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informed Mr. Vogus that Mr. D’Amico “would like to receive
payment in the form of mental distress damages” and suggested
certain language to be included in any settlement agreement
entered into by Mr. D’Amico and the Company. Mr. Gill’s October
21, 1993 letter also summarized Mr. Gill’s view of certain case
law under section 104 and concluded:
Although I am sure that Heinz and Mr. D’Amico
could never agree on whether his termination was wrong-
ful, I have explained to you how it might be analyzed
to show that it was. Under these circumstances, it
seems to me that Heinz could in good faith enter into a
settlement agreement with Mr. D’Amico which has the
effect of making the settlement payment nontaxable to
Mr. D’Amico. Please consider doing this.
Mr. Gill and Mr. Vogus and other attorneys for Heinz Bakery
Products engaged in settlement negotiations regarding Mr.
D’Amico’s termination by the Company. Those negotiations re-
sulted in an agreement (settlement agreement) that was executed
by Mr. D’Amico and Heinz Bakery Products on December 29, 1993,
and January 14, 1994, respectively. Mr. D’Amico never filed a
lawsuit against Heinz Bakery Products.
In the settlement agreement, (1) Mr. D’Amico asserted in
section 2, entitled “Employee Claim”, that his heart condition
was a factor that “made a difference” in the Company’s decision
to terminate his employment and further asserted that, as a
result of that termination, he suffered a heart attack; and
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