EXHIBIT 10.38
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement") is made as of this
13th day of August, 2001 between ▇▇▇▇▇▇ Corporation, a Delaware corporation (the
"Company"), and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ of Portland, Oregon (hereinafter, the
"Executive").
WHEREAS, the Executive has accepted employment with the
Company and is willing to serve in the capacity of its Executive Vice President
and Chief Operating Officer, and the Company desires to retain the Executive in
that capacity on the terms and conditions herein set forth;
WHEREAS, the Company and the Executive acknowledge that the
compensation and benefits payable hereunder are reasonable with regard to all of
the circumstances of the Executive's employment with the Company and the
Executive's ongoing employment with the Company;
NOW, THEREFORE, in consideration of the covenants and
agreements hereinafter set forth and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereby
agree as follows:
ARTICLE 1
EMPLOYMENT
1.1. EMPLOYMENT AND POSITION. Effective as of the beginning of the Term
(as defined in section 3.1 herein) and continuing for the Term, the Company
hereby agrees to employ the Executive in the capacity set forth above, and the
Executive hereby accepts such employment, all on and pursuant to the terms and
conditions set forth herein.
1.2. DUTIES AND RESPONSIBILITIES. The Executive shall have and perform
such duties and responsibilities as are associated with the office set forth
above and as may be conferred upon him from time to time by the Board of
Directors of the Company (the "Board") or its designee.
1.3. FULL TIME AND ATTENTION. The Executive shall well and faithfully
serve the Company and its subsidiaries and shall devote his full time and
attention to the business and affairs of the Company and its subsidiaries and
the performance of his duties and responsibilities hereunder; however,
notwithstanding the foregoing, the Executive may participate in other secondary
and non-competitive business ventures and activities from time to time which do
not interfere with his duties and responsibilities hereunder.
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1.4. PROHIBITED INTERESTS. During the Term, neither the Executive nor
any member of his immediate family shall purchase or hold an interest in any
company doing business with the Company (other than as a customer of the
Company) or competing with the Company. Notwithstanding this prohibition,
Executive and/or his family may hold a 1% or lesser interest in publicly traded
stock, and may hold such other interests as the Company may, in its discretion,
consent to in advance and in writing.
ARTICLE 2
REMUNERATION AND BENEFITS
2.1. ANNUAL BASE SALARY. From the commencement of the Term until the
end of the current fiscal year, the Company shall pay to the Executive a Base
Salary at the rate of $250,000 per year. Executive's Base Salary shall be
re-evaluated annually and may be increased, but not decreased, as determined by
the Board or its designee (the Base Salary, as it may be in effect from time to
time, shall be the "Base Salary"). The Base Salary shall be payable in such
regular installments as the Company may pay its senior employees from time to
time. All compensation payable to Executive by Company shall be reduced by such
amounts as are required by law.
2.2. BONUS.
(a) From the commencement of the Term until the end of the
current fiscal year, Executive shall be eligible for a target bonus in
the amount of $150,000. Executive's target bonus amount shall be
re-evaluated from time to time by the Board or its designee coincident
with with the review of the target bonus amounts of other members of
senior management pursuant to the Company's bonus plan for senior
employees ("Bonus Plan").
(b) The Bonus shall be payable pursuant to the terms of the
Bonus Plan.
2.3. BENEFITS.
(a) Effective on the date the Executive's employment with the
Company commences, the Company shall grant Executive a stock option
(which shall be an incentive stock option to the extent legally
possible) to purchase 100,000 shares of Company stock at the fair
market value on the date of grant. The option shall be subject to the
terms and conditions of the Company's 1993 Amended and Restated Stock
Incentive Plan. The option shall vest as follows: 25% on the first
anniversary of the date Executive commenced employment and 25% on each
anniversary date thereafter until fully vested. Notwithstanding any
provision of this Agreement or of any stock option plan to the
contrary, the unvested portion of all stock options and restricted
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stock awards held by Executive on the date of an Acquisition, a Change
in Control or a Hostile Takeover, as those terms are defined in
Company's 1993 Stock Incentive Plan, shall vest and be immediately
exercisable on the date of such event.
(b) Company shall provide to the Executive benefits that are
consistent with the benefits provided under the benefit plans,
practices, programs and policies of the Company (including without
limitation any existing compensation, stock option, profit sharing,
bonus, vacation, life insurance, health insurance, dental insurance,
accidental death or dismemberment, management incentive bonus and
disability plans, practices, programs or policies) in effect for its
most senior employees from time to time during the Term.
2.4. RELOCATION. The Company will provide Executive the following
relocation package: Company shall pay for the following: (a) packing,
transportation, storage (if necessary) and unpacking of all household goods from
Executive's home in Portland to Executive's new home within commuting distance
of Chestnut Ridge, New York; (b) temporary living expenses for a maximum period
of three months; (c) two house-hunting trips for Executive and Executive's
family; (d) reimbursement for all closing costs (including the real estate
commission on Executive's current home) associated with the sale of Executive's
current home and the purchase of Executive's new residence within commuting
distance of Chestnut Ridge, New York; (e) a gross-up to keep Executive whole for
the amount of the moving costs that are considered taxable to Executive; and (f)
Company shall make a one-time payment to Executive in the amount of $10,000 for
miscellaneous expenses connected with Executive's relocation.
ARTICLE 3
TERM AND TERMINATION
3.1. TERM. The term (the "Term") of this Agreement shall be for a
period commencing on the later of the date of this Agreement or the date upon
which the Executive's employment actually commences, and shall continue until
terminated by either the Company or the Executive in accordance with the terms
hereof. Executive shall commence his employment between August 6, 2001 and
September 4, 2001, as Executive shall determine.
3.2. TERMINATION FOR JUST CAUSE.
(a) The Company may terminate the employment of the Executive
hereunder at any time for Just Cause, such termination to be
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communicated by the Company to the Executive by written notice. For the
purposes hereof, "Just Cause" means a determination by the Board, in
the exercise of its reasonable judgment and after permitting the
Executive a reasonable opportunity to be heard by the Board, that any
of the following has occurred:
(i) the willful and continued failure by the
Executive, if not cured within thirty (30) days after receipt
by the Executive of written notice from the Company reasonably
detailing the matters to be cured, to substantially perform
his material duties and responsibilities with the Company
under this Agreement (other than any such failure resulting
from his incapacity due to physical or mental illness);
(ii) the engaging by the Executive in any act that is
intentionally and materially injurious to the Company,
financial or otherwise, if not cured (if curable) within
thirty (30) days after receipt by the Executive of written
notice from the Company reasonably detailing the matters to be
cured;
(iii) the conviction of the Executive of a criminal
offense involving fraud, dishonesty or other felony; and
(iv) the engaging by the Executive in any intentional
act of dishonesty resulting or intended to result, directly or
indirectly, in personal gain to the Executive at the Company's
expense, if not cured (if curable) within thirty (30) days
after receipt by the Executive of notice from the Company.
(b) Upon the termination of the Executive's employment for
Just Cause, the Executive shall not be entitled to any severance,
termination or other compensation payment other than such portion of
the Base Salary and Bonus as remains earned but unpaid on the date of
termination, together with any amount to which the Executive may be
entitled under the provisions of applicable employment legislation in
force at the date of termination of the Executive's employment.
3.3. TERMINATION WITHOUT JUST CAUSE OR FOR GOOD REASON.
(a) The Company may terminate the employment of the Executive
hereunder at any time without Just Cause, such termination to be
communicated by the Company to the Executive by sixty (60) days prior
written notice. In addition, the Executive may terminate his employment
for Good Reason, such termination to be communicated by the Executive
to the Company by sixty (60) days prior written notice. For purposes of
this Agreement, "Good Reason" shall mean any one or more of the
following:
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(i) a substantial adverse alteration in the nature or
status of the Executive's duties or responsibilities with the
Company which is not cured (if curable) to the Executive's
satisfaction within thirty (30) days after written notice of
such breach is provided to the Company by the Executive,
(ii) any purported termination of the Executive's
employment which is not effected in accordance with this
Agreement (which purported termination shall not be
effective),
(iii) any material breach of this Agreement
(including without limitation any breach of any section of
Article 2 herein) by the Company which is not cured (if
curable) to the Executive's satisfaction within thirty (30)
days after written notice of such breach is provided to the
Company by the Executive,
(iv) there has been an Acquisition, a Change in
Control or a Hostile Takeover (as defined in the Company's
Amended and Restated 1993 Stock Incentive Plan as in existence
on August 16, 2000) and within two (2) years thereafter the
Executive is required to relocate to or regularly perform
duties at any location other than within a 30-mile radius of
Chestnut Ridge, New York, except for periodic travel in the
ordinary course of the Company's business as it is conducted
in the ordinary course,
(v) there has been an Acquisition, a Change in
Control or a Hostile Takeover (as defined in the Company's
Amended and Restated 1993 Stock Incentive Plan as in existence
on August 16, 2000, the "Stock Incentive Plan") and within two
(2) years thereafter the Company either terminates the
Executive's employment or provides notice thereof to the
Executive, or
(vi) the Company is liquidated or the Board takes
formal action to commence the process of liquidation.
The Executive's right to terminate his employment for Good
Reason shall not be affected by his incapacity due to physical or
mental illness. The Executive's continued employment shall not
constitute consent to, or a waiver of rights with respect to, any
circumstance constituting Good Reason hereunder.
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(b) Upon the termination of the Executive's employment without
Just Cause or for Good Reason, the Company shall pay to or to the order
of the Executive immediately after the date of termination of the
Executive's employment such portion of the Base Salary and Bonus as
remains earned but unpaid on the date of termination. The unpaid Bonus
amount shall be based on the greater of the current year's target Bonus
(whether achieved or not) or the most recent Bonus paid to Executive.
In exchange for the Executive providing the Company with a
full and complete release of all claims of every name and nature
(substantially in the form of Exhibit A hereto), the Company shall have
the following obligations:
(i) the Company shall pay as salary continuation to
or to the order of the Executive, as compensation for the
Executive's loss of employment, one (1) year of the
Executive's Base Salary (at the rate in effect on the date of
termination) and one year's Bonus. The Bonus amount shall be
calculated at the greater of the maximum target Bonus payable
in the current year (whether achieved or not) or the actual
bonus paid with respect to the prior fiscal year;
(ii) to the extent permissible under the relevant
plans, the Company shall provide the Executive with medical,
dental and life insurance identical or substantially similar
to those which the Executive is receiving pursuant to section
2.3 immediately prior to the written notice of termination
referenced in section 3.3(a) herein), provided that the
Executive shall be required to pay the then-current employee
premiums therefor;
(iii) the Company shall provide the Executive with
outplacement counseling services by a provider of the
Executive's choosing, up to an aggregate maximum not to exceed
10% of his Base Salary; and
(iv) all Stock Options and Restricted Stock Awards
that would have (had the Executive continued his employment)
become exercisable within the first six months following the
date of termination of employment shall automatically become
immediately exercisable.
(c) In addition to the provisions of (b) above, upon the
termination of the Executive's employment without Just Cause or for
Good Reason within 90 days prior to or at any time within two (2) years
after an Acquisition (as defined in the Company's Stock Incentive
Plan), in exchange for the Executive providing the Company with the
release described above:
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(i) to the extent not already done, all Stock Options
and Restricted Stock Awards held by Executive shall
automatically become immediately exercisable with respect to
the total number of shares subject thereto and such Stock
Options and Restricted Stock Awards may be exercised for all
or any portion of such shares within the time period permitted
under the stock option plan, and
(ii) in lieu of the Company payment of one (1) year
of the Executive's then-current Base Salary and Bonus, as
provided in (b)(ii) above, the Company shall pay as salary
continuation to or to the order of the Executive one and one
half (1 1/2) years of the Executive's then-current Base Salary
and Bonus (calculated at the greater of the maximum target
Bonus payable to Executive in the current fiscal year (whether
achieved or not) or the actual Bonus paid to Executive with
respect to the prior fiscal year).
(d) (i) In the event that any of the payments
provided for herein, together with any other payments or
benefits received or to be received by the Executive in
connection with the termination of employment of the Executive
or otherwise (the "Severance Payments"), will be subject to
the tax (the "Excise Tax") imposed by section 4999 of the
Internal Revenue Code of 1986, as amended (the "Code"), the
Company shall immediately pay to or to the order of the
Executive an additional amount (the "Gross-up Payment") such
that the net amount retained by the Executive, after deduction
of any Excise Tax on the Severance Payments and any federal,
state and local income tax and Excise Tax on the payment
provided for by this section 3.3(d), shall be equal to the
Severance Payments, placing the Executive in the same
after-tax financial position in which he would have been if he
had not incurred any tax liability under section 4999 of the
Code. For purposes of determining the amount of the Gross-up
Payment, the Executive shall be deemed to pay federal income
taxes at the highest marginal rate of federal income taxation
in the calendar year in which the Gross-up Payment is to be
made and state and local income taxes at the highest marginal
rate of taxation in the state and locality of the Executive's
residence on the date of termination, net of the maximum
reduction in federal income taxes which could be obtained from
deduction of such state and local taxes.
(ii) In the event that the Excise Tax is subsequently
determined to be less than the amount taken into account
hereunder at the time of termination of the Executive's
employment, the Executive shall repay to the Company at the
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time that the amount of such reduction in Excise Tax is
finally determined the portion of the Gross-up Payment
attributable to such reduction (plus the portion of the
Gross-up Payment attributable to the Excise Tax and federal,
state and local income tax imposed on the Gross-up Payment
being repaid by the Executive, if such repayment results in a
reduction in Excise Tax or in federal, state and local income
tax deductions) plus interest on the amount of such repayment
at the rate provided in section 1274(d) of the Code.
(iii) In the event that the Excise Tax is determined
to exceed the amount taken into account hereunder at the time
of the termination of the Executive's employment (including by
reason of any payment the existence or amount of which cannot
be determined at the time the Gross-up Payment is made), the
Company shall make an additional Gross-up Payment in respect
to such excess (plus any interest payable with respect to such
excess) at the time that the amount of such excess is finally
determined.
3.4. VOLUNTARY TERMINATION BY EXECUTIVE FOR OTHER THAN GOOD REASON.
(a) The Executive may, upon sixty (60) days' prior written
notice to the Company, voluntarily terminate his employment hereunder
for other than Good Reason.
(b) Upon the voluntary termination by the Executive of his
employment hereunder (other than for Good Reason) at any time during
the Term, if not theretofore paid, the Company shall pay to or to the
order of the Executive within 10 days after the date of voluntary
termination of the Executive's employment such portion of the Base
Salary and Bonus as remains earned but unpaid on the date of
termination.
(c) The several payments and other obligations of the Company
described in this section 3.4, together with the Company's obligations
and the Executive's rights under the provisions of the Company's stock
option agreements with the Executive, are the only severance,
compensation or termination payments or benefits that the Executive
will receive in the event of the voluntary termination of his
employment (other than for Good Reason) as contemplated by this section
3.4.
3.5. TERMINATION UPON DEATH OR DISABILITY.
(a) The Executive's employment shall be terminated upon his
death. The Company may terminate the employment of the Executive
hereunder at any time forthwith upon the permanent disability of the
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Executive, such termination to be communicated by written notice given
by the Company to the Executive. The Executive shall be considered to
have become permanently disabled upon the earlier of: (i) his
eligibility for long-term disability insurance benefits, or (ii) if in
any period of 12 consecutive months during the Term, because of ill
health, physical or mental disability, or for other causes beyond the
control of the Executive, the Executive has been continuously unable or
unwilling or has failed to perform his duties and responsibilities
hereunder for 180 consecutive days, or if, during any period of 12
consecutive months during the Term, the Executive has been unable or
unwilling or has failed to perform his duties and responsibilities
hereunder for a total of 180 days, consecutive or not.
(b) On termination of the Executive's employment as a result
of the Executive's death or as a result of the Executive having become
permanently disabled, if not theretofore paid, the Company shall pay to
or to the order of the Executive within 10 days after the date of
termination of the Executive's employment such portion of the Base
Salary and Bonus as remains earned but unpaid on the date of
termination.
3.6. CERTAIN ADDITIONAL BENEFITS. This Agreement is entered into by the
parties with the expectation that ▇▇▇ ▇▇▇▇▇▇▇▇ will become the Chief Executive
Officer of the Company on or about January 1, 2002. If either: (A) ▇▇. ▇▇▇▇▇▇▇▇
does not become Chief Executive Officer of the Company on or about that date, or
(B)(i) ▇▇. ▇▇▇▇▇▇▇▇ becomes the Chief Executive Officer of the Company and
subsequently leaves that position, and (ii) the Executive is not then made the
Chief Executive Officer of the Company, then in the event of either (A) or (B),
50% of that portion of the initial option to purchase 100,000 shares of Company
stock referred to in section 2.3 of this Agreement that is unexercisable on the
date (A) or (B) occurs shall automatically become immediately exercisable.
3.7. RETURN OF PROPERTY. Upon the termination of the employment of the
Executive hereunder, regardless of the reason therefor, the Executive will
immediately deliver or cause to be delivered to the Company all books,
documents, effects, money, securities or other property (including manuals,
computer disks and software products) belonging to the Company, or for which the
Company is liable to others, which are in the possession, charge or custody of
the Executive.
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ARTICLE 4
ETHICAL STANDARDS
4.1. EXECUTIVE'S REPRESENTATIONS. The Executive represents to the
Company that: he has provided to Company a copy of all agreements he has signed
with his previous employer, Tektronix, Inc. with respect to confidential
information, trade secrets, non-solicitation, and/or non-competition; he is not
subject to any non-competition agreement with respect to Tektronix or any other
former employer; he is entitled to severance payments from Tektronix without the
duty to mitigate; he has returned to his previous employer all confidential or
proprietary documents, including electronic files, and has not kept copies of
any such documents and he will not utilize any such documents in his employment
with the Company; nothing in this Agreement is inconsistent with his severance
agreement from his previous employer. The Executive agrees that he will not use
confidential and privileged information from other employers while in the employ
of the Company. If at any time the Executive is unclear with respect to his
obligations to his former employer he agrees to seek clarification from the
Company and cooperate with Company's outside counsel in determining his
obligations.
4.2. INDEMNIFICATION OF EXECUTIVE. Provided that the Executive has
complied with the provisions of section 4.1 above, the Company shall indemnify
and hold Executive harmless from and against all claims, demands and causes of
action, whatsoever, brought by Tektronix (and its successors and assigns)
against Executive alleging that, as a result of his employment with the Company,
Executive has violated or will inevitably violate any statutory or contractual
obligations with respect to confidential information, trade secrets,
non-solicitation, and/or non-competition. In such event, the Executive agrees to
assign to the Company any and all rights that he may have to receive from
Tektronix any severance pay, benefits and other damages to the extent that
Tektronix has deprived the Executive of the same and to the extent the Company
has provided the Executive with essentially the same in lieu of Tektronix. The
Executive agrees to cooperate with the Company to assist it in fulfilling its
obligations hereunder without further compensation.
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ARTICLE 5
GENERAL
5.1. CONFIDENTIAL INFORMATION. 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 Company and its Subsidiaries and their
respective businesses which shall have been obtained by the Executive during the
Executive's employment by the Company and which shall not be or become public
knowledge (other than by acts of the Executive or representatives of the
Executive in violation of this Agreement). If the employment of the Executive
hereunder is terminated for any reason, the Executive shall not, without the
prior written consent of the Company or as may otherwise be required by law or
legal process, communicate or divulge any such information, knowledge or data to
any person other than the Company and those persons designated by it.
5.2. NO SOLICITATION. The Executive agrees that, during the Term and
for a period of one (1) year following the date of termination of the
Executive's employment, he shall not, directly or indirectly, solicit, employ or
cause to be solicited or employed in any capacity, or solicit, retain or cause
to be retained as a consultant, any person who was employed by the Company at
any time during the six (6) month period ending on the date of termination of
Executive's employment.
5.3. FEES. Except as set forth in section 5.13 herein, the Company
shall pay directly to the Executive's counsel and tax accountants all
reasonable, documented legal, tax accounting and other professional fees and
expenses incurred by the Executive in seeking and to obtain or enforce any
rights provided for under this Agreement or in connection with enforcing any of
his rights hereunder (provided he is successful in such enforcement) and in
connection with any tax audit or proceeding to the extent attributable to the
application of section 4999 of the Code to any payment or benefit provided
hereunder within 60 days of billing by such counsel. Any such notification shall
set forth in reasonable detail the rights to which the Executive believe he is
entitled and the provision of this Agreement under which he believes afforded
such rights.
5.4. RESIGNATIONS. If the employment of the Executive hereunder is
terminated in accordance with the terms of this Agreement, the Executive shall
tender his resignation from all positions he may hold as an officer or director
of the Company or any of its subsidiaries.
5.5. MITIGATION. The Executive shall have no duty to mitigate the
amount of any payment provided for in Article 3 herein by seeking, other
employment.
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5.6. NOTICES. Any notice required or permitted to be given under this
Agreement shall be in writing and shall be properly given if delivered
personally or mailed by prepaid registered mail addressed as follows:
(a) in the case of the Company, to:
▇▇▇▇▇▇ Corporation
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Vice President, Human Resources
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
(b) in the case of the Executive, to:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇.▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, LLC
▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
or to such other address as the parties may from time to time specify by notice
given in accordance herewith. Any notice so given shall be conclusively deemed
to have been given or made on the day of delivery, if delivered, or, if mailed
by registered mail, upon the date shown on the postal return receipt as the date
upon which the envelope containing such notice was actually received by the
addressee.
5.7. FULL SATISFACTION. The terms set out in this Agreement, provided
that such terms are satisfied by the Company, are in lieu of (and not in
addition to) and in full satisfaction of any and all other claims or entitlement
which the Executive has or may have against the Company relating to the
Executive's employment by the Company and as a result of the termination of his
employment by the Company in the circumstances contemplated in this Agreement.
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5.8. AMENDMENTS. No provisions of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing and signed by the Executive and such officer of the Company as may be
specifically designated by the Board of Directors. No waiver by either party
hereto at any time of any breach by the other party hereto of, or compliance
with, any condition or provision of this Agreement to be performed by such other
party shall be deemed a waiver of similar or dissimilar provisions or conditions
at the same or at any prior or subsequent time.
5.9. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties with respect to the employment relationship contemplated
hereby and cancels and supersedes all prior understandings and agreements
between the parties with respect thereto and no agreements or representations,
oral or otherwise, express or implied, with respect to the subject matter hereof
have been made by either party which are not expressly set forth in this
Agreement.
5.10. SUCCESSORS AND ASSIGNS. Neither the Executive nor the Company may
assign its rights hereunder to another person without the consent of the other;
provided, however that the Company may assign its rights hereunder to a
successor corporation which acquires (whether directly or indirectly, by
purchase, arrangement, merger, consolidation, dissolution or otherwise) all or
substantially all of the business and/or assets of the Company and expressly
assumes and agrees to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession
had taken place and provided that such successor shall reasonably be able to
perform all of its obligations under this Agreement.
5.11. ENUREMENT. This Agreement shall enure to the benefit of and be
binding upon the Executive and his personal representatives and upon the Company
and its successors and permitted assigns.
5.12. FURTHER ASSURANCES. Each of the Company and the Executive agrees
to execute all such documents and to do all such acts and things as the other
party may reasonably request and as may be lawful and within its power to do or
to cause to be done in order to carry out and/or implement in full the
provisions and intent of this Agreement.
5.13. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York and the federal laws of the
United States of America applicable therein. Each of the parties consents to the
jurisdiction of the courts of the State of New York to hear all actions, suits
and proceedings arising in connection with this Agreement, including without
limitation those referenced in Sections 5.1 and 5.2 herein.
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IN WITNESS WHEREOF the parties hereto have executed this Agreement.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------------
Executive
▇▇▇▇▇▇ CORPORATION
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
Human Resources
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EXHIBIT A
NOTE: THIS IS A SAMPLE SEVERANCE AGREEMENT, SUBSTANTIALLY SIMILAR TO ONE THAT
MAY BE GIVEN TO YOU. PLEASE NOTE THAT THE AGREEMENT'S PROVISIONS MAY BE REVISED,
ADDED OR OMITTED AS APPROPRIATE AND AS REQUIRED BY LAW.
SEVERANCE AGREEMENT
▇▇▇▇▇▇ CORPORATION
Date
CONFIDENTIAL
Name
Address
Dear __________:
This will confirm that your employment with ▇▇▇▇▇▇ Corporation (the "Company")
will cease as of ______________________.
The Company will pay you your compensation in accordance with your Employment
Agreement through the last day of covered employment. Information concerning
your group insurance programs is enclosed with this letter.
Should you be enrolled in the 401-K plan, you will receive information under
separate cover within the next ____ weeks.
[Deal with other benefit plans here, as appropriate]
All Company property such as equipment, all copies of Company data (whether hard
copy or electronically stored), keys, credit card, etc., must be returned to
__________________ before 4:00 p.m., on ________________.
In accordance with your Employment Agreement, in order to receive the severance
pay and benefits outlined therein (collectively, the "Program") you are required
to execute and deliver a release of all claims against the Company, whether or
not you actually have any such claims:
It is a condition of this offer of the Program that you:
1. comply with the terms of your Employment Agreement;
2. not make any statement or otherwise take any other action that would
or might reasonably be interpreted as harmful to the Company;
3. agree to keep the terms and conditions of this Agreement in strict
confidence, except as required by law;
1
4. agree and recognize that your employment relationship with [Company]
will be permanently and irrevocably severed as of [date], and that you will not
apply for or otherwise seek reemployment with [Company] and that [Company] and
its affiliates have no obligation to reemploy, recall, or otherwise hire you in
the future;
[5. for a period of ___ months after you leave the employment of the
Company you will not either directly or indirectly cause or assist to cause,
directly or indirectly, any employee of the Company to become employed by any
person, firm, or corporation with which you are affiliated in any capacity.]
This offer is made without prejudice and without any admission of liability.
This is an important legal document, and you may wish to consult with counsel of
your own choice in deciding whether to accept this offer.
[You may take up to 21 days from receipt of this letter to consider whether to
accept this offer of the Program. You should confirm your acceptance of the
Program by signing below and returning one signed copy to _______________ by
________________, ________________, 20__. This Agreement shall not be effective
until 8 days after you sign it, and you may revoke it at any time during the
intervening 7-day period by either delivering a signed revocation notice to
___________________ or mailing such notice to ___________________ so that it is
postmarked no later than 7 days after you sign this Agreement. You will not be
entitled to receive any of the Program until the 7-day revocation period has
expired without revocation. Should you revoke your acceptance, no severance or
benefits under the Program will be provided.]1
On the effective date of this Agreement, Company shall pay you the
severance pay and provide you with the other severance benefits pursuant to the
Employment Agreement dated __, 2001 by and between ▇▇▇▇▇▇ Corporation and ▇▇▇▇▇
▇▇▇▇▇▇▇▇, which severance pay and benefits include the following: [list specific
items here according to the circumstances of termination]
By accepting the terms of this offer and signing in the space provided below,
you hereby release and forever discharge and hold the Company, its successors,
insurers, employers, employees, officers, directors, shareholders and affiliates
harmless of all claims or suits, of any nature whatsoever, present or future,
including those arising from the law, being directly or indirectly related to
your employment or the termination of such employment with the Company and
specifically but without limitation including any claims for notice, pay in lieu
of notice, wrongful dismissal, severance pay, bonus, overtime pay, incentive
compensation, interest or vacation pay. Nothing in this Agreement shall be
construed to affect the Equal Employment Opportunity Commission's independent
right and responsibility to enforce the law. You should recognize, however, that
while this Agreement does not affect your right to file charge or participate in
--------------------
1 May not be required by law.
2
an investigation or proceeding conducted by the Commission, it does bar any
claim you might have to receive monetary damages in connection with any
Commission proceeding concerning matters covered by this Agreement. You also
agree not to file a lawsuit asserting any such claims. This Release and
Agreement-Not-To-▇▇▇ includes, but is not limited to, contract and tort claims,
claims growing out of any legal restriction on the Company's right to terminate
its employees and claims or rights under federal, state, and local laws
prohibiting employment discrimination (including but not limited to, claims or
rights under the federal Age Discrimination in Employment Act of 1967, as
amended by the Older Workers Benefit Protection Act of 1990), which arose before
the date this Agreement is signed. You agree that these terms represent a full
and final settlement of any and all claims you may have arising out of your
employment with the Company, except that this Agreement shall not release or
affect any vested rights you may have (1) under Company's _____________ plan,
(2) under the terms of this Agreement, (3) to continue health insurance coverage
under COBRA, and (4) which by law cannot be released in this manner (e.g.,
Worker's Compensation claims).
Both you and the Company agree that should any court of competent jurisdiction
rule that any part of this Agreement is unenforceable, that part of the
Agreement shall be considered severed from the rest of the Agreement, and the
rest of the Agreement shall remain in full force and effect.
Yours very truly,
▇▇▇▇▇▇ CORPORATION
---------------------------------------
NAME AND TITLE
I the undersigned, having had the time to reflect, freely accept the
above settlement. I acknowledge and agree that no Company representative has
made any representation to or agreement with me relating to this Agreement which
is not contained in the express terms of this Agreement. I acknowledge and agree
that my execution and delivery of this Agreement is based upon my independent
review of this Agreement, and I hereby expressly waive any and all claims or
defenses by me against the enforcement of this Agreement which are based upon
allegations or representations, projections, estimates, understandings or
agreements by the Company or any of its representatives that are not contained
in the express terms of this Agreement.
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[NAME OF EMPLOYEE] DATE
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