RETIREMENT AGREEMENT
THIS RETIREMENT AGREEMENT (hereinafter referred to as the "Retirement
Agreement"), made as of the 29th day of July, 1994 (hereinafter referred to as
the "Effective Date"), by and between H. Ray Looney (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 Ball-InCon Glass Packaging Corp. (the "Employer")
and as Group Vice President of the Company;
WHEREAS, Executive and the Company have agreed that Executive's employment
with the Company shall terminate on July 29, 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 from all offices, titles and positions
that he has been appointed or elected to and now occupies with the Employer, the
Company and any of the Company's 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 otherwise specified, as used in this Retirement
Agreement, the term "affiliates" shall include the Employer or 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 $55,000, less the amount provided in Paragraph Seventh hereof and
all applicable withholding taxes, within seven working days of the Retirement
Date; and from the Retirement Date through the end of the eighteenth month
thereafter (the "Salary Continuation Period"), the amount of $20,833.33 per
month, 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 August 19, 1994, and the final payment shall be on February 2, 1996. 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, 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 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 the 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. The entire amount of
such incentive compensation earned by Executive for the Company's 1994 fiscal
year shall be deferred into the Company's 1989 Deferred Compensation Plan
pursuant to the terms of Executive's Deferral and Election Form for 1994
Incentive Compensation dated December 10, 1993; provided, however, that
Executive may make such other deferral elections as may be permitted pursuant to
the terms of the Company's Deferred Compensation Plans. For purposes of this
Paragraph Fourth, Executive's compensation for the Company's 1994 fiscal year
shall include the lump sum payment for accrued vacation described in Paragraph
Sixth hereof.
FIFTH: The Company shall pay Executive, within 30 days following the
Retirement Date, a lump sum payment of $41,522.03 representing the present value
of the benefit that Executive would have been entitled to receive under the
Company's Pension Plan for Salaried Employees (the "Pension Plan"), as in effect
as of the Retirement Date, had he continued in the employment of the Company
through June 30, 1997, minus the present value of the benefit that Executive
will be entitled to receive as of the Retirement Date. For purposes of this
calculation, present values have been calculated using an interest rate of 7%.
All other assumptions and rates necessary for purposes of this Paragraph Fifth
have been reasonably determined by the Company.
SIXTH: The Company agrees to pay Executive, within 30 days following the
Retirement Date, a lump sum payment in the amount of $25,961, less all
applicable withholding taxes, representing 27 days of accrued vacation, in
accordance with the Company's customary practice regarding retirees.
SEVENTH: Executive agrees to purchase the 1991 Lexus Luxury Sedan
currently leased by the Company and used by Executive, for its fair market value
of $26,412. This amount shall be deducted from the lump sum payment payable
under Paragraph Second hereof in payment for this vehicle.
EIGHTH: The Company agrees to pay the premiums for the post-retirement
medical benefits for Executive and his spouse under the Company's retiree
medical program, in effect as of the Retirement Date, until the expiration of
the Salary Continuation Period.
NINTH: At all times hereafter, Executive shall maintain the
confidentiality of all confidential 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.
Executive has returned or shall within 30 days return to the Company all
credit cards, cardkey passes, door and file keys and all confidential reports,
files, memoranda, records, software, 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.
TENTH: 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 would place the Company at a competitive
disadvantage and would 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), be employed as an employee of (with or
without pay), or act as a consultant (with or without pay), for any competitive
business, or engage in any competitive activity. For purposes of this Paragraph
Tenth, a "competitive business" shall mean any business operation of any
enterprise if such operation or business competes with businesses of the Company
in the glass container business 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 Tenth 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 Tenth is adjudicated unenforceable
in any jurisdiction, such adjudication shall apply only in the particular
jurisdiction in which such adjudication is made.
ELEVENTH: 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.
TWELFTH:
(a) During the Salary Continuation Period, Executive shall not:
(i) engage in the activities prohibited by Paragraphs Ninth, Tenth
and Eleventh above;
(ii) disparage, orally or in writing, the performance of the Company,
the Board of Directors, any director of the Company, 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) initiate or participate in discussions of Company business
matters with officers or directors 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, but in any
event, no later than two working days after Executive first receives notice of
such request or demand. Neither Executive nor his counsel shall voluntarily
comply with any such request or demand prior to providing the Company to the
extent possible with an opportunity to seek a protective order or pursue any
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), the Company shall have the option of discontinuing
Salary Continuation Payments hereunder unless the alleged violation relates
solely to (a)(iii). If the violation relates solely to (a)(iii), Salary
Continuation Payments shall continue, subject to recovery by the Company if
directed by the arbitration panel referred to below. The Company 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, or that no
violation occurred, 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 within thirty (30) days of the referral of
the matter 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 an annual rate of 7%.
(c) During the Salary Continuation Period, neither the Company, nor any
directors or officers, shall disparage, orally or in writing, Executive;
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.
THIRTEENTH:
(a) Executive and the Company, on behalf of themselves, their heirs,
executors, administrators, assigns, affiliates, employees and agents do hereby
knowingly and voluntarily release, acquit and forever discharge each other 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 the Company, or any of their heirs, executors,
administrators, assigns, affiliates, employees and agents 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 Company and its related persons 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 on the right of a company to
terminate the employment of its employees; 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 and the Company each agree that he or it shall not commence
any action or proceeding of any nature whatsoever, and that he or it shall not
seek or be entitled to any award of equitable or monetary relief in any action
or proceeding brought on his or its behalf, that arises out of the matters
released by Executive or the Company under this Retirement Agreement.
FOURTEENTH: 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 the release set forth in Paragraph Thirteenth hereof and
once he has signed this Retirement Agreement, Executive shall have seven (7)
additional days from the date of execution to revoke the release set forth in
Paragraph Thirteenth hereof. Any such revocation shall be made in writing
pursuant to Paragraph Seventeenth hereof. If no such revocation occurs, this
Retirement Agreement shall become effective eight (8) days from the date of
execution by the parties. In the event that Executive revokes the release set
forth in Paragraph Thirteenth hereof, all provisions of this Retirement
Agreement shall immediately become void and of no effect, 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, and the
Company shall have no obligations under this Retirement Agreement.
FIFTEENTH: 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.
SIXTEENTH: 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.
Each of Executive and the Company acknowledges and agrees that (i) the
Company would suffer irreparable injury in the event of a breach or violation or
threatened breach or violation of the provisions set forth in Paragraphs Ninth,
Tenth, Eleventh or Twelfth herein and (ii) Executive would suffer irreparable
injury in the event of breach or violation or threatened breach or violation of
the provisions set forth in Paragraph Twelfth. Each of Executive and the
Company agrees that, in the event of an actual or threatened breach or violation
of such provisions, the Company or Executive, as the case may be, shall 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 shall be in addition to any other right or remedy available to the
Company or Executive.
SEVENTEENTH: 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:
8 Brook Bay
Mercer Island, Washington 98040
To the Company at:
Ball Corporation
345 South High Street
Muncie, Indiana 47305-4260
Attention: General Counsel
EIGHTEENTH: 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 between the parties, including, but not limited to, the Severance
Agreement between Executive and the Company, dated May 14, 1993, which Severance
Agreement shall be of no force or effect. The parties may execute this
Retirement Agreement in counterparts.
NINETEENTH: 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.
H. RAY LOONEY BALL CORPORATION
_________________________ By: ____________________
Name:
Title:
EXHIBIT A
July 29, 1994
Mr. Alvin Owsley
Chairman of the Board of Directors
Ball Corporation
345 South High Street
Muncie, Indiana 47305
Re: Letter of Resignation
---------------------
Gentlemen:
Effective as of the effective date of the Retirement Agreement, I am
resigning from all offices, titles and positions that I have been appointed or
elected to and now occupy with Ball Corporation and Ball-InCon Glass Packaging
Corp. and any of their respective affiliates, subsidiaries, joint ventures,
divisions or organizations.
Very truly yours,
H. Ray Looney