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Exhibit
10.1
SEVERANCE AGREEMENT AND
GENERAL RELEASE
THIS SEVERANCE AGREEMENT AND
GENERAL RELEASE (“Agreement”) is made and entered into
by and between Christopher J. Moreton (“Moreton”) and
PNA Group, Inc. (the “Company”), unless revoked by
Moreton pursuant to Paragraph 8 below. This Agreement shall become
effective at 5:30 p.m. on the seventh day after the date Moreton
signs it (“Effective Date”).
PREAMBLE:
WHEREAS, Moreton entered into
a letter agreement with the Company dated November 29, 2007 (the
“Employment Agreement”);
WHEREAS, Moreton’s
Active Employment with the Company, as defined in the Employment
Agreement, ended on January 31, 2008;
WHEREAS, Moreton and the
Company desire to enter into the following Agreement to resolve all
issues between them including, but not limited to, those relating
to Moreton’s employment with the Company, and the termination
thereof;
NOW, THEREFORE, in
consideration of the promises contained herein, it is agreed as
follows:
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Termination of Active Employment . |
Moreton agrees that his
Active Employment with the Company ended effective January 31,
2008, and that he will execute all documents necessary to
effectuate said termination and his resignation as an officer of
any of the Company’s affiliates and subsidiaries of which he
is an officer.
If Moreton signs this
Agreement on or before the last day of his Active Employment, it
shall be invalid and no benefits will be paid to Moreton
hereunder.
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2.1. |
As consideration for his signing this Agreement (and the
Employment Agreement), Moreton shall be entitled to certain
compensation and benefits through June 30, 2009, on the terms
and conditions set forth in the Employment Agreement. |
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3.1. |
Release : Moreton irrevocably and unconditionally
releases all the claims described in Subparagraph 3.2 that he may
have against the following persons or entities (the
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“Releasees”):
PNA Group Holding Corporation, PNA Intermediate Holding
Corporation, PNA Group, Inc., Platinum Equity, LLC, Platinum Equity
Advisors, LLC, their direct and indirect subsidiaries and
affiliates, and each of their past and present shareholders,
members, employees, officers, directors, managers, owners,
representatives, assigns, attorneys, agents, advisors, insurers,
parents, subsidiaries, divisions, employee benefit programs (and
the trustees, administrators, fiduciaries and insurers of such
programs) and any other persons acting by, through, under or in
concert with any of the persons or entities listed in this
Subparagraph.
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3.2. |
Claims Released : Except for a claim to enforce the
terms of this Agreement, the claims released include all claims,
promises, debts, causes of action or similar rights of any type or
nature Moreton has or had against Releasees, or any of them, as of
the Effective Date, including but not limited to those which in any
way relate to: (a) Moreton’s employment with the Company
or the termination of that employment, such as claims for
compensation, bonuses, commissions, lost wages or unused accrued
vacation, or sick pay; (b) the design or administration of any
Company benefit program or Moreton’s entitlement to benefits
under any such program; (c) any rights Moreton has to
severance or similar benefits under any program, policy or
procedure of the Company; (d) any rights Moreton may have to
the continued receipt of health or life insurance-type benefits,
except for any rights Moreton may have to continue benefits
pursuant to the Consolidated Omnibus Budget Reconciliation Act
(“COBRA”) at Moreton’s own expense; (e) any
claims to attorneys’ fees or other indemnities; and
(f) any other claims or demands Moreton may on any basis have.
The claims released, for example, may have arisen under any of the
following statutes or common law doctrines: |
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3.2.1. |
Anti-Discrimination Statutes , such as Title VII of the
Civil Rights Act of 1964, §§1981 and 1983 of the Civil
Rights Act of 1866 and Executive Order 11246, which prohibit
discrimination based on race, color, national origin, religion or
sex; the Equal Pay Act, which prohibits paying men and women
unequal pay for equal work; the Americans With Disabilities Act and
§503 and §504 of the Rehabilitation Act of 1973, which
prohibit discrimination against the disabled; and the Georgia Fair
Employment Practices Act of 1978, as amended, which prohibits
discrimination in employment based on race, color, national origin,
disability or sex. |
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3.2.2. |
Federal Employment Statutes , such as the Worker
Adjustment and Retraining Notification Act of 1989, which requires
that advance notice be given of certain work force reductions;
Employee Retirement Income Security Act of 1974, which, among other
things, protects pension or health plan benefits; and the Fair
Labor Standards Act of 1938, which regulates wage and hour
matters. |
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3.2.3. |
Other Laws , such as any federal, state or local laws
restricting an employer’s right to terminate employees or
otherwise regulating employment; or enforcing express or implied
employment contracts or requiring an employer to deal with
employees fairly or in good faith; and any other federal, state or
local laws, whether based on statute, regulation or common law,
providing recourse for alleged wrongful discharge, physical or
personal injury, emotional distress, fraud, negligent
misrepresentation, libel, slander, defamation and similar or
related claims. |
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3.2.4. |
Age Discrimination In Employment Act
(“APEA”) . Moreton also acknowledges and agrees
that by signing this Agreement, in addition to the matters
discussed above, Moreton is waiving and releasing any and all
claims, charges, or rights he may have under the ADEA, which
prohibits age discrimination against those age forty (40) and
over. |
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3.3. |
Release Extends to Both Known and Unknown Claims : This
release covers both claims that Moreton knows about and those he
does not know about. Moreton understands the significance of his
release of unknown claims and Moreton’s waiver of statutory
protection against a release of unknown claims. Moreton expressly
waives all rights afforded by any statute, which limits the effect
of a release with respect to unknown claims. Moreton expressly
waives the protection of statutes such as Section 1542 of the
Civil Code of the State of California, which states as
follows: |
“A general release does
not extend to claims which the creditor does not know or suspect to
exist in his or her favor at the time of executing the release,
which if known by him or her must have materially affected his
settlement with the debtor.”
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3.4. |
Claims Not Released : This Agreement does not release
Moreton’s right to enforce this Agreement nor does it release
any claims which arise after the Effective Date. |
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3.5. |
Ownership of Claims : Moreton represents that he has not
assigned or transferred, or purported to assign or transfer, all or
any part of any claim released by this Agreement. |
In addition to the release of
claims provided for in Paragraph 3, Moreton also agrees to the
following:
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4.1. |
No
Rehiring : Moreton understands that his Active Employment with
the Company has terminated. No one has represented to Moreton that
the Company or any of the Releasees will ever thereafter seek to
rehire Moreton and, except to the extent that their duly authorized
officers personally ask Moreton in writing to do so, Moreton will
not
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seek employment with them
in any capacity (including but not limited to employment as a
principal, employee, consultant,
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