Resignation Agreement - Maytag Corp. and Lloyd D. Ward
RESIGNATION AGREEMENT
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This Resignation Agreement (this "Agreement") by and between Maytag
Corporation, a Delaware corporation (the "Company") and Lloyd D. Ward (the
"Executive"), is dated as of December 27, 2000 (the "Execution Date").
WHEREAS, the Executive has been employed by the Company as its Chief
Executive Officer; and
WHEREAS, the Company and the Executive have agreed that it is in the
best interest of the Company and the Executive for the Executive to resign, and
they wish to set forth their mutual agreement as to the terms and conditions of
such resignation;
NOW, THEREFORE, the Company and the Executive hereby agree as follows:
1. Resignation. Effective as of November 8, 2000 (the "Resignation
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Date"), the Executive has resigned from his employment with the Company, from
his position as a member and Chairman of the Board of Directors of the Company,
and from all other positions the Executive then held as an officer or member of
the board of directors of any of the Company's subsidiaries or affiliates (the
Company and all of its subsidiaries and affiliates are hereinafter referred to
as the "Affiliated Entities").
2. Severance Payments and Benefits. (a) On the Revocation Date
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(as defined in Section 7, and for purposes of this Section 2 referred to as the
"Payment Date"), the Company shall pay to the Executive a lump sum in cash of
$1,742,500 consisting of the following (which is solely for explanation and not
in limitation or expansion of the obligation to pay such amount): (i) $62,500,
which represents the balance of the Executive's unpaid base salary for the year
ending December 31, 2000 at the rate of $750,000 per annum (the "Annual Base
Salary Rate"); (ii) the Executive's base salary for the two years ending
December 31, 2002 at the Annual Base Salary Rate; and (iii) $180,000, which
represents the good-faith estimate by the Compensation Committee of the Board of
Directors of the annual bonus for the year 2000 that the Executive would have
received, if he had remained employed through December 31, 2000.
Notwithstanding the foregoing, the Executive shall forfeit all rights under the
preceding sentence if he violates any of the covenants set forth in Section 6
hereof (the "Covenants").
(b) Until the first to occur of December 31, 2002 or the
Executive's death, the Company shall continue to provide the Executive and his
eligible dependents with medical, dental, vision and life insurance benefits on
the same terms and conditions as other employees of the Company, as in effect
from time to time, as if he had remained employed during that period, subject to
his payment of such employee contributions, copayments and similar charges as
apply to employees generally; provided, that such continued benefits shall
terminate to the extent the Executive becomes eligible for the same type of
benefits (i.e., medical, dental, vision and/or life insurance benefits) from
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another employer. Notwithstanding the foregoing, the Executive shall forfeit all
rights under the preceding sentence if he violates any of the Covenants. The
period for the required continuation coverage under Section 601 et seq. of the
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Employee Retirement Income Security Act of 1974, as amended, and Section 4980B
of the
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Internal Revenue Code of 1986, as amended (known as "COBRA" benefits), shall be
considered to begin on the Resignation Date.
(c) On the Payment Date the Company shall pay to the Executive a
lump sum in cash equal to the value, on the Execution Date, of the Executive's
account under the Company's Deferred Compensation Plan, which payment shall be
in satisfaction of any of the Executive's rights under the Company's Deferred
Compensation Plan. In addition, the Executive shall be entitled to receive his
vested benefits under the Company Employees Salary Savings Plan and Employee
Stock Ownership Plan, in accordance with the terms thereof.
(d) Until December 31, 2002, the Company shall provide the
Executive with financial planning benefits in accordance with the terms of the
Company program in which the Executive participated immediately before the
Resignation Date.
(e) The Company shall provide the Executive with tax return
preparation services for tax year 2000 in accordance with the terms of the
Company program in which the Executive participated immediately before the
Resignation Date; provided, that in no event shall the cost of such services
exceed $2,000.
(f) The Company agrees to pay as incurred (within 10 days
following the Company's receipt of an invoice from the Executive), all legal
fees and expenses that the Executive incurs in connection with entering into
this Agreement; provided, that in no event shall the Company pay any such legal
fees and expenses in excess of $40,000.
(g) The Company agrees to provide the Executive with an office
and secretarial support services at a location selected by the Executive and not
on the Company's premises for six months following the Resignation Date or such
lesser period as the Executive may require; provided, that in no event shall the
cost of such office and secretarial support exceed $50,000.
(h) The Executive shall retain his laptop computer; provided,
that the Company shall arrange for removal from the hard drive of said computer
any of its proprietary software and confidential and proprietary information.
3. Equity and Performance Awards. Exhibit A hereto sets forth a
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complete list of all of the Executive's currently outstanding stock options,
restricted stock, restricted stock units and performance incentive awards
(collectively, the "Equity and Performance Awards") under the 1992 Stock Option
Plan for Employees and Key Executives (the "1992 Plan"), the 1996 Employee Stock
Incentive Plan (the "1996 Plan") and the Performance Incentive Award Plan.
Notwithstanding any provision contained in the applicable agreement governing
any Equity and Performance Award (an "Award Agreement"), the Equity and
Performance Awards shall be treated as set forth in this Section 3, and the
applicable Award Agreements are hereby amended to the extent necessary to
implement this Section 3. The stock options listed as item 1 on Exhibit A shall
remain exercisable through the close of business on February 8, 2001, and shall
then expire to the extent not previously exercised. The stock options listed as
items 2, 3, 4, 5a, 6a, 6b, 6c, 7a, 7b, 7c and 8 of Exhibit A shall vest in full
(to the extent not previously vested) on the Revocation Date (as defined in
Section 7), and shall remain exercisable until December 31, 2002. With respect
to options listed as items 1, 2 and 3 of Exhibit A, the Company shall pay or
reimburse the Executive for all brokerage commissions incurred by the Executive
in
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connection with any broker cashless exercise thereof. The restricted stock and
restricted stock units listed as item 9 on Exhibit A shall vest and be settled
in cash on the Payment Date, based on their fair market value on the Execution
Date, at the maximum level of 10,403 shares and units (collectively). All other
Equity and Performance Awards shall be forfeited as of the Resignation Date.
4. Mutual Nondisparagement. (a) The Executive shall not make,
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participate in the making of, or encourage any other person to make, any
statements, written or oral, which criticize, disparage, or defame the goodwill
or reputation of, or which are intended to embarrass or adversely affect the
morale of, any of the Affiliated Entities or any of their respective present,
former or future directors, officers, executives, employees and/or shareholders.
The Executive further agrees not to make any negative statements, written or
oral, relating to his employment, the termination of his employment, or any
aspect of the business of the Affiliated Entities.
(b) The Company and the Company's executive officers shall not
make, participate in the making of, or encourage any employees or any other
person to make, any statements, written or oral, which criticize, disparage, or
defame the reputation of, or which are intended to embarrass, the Executive. The
Company and the Company's executive officers shall not make any negative
statements, written or oral, relating to the Executive's employment or the
termination of his employment. Notwithstanding the foregoing, nothing in this
Section 4(b) shall prohibit any of the Company's executive officers nor any
member of the Company's Board of Directors from making non-public statements to
one another in the course of carrying out their duties as such.
(c) Notwithstanding the foregoing, nothing in this Section 4
shall prohibit any person from making truthful statements when required by order
of a court or other body having jurisdiction, or as otherwise may be required by
law or legal process.
5. Mutual Confidentiality. The existence of and terms and conditions
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of this Agreement shall be held confidential by the parties hereto, except for
disclosure (i) by the Company as may be required by applicable securities laws,
as determined by the Company upon the advice of counsel, (ii) by the Executive
to his legal and financial advisors and his spouse, each of whom shall be
instructed by the Executive to maintain the terms of this Agreement in strict
confidence in accordance with the terms hereof, (iii) by either party if
required by order of a court or other body having jurisdiction over such matter,
and (iv) by either party with the written consent of the other. In addition, the
Executive shall hold in a fiduciary capacity for the benefit of the Company all
secret or confidential information, knowledge or data relating to the Affiliated
Entities and their respective businesses that he has obtained during his
employment by the Company and the other Affiliated Entities that is not public
knowledge (other than as a result of the Executive's violation of this Section
5) ("Confidential Information"). The Executive shall not communicate, divulge or
disseminate Confidential Information at any time, except with the prior written
consent of the Company or as otherwise required by law or legal process.
6. The Executive's Covenants. (a) The Executive shall make himself
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available to the Company following the Resignation Date to assist the Affiliated
Entities, as may be requested by the Company at mutually convenient times and
places, with respect to pending and future litigations, arbitrations,
governmental investigations or other dispute resolutions relating to matters
that arose during the Executive's employment with the Company. The
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Company will reimburse the Executive for all reasonable expenses and costs he
may incur as a result of providing assistance under this Section 6(a), upon
receipt of proper documentation thereof.
(b) Non-Solicitation of Employees. Until December 31, 2002, the
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Executive shall not solicit or encourage any officer, employee or consultant of
any of the Affiliated Entities to leave the employ of any of the Affiliated
Entities; provided, that advertising a position in public media shall not be
deemed to violate the foregoing.
(c) Remedies. The Executive acknowledges and agrees that because
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of the nature of the business in which the Company and the other Affiliated
Entities are engaged and because of the nature of the Confidential Information
to which the Executive has had access during his employment, it would be
impractical and excessively difficult to determine the actual damages of the
Company and the other Affiliated Entities in the event the Executive breached
any of the covenants of Sections 5 and 6(b), and remedies at law (such as
monetary damages) for any breach of the Executive's obligations under Sections 5
and 6(b) would be inadequate. The Company acknowledges and agrees that it would
be impractical and excessively difficult to determine the actual damages of the
Executive in the event the Company breached any breach of the covenants of
Sections 4 and 5, and remedies at law (such as monetary damages) for any breach
of the Company's obligations under Sections 4 and 5 would be inadequate. The
parties therefore agree and consent that if either of them commits any such
breach or threatens to commit any such breach, the other party shall have the
right (in addition to, and not in lieu of, any other right or remedy that may be
available to it) to temporary and permanent injunctive relief from a court of
competent jurisdiction, without posting any bond or other security and without
the necessity of proof of actual damage. With respect to any provision of
Sections 4, 5 and 6(b) that is finally determined to be unenforceable, the
Executive and the Company hereby agree that this Agreement or any provision
hereof may be reformed so that it is enforceable to the maximum extent permitted
by law. If any of the covenants of Sections 4, 5 and 6(b) is determined to be
wholly or partially unenforceable in any jurisdiction, such determination shall
not be a bar to or in any way diminish the Company's right to enforce any such
covenant in any other jurisdiction.
7. Release. General Release; Time to Consider and Cancel the
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Agreement; Age Discrimination in Employment Act Waiver. (a) The Executive, on
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behalf of himself and his successors, assigns, heirs and any and all other
persons claiming through the Executive, if any, and each of them, shall and does
hereby forever relieve, release, and discharge the Company and the other
Affiliated Entities and their respective predecessors, successors, assigns,
owners, attorneys, representatives, affiliates, parent corporations,
subsidiaries (whether or not wholly-owned), divisions, partners and their
officers, directors, agents, employees, servants, executors, administrators,
accountants, investigators, insurers, and any and all other related individuals
and entities, if any, and each of them, in any and all capacities, from any and
all claims, debts, liabilities, demands, obligations, liens, promises, acts,
agreements, costs and expenses (including, but not limited to, attorneys' fees),
damages, actions and causes of action, of whatever kind or nature, including,
without limitation, any statutory, civil or administrative claim, or any claim,
arising out of acts or omissions occurring before the execution of this
Agreement, whether known or unknown, suspected or unsuspected, fixed or
contingent, apparent or concealed (collectively referred to as "claims"),
including, but not limited to, any claims based on, arising out of, related to
or connected with the subject matter of the Change of Control Agreement dated
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as of July 25, 1997 between the Executive and the Company (the "Change of
Control Agreement"), this Agreement, the Executive's employment or the
termination thereof, and any and all facts in any manner arising out of, related
to or connected with the Executive's employment with, or termination of
employment from, the Company and its subsidiaries and affiliates, including, but
not limited to, any claims arising from rights under federal, state, and local
laws prohibiting discrimination on the basis of race, national origin, sex,
religion, age, marital status, pregnancy, handicap, ancestry, sexual
orientation, or any other form of discrimination, and any common law claims of
any kind, including, but not limited to, contract, tort, and property rights
including, but not limited to, breach of contract, breach of the implied
covenant of good faith and fair dealing, tortious interference with contract or
current or prospective economic advantage, fraud, deceit, misrepresentation,
defamation, wrongful termination, infliction of emotional distress, breach of
fiduciary duty, and any other common law claim of any kind whatever.
(b) The Executive expressly waives any and all rights under any
applicable law with respect to claims that he does not know or suspect to exist
in his favor at the time of executing this release, even though if known by him,
such claims must have materially affected his settlement with the Company.
(c) In addition to the release set forth above in this Section
7, the Executive hereby voluntarily and knowingly waives all rights or claims
arising under the Federal Age Discrimination in Employment Act. This waiver is
given only in exchange for consideration in addition to anything of value to
which the Executive would have been entitled absent this Agreement. Such waiver
does not waive rights or claims which may arise after the date of execution of
this Agreement. The Executive acknowledges that: (i) this entire Agreement is
written in a manner calculated to be understood by him; (ii) he has been advised
to consult with an attorney before executing this Agreement; (iii) he was given
a period of twenty-one days within which to consider this Agreement; and (iv) to
the extent he executes this Agreement before the expiration of the twenty-one-
day period, he does so knowingly and voluntarily and only after consulting his
attorney. The Executive shall have the right to cancel and revoke this Agreement
during a period of seven days following his execution of this Agreement, and
this Agreement shall not become effective, and no money shall be paid hereunder,
until the day after the expiration of such seven-day period (the "Revocation
Date"). The seven-day period of revocation shall commence upon the date of
execution of this Agreement. In order to revoke this Agreement, the Executive
shall deliver to the Company, prior to the expiration of said seven-day period,
a written notice of revocation. Upon such revocation, this Agreement shall be
null and void and of no further force or effect.
(d) Nothing herein shall be deemed to release the Company in
respect of the Executive's rights under this Agreement.
(e) The Company, on behalf of itself and the other Affiliated
Entities, their respective successors and assigns, and any and all other persons
claiming through any Affiliated Entity, and each of them, shall and does hereby
forever relieve, release, and discharge the Executive and his successors,
assigns, and heirs, from any and all claims, debts, liabilities, demands,
obligations, liens, promises, acts, agreements, costs and expenses (including,
but not limited to, attorneys' fees), damages, actions and causes of action, of
whatever kind or nature, including, without limitation, any statutory, civil or
administrative claim, or any claim, arising
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out of acts or omissions occurring before the execution of this Agreement,
whether known or unknown, suspected or unsuspected, fixed or contingent,
apparent or concealed (collectively referred to as "claims"), including, but not
limited to, any claims based on, arising out of, related to or connected with
the subject matter of the Change of Control Agreement, this Agreement, the
Executive's employment or the termination thereof, and any and all facts in any
manner arising out of, related to or connected with the Executive's employment
with, or termination of employment from, the Company and its subsidiaries and
affiliates, including, but not limited to, statutory and common law claims of
any kind, including, but not limited to, contract, tort, and property rights
including, but not limited to, breach of contract, breach of the implied
covenant of good faith and fair dealing, tortious interference with contract or
current or prospective economic advantage, fraud, deceit, misrepresentation,
defamation, wrongful termination, infliction of emotional distress, breach of
fiduciary duty, and any other common law claim of any kind whatever.
(f) The Company expressly waives any and all rights under any
applicable law with respect to claims that it does not know or suspect to exist
in its favor at the time of executing this release, even though if known by it,
such claims must have materially affected its settlement with the Executive.
(g) The Company expressly releases the Executive from any
noncompetition covenants or agreements with the Company.
8. Entire Agreement; Other Benefits. This Agreement sets forth the
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entire agreement of the Company and the Executive with respect to the subject
matter hereof, and supersedes in its entirety the Change of Control Agreement,
any severance plan of any of the Affiliated Entities. Without limiting the
generality of the foregoing, the Executive expressly acknowledges and agrees
that except as specifically set forth in this Agreement, he is not entitled to
receive any severance pay, severance benefits, compensation or employee benefits
of any kind whatsoever from any of the Affiliated Entities.
9. Successors. This Agreement is personal to the Executive and
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without the prior written consent of the Company shall not be assignable by the
Executive other than by will or the laws of descent and distribution. This
Agreement shall inure to the benefit of and be enforceable by the Executive's
legal representatives. This Agreement shall inure to the benefit of and be
binding upon the Company and its successors.
10. Amendment. This Agreement may be amended, modified or changed
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only by a written instrument executed by the Executive and the Company.
11. Governing Law; Consent to Suit. (a) This Agreement shall be
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governed by and construed in accordance with the laws of the State of Delaware,
without reference to principles of conflict of laws. The captions of this
Agreement are not part of the provisions hereof and shall have no force or
effect.
(b) The parties hereto irrevocably consent to jurisdiction in
the courts of the state of Delaware for resolution of any claim or dispute
arising hereunder, and such shall be the exclusive forum for the resolution of
such claim or dispute.
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12. Notices. All notices and other communications hereunder shall be
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in writing; shall be delivered by hand delivery to the other party or mailed by
registered or certified mail, return receipt requested, postage prepaid; shall
be deemed delivered upon actual receipt; and shall be addressed as follows:
If to the Executive:
Lloyd D. Ward
1281 Gulford Mexico Drive, Unit 1001
Longboat Key, Florida 34228
With a copy to:
J. Michael Schell
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, New York 10036
and
Regina Olshan
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, New York 10036
If to the Company:
Maytag Corporation
403 West 4th Street North
Newton, IA 50208
Attention:
With a copy to:
Richard D. Katcher, Esq.
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, New York 10019
or to such other address as either party shall have furnished to the other in
writing in accordance herewith.
13. Tax Withholding. Notwithstanding any other provision of this
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Agreement, the Company may withhold from any amounts payable under this
Agreement, or any other benefits received pursuant hereto, such minimum Federal,
state and/or local taxes as shall be required to be withheld under any
applicable law or regulation.
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14. Indemnification. The Company hereby agrees that, with respect to
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any threatened, pending or completed action or proceeding, whether civil,
criminal, administrative or investigative (a "Proceeding") to which the
Executive is a party or is threatened to be made a party by reason of his
service as a director, officer or employee of the Affiliated Entities, the
Executive is and shall be indemnified by the Company, including without
limitation against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in connection
with the defense or settlement of such Proceeding, to the fullest extent
permitted by applicable law, the Company's by-laws and the Company's certificate
of incorporation (each of such by-laws and certificate of incorporation, as in
effect on the Execution Date), and shall be entitled to advancement of expenses
incurred in connection with the defense of any Proceeding.
15. Counterparts. This Agreement may be executed in several
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counterparts, each of which shall be deemed an original, and said counterparts
shall constitute but one and the same instrument.
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IN WITNESS WHEREOF, each of the parties hereto has duly executed this
Agreement as of the date first set forth above.
_________________________________
Lloyd D. Ward
MAYTAG CORPORATION
By: ______________________________
Name:
Title:
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EXHIBIT A
Options
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Item Plan Number Price Scheduled to Vest Per
Original Terms
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1 1992 68,300 $ 21.00 All vested
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2 1996 150,000 $21.9375 All vested
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3 1996 71,940 $ 19.00 All vested
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4 1996 42,000 $31.5625 Vest on 11/14/00
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5a 1996 30,000 $46.3438 Vest on 8/28/01
5b 1996 70,000 $46.3438 Vest on 8/28/03
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6a 1996 40,000 $ 56.875 Vest on 11/12/00
6b 1996 40,000 $ 56.875 Vest on 11/12/01
6c 1996 40,000 $ 56.875 Vest on 11/12/02
6d 1996 40,000 $ 56.875 Vest on 11/12/03
6e 1996 40,000 $ 56.875 Vest on 11/12/04
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7a 1996 60,000 $ 45.50 Vest on 11/12/00
7b 1996 60,000 $ 45.50 Vest on 11/12/01
7c 1996 60,000 $ 45.50 Vest on 11/12/02
7d 1996 60,000 $ 45.50 Vest on 11/12/03
7e 1996 60,000 $ 45.50 Vest on 11/12/04
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8 1996 3,220 $ 57.25 Vest on 2/12/02
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Restricted Stock and Restricted Stock Units
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Item Grant Date Threshold Target Maximum Scheduled to Vest
Per Original Terms
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9 1998 2,167 8,669 10,403 Vest on 12/31/00
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10 1999 1,743 6,970 8,364 Vest on 12/31/01
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Performance Incentive Award
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Item Grant Date Threshold Target Maximum Scheduled to Vest
Per Original Terms
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11 2000 0 $600,000 $1,200,000 Vest on 12/31/02
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December 7, 2000
HAND DELIVERED ON DECEMBER 7, 2000
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AMENDED 1/22/01 AND 1/24/01
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(cross-through = omissions)
(underline = additions)
Ms. Carole Uhrich
Dear Carole:
As you and Len Hadley have discussed, your position as Executive Vice President
and President of Home Solutions is eliminated effective December 7, 2000. This
letter will outline the options and benefits available to you based on your last
day of employment, December 31, 2000, (the "Separation Date").
I. You will receive the following items:
1. A lump sum payment in the amount of $750,000, subject to normal
withholding, which represents eighteen (18) months' salary, payable
after December 31, 2000, per your employee agreement.
2. A lump sum payout, less withholding, of your 2000 Incentive
Compensation Plan (bonus) in February 2001, at whatever level is
achieved by the Corporation and considering your target level.
3. Vacation pay (less applicable withholding) based on accrued, but
unused, vacation hours as of the Separation Date, payable after the
Separation Date.
4. The opportunity to request disbursement of all sums from the Maytag
Corporation Salary Savings Plan, the Employee Stock Ownership Plan,
the Employee Stock Purchase Plan, the Maytag Deferred Compensation
Plan, or other similar plans as applicable under the particular plan
requirements and your employee agreement. Review these Plans carefully
to determine applicable deadlines. This separation does not qualify as
a retirement unless you are eligible to and elect to commence payments
from the Maytag Corporation Employees Retirement Plan. You have no
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vested stock options under the Maytag Corporation Employee Stock
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Incentive Plan.
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5. The opportunity to continue health care coverage under COBRA
(including medical, dental, vision, and prescription drugs, if
applicable). You will receive a separate letter on your COBRA options.
6. A one-time pension benefit in the amount of $60,000, less withholding,
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per your employment agreement, payable according to paragraph II.7.
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Ms. Carole Uhrich
Page 2
December 7, 2000
AMENDED 1/22/01 AND 1/24/01
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II. Provided you sign a Separation Agreement and Release which will be
forwarded to you shortly and return it to me by February 1, 2001, and you
do not revoke your decision within seven (7) days (the "Revocation Period")
after our receipt of that document, you will receive the following enhanced
Separation Benefits.
1. Maytag will pay you a lump sum payment of 130% of the difference in
your COBRA coverage cost and your current employee contribution for
eighteen (18) months, less withholding. You may use these monies to
purchase COBRA continuation coverage or not, at your option. It is
your responsibility, however, to apply for COBRA, if you elect to do
so, by making the necessary notifications to the Benefits Department
and paying the appropriate premiums. Information will be contained in
a letter you will receive from Benefits after your Separation Date
about how to elect COBRA coverage.
2. A lump sum payment of $300,000, payable in January 2001, subject to
normal tax withholding, in lieu of any proration of long-term
incentives and all other financial considerations.
3. Executive Appliances - You may keep any appliances you acquired under
the Executive Appliance Test Program at no charge.
4. You will be entitled to receive the executive tax preparation service
from a provider of your choice at Maytag's expense for the year 2000,
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up to a maximum of $2,000. The value of this service will be
considered taxable income to you.
5. You will be entitled to receive financial planning services according
to Maytag's Financial Planning Program up to a maximum of $7,000
during 2001. The value of this service will be considered taxable
income to you.
6. Outplacement, consulting and/or attorney's services of your choice at
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Maytag's expense, not to exceed $85,000. Maytag will pay the provider
directly. You must initiate these services by March 1, 2001.
7. Lump sum payments will be made within ten (10) days after the seven
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(7) day Revocation Period expires.
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These enhanced benefits are also contingent upon a letter of resignation of all
your offices and appointments, including all director positions for Maytag
subsidiaries. You will continue to serve on Maytag's Corporate Board of
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Directors.
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Any rights under a Change of Control Agreement will cease as of your last day of
active employment, December 7, 2000. By signing the Separation Agreement and
Release, you agree to this provision.
Please note the enclosed copy of your signed Confidentiality and Intellectual
Property Rights Agreement. This Agreement continues in effect even after your
employment ends at Maytag.
<PAGE>
Ms. Carole Uhrich
Page 3
December 7, 2000
AMENDED 1/22/01 AND 1/24/01
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Carole, we trust you will agree with this proposal to provide you with enhanced
benefits not otherwise available. If so, please sign and return the Separation
Agreement to me on or before February 1, 2001, the date on which this offer will
expire if not accepted by you.
Should you have any questions, please let me know.
Sincerely,
JON:jb
Enclosures: Confidentiality and Intellectual Property Rights Agreement
Separation Agreement & Release (amended) with attachments
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<PAGE>
SEPARATION AGREEMENT & RELEASE
MUST BE RECEIVED BY J. O. NICHOLAS, HUMAN RESOURCES DEPARTMENT, ON OR BEFORE
FEBRUARY 1, 2001, by 4:30 p.m. C.S.T.
TO BE COMPLETED BY J. O. Nicholas Only
RECEIVED _____________________________
Date Initials
In consideration for the Separation Benefits described in Section II of the
letter to me dated December 7, 2000, (amended 1/22/01) from Jon Nicholas (and
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attached to this Agreement) I, Carole Uhrich, voluntarily agree as follows:
1. I, on behalf of myself, heirs, administrators, assigns and successors,
release the Parties Released (as defined in paragraph 4) from any and all
liability whatsoever for all claims, demands, and causes of action of every
nature affecting me, which I may have or ever claim to have arising out of
my employment by Maytag Appliances, Maytag Corporation, its divisions,
companies and subsidiaries (collectively referred to as the "Company")
including, but not limited to my recruitment, selection, retention, payment
of compensation, employee benefits or retirement, with the exception of:
(a) My rights under the Maytag Corporation Employees Retirement Plan
and Salary Savings Plan (including E.S.O.P.), which have accrued
through the end of my employment with the Company; and
(b) My rights under the Maytag Corporation Deferred Compensation
Plan, according to the terms of the Plan.
(c) Any rights to defense of or indemnification against third party
claims (including third party claims such as shareholder
derivative actions which are nominally treated as claims by the
Company) to which I am, may or, except for this Agreement, would
be entitled by law, the Company's Articles of Incorporation or
any existing insurance agreement, and I agree to cooperate with
the Company in the defense of any such claims.
(d) Rights or claims that arise after the date this Separation
Agreement and Release (Separation Agreement) is signed or rights
that cannot be waived by law.
2. Without limiting the generality of Section 1, I release the Parties
Released from all claims, demands, and causes of action which were or could
have been asserted under any legal theory, statute or common law
whatsoever, including, but not limited to, breach of any express or implied
contract (whether intentional or otherwise); tort (whether negligent,
reckless, intentional
<PAGE>
or otherwise); violation of public policy; violation of any federal, state
or local law, regulation or ordinance (including, but not limited to, the
Civil Rights Acts of 1866, 1870, and 1871, as amended; the Civil Rights Act
of 1964, as amended; the Americans with Disabilities Act of 1990, as
amended; the Employee Retirement Income Security Act of 1974, as amended;
the Worker Adjustment and Retraining Notification Act of 1988, as amended;
the Family and Medical Leave Act of 1993, as amended; all state and local
civil rights or other employment-related laws of Iowa, the state and local
civil rights laws of Maytag Corporation headquarters; and any other United
States federal, state or local laws.
3. Without limiting the generality of Section 1, I also release the Parties
Released from all claims, demands, and causes of action which could have
been asserted under the Age Discrimination in Employment Act of 1967, as
amended.
4. The Parties Released are the Company; its predecessors, successors,
divisions, subsidiaries, affiliates, and parent corporations; the insurers,
administrators, trustees and fiduciaries of any employee benefit plan
maintained by or on behalf of any of the foregoing; the officers,
directors, employees and agents of any of the foregoing; and all other
persons, firms and corporations.
5. I agree never to sue any of the Parties Released and I understand and agree
that I am waiving my right to all relief based on any claim of any type
whatsoever arising out of or related to my employment or separation from
employment with the Parties Released. If any claim is made by me or
someone on my behalf with a state, federal or local civil rights agency
such as the EEOC, I agree to indemnify the Parties Released for any monies
I (or the EEOC on my behalf) receive.
6. I further acknowledge and agree in the event that I breach any part of this
Separation Agreement: (a) the Parties Released will be entitled to apply
for and receive an injunction to restrain any violation; (b) I will receive
no Separation Benefits; (c) I will be obligated to pay to the Parties
Released its costs and expenses in enforcing this Separation Agreement and
defending against such lawsuit (including court costs, expenses, and
reasonable legal fees), and (d) I will be obligated upon demand to repay to
the Parties Released all but $100.00 of the Separation Benefits paid to
me, and the foregoing will not affect the validity of this Separation
Agreement.
7. This Release extends to any claims which I may have against the Parties
Released for attorney's fees, expenses and court costs (if any). I
acknowledge that I am solely responsible for paying my attorney's fees,
expenses and court costs (if any).
8. This Release extends to all claims which I do not know or suspect to exist
in my favor and which, if known at the time of executing this Release, may
have materially affected this settlement with the Parties Released.
9. I have been given a list of job titles and ages of individuals in the
organizational unit who are eligible for a Separation Benefit, as well as a
list of ages of individuals who were not eligible.
B. CONFIDENTIALITY
As additional consideration for the benefits which I will receive in accordance
with the terms and conditions of this agreement, I agree to not disclose, use,
publish, or authorize anyone else to disclose, use or publish, any confidential
or secret technical or non-technical business information pertaining to the
Company, including any of their operations, without the express written consent
of the Company.
<PAGE>
I further agree to immediately return to Maytag Corporation, unless otherwise
agreed in writing, all confidential information and documents in whatever media
or form in my possession or under my control. Confidential Information
includes, but is not limited to, short and long-range plans, product design and
development plans, pricing and marketing strategies, promotional programs,
manufacturing equipment and processes, sales and distribution networks,
organization structure and personnel, and proprietary or confidential
information of third parties which is protected by non-disclosure agreements
between the Company or its operations and any third party.
I further agree that the terms and provisions of this Agreement are
confidential, as well as the circumstances and discussion leading to this
Agreement, and shall not be communicated in any manner to any person except to
my spouse, attorney, tax advisor(s) or as required by court order. My spouse
and tax advisor will be advised that these matters are confidential as well.
C. NON-COMPETE
Because I am privy to the foregoing Confidential Information and as additional
consideration for the receipt of the Separation Benefits described in the
Letter, I agree to not work as an employee, contractor, consultant, or otherwise
for any competing home or commercial appliance manufacturer before the end of
two years from the date this agreement is signed in any capacity similar to my
employment with Maytag, unless the Company consents to such work in writing,
which consent will not be unreasonably withheld.
D. CONCLUSION
1. This Agreement shall be subject to the substantive laws (without regard to
the conflicts of laws provision) of the State of Iowa. In case any
portion of this Agreement shall be held to be invalid or unenforceable, the
same are intended to be severable, shall be construed to be severable, and
any such invalidity or unenforceability shall neither defeat nor impair the
remaining provisions of this Agreement.
2. I agree that neither the existence of this Separation Agreement nor
anything contained in this Agreement shall constitute an admission of any
liability on the part of the Parties Released; any and all such liability
is expressly denied.
3. I HAVE BEEN GIVEN A PERIOD OF FORTY-FIVE (45) DAYS WITHIN WHICH TO CONSIDER
THIS AGREEMENT. I UNDERSTAND THAT I CAN REVOKE THIS AGREEMENT IN WRITING
ANY TIME WITHIN SEVEN (7) CALENDAR DAYS OF ITS RECEIPT BY THE COMPANY'S
HUMAN RESOURCE DEPARTMENT. WRITTEN NOTICE OF REVOCATION MUST BE RECEIVED
BY THE COMPANY'S HUMAN RESOURCES DEPARTMENT WITHIN THE SEVEN (7) CALENDAR
DAY PERIOD. IF I DO NOT REVOKE THIS AGREEMENT IT WILL BE EFFECTIVE AFTER
THE SEVEN (7) DAY PERIOD HAS EXPIRED.
4. I AGREE THAT NO REPRESENTATION OF ANY FACT OR OPINION HAS BEEN MADE BY THE
PARTIES RELEASED TO INDUCE THIS AGREEMENT AND I AGREE THAT THE PARTIES
RELEASED HAVE MADE NO ADMISSIONS OF LIABILITY OF ANY SORT.
<PAGE>
5. I HAVE READ THIS AGREEMENT, UNDERSTAND ITS TERMS, AND FREELY AND
VOLUNTARILY SIGN IT. NO ONE HAS MADE ANY PROMISES OR REPRESENTATIONS TO ME
OTHER THAN WHAT IS REFERENCED IN THIS AGREEMENT.
THIS AGREEMENT INCLUDES A RELEASE. THE COMPANY ADVISES YOU TO CONSULT WITH AN
ATTORNEY PRIOR TO EXECUTING THIS AGREEMENT.
Signed this ______ day of _______, 2001
____________________________________
Carole Uhrich
Attachment: Letter from Jon Nicholas dated December 7, 2000 (Amended 1/22/01)
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Attachment 1
Letter amended 1/24/01