Exhibit 10.27
August 31, 2001
Dennis G. Brown
One Munson Road
Pleasantville, NY 10570
Dear Mr. Brown:
This letter contains the terms of a mutual agreement ("Agreement") regarding
your separation from World Kitchen, Inc. (the "Company"). As a full and binding
resolution of all matters relating to your employment with and separation from
the Company, You and the Company agree as follows:
1. Resignation. You agree to resign and the Company agrees to accept your
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resignation effective August 31, 2001 (the "Separation Date").
2. Payments Due. The Company will tender to You the following payments:
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(a) pursuant to the terms of your March 1, 2000 Employment Agreement,
(i)severance equal to the gross amount of $260,400 (less deductions
for federal, state and other income taxes, social security insurance,
and other payroll withholding), to be made in a lump sum no later than
January 31, 2002, and (ii) executive outplacement services for twelve
months through a management consulting service of the Company's choice
at a location convenient to you; and
(b) payment for any accrued but unused vacation days in 2001.
(c) payment of your "perquisite" allowance of $25,000 referred to in
your March 1, 2000 Employment Agreement pro-rated through August 31,
2001 (i.e. $16,667) less charges for use of the Company airplane (i.e.
$9,400).
3. Additional Separation Benefits. In consideration of the terms and
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conditions set out in the paragraphs that follow in this Agreement, the
Company will provide additional separation benefits as follows:
(a) Independent Contractor Agreement. The opportunity to enter into a
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mutually-agreeable written contract with the Company, under which You
as an independent contractor will provide consulting services as
assigned by WKI's Chief Executive Officer for a period of five months
or until You commence employment, in return for compensation set forth
therein.
(b) Group Medical Insurance. The Company will pay the Company portion of
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the premiums for you or your spouse's continued coverage in the WKI
group medical insurance plans in which You presently participate
(medical, dental), for the period required by COBRA, to a maximum of
18 months. (b)At the end of the payment period described in paragraph
17 of this Agreement, the Company thereafter, should You so desire and
the insurance carrier so permit, continue coverage under the group
medical insurance plans at Your cost for an additional period of six
months.
(c) Basic Life Insurance Coverage. Should You decide to convert the
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Company's basic group life insurance coverage to individual coverage
or obtain other individual life insurance coverage upon the August 31,
2001 termination of Your employment, the Company will pay the
difference in monthly premium cost between the previous basic life
insurance group coverage and the individual coverage for a period of
18 months, at a cost not to exceed $18,000 (eighteen thousand
dollars).
(d) You also agree and acknowledge that the total of the benefits
described in Paragraph 3 are in full consideration of the terms You
agree to in this Agreement and that You would have no entitlement to
them absent this Agreement.
4. Release
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(a) Except for any right You (as defined in Paragraph 4(b) below) may
have to challenge that You are entering into this Agreement knowingly
and voluntarily, by signing this Agreement, You agree and acknowledge
that You are waiving your right to assert and are releasing and
discharging the Company and each of the Company's successors, assigns,
divisions, subsidiaries, current or prior parents and affiliates, and
the directors, officers, agents, employees, representatives, and
attorneys of the Company or any divisions, current or prior parents,
subsidiaries and affiliates, from any and all claims of any sort,
known or unknown, which You now have or have ever had that in any way
relate to your employment relationship with the Company or the
termination of the employment relationship with the Company (the
"Release"). This Release specifically includes, but is not limited to,
any claims under the Age Discrimination in Employment Act, 29 U.S.C.
Sec. 621, et seq., Title VII of the Civil Rights Act of 1964, 42
U.S.C. Sec. 2000e, et seq., 42 U.S.C. Sec. 1981, the Employment
Retirement Income Security Act, 29 U.S.C. Sec. 1001, et seq., the
Americans With Disabilities Act, 42 U.S.C. Sec. 12101, et seq., the
Civil Rights Act of 1991, the Fair Labor Standards Act, 19 U.S.C. Sec.
201, et seq., the Family and Medical Leave Act, 29 U.S.C. Sec. 2601,
et seq., the Equal Pay Act, 29 U.S.C. Sec. 206(d), et seq., the
Rehabilitation Act, 29 U.S.C. Sec. 794, et seq., and the New York
Human Rights law, and New York State Labor Law, each as amended, or
under any other federal, state or local statute, law, regulation, or
ordinance banning any type of employment discrimination or in any way
pertaining to or regulating employment relationships as well as any
claim of unlawful retaliation, wrongful discharge, breach of
contract (express or implied), breach of good faith and fair dealing,
emotional distress, claims of personal injury, injury to personal
reputation, any equitable or any other type of claim whatsoever in any
way related to your employment or the termination of your employment.
(b) For purposes of this Release, "You" shall include Dennis Brown, his
spouse, issue, agents, representatives, guardians, assigns,
dependents, heirs, executors, administrators, and attorneys.
(c) You represent that You have not filed any lawsuit, petition, charge
of discrimination, grievance or action of any nature against the
Company, or anyone else released above, asserting any claims that are
released in Paragraph 4(a).
5. Consultation with Legal Counsel. You acknowledge that the Company here
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has advised You in writing to consult with counsel and has granted You at
least twenty-one (21) days to consider this Agreement, including its
Release, before signing it.
6. Revocation Period. Following your execution of this Release, You will
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have seven (7) days during which to revoke your agreement to this Release.
Any revocation must be in writing, and received by the Company's General
Counsel Raymond Kulla, before 5:00 p.m. Eastern Standard Time on the 8th
day following your execution. If You execute and do not revoke your
agreement, this Release shall become effective and enforceable upon the
expiration of the revocation period, and the separation benefits described
above in Paragraph 3 will then be provided to You.
7. No Solicitation of Employees. You acknowledge that the Company has a
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highly qualified and loyal work force and a consequent valuable and strong
interest in maintaining that work force. You here agree that, for a period
of one year after the Separation Date, You will not contact any employees
of the Company, directly, indirectly or through a third party, for the
purpose of soliciting or inducing them in any fashion to quit at any time
their employment with the Company for any purpose.
8. Cooperation in Investigations, Claims and Litigation. You agree that, at
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the request of the Company, You will cooperate with the Company and its
subsidiaries and affiliates and their officers, directors and counsel in
connection with any investigation, claim or litigation relating to any
matter in which You were involved during your employment with the Company
or of which You have knowledge. The Company agrees to reimburse You for all
reasonable expenses incurred by You in providing such assistance and to pay
a reasonable per diem rate for any services requested of You in connection
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therewith.
9. Breach of Paragraphs 7 or 8. In the event that You breach Paragraphs 7
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or 8, You agree that effective with such breach the Company's obligation to
make any payments to You or to provide You with any benefits pursuant to
Paragraph 3 shall cease immediately, without prejudice to the Company's
right to seek any other remedy, including injunctive relief, and without
prejudice to the Company's right to enforce the Release in Paragraph 4.
10. Final Settlement of Claims and Employment. You understand and agree
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that, except for any right You may have to challenge the knowing and
voluntary nature of this Agreement, any claims or disputes in any way
related to your employment relationship and separation from the Company are
fully compromised, settled and released on the effective date of this
Agreement.
11. No Admission of Fault. You acknowledge and understand that nothing in
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this Agreement is an admission of fault or wrongdoing by the Company.
12. Nature of Separation. You agree that You are resigning from the Company
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and that if asked about your separation from the Company, You and any
authorized Company representative will
respond that You resigned for reasons and on terms mutually acceptable to
You and the Company.
13. Voluntary Nature of Agreement. Both parties acknowledge that they have
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read this Agreement before executing it, understand its terms and have
knowingly and voluntarily chosen to enter into this Agreement. The parties
also acknowledge that no promise or representation has been made by You to
the Company or by the Company to You other than as set out in this
Agreement.
14. Confidentiality of The Terms of This Agreement. You agree not to
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disclose the terms and provisions of this Agreement to anyone other than
your spouse, current attorney, tax advisor or financial advisor. You
further agree that because of the difficulty of enforcing this provision,
and harm to the Company, the Company is entitled to injunctive relief
against any breach of this provision in addition to any other relief to
which it may be entitled.
15. Severability. This Agreement is expressly made subject to the
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provisions of applicable federal laws and the internal laws of the State of
New York, without regard to its choice of law rules. If any provision of
this Agreement is invalidated or held unenforceable because of any conflict
with any such law (or any other law deemed applicable), the remaining
provisions hereof shall not be affected but shall continue to be valid and
enforceable to the fullest extent permitted by law.
16. Return of Company Property. You represent that You have returned all
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Company files, documents, proprietary information, keys, credit cards
bearing the Company's name, and Company-owned equipment, including but not
limited to pagers, telephones, facsimile equipment and computers, with the
exception of a laptop computer which will be returned at the end of the
Consulting Agreement, January 31, 2002.
17. Other Agreements or Plans. Execution of this Agreement will not alter
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the rights or obligations of You or of the Company under the
March 1, 2000 Employment Agreement. In the event of Your death during this
payment period, the Company shall make the payments due to You under this
Agreement to the beneficiary of Your estate. Execution of this Agreement
further will not alter the rights or obligations of You or of the Company
under the Management Stockholder's Agreement, including but not limited to
the provisions regarding non-competition and non-disclosure of confidential
information contained in its paragraph 26. Further, execution of this
Agreement will not effect any vested rights that You may have under the
World Kitchen, Inc. pension plan, the Investment Plan 401(k), or the
Borden, Inc. Supplemental Pension Plan.
18. Modification. The provisions of this Agreement are severable, and to
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the extent one provision is determined to be invalid, the remaining
provisions shall remain binding on the Parties. This Agreement constitutes
the complete understanding between You and the Company. The Agreement may
be modified or amended only by a written instrument executed by all of the
parties hereto. It may not be amended, modified, changed or added to in any
manner by verbal statements, acts or conduct. Any party's failure to
enforce this Agreement in the event of one or more events which violate
this Agreement shall not constitute a waiver of any right to enforce this
Agreement against subsequent violations.
The Company acknowledges its agreement to the terms and conditions
contained above by having a duly authorized representative sign below.
If You mutually agree to these terms and conditions, sign and date this
Agreement below and postmark an executed copy to the attention of Raymond
Kulla no later than November 30, 2001, which is at least 21 days after you
were tendered this Agreement. THIS IS A LEGAL DOCUMENT. PLEASE CONSULT AND
ATTORNEY, AND CONSIDER IT CAREFULLY BEFORE SIGNING IT.
Sincerely,
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RAYMOND J. KULLA
GENERAL COUNSEL
Acknowledged and agreed to
this
day of ,
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2001
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Dennis G.Brown
Subscribed and sworn to before
me this day of ,
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2001.
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Notary Public
My commission expires:
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