GENERAL RELEASE AND SETTLEMENT AGREEMENT
Xxxxx
X.
Xxxxxxx and Katy Industries, Inc., for good and valuable consideration, the
receipt and adequacy of which are mutually acknowledged and agreed to by the
parties, do hereby covenant and agree as follows:
1.
The
following terms as used in this General Release and Settlement Agreement
(“Agreement”) shall be defined as set forth in subparagraphs (a) and (b) of this
paragraph:
(a) All
references to “Employee” shall refer to Xxxxx X. Xxxxxxx and his estate, heirs,
devisees, legatees, representatives, spouse(s), attorneys, agents, executors,
administrators, agents, successors, sureties and assignees.
(b) All
references to “Katy” shall refer to Katy Industries, Inc. and its employees,
directors, officers, partners, venturers, members, subsidiary corporations,
affiliated corporations, parent corporations, divisions, agents, attorneys,
predecessors, successors, sureties, assignees and other related
entities.
2.
Employee’s
employment with Katy will end on January 5, 2007 (“Termination Date”). Employee
agrees that after the Termination Date Employee will not seek or accept
employment with Katy. Employee agrees that after the Termination Date, in order
to minimize distractions and interruptions, Employee will not report to work
for
Katy and will not enter Katy’s premises.
3.
As
consideration for the release of claims described in Paragraph 4 below and
the
other promises and consideration described herein, Katy will pay Employee
$9,615.39 on a bi-weekly basis for six (6) months less deductions for payroll
taxes. (This is the equivalent of $125,000.00 or six (6) months of Employee’s
regular annual base salary.) Katy shall begin these payments to Employee within
14 days of the date Katy receives this Agreement signed by Employee. Employee
acknowledges that these payments as described in this Paragraph 3 constitute
special payments which Employee would not be entitled to receive if Employee
did
not enter into this Agreement with Katy.
4.
Employee
agrees to RELEASE, ACQUIT, AND FOREVER DISCHARGE Katy from any and all claims,
known or unknown, foreseen or unforeseen, matured or unmatured, developed or
undeveloped, discoverable or undiscoverable, which exist as of the effective
date of this Agreement including, but not limited to, any and all claims arising
out of, involving, or related to Employee’s hire, employment or termination of
employment with Katy. It is expressly understood that this Agreement
extinguishes any and all claims relating to Employee’s termination of employment
specifically including, but not limited to, claims for damages, wages, costs,
or
attorneys’ fees, whether arising under tort or contract theories, or any
federal, state, or local law, including but not limited to any claims pursuant
to Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights
Act
of 1991 and otherwise, 42 U.S.C. § 2000e et seq.;
the
Civil Rights Act of 1866, 42 U.S.C. § 1981 as amended by the Civil Rights Act of
1991; the Civil Rights Act of 1870, 42 U.S.C. § 1983; the Age Discrimination in
Employment Act, 29 U.S.C. § 621 et seq.;
the
Older Workers’ Benefit Protection Act, as amended; the Equal Pay Act, 29 U.S.C.
§ 206(d) et seq.;
the
Americans With Disabilities Act of 1990, 42 U.S.C. § 12101 as amended by the
Civil Rights Act of 1991; the Employee Retirement Income Security Act; the
Rehabilitation in Employment Act, 29 U.S.C. § 793 et seq.;
Executive Order No. 11246 and/or 11375; any other federal law; any state
anti-discrimination law; any other state or local statutory, court-made or
administrative laws, regulations, ordinances or executive orders; any alleged
contract, whether written or implied between Employee and Katy, or other persons
or entities covered by this Agreement; any claims for discrimination based
on
age, sex, race, national origin, color, religion, disability or any other
protected class; and/or any other basis whatsoever, whether or not characterized
as violations continuing in nature. Employee agrees Employee will not file
a
lawsuit against Katy in any state or federal court based on anything that has
occurred up to the date of this Agreement. Employee represents and warrants
that
Employee has not filed any lawsuit or administrative agency charge against
Katy.
Employee agrees that if a claim or charge is filed against Katy by or on
Employee’s behalf, Employee will not accept any judgment or settlement money for
any claims Employee has released in this Paragraph 4.
5.
The
release provided in Paragraph 4 above is given voluntarily and is not based
upon
any representations or statements of any kind by any party, or representative
of
any party, as to the merit, legal liability, or value of any claim or claims
released herein, or any other matter relating thereto.
6.
Employee
agrees that for three years after the Termination Date, Employee will not
publish or disclose, use for Employee’s own benefit or the benefit of others, or
divulge or convey to others, any Confidential Information of Katy. “Confidential
Information” means any and all proprietary business information that is treated
as confidential or secret by Katy, but does not constitute a Trade Secret,
including but not limited to, all information relating to Katy’s customers. This
promise of confidentiality is in addition to, and does not limit, any common
law
or statutory rights of Katy to prevent disclosure of Confidential Information
or
Trade Secrets. Employee agrees that Katy shall be entitled to a return of the
entire payment made to Employee pursuant to Paragraph 4 above if Employee
breaches this Paragraph 6.
7.
Employee
agrees to deliver immediately to Katy all Company property including, but not
limited to, any Company laptop computer, Blackberry device, documents, drawings,
blueprints, manuals, letters, notes, emails, computer discs, notebooks, reports,
sketches, formulae, source codes, computer programs and similar items,
memoranda, all information relating to Katy’s customers and all other materials
and all copies thereof relating in any way to Katy’s business and in any way
obtained by Employee during the period of Employee’s employment with Katy of
which Employee is in possession or control. Employee further agrees not to
make
or retain any copies of any of the foregoing and will so represent to
Katy.
8.
Employee
agrees not to make any statements or to take any action which disparages,
criticizes, or places in a negative light Katy, its management, or its practices
or which disrupts or impairs its normal operations, except that nothing in
this
Agreement shall be interpreted to limit Employee’s right to confer with counsel
or to provide truthful testimony pursuant to subpoena, notice of deposition,
or
as otherwise required by law.
9.
The
parties mutually agree and understand that by entering into this Agreement,
Katy
does not in any way admit, but rather specifically denies committing any act
or
failure to act in violation of any law, statute or regulation. The monetary
consideration paid to Employee and the promises and releases recited and
referred to herein shall not be construed as an admission of liability on the
part of Katy or any related or affiliated person, partnership or corporation,
or
an admission of the validity of any disputed factual contention, and Katy denies
any such liability.
10.
Employee
represents, warrants, covenants and agrees that Employee will keep confidential
and otherwise not disclose to any person or entity the terms of this Agreement
unless compelled to do so by Court order.
11.
The
terms
and conditions of this Agreement shall be binding upon and inure to the benefit
of all parties, to all present and former employees, officers, directors,
agents, representatives, successors, assigns, and every person (whether natural
or artificial), firm, or entity, now or previously affiliated with any of the
parties, in any manner whatsoever, or which may become affiliated with any
of
the parties in the future.
12.
The
parties warrant and represent that they have not sold, assigned, granted,
conveyed, or transferred to any other person, firm, corporation, or entity,
any
of the claims, demands, actions, or causes of action described
herein.
13.
The
parties covenant and warrant that no promise or inducement has been offered
or
made except as set forth herein and acknowledge and agree that this Agreement
constitutes the entire agreement between the parties as to the subject matters
contained in this Agreement.
14.
In
connection with this waiver, Employee acknowledges and agrees to the
following:
(a) Employee
is not waiving any rights or claims under the Age Discrimination in Employment
Act of 1967, as amended that may arise after this Agreement is executed, or
any
rights or claims to test the knowing and voluntary nature of this Agreement
under the Older Workers’ Benefit Protection Act, as amended.
(b) Employee
acknowledges that Employee has had ample opportunity to consult with an attorney
prior to execution of this Agreement and was encouraged and advised in writing
to do so by Katy.
(c) Employee
further understands that Employee may consider whether to accept the terms
of
this Agreement for twenty-one (21) days before signing this
Agreement.
(d) Employee
further understands that Employee may revoke this Agreement at any time within
seven (7) days after Employee signs it, and that this Agreement shall not become
effective or enforceable until the seven-day revocation period has expired.
If
Employee wishes to revoke this Agreement during the seven (7) days after signing
it, Employee will do so by sending notice of same to the attention of Xxxxxx
X.
Xxxx, by fax (000-000-0000) and certified mail, return receipt requested, to
000
Xxxx Xxxxxxxxxx Xxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx 00000.
(e) If
Employee signs this Agreement and Release prior to
the end
of the 21-day time period, Employee certifies that Employee knowingly and
voluntarily decided to sign the Agreement after considering it less than
twenty-one (21) days and Employee’s decision to do so was not induced by Katy
through fraud, misrepresentation, or a threat to withdraw or alter the offer
prior to the expiration of the 21-day time period.
(f) Employee
has carefully read and fully understands all of the provisions and effects
of
this Agreement and Employee knowingly and voluntarily entered into all of the
terms set forth in this Agreement.
(g) Employee
knowingly and voluntarily intends to be legally bound by all of the terms set
forth in this Agreement.
(h) Employee
relied solely and completely upon Employee’s own judgment or the advice of
Employee’s attorney in entering into this Agreement.
15.
This
Agreement shall be construed under and in accordance with the laws of the State
of Indiana.
THE
UNDERSIGNED HEREBY DECLARE THAT THE TERMS OF THIS AGREEMENT HAVE BEEN COMPLETELY
READ AND ARE FULLY UNDERSTOOD AND VOLUNTARILY ACCEPTED FOR THE PURPOSE OF MAKING
A FULL AND FINAL COMPROMISE AND ADJUSTMENT AND SETTLEMENT OF ANY AND ALL CLAIMS,
DISPUTED OR OTHERWISE, ON ACCOUNT OF THE INJURIES OR DAMAGES
ABOVE-MENTIONED.
/s/
Xxxxx X.
Xxxxxxx
XXXXX
X.
XXXXXXX
DATE:
1/4/2007
ON
BEHALF OF
KATY
INDUSTRIES, INC.
/s/
Xxxxxx X.
Xxxx
XXXXXX
X.
XXXX
VICE
PRESIDENT-HUMAN RESOURCES
DATE:
1/4/2007
