RETIREMENT AGREEMENT
THIS RETIREMENT AGREEMENT (hereinafter referred to as the "Retirement
Agreement"), made as of the 17th day of June, 1994 (hereinafter referred to as
the "Effective Date"), by and between Delmont A. Davis (hereinafter referred to
as "Executive") and Ball Corporation (hereinafter referred to as the
"Company").
W I T N E S S E T H :
WHEREAS, Executive has been employed by the Company as the President and
Chief Executive Officer of the Company;
WHEREAS, Executive and the Company have agreed that Executive's employment
with the Company shall terminate on June 17, 1994 (hereinafter referred to as
the "Retirement Date"); and
WHEREAS, Executive and the Company have negotiated and reached an
agreement with respect to all rights, duties and obligations arising between
them, including, but in no way limited to, any rights, duties and obligations
that have arisen or might arise out of or are in any way related to Executive's
employment with the Company and the conclusion of that employment.
NOW, THEREFORE, in consideration of the covenants and mutual promises
herein contained, it is agreed as follows:
FIRST: Executive hereby resigns as a director of the Company and from all
offices, titles and positions that he has been appointed or elected to and now
occupies with the Company and any of its affiliates and shall submit a letter
of resignation in the form attached hereto as Exhibit A upon the signing of
this Retirement Agreement. Upon the Company's request, Executive shall execute
any additional documents necessary to effect such resignations. Executive shall
remain an employee of the Company until the Retirement Date. Executive
understands and agrees that his employment with the Company and its affiliates
shall conclude as of the Retirement Date, and as of the Retirement Date he
shall no longer be authorized to incur any expenses, obligations or liabilities
on behalf of the Company, unless specifically authorized herein or directed by
an executive officer of the Company. Unless otherwise specified, as used in
this Retirement Agreement, the term "affiliates" shall include any subsidiary,
joint venture, division or organization of the Company.
SECOND: The Company hereby agrees to pay Executive a lump sum payment in
the amount of $580,000, less all applicable withholding taxes, within seven
working days of the Retirement Date; and from the Retirement Date until the
third anniversary thereof (the "Salary Continuation Period"), the amount of
$600,000 annually in equal bi-weekly installments in accordance with the
Company's normal payroll practices (collectively, the "Salary Continuation
Payments"), less all applicable withholding taxes. The Salary Continuation
Payments shall commence on the first payroll date following the Retirement
Date. In the event of Executive's death prior to the expiration of the Salary
Continuation Period, the Salary Continuation Payments and all other payments
provided hereunder shall be payable to Executive's designated beneficiary, or
if none, to his estate in a single discounted (at an interest rate equal to the
prime rate promulgated by the First National Bank of Chicago and in effect as
of the date of payment, plus one percent (the "Interest Rate")) lump sum payment
and, except to the extent benefits contemplated herein are provided by their
terms to heirs and beneficiaries, the Company shall have no further obligations
to Executive's beneficiaries under this Retirement Agreement.
THIRD: Executive acknowledges and agrees that other than as specifically
set forth in this Retirement Agreement, he is not due any compensation,
including compensation for unpaid salary, unpaid bonus, or accrued or unused
vacation time or vacation pay from the Company or any of its affiliates (except
for amounts, if any, unpaid and owing for Executive's employment with the
Company and its affiliates prior to the Retirement Date), and as of the
Retirement Date, except as provided herein, he shall not be eligible to
participate in any of the benefit plans of the Company or any of its
affiliates, except that, effective as of the Retirement Date, Executive shall
be entitled to receive benefits pursuant to plans of the Company not otherwise
addressed herein to the extent retirees of the Company are entitled to such
benefits in the ordinary course. In addition, Executive shall be entitled to
receive benefits that are vested and accrued prior to the Retirement Date
pursuant to plans of the Company or its affiliates.
FOURTH: The Company agrees to pay Executive incentive compensation for
the Company's 1994 fiscal year in an amount equal to the 1994 incentive
compensation amount that would otherwise be payable to him under the terms of
the Company's Economic Value Added Incentive Compensation Plan (the "Incentive
Compensation Plan"), multiplied by a fraction the numerator of which is the
number of calendar days from January 1, 1994 until the Retirement Date, and the
denominator of which is 365, less all applicable withholding taxes. This
amount shall be in lieu of, not in addition to, any other incentive
compensation for the 1994 fiscal year previously contemplated by Executive and
shall be paid to Executive upon the date, or as soon as practicable thereafter,
that incentive compensation is paid generally to participants in the Incentive
Compensation Plan. Such incentive compensation earned by Executive, up to the
amount specified by Executive on his Deferral and Election Form for 1994
Incentive Compensation dated December 10, 1993, shall be deferred into the
Company's 1988 Deferred Compensation Plan. Any remaining balance after such
deferral and applicable withholding taxes shall be paid to Executive in cash.
FIFTH: Executive shall continue to accrue credited service and benefits
through the Salary Continuation Period under the Company's Pension Plan for
Salaried Employees (the "Pension Plan"), as in effect as of the Retirement
Date, regardless of whether Salary Continuation Payments are received by
Executive as provided in Paragraph Sixteenth hereof. Effective as of the
expiration of the Salary Continuation Period, Executive shall be eligible to
receive benefits under the Pension Plan as if he had retired from the Company
as of such date; provided, however, that to the extent payment of such benefits
from the Pension Plan would violate any provision of applicable law, such
benefits shall be paid instead by the Company. In addition, Executive shall
participate in the Company's Supplemental Executive Retirement Plan (the
"SERP") approved by the Board of Directors on April 26, 1994, commencing with
the effective date of the SERP and shall continue to accrue credited service
and benefits through the Salary Continuation Period under the SERP, and
thereafter shall be entitled to retirement and death benefits calculated
thereunder; provided, however, that the Company shall not amend the SERP to
retroactively reduce Executive's benefits thereunder. Final average monthly
salary as used in such calculations shall include assumed annual salary
increases of 5% as of January 1, 1995, 1996 and 1997. Executive's current
group term life insurance shall remain in effect until superseded by the SERP
death benefit, at no cost to Executive. Such SERP death benefit shall be no
less than two times Executive's annual total compensation at target incentive
in effect at the Retirement Date.
SIXTH: Effective as of the Retirement Date, Executive's existing stock
options that are exercisable as of the Retirement Date shall remain exercisable
until their expiration pursuant to the terms of the respective stock option
plans and agreements under which they were awarded.
SEVENTH: The Company agrees to pay Executive's premiums under the
Company's retiree medical program from the Retirement Date until the expiration
of the Salary Continuation Period.
EIGHTH: Executive shall be entitled to keep possession of the following
property currently in his office or otherwise in his possession: a Compaq
computer, with accessories and software; a Wizard electronic organizer; a
Motorola mobile telephone; two Panasonic facsimile machines; and three Hewlett
Packard calculators.
NINTH: The Company agrees to purchase Executive's residence, excluding
personal property and window and door coverings, but including all other
improvements, fixtures, appliances and customized decorating related to such
residence, located at 514 S. Elliott Acres Drive, Muncie, Indiana 47302-9291
(the "Muncie Residence") for a purchase price of $420,000, payable within
thirty (30) days from the Retirement Date. Executive shall have a reasonable
amount of time to vacate the premises; provided, however, that once the Company
has purchased the Muncie Residence, the Company shall have the right to show it
to prospective purchasers at such times as the parties shall mutually agree.
The Company shall relocate Executive in accordance with Company Policy No. A-
02105.0-02, dated March 15, 1993, to the extent that the terms of the policy
are not inconsistent with the terms of this Retirement Agreement, but the
allowable relocation expense to be paid by the Company shall not exceed
$30,000.
TENTH: For a period of one year commencing on the Retirement Date, the
Company agrees to continue to provide Executive with financial counseling and
tax preparation services.
ELEVENTH: Commencing as of the Retirement Date until the expiration of
the Salary Continuation Period, Executive shall provide consulting services to
the Company pursuant to such terms and conditions as are mutually agreed upon
by the parties.
TWELFTH: Upon the occurrence of a "Change in Control," as defined below,
the Company shall use its best reasonable efforts to ensure that the successor
thereto assumes and agrees to perform the terms of this Retirement Agreement.
Further, upon the occurrence of a Change in Control, in lieu of the payments
and benefits provided under this Retirement Agreement, Executive may elect to
receive the present value of all such payments and benefits in the form of a
lump sum payment (discounted at the Interest Rate) payable as soon as
practicable following such election; provided, however, that in the case of the
SERP, Executive may elect to receive either cash sufficient to purchase an
annuity or an annuity providing the benefits due to him under the SERP. For
purposes of this Agreement, "Change in Control" shall be deemed to have
occurred when any "person," as such term is used in Sections 13(d) and 14(d) of
the Securities Exchange Act of 1994, as amended (the "Exchange Act") (other
than the Company, any trustee or other fiduciary holding securities under an
employee benefit plan of the Company or any subsidiary of the Company, or any
corporation owned, directly or indirectly, by the stockholders of the Company
in substantially the same proportions as their ownership of stock of the
Company), is or becomes the "beneficial owner" (as defined in Rule 13d-3 under
the Exchange Act), directly or indirectly, of securities of the Company
representing 35 percent or more of the combined voting power of the Company's
then outstanding securities.
THIRTEENTH: At all times hereafter, Executive shall maintain the
confidentiality of all information in whatever form concerning the Company or
any of its affiliates relating to its or their businesses, customers, finances,
strategic or other plans, marketing, employees, trade practices, trade secrets,
know-how or other matters that are not publicly known outside the Company, and
Executive shall not, directly or indirectly, make any disclosure thereof to
anyone, or make any use thereof, on his own behalf or on behalf of any third
party, unless specifically requested by or agreed to in writing by an executive
officer of the Company; provided, however, that Executive may disclose, discuss
or provide the information described above to the extent Executive is compelled
by law to do so and, in such event, Executive shall notify the Company
immediately upon any request or demand for information so that the Company may
seek a protective order or other appropriate remedy.
Except as otherwise provided in Paragraph Eighth hereof, Executive has
returned or shall immediately return to the Company all reports, files,
memoranda, records and software, credit cards, cardkey passes, door and file
keys, computer access codes or disks and instructional manuals, and other
physical or personal property that he received or prepared or helped prepare in
connection with his employment with the Company, and its affiliates, and
Executive has not retained and shall not retain any copies, duplicates,
reproductions or excerpts thereof.
FOURTEENTH: Executive acknowledges that (i) the business in which the
Company is engaged is intensely competitive, that the Company needs to protect
its good will, and that Executive's employment by the Company has required
Executive to have access to and knowledge of highly confidential information of
the Company including, but not limited to, certain of the Company's
confidential business plans, trade secrets, customer lists, strategies and
objectives, which are of vital importance to the success of the Company's
business; (ii) the direct or indirect disclosure of any such confidential
information to existing or potential competitors of the Company could place the
Company at a competitive disadvantage and could do material damage, financial
and otherwise to the Company's business; and (iii) Executive's services to the
Company have been special and unique.
Therefore, in consideration of the terms and conditions of this Retirement
Agreement, including the compensation to be paid hereunder, Executive agrees
that during the Salary Continuation Period, Executive shall not participate in
the management of (with or without pay), or be employed as an employee of (with
or without pay), any competitive business, and for a period of one year from
the Retirement Date, Executive shall also not act as a consultant (with or
without pay) for any competitive business. For purposes of this Paragraph
Fourteenth, a "competitive business" shall mean any business operation of any
enterprise if such operation or business competes with businesses of the
Company involving the production of metal and glass packaging products and
providing aerospace and communications products and services to government and
commercial customers in any areas of the United States in which the Company or
any affiliate is currently engaged in such business. The parties hereto agree
that the provisions of this Paragraph Fourteenth shall be enforceable to the
fullest extent permissible under the laws and public policies applied in each
jurisdiction in which enforcement is sought. Accordingly, if any portion of
this Paragraph Fourteenth is adjudicated unenforceable in any jurisdiction,
such adjudication shall apply only in the particular jurisdiction in which such
adjudication is made.
FIFTEENTH: During the Salary Continuation Period, Executive shall not,
directly or indirectly, solicit, entice, persuade or induce (or authorize or
assist in the taking of any such actions by any third party) any employee of
the Company or its affiliates with a view to inducing or encouraging such
employee to leave the employ of the Company or its affiliates for the purpose
of being hired by Executive or any other person.
SIXTEENTH:
(a) During the Salary Continuation Period, Executive shall not violate the
terms of Paragraphs Thirteenth, Fourteenth or Fifteenth above, or the terms of
this Paragraph Sixteenth, by, among other things:
(i) engaging in the activities prohibited by Paragraphs Thirteenth,
Fourteenth and Fifteenth above;
(ii) disparaging or criticizing, orally or in writing, the performance of
the Company, the Board of Directors or any director of the Company or
of any specific former or current officer of the Company or any
operating company or the Company's management as a group to any
person; or
(iii) initiating or participating in discussions of Company business
matters with officers of the Company or its affiliates other than at
the request of an officer of the Company;
provided, however, that Executive may divulge, discuss or provide the
information described in clauses (i) through (iii) above to the extent
Executive is compelled by law to do so and, in such event, Executive shall
notify the Company immediately upon any request or demand for information so
that the Company may seek a protective order or other appropriate remedy.
(b) If the Board of Directors of the Company reasonably believes, which
belief shall not be arbitrary or capricious, that Executive has violated any of
the terms referred to in (a) above, the Company shall have the option of
discontinuing Salary Continuation Payments hereunder and shall immediately
notify Executive of the Company's complaints setting forth specifically the
allegations. Thereafter Executive shall have twenty (20) days within which to
respond in writing to the Board. If the parties agree that the violations have
been remedied to the degree that the Company or any of its directors, officers
or other executives have not suffered competitive disadvantage or other
material damage, financial or otherwise, Salary Continuation Payments shall be
resumed retroactively. However, if the parties cannot so agree, within fifteen
(15) days of Executive's response, the dispute shall be referred promptly to
the American Arbitration Association in accordance with its rules and
regulations. The arbitration panel shall determine the seriousness of any
alleged breach and render a decision as it deems appropriate, except that the
arbitration panel may not reduce or discontinue the payment of vested and
accrued retirement payments under the Pension Plan and the SERP; provided,
however, that no liability shall be imposed on the Company beyond possible make
up of missed Salary Continuation Payments with interest at the Interest Rate.
(c) During the Salary Continuation Period, neither the Company, nor any
directors or officers, shall disparage or criticize, orally or in writing,
Executive in a manner likely to harm his reputation; provided, however, that
the Company may divulge, discuss or provide the information described above to
the extent that the Company is required by law to do so, and, in such event,
the Company shall notify Executive immediately upon any request or demand for
such information that Executive may seek a protective order or other
appropriate remedy.
SEVENTEENTH:
(a) Executive, on behalf of himself, his heirs, executors,
administrators, and assigns, does hereby knowingly and voluntarily release,
acquit and forever discharge the Company and any affiliates, legal
representatives, agents, successors and assigns, past, present and future
directors, officers, employees, trustees and shareholders (collectively, the
"Releasees") from and against any and all charges, complaints, claims, cross-
claims, third-party claims, counterclaims, contribution claims, liabilities,
obligations, promises, agreements, controversies, damages, actions, causes of
action, suits, rights, demands, costs, losses, debts and expenses of any nature
whatsoever (collectively, the "Actions"), known or unknown, suspected or
unsuspected, foreseen or unforeseen, matured or unmatured, which, at any time
up to and including the date hereof, exists, have existed, or may arise from
any matter whatsoever occurring, including, but not limited to, any claims
arising out of or in any way related to Executive's employment with the Company
or its affiliates and the conclusion thereof, which Executive or any of his
heirs, executors, administrators and assigns ever had, now has or at any time
hereafter may have, own or hold against the Releasees. Without limiting the
foregoing, by executing this Retirement Agreement, Executive is waiving all
Actions against the Releasees arising under federal, state and local labor and
anti-discrimination laws, including without limitation the Age Discrimination
in Employment Act, as amended, Title VII of the Civil Rights Act, as amended,
and the Indiana Civil Rights Act, as amended, and under any purported common
law restrictions; provided, however, that nothing herein shall release any
party from any obligation under this Retirement Agreement, or any claim
appropriately brought under any applicable worker's compensation act. In
addition, (i) Executive does not hereby waive any benefits vested and accrued
prior to the Retirement Date under applicable plans of the Company or its
affiliates and Executive is not required to sign this Retirement Agreement in
order to receive such vested benefits and (ii) Executive does not hereby waive
any benefits under any plans of the Company not specifically addressed
elsewhere herein under which retirees of the Company are entitled to benefits
in the ordinary course pursuant to the terms of such plans. Executive
acknowledges that, in exchange for this release, the Company is providing
Executive with a total consideration, financial and otherwise, which exceeds
what Executive would have received had Executive not given this release.
(b) Executive agrees that he shall not commence any action or proceeding
of any nature whatsoever, and that he shall not seek or be entitled to any
award of equitable or monetary relief in any action or proceeding brought on
his behalf, that arises out of the matters released by Executive under this
Retirement Agreement.
EIGHTEENTH: The Company has advised Executive to consult with an attorney
of his choosing prior to the signing of this Retirement Agreement and Executive
hereby represents to the Company that he has consulted with an attorney prior
to the execution of this Retirement Agreement. Executive shall have twenty-one
(21) days to consider this Retirement Agreement and once he has signed this
Retirement Agreement, Executive shall have seven (7) additional days from the
date of execution to revoke his consent to the waiver of the release set forth
in Paragraph Seventeenth hereof. Any such revocation shall be made in writing
pursuant to Paragraph Twenty-First hereof. If no such revocation occurs,
Executive's waiver of the release set forth in Paragraph Seventeenth hereof,
this Retirement Agreement shall become effective seven (7) days from the date
of execution by the parties. In the event that Executive revokes his waiver of
the release set forth in Paragraph Seventeenth hereof, the Company shall have
the right to not pay the Salary Continuation Payments set forth in Paragraph
Second and to not pay or provide the other benefits set forth in this
Retirement Agreement in which case all provisions of this Retirement Agreement
shall immediately become void and of no effect and any benefits previously paid
to Executive pursuant to this Retirement Agreement prior to the date of such
revocation shall be immediately repaid to the Company. Neither Executive, on
the one hand, nor the Company, on the other hand, shall have any obligation
toward the other under any other agreement except for this Retirement
Agreement.
NINETEENTH: This Retirement Agreement shall be governed by and construed
and enforced under the laws of the State of Indiana, without regard to its
conflict of laws rules.
TWENTIETH: In the event that any one or more of the provisions of this
Retirement Agreement is held to be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby. Moreover, if any one or more of the
provisions contained in this Retirement Agreement is held to be excessively
broad as to duration, scope, activity or subject, such provisions will be
construed by limiting and reducing them so as to be enforceable to the maximum
extent compatible with applicable law. Executive acknowledges and agrees that
the Company could suffer irreparable injury in the event of a breach or
violation of the provisions set forth in Paragraphs Thirteenth, Fourteenth,
Fifteenth and Sixteenth herein and Executive agrees that, in the event of an
actual or threatened breach or violation of such provisions, the Company may be
awarded injunctive relief in a court of appropriate jurisdiction to prohibit or
remedy any such violation or breach or threatened violation or breach, without
the necessity of posting any bond or security, and such right to injunctive
relief may be in addition to any other right or remedy available to the
Company.
TWENTY-FIRST: Any notice to be given hereunder shall be in writing and
shall be deemed given when mailed by certified mail, return receipt requested,
addressed as follows:
To Executive at:
2178 W. 116th Avenue
Westminster, CO 80234
To the Company at:
Ball Corporation
345 South High Street
Muncie, Indiana 47305-4260
Attention: General Counsel
TWENTY-SECOND: This Retirement Agreement sets forth the entire agreement
between the parties hereto and may not be changed without the written consent
of the parties. This Retirement Agreement supersedes all prior agreements and
understandings concerning the subject matter hereof including, but not limited
to, the Severance Agreement between Executive and the Company, dated January
24, 1989. The parties may execute this Retirement Agreement in counterparts.
TWENTY-THIRD: This Retirement Agreement is intended to be binding upon
and shall inure to the benefit of the parties hereto and their respective
successors and assigns.
IN WITNESS WHEREOF, the parties have executed this Retirement Agreement as
of the date first written above.
DELMONT A. DAVIS BALL CORPORATION
By:
- - ------------------------- --------------------------
Name:
EXHIBIT A
Delmont A. Davis
2178 W. 116th Avenue
Westminster, CO 80234
June 17, 1994
Mr. Alvin Owsley
Chairman of the Board of Directors
Ball Corporation
345 South High Street
Muncie, Indiana 47305
Dear Alvin,
I am hereby submitting my resignation, effective with the signing of
the Retirement Agreement between myself and Ball Corporation (the "Company"),
as a director of the Company and from all offices, titles and positions
to which I have been elected or appointed and now occupy at the Company
and any of its affiliates, subsidiaries, joint ventures, groups, divisions
or organizations.
Sincerely,
/s/Delmont A. Davis
- - -------------------
Delmont A. Davis