company's marketing techniques, price lists, pricing
policies, sales, service, costs, business method, formula,
product specifications, and planning; the names of the Company's
customers and their representatives; the Company's potential
customers or marketing plans; the Company's customer services, or
the type, quantity and specifications of products purchased by or
from customers; the Company's computer techniques, programs and
software patents and technical processes; and the Company's
employees and the terms and conditions of their employment with
the Company ("Confidential Information"). Employee acknowledges
that all Confidential Information constitutes the Company's trade
secrets and Employee will hold the Confidential Information in
the strictest confidence and not disclose it to others.
3. Employee agrees to deliver to the Company within seven (7)
days of the execution of this Agreement all Company documents,
information, and property in Employee's possession or control,
including, but not limited to, any and all computer floppy disks,
external zip drive disks, passwords, CD-ROMs or other electronic
medium that may contain any Company information, files, data or
programs, and Employee agrees he/she will not thereafter retain
any such files or information, regardless of the form or medium
in which they are stored.
4. Employee will not, for a period of one (1) year following
the execution of this Agreement, solicit or contact any current
customers of Company, or solicit potential customers of GPC if
such potential customers are or were identified through leads
developed during the course of employment with the Company or its
predecessor, or otherwise divert or attempt to divert any
existing business away from the Company.
5. Employee will not, for a period of one (1) year following
the execution of this Agreement, either directly or indirectly,
for himself/herself or for any third party, solicit, induce,
recruit, or cause another person in the employ of or performing
work for the Company to terminate his/ her employment for the
purpose of joining, associating or becoming employed with any
business or activity which is in competition with any business or
activity engaged in by the Company. Employee will not, for a
period of one (1) year following the execution of this Agreement,
either directly or indirectly, make known to any potential
employer, firm, corporation, association, or other entity the
names or addresses of, or any information pertaining to, any
current or former employees of the Company.
6. With respect to any threatened, pending or future litigation
or investigation involving the Company, Employee will cooperate
fully in providing the Company any information Employee may have
and, at the Company's request, appear as a witness at trial or at
a deposition or both. The Company will reimburse Employee for
out-of-pocket and travel expenses Employee incurs in connection
with appearing as a witness at trial or at a deposition at the
Company's request. Absent the Company's request, Employee will
not appear at a trial or at a deposition to give testimony in any
litigation of any kind against the Company unless required by law
to do so.
7. Employee agrees that, unless required by lawful subpoena to
do so, Employee will not, either directly or indirectly,
institute legal action against the Company based on any acts or
omissions occurring prior to the signing of this Agreement.
Employee also agrees to indemnify, defend and hold the Company
harmless from and against any loss, cost, damage or expense
(including, without limitation, attorneys' fees) incurred by the
Company as a result of any breach of this paragraph by Employee.
LEGAL RELEASE
1. Employee releases the Company, and all of its parent
companies, subsidiaries, affiliates, related entities,
shareholders, directors, trustees, officers, employees, agents,
attorneys, predecessors, successors and assigns, and all other
persons acting in concert with or on the Company's behalf from
all legal claims and demands of any nature, whether known or
unknown, and which may now exist or hereinafter accrue, based on
events, acts or omissions arising prior to the signing of this
Agreement. This legal release includes all legal claims that
Employee may have under federal or state law arising out of
his/her employment relationship with the Company, including
his/her separation from employment.
2. By signing this legal release, Employee gives up all claims
that he/she may have against the Company under the Age
Discrimination in Employment Act of 1967, comparable State law
prohibiting age discrimination, and any other federal or state
law prohibiting discrimination in employment.
3. This legal release includes, but is not limited to, all
claims Employee may have for misrepresentation, breach of implied
or express contract, bad faith, wrongful termination, negligent
or intentional infliction of emotional distress, bodily injury,
invasion of privacy, defamation, interference with prospective
economic advantage, tortious interference with contract,
termination from employment in violation of public policy, and
all claims under the Family and Medical Leave Act, the Employee
Retirement Income Security Act of 1974, as amended, Title VII of
the Civil Rights Act, as amended, the Americans With Disabilities
Act, the Fair Labor Standards Act, the Worker Adjustment and
Retraining Notification Act and any other federal, state or local
laws.
4. This legal release in favor of the Company is intended to be
interpreted in the broadest possible manner, to encompass all
potential legal claims that may now exist or hereinafter accrue,
based upon alleged acts or omissions occurring prior to the
signing of this Agreement.
5. The only exceptions to this legal release in favor of the
Company are benefits of employment that have previously vested by
operation of law (such as vested employment benefits, if any) or
worker's compensation benefits.
REMEDIES
Employee acknowledges and agrees that any breach by him/her of
the obligations set forth above in paragraphs 1 through 6 of the
section entitled "Obligations of Employee" shall constitute
irreparable harm to the Company and Employee agrees that in the
event of such breach, the Company shall have the right to seek
injunctive relief, in addition to any other existing rights
provided by this Agreement or by operation of law, without the
requirement of posting a bond. Employee further agrees that the
existence of any claim or cause of action that Employee might
have against the Company, whether arising from this Agreement or
otherwise, shall in no way constitute a defense to the
enforcement of the provisions this Agreement.
SUCCESSORS
This Agreement shall be binding upon the employee, his/her
personal representatives, successors and other legal
representatives and be freely assignable by the Company to any
successor in interest to its business or to any subsidiary or
affiliate.
ATTORNEYS' FEES AND COSTS
Employee shall pay the Company's reasonable costs and attorneys'
fees in the event the Company prevails in any legal action
arising out of Employee's breach of the provisions of this
Agreement.
CONSTRUCTION
If any provision or clause of this Agreement is ruled invalid or
inoperative, such provision shall be deemed severable and shall
not affect the validity of any other provision of this Agreement;
provided, however, that if such provision or clause may be
modified so as to be valid as a matter of law, then the provision
or clause shall be deemed to be modified so as to be enforceable
to the maximum extent permitted by law.
RIGHT TO REVOKE
1. Employee understands that he/she has seven (7) days within
which to revoke this Agreement after signing it. Such
revocation, if applicable, must be received in writing and
addressed to Marsha C. Williams, Vice President Human Resources,
Graphic Packaging Corporation, 4455 Table Mountain Drive, Golden,
Colorado 80403, within the seven (7) day period.
2. In view of this right to revoke, however, the Employee will
not be entitled to or receive any check for severance pay as
provided by this Agreement until the revocation period has
expired.
3. In the event of an effective revocation, Employee will not
be entitled to any benefits provided under this Agreement.
SIGNATURES
By their signatures below, the Company and Employee acknowledge
that they have read this Agreement in its entirety, understand
the contents, understand that this is a legally binding document
and agree to be bound by its terms.
Employee acknowledges that he/she is aware of his/her right to be
free from age discrimination in employment and understands that
he/she is giving up this right voluntarily by signing this
Agreement. Employee further acknowledges that he/she has been
given forty five (45) days in which to review this Agreement and
to consult with an attorney or other person of Employee's
choosing about its terms, and that he/she voluntarily agrees to
the terms set forth herein.
Employee Graphic Packaging Corporation
/s/ Gail A. Constancio By /s/ Marsha C. Williams
- ------------------------- -----------------------------
Gail A. Constancio
Dated: 8/20/01 Dated: 8/20/01