Exhibit 10.16
SEPARATION AGREEMENT AND
RELEASE
This Agreement
(“Agreement”) is entered into this 8th day of October,
2008 (the “Effective Date”) by and between Spectrum
Brands, Inc. (“Spectrum”) and Amy J. Yoder
(“Yoder”).
WHEREAS, Yoder has been employed by
Spectrum as the President, United Industries; and
WHEREAS, Yoder and Spectrum are
parties to an Employment Agreement, dated March 27, 2007, as
amended by the Amendment to Employment Agreement, dated
June 9, 2008 (collectively the “Employment
Agreement”), and attached to this Agreement as Exhibit A;
and
WHEREAS, Spectrum and Yoder have
agreed that Yoder will relinquish her position as President, United
Industries as of October 8, 2008 and will likewise cease to be
employed by Spectrum effective as of that date; and
WHEREAS, Spectrum and Yoder desire
to resolve all outstanding issues or future issues of any kind and
reach a full and final settlement as to the Employment Agreement,
the June 9, 2008 Retention Agreement, and all other issues
relating to Yoder’s employment with Spectrum.
NOW THEREFORE, for and in
consideration of the foregoing and of the terms, conditions and
agreements set forth in this Agreement and other good and valuable
consideration, the receipt and sufficiency of which is
acknowledged, Yoder and Spectrum agree as follows:
I. LAST DAY OF
EMPLOYMENT .
Yoder’s last day of employment with Spectrum will be
October 8, 2008.
II. ACKNOWLEDGEMENT AND
CONSIDERATION . In
consideration of the promises set forth in this Agreement, Spectrum
will provide to Yoder those payments and other remuneration set
forth in Exhibit B. Yoder acknowledges that she is not otherwise
entitled to all of the benefits provided under this Agreement and
that she understands that she will not receive all of these
benefits unless she signs this Agreement and it becomes effective.
Yoder also acknowledges that notwithstanding anything to the
contrary in this Agreement (including the Exhibits): (a) Yoder
will be responsible for the tax liability associated with any
payments made to her pursuant to this Agreement; (b) Spectrum
may withhold from any payment an amount equal to the amount
Spectrum is required to withhold for Federal, state or local tax
purposes; and (c) if Spectrum does not have access to an
amount sufficient to satisfy its withholding requirement with
respect to any payment, Spectrum may require Yoder to pay to
Spectrum an amount sufficient to satisfy Spectrum’s
withholding obligation as a condition to Spectrum’s making
such payment to Yoder.
III. GENERAL RELEASE BY
YODER . Except as set
forth in Paragraph IV below or as otherwise set forth in this
Agreement, Yoder on her own behalf and for her spouse, heirs,
successors, assigns, executors and representatives of any kind,
hereby releases and forever discharges Spectrum, its subsidiaries
and affiliates, and its and their present and former employees,
directors, officers, agents, shareholders, and insurers and each of
their respective predecessors, heirs, executors, administrators,
successors and assigns (collectively, the “Released
Parties”), from any and all claims, demands, rights,
liabilities, and causes of action of any kind or nature, known or
unknown, arising prior to or on the execution date of this
Agreement, including but not limited to any claims, demands,
rights, liabilities and causes of action arising or having arisen
out of or in connection with her employment or her termination of
employment with Spectrum. This release specifically includes, but
is not limited to, a release of any and all claims pursuant to the
Age Discrimination in Employment Act (“ADEA”), 29
U.S.C. § 621 et seq. , Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e et seq. , 42 U.S.C.
§§ 1981-1986, the Civil Rights Act of 1991, the Americans
with Disabilities Act, any state or federal whistleblower statute,
all claims for defamation and wrongful discharge, and any other
claims whether based on contract or tort and whether under federal,
state, or local law. For the avoidance of doubt, Yoder acknowledges
that the benefits provided in Exhibit B of the Agreement are in
full satisfaction of any and all obligations of Spectrum under the
Employment Agreement.
IV. CLAIMS NOT WAIVED OR
RELEASED . This Agreement
does not waive any claims that Yoder may have (a) under any
workers’ compensation law; (b) under any plan currently
maintained by Spectrum that provides for retirement benefits;
(c) under any law or any policy or plan currently maintained
by Spectrum that provides health insurance continuation or
conversion rights; (d) that Yoder by law may not waive;
(e) not arising out of or in connection with her employment or
the termination of her employment; or (f) for indemnity for
third party claims against Yoder for actions taken while she was an
employee of Spectrum, as provided under Wisconsin Statutes,
Spectrum’s Charter, Spectrum’s by-laws,
1
Spectrum’s Directors and Officers
insurance policy, or otherwise. Pursuant to the terms of the
applicable indemnification agreements and policies, Yoder agrees to
tender defense of any claims described in clause (f) of the
preceding sentence, and be represented by counsel for Spectrum,
unless there is a conflict of interest.
V. GENERAL RELEASE BY
SPECTRUM. Except as set
forth in Paragraph IV above or as otherwise set forth in this
Agreement, Spectrum, on behalf of itself and the Released Parties,
hereby releases and forever discharges Yoder, on her own behalf and
for her spouse, heirs, successors, assigns, executors and
representatives of any kind, from any and all claims, demands,
rights, liabilities, and causes of action of any kind or nature,
known or unknown arising prior to or on the date of execution of
this Agreement, including but not limited to any claims, demands,
rights, liabilities, and causes of action arising or having arisen
out of or in connection with Yoder’s employment or her
termination of employment with Spectrum, provided, however, that
nothing in the release set forth in this Paragraph V waives any
claims that Spectrum or the Released Parties may have that Spectrum
and/or the Released Parties by law may not waive.
VI. COVENANT NOT TO
SUE . Yoder understands
and agrees that this Agreement does prohibit Yoder from initiating
or participating in a lawsuit against the Released Parties for any
claim released in Paragraph III and does prohibit Yoder from
recovering any money damages or any other moneys for herself for
any claim released under Paragraph III through an action or
proceeding brought by others. Yoder further understands that if she
violates any of the commitments she has made in this Agreement,
Spectrum may discontinue or seek to recover all of the payments,
benefits and other rights provided in exchange for acceptance of
this Agreement in accordance with the dispute resolution procedure
set forth in Paragraph XI below.
VII. NON-DISPARAGEMENT; COMMENTS
TO CUSTOMERS BY YODER .
The parties agree not to make disparaging remarks to customers,
suppliers or others about Spectrum’s business, products or
employees, or about Yoder. For purposes of this paragraph,
“disparaging remarks” by Yoder shall include, but are
not limited to, any comments, whether written or oral, which
directly or indirectly discredits or disparages Spectrum or its
practices or is or could be detrimental to the reputation or
competitive advantage of Spectrum in the marketplace, including any
such comments made to customers of Spectrum. The foregoing shall
not be construed to prevent a party from giving truthful testimony
in any proceeding if required by law.
VIII. NON-ADMISSION
. This Agreement does not constitute
an admissio
