Exhibit 10.1
SEPARATION AGREEMENT AND GENERAL RELEASE
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Caution: Read Carefully This Is a Release in Full
THIS SEPARATION AGREEMENT AND GENERAL RELEASE ("Agreement") is made and
entered into this 19th day of September 2001, between Jerry T. McDowell
("Employee"), and Alltrista Corporation (the "Company").
WHEREAS, the Company employed Employee in the position of Group Vice
President, Metal Products;
WHEREAS, the Company and Employee desire to amicably dispose of any and all
matters and claims of any kind or nature between them which may now or hereafter
exist in any way relating to Employee's employment with the Company and the
conclusion of that employment;
NOW, THEREFORE, in consideration of the mutual promises contained in this
Agreement, it is agreed as follows:
1. Definitions.
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(a) "Company" means Alltrista Corporation and all of its past and present
officers, directors, employees, trustees, agents, parent, partners, members,
shareholders, affiliates, divisions, principals, insurers, all employee benefit
plans (and any fiduciary of such plans) sponsored by the aforesaid entities, and
each of them, and each entity's subsidiaries, predecessors, successors, and
assigns, and all other entities, persons, firms, or corporations liable or who
might be claimed to be liable to Employee, none of whom admit any liability, but
all of whom expressly deny any such liability.
(b) "Competitor" means any person or entity that competes with the
Company's business of manufacturing, distributing, selling, packaging or
shipping either home-food preservation products or zinc metal coinage.
(c) "Customer" or "Client" means any person or entity which, within the
twelve (12) month period immediately preceding the Separation Date (as defined
below), used or purchased or contracted to use or purchase any services or
products from the Company; including, but not limited to, the following: the
United States Mint, the Royal Canadian Mint, Wal-Mart Stores, Inc., SuperValu,
Inc., Kroger Co., and Consolidated Stores Corp., and the affiliates and
subsidiaries thereof.
(d) "Effective Date" means that date occurring seven (7) calendar days
after Employee's signing of this Agreement, on the condition that this Agreement
is not revoked by Employee within the "Revocation Period".
(e) "Performance Share Plan" means the Alltrista Corporation 1998
Performance Share Plan, effective as of January 1, 1998, and any amendments
thereto.
(f) "Restricted Period" means the period of time during the Consulting
Term (as defined below) and any extension of the Restricted Period pursuant to
paragraph 10 below.
(g) "Revocation Period" means the seven (7) calendar day period after
Employee signs this Agreement, not counting the day Employee actually signs it.
(h) "Separation Date" means September 28, 2001.
(i) "Signing Period" means the twenty-one (21) day period following the
day Employee receives this Agreement, in which Employee has to consider whether
to sign this Agreement.
(j) "Stock Option Plan" means the Alltrista Corporation 1998 Stock Option
Plan.
(k) "Vendor" means any person or entity which is or within the twelve (12)
month period immediately preceding the Separation Date contracted to provide
services or products to the Company.
2. Employee's Release Of Claims. In consideration of the Company's
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agreement to make the Separation Payments upon the terms and conditions
described in paragraph 3, Employee gives up, releases, and waives all Claims
against the Company, including without limitation: (a) all claims Employee has
as of the Effective Date of this Agreement, whether known or unknown, including
without limitation all claims arising directly or indirectly out of or relating
to Employee's employment with Company, or the termination of that employment,
including, but not limited to, any claims arising under the Fair Labor Standards
Act; Title VII of the Civil Rights Act of 1964, as amended; the Age
Discrimination in Employment Act ("ADEA"); the Older Worker Benefits Protection
Act ("OWBPA"); the Equal Pay Act; Employee Retirement Income Security Act; the
Consolidated Omnibus Budget Reconciliation Act; the Rehabilitation Act of 1973;
the Civil Rights Act of 1991; the Civil Rights Act of 1866 (42 U.S.C. ss.1981,
et seq.); the Family and Medical Leave Act; the Americans with Disabilities Act;
Indiana Civil Rights Law; all such laws as amended and/or any other federal,
state or local law; (b) all claims under any principle of common law or equity,
including but not limited to, claims for alleged unpaid wages or other
compensation; any tort; breach of contract; promissory or equitable estoppel;
and any other allegedly wrongful employment practices; and (c) all claims for
any type of relief from the Company, including but not limited to, claims for
damages of any kind and all claims for costs, expenses and attorneys fees.
3. Separation Payments. Contingent upon Employee's execution of this
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Agreement within the Signing Period and the expiration of the Revocation Period,
the Company shall make payments (collectively, the "Separation Payments") to
Employee in the amounts and on the terms as set forth below in subparagraphs
3(a) through 3(e). Unless otherwise specified, all Separation Payments will be
made minus all applicable deductions, including deductions for any applicable,
federal, state, and local taxes and FICA. All Separation Payments will be deemed
to have been
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made when a check representing the appropriate amount is mailed to Employee's
last known address. Employee acknowledges that the Separation Payments described
below constitute full and fair consideration for the release of all Claims, as
set forth in paragraph 2 above, and the performance of the consulting services
described in paragraph 4 below, and that the Company is not otherwise obligated
to make the below described Separation Payments. Employee also acknowledges that
all other forms of compensation, of whatever kind, that may be due to him by the
Company, other than those mentioned in this agreement are hereby extinguished.
(a) Initial Payment. Upon the expiration of the Revocation Period, the
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Company shall pay to Employee an amount equal to Three Hundred and Thirty-Nine
Thousand Dollars ($339,000).
(b) COBRA. Upon the expiration of the Revocation Period, the Company shall
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pay to Employee a lump sum cash payment in an amount equal to twelve (12) months
of premium payments for Employee's insurance coverage under COBRA.
(c) Performance Share Plan. Employee shall participate in the Performance
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Share Plan through the Separation Date and any payouts to Employee thereunder
shall be based on performance factors as of December 31, 2001. Any shares earned
by Employee under the Performance Share Plan shall be issued to Employee no
later than February 28, 2002.
(d) Incentive Compensation. Incentive compensation for 2001 shall be based
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on Employee's performance factor for that year and Employee's salary earned from
January 1, 2001 through the Separation Date. The Company shall pay any such
incentive compensation and any remaining bank balance to Employee no later than
February 28, 2002.
(e) Stock Options/Restricted Stock. Effective on the Separation Date, all
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grants of stock options previously made to Employee (the "Options"), shall be
fully vested and immediately exercisable. Employee must exercise the Options in
accordance with the terms of the Stock Option Plan on or before June 30, 2002 or
the Options shall expire. Effective on the Separation Date, all restrictions on
any restricted stock grants made to Employee prior to the Separation Date shall
automatically lapse.
4. Consulting Services. Employee agrees during the period commencing on
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the Effective Date and continuing until the third anniversary hereof (the
"Consulting Term") to be available to the Company up to ten (10) hours per
month, for such advisory and consulting services relating to the business,
operations, administration or policies of Company as from time to time may be
reasonably requested by Company. During the Consulting Term, Employee shall act
in the capacity of an independent contractor to Company, shall have no authority
to make commitments on behalf of or bind Company in any manner except as may be
specifically authorized by Company's Board of Directors from time to time, and
shall not make any representation nor hold himself out in any fashion
inconsistent with the foregoing. Without limiting the generality of the
preceding sentence, it is expressly understood that, during the Consulting Term,
Employee shall not be construed to be an employee, agent or partner of, or joint
venturer with, or to have any other relationship with Company except as an
independent contractor with Company under this Agreement. During the Restricted
Period (and any
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extension thereof) and upon prior written approval of the Company (which such
approval will not be unreasonably withheld), the Employee may consult with any
person or business entity. Upon the expiration of the Restricted Period (and any
extension thereof) the company's prior approval is not required.
5. Return Of The Company's Property/Non-Disparagement. On or before the
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Effective Date, Employee will return to the Company all of the Company's
property that is in his possession or control, including, but not limited to,
credit cards, phone cards, cellular telephones, pagers, office keys,
directories, computer, computer hardware, books, documents, memoranda, computer
disks and other software, and all other records, and copies thereof. Each party
further agrees that neither will make any negative or disparaging remarks or
comments to any other person and/or entity about the other party.
6. Confidentiality. The Employee shall maintain the fact of and terms and
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conditions of this Agreement as strictly confidential, and shall not disclose
the same to any person other than to Employee's attorney, accountant, and
spouse, if any, or as required by law or lawfully-issued subpoena.
7. Confidential Information. Employee acknowledges that in the course of
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his employment with the Company he had access to or knowledge of trade secrets
and other information about the Company which is confidential or proprietary to
the Company, including, but not limited to: (a) information about the Company,
Company's business, its employees and its products; (b) techniques, technical
know-how, methods, and formulations; (c) hardware, software and computer
programs and technology used by Company; (d) the Customer/Client database and
other information about the Company's Customers/Clients, such as contacts,
criteria, requirements, specifications, policies, or other similar information;
(e) relationships with other service providers, partners and contractors; (f)
Vendor and supplier information; (g) marketing plans and concepts; (h) fee, rate
and price information; (i) sales, costs, profits, profit margins, salaries and
other financial information pertaining to the Company or Company's business; and
(j) information pertaining to the Company's Customers'/Clients' users, customers
or clients, including but not limited to personal information such as names,
addresses, e-mail addresses, financial information, etc. (All collectively
referred to as "Confidential Information"). At all times after the Effective
Date, Employee agrees not to disclose to any third party any Confidential
Information made known to him by the Company, or learned by him while in the
Company's employ; nor shall Employee use any such information for his benefit or
for the benefit of any third party. Employee understands that this
confidentiality provision was a material and significant inducement for the
Company to enter into this Agreement.
8. Non-Competition. Employee has become acquainted with the affairs of
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the Company, its officers and employees, its services, products, business
practices, business relationships and the needs and requirements of its
Customers and prospective customers, trade secrets, Confidential Information,
and other information proprietary to the Company. To protect these interests of
the Company and the Company's goodwill, and to prevent unfair competition and
the inevitable use or disclosure of such proprietary information or Confidential
Information to a Competitor, Vendor, Customer or Client, during the Restricted
Period Employee agrees that he SHALL NOT either directly or indirectly, perform
on behalf of a Competitor, Vendor,
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Customer or Client the same or similar services as those Employee performed
for the Company while employed by the Company. Because of the nature of the
Company's business, the potential irreparable harm that will occur to the
Company as a result of competition by Employee is not necessarily tied to the
physical location or presence of the Company, Employee, Competitor, Vendor,
Customer or Client. Therefore, the non-competition restriction set forth in this
paragraph 8 shall apply to the broadest enforceable geographic restrictions,
including without limitation the following (excluding any state or location
where covenants not to compete are prohibited by law): (a) any state or location
in which Employee acted on behalf of the Company within the twenty-four (24)
month period immediately preceding the Separation Date, including without
limitation: Indiana, Tennessee, Washington, D.C., Colorado, Florida, Ohio,
Arkansas, Pennsylvania, Minnesota; (b) any state in which Employee performs
consulting services (as described in paragraph 4 above) for the Company during
the Consulting Term; and (c) the United States of America and Canada. Employee's
obligations set forth in this paragraph 8 and the Company's rights and remedies
with respect thereto, whether legal or equitable, shall remain in full force and
effect during the Restricted Period (and any extension thereof).
9. Non-Solicitation. During the Restricted Period, Employee shall not,
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directly or indirectly, as an entity, individually or on behalf of any other
individual, corporation, partnership, firm, other company, business
organization, or entity, or in any other capacity, in promotion of or otherwise
with respect to a Competitor, call upon, solicit, contact, or service any
Customer or Client, or any potential customer or client, of the Company that the
Employee called upon, solicited, contacted, or serviced within the twenty-four
(24) month period immediately preceding the Separation Date. Furthermore, during
the Restricted Period, Employee shall not, directly or indirectly, as an entity,
individually or on behalf of any other individual, corporation, partnership,
firm, other company, business organization, or entity, or in any other capacity,
in promotion of or otherwise with respect to any business or activity (whether
or not for a Competitor), solicit for employment, endeavor to entice away from
the Company, hire, or otherwise interfere with the relationship of the Company
with any person who was employed or otherwise engaged to perform services for
the Company within the twenty-four (24) month period immediately preceding the
Separation Date or during the Consulting Term. Employee's obligations set forth
in this paragraph 9 and the Company's rights and remedies with respect thereto,
whether legal or equitable, shall remain in full force and effect during the
Restricted Period (and any extension thereof).
10. Change In Ownership. The Company and Employee recognize that any
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potential purchaser of the Company will value Employee's non-competition with
the Company given Employee's years of industry experience. Accordingly, the
Company and Employee have agreed to a 24-month extension of the Restricted
Period of this Agreement, in the event of a Change in Ownership. For purposes of
this Agreement, a Change in Ownership is defined as: the entering into any
discussions by the Company prior to June 30, 2002, the consummation of which
occurs within six (6) months of June 30, 2002 and results in a merger or
consolidation of the Company with any other corporation, company, or entity,
other than (a) a merger or consolidation which would result in the voting
securities of the Company outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted into voting
securities of the surviving entity) more than fifty percent (50%) of the
combined voting power of the voting securities of the Company or such surviving
entity outstanding immediately after such
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merger or consolidation; or (b) a merger or consolidation effected to
implement a recapitalization of the Company (or similar transaction) in which no
person acquires fifty percent (50%) or more of the combined voting power of the
Company's then outstanding securities. For purposes of this Agreement, Change in
Ownership also means the entering into any discussions by the Company prior to
June 30, 2002, the consummation of which occurs within six (6) months of June
30, 2002 and results in a complete liquidation of the Company, the sale or
disposition by the Company of all or substantially all of the Company's assets,
or the purchase by a third party of more than fifty percent (50%) of the
Company's outstanding common stock. Notwithstanding anything contained herein to
the contrary, Employee hereby recognizes and agrees that a sale by the Company
of the thermoforming division of the Company, alone, shall not constitute a
Change in Ownership.
Upon a Change in Ownership of the Company (as defined above), the
Restricted Period shall extend for a period of twenty-four (24) months and the
Company shall pay Employee as soon as reasonably practicable after the Change in
Ownership Eight Hundred and Eighty-Five Thousand Dollars ($885,000).
11. Reasonableness Of Terms. The parties each stipulate and agree that
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the terms and covenants contained in paragraphs 6, 7, 8 and 9 are fair and
reasonable in all respects and that these restrictions are designed for the
reasonable protection of the Company's business.
12. Remedies. The Employee recognizes that any breach of the restrictive
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covenants of this Agreement will cause irreparable injury to the goodwill and
proprietary rights of the Company, inadequately compensable in monetary damages.
Accordingly, in addition to any other legal or equitable remedies that may be
available to the Company, the Employee agrees that the Company will be able to
seek injunctive relief in the form of a temporary restraining order, without
notice, preliminary injunction, or permanent injunction against the Employee to
enforce this Agreement. To the extent that any damages are calculable resulting
from the breach of this Agreement, the Company shall also be entitled to recover
damages from the Employee, including any lost profits of the Company. Any
recovery of damages by the Company shall be in addition to and not in lieu of
the injunctive relief to which the Company is entitled. In no event shall a
damage recovery be considered a penalty in liquidated damages, but shall be
considered as measurable compensation damages for breach by the Employee. In any
action at law or in equity arising out of this Agreement, the prevailing party
shall be entitled to reasonable attorneys' fees, expenses (including experts and
consultants) and court costs in addition to any other relief to which it may be
entitled.
13. Twenty-One Calendar Day Period To Consider This Agreement. Employee
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hereby recognizes and acknowledges that his signing of this Agreement before the
end of the 21-day Signing Period will be his personal and voluntary decision to
do so. Employee further recognizes that if he fails to deliver this Agreement to
the Company within the Signing Period, the offer to provide the payments
described herein shall expire and be deemed withdrawn at the end of the Signing
Period.
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14. Right To Revoke This Agreement. This Agreement will not become
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effective or enforceable unless and until the Revocation Period has expired
without a revocation by Employee.
15. Procedure For Accepting Or Revoking The Agreement. To accept the
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terms of this Agreement, Employee must deliver the Agreement, after it has been
signed and dated by him, to the Company by hand or by mail and it must be
received by the Company within the Signing Period. To revoke his acceptance,
Employee must deliver a written, signed statement of the revocation of his
acceptance to the Company by hand or by mail and any such notice of revocation
must be received by the Company within the Revocation Period. All deliveries
shall be made to the Company as follows and marked "Personal and Confidential":
Alltrista Corporation, ATTN: J. David Tolbert, Vice President, Human Resources
and Administration, 5875 Castle Creek Parkway North Drive, Suite 440,
Indianapolis, Indiana 46250. If Employee chooses to deliver his acceptance or
any revocation notice by mail, it must be: (a) postmarked and received by the
Company within the applicable period stated above; (b) properly addressed to the
Company at the address stated above; and (c) sent by certified mail, return
receipt requested.
16. Representations And Warranties. Employee hereby represents and
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warrants to the Company (with the understanding that the Company has relied upon
such representations and warranties) that: (a) he has read this Agreement
carefully and understands all of its terms; (b) in agreeing to sign this
Agreement, Employee has not relied on any statements or explanations made by the
Company, except as specifically set forth in this Agreement; (c) Employee
voluntarily releases any claims against the Company, and understands that, in
consideration of accepting the consideration described above, he may be giving
up possible administrative and/or legal claims against the Company; however, no
rights or claims arising after the execution of this agreement are hereby
waived; (d) Employee understands and agrees that this Agreement contains all of
the agreements between the Company and Employee relating to the matters included
in this Agreement; (e) Employee understands and agrees that this Agreement may
not be assigned by Employee to any individual or entity; and (f) the Company has
advised Employee that he should consult with an attorney prior to signing this
Agreement, that Employee has had adequate opportunity to do so, and that
Employee's decision to sign this Agreement was voluntary and made after being
given opportunity to consult with an attorney.
17. Severability. If any provision of this Agreement is or becomes
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invalid, illegal or unenforceable in any respect under any law, the validity,
legality and enforceability of the remaining provisions hereof shall not in any
way be affected or impaired.
18. Amendment and Waiver. Neither this Agreement nor any term, covenant,
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condition or other provision hereof may be changed, waived, discharged or
terminated except by an instrument in writing signed by both parties. No delay
or omission by either party hereto in exercising any right, power or privilege
hereunder shall impair such right, power or privilege nor shall any single or
partial exercise of any such right, power or privilege preclude any further
exercise thereof or the exercise of any other right, power or privilege.
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19. Counterparts. This Agreement may be executed in one or more identical
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counterparts, each of which when executed by both of the parties and delivered
shall be an original, but all of which taken together shall constitute one and
the same instrument.
20. Assignment. The rights and obligations of the parties hereto shall
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inure to the benefit of, and shall be binding upon, the successors and assigns
of each of them; provided, however, that Employee shall not assign this
Agreement without the prior written consent of the Company.
21. Entire Agreement. This Agreement constitutes the entire agreement
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between the parties with respect to the subject matter hereof.
22. Jurisdiction and Venue; Governing Law. Any action to enforce,
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challenge or construe the terms or making of this Agreement or to recover for
its breach shall be litigated exclusively in a state or federal court located in
Marion County, Indiana, except that the Company may elect, at its sole
discretion, to litigate the action in the county or state where Employee can be
found. Employee hereby waives any defense of lack of personal jurisdiction or
improper venue. This Agreement and the performance by the parties under this
Agreement shall be governed by the laws of the State of Indiana, notwithstanding
the choice of law provisions of the venue where the action is brought, where the
violation occurred, or where the Employee may be located.
23. Headings. The headings of the sections of this Agreement have been
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inserted for convenience of reference only and shall not be deemed to be a part
of this Agreement.
[Signatures On Next Page]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first set forth above.
"COMPANY"
ALLTRISTA CORPORATION
/s/ Thomas B. Clark
By: Thomas B. Clark
Its: Chairman, President and CEO
"EMPLOYEE"
/s/ Jerry T. McDowell
Jerry T. McDowell