EXHIBIT 10.4
RETIREMENT AGREEMENT
This Retirement Agreement (this "Agreement") is made and entered into
by and between Veritas DGC Inc., a Delaware corporation ("Veritas"), and ▇▇▇▇▇
▇. ▇▇▇▇▇▇, an individual currently resident in Calgary, Alberta ("▇▇▇▇▇▇"),
effective as of January 1, 2004 (the "Effective Date").
WITNESSETH:
WHEREAS, ▇▇▇▇▇▇ has served as an employee and a director of Veritas and
its predecessors for a number of years, most recently as a director and as
chairman & chief executive officer;
WHEREAS, ▇▇▇▇▇▇ has notified the Board of Directors of Veritas (the
"Board") that he intends to retire;
WHEREAS, the Board and ▇▇▇▇▇▇ have agreed that ▇▇▇▇▇▇ will continue to
serve Veritas as a director and as chairman & chief executive officer and a
director until the Board appoints a successor chief executive officer (a
"successor chief executive officer") and that successor chief executive officer
actually commences his employment at Veritas;
WHEREAS, attendant to ▇▇▇▇▇▇'▇ retirement, Veritas and ▇▇▇▇▇▇ wish for
there to be a complete understanding and agreement between Veritas and ▇▇▇▇▇▇
with respect to the compensation and benefits to be provided ▇▇▇▇▇▇ upon his
retirement and, in the case of certain health insurance, after his retirement;
and,
WHEREAS, Veritas and ▇▇▇▇▇▇ have previously entered into that certain
Amended and Restated Employment Agreement effective as of December 1, 2003 (the
"Prior Employment Agreement");
NOW, THEREFORE, in consideration of the mutual promises contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Veritas and ▇▇▇▇▇▇ agree as
follows:
Section 1. General Duties of Veritas and ▇▇▇▇▇▇.
(a) ▇▇▇▇▇▇ has indicated that he intends to retire as a
director and as chairman and chief executive officer of Veritas at such time as
a successor chief executive officer actually commences his employment at
Veritas. It is both parties' intention that the Board appoint a successor chief
executive officer as soon as is reasonably possible. Until the date when the
successor chief executive officer actually commences his employment at Veritas,
Veritas agrees to continue to employ ▇▇▇▇▇▇ and ▇▇▇▇▇▇ agrees to continue to
serve Veritas as its chairman & chief executive officer reporting to the Board.
The powers, duties and responsibilities of ▇▇▇▇▇▇ as chairman and chief
executive officer include those duties that are the usual and customary powers,
duties and responsibilities of such office, including those powers, duties and
responsibilities specified in Veritas's Bylaws, and such other and further
duties appropriate to
such position as may from time to time be assigned to ▇▇▇▇▇▇ by the Board or by
any committee of the Board authorized to make such assignments.
(b) On that date when a successor chief executive officer
actually commences his employment at Veritas, ▇▇▇▇▇▇ will retire as chairman and
chief executive officer and as a director of Veritas.
Section 2. Compensation and Benefits.
(a) For the period beginning on the Effective Date and
ending on the Date of Termination:
(1) Veritas will pay ▇▇▇▇▇▇ a base salary of
$450,000 per annum (the "CEO's Salary"). The CEO's Salary will be paid
to ▇▇▇▇▇▇ in equal installments every two weeks or on such other
schedule as Veritas may establish from time to time for its management
personnel.
(2) ▇▇▇▇▇▇ will be eligible to participate in
the Key Contributor Incentive Compensation Plan or other replacement
incentive or bonus plan Employer establishes for its key executives,
subject to all of the terms and conditions of such plan.
(3) ▇▇▇▇▇▇ will be entitled to receive options
("Options") to purchase the same number of shares of Veritas common
stock as are granted to continuing non-employee directors of Veritas on
the same date, at the same price and on the same terms as such Options
are granted to such continuing non-employee directors.
(4) ▇▇▇▇▇▇ will be entitled to paid vacation of
not less than four (4) weeks each year. Vacation may be taken by ▇▇▇▇▇▇
at the time and for such periods as may be mutually agreed upon between
Veritas and ▇▇▇▇▇▇.
(5) ▇▇▇▇▇▇ will be reimbursed in accordance with
Veritas's expense reimbursement policy as in effect on January 1, 2004
for all of the actual and reasonable costs and expenses incurred by him
in the performance of his services and duties hereunder, including, but
not limited to, travel and entertainment expenses. Notwithstanding any
provision in Veritas's expense reimbursement policy to the contrary,
▇▇▇▇▇▇ will also be reimbursed for first-class airline travel in the
performance of his services and duties. ▇▇▇▇▇▇ will furnish Veritas
with all invoices and vouchers reflecting amounts for which ▇▇▇▇▇▇
seeks Veritas's reimbursement.
(6) ▇▇▇▇▇▇ will be entitled to participate in
all insurance and retirement plans, and such other benefit plans or
programs as may be in effect from time to time for the key management
employees of Veritas (other than incentive compensation plans),
including, without limitation, those related to savings and thrift,
retirement, welfare, medical, dental, disability, salary continuance,
accidental death, travel accident, life insurance, incentive bonus,
membership in business and professional organizations, and
reimbursement of business and entertainment expenses.
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(b) The CEO's Salary and any other amount Veritas pays
▇▇▇▇▇▇ pursuant to this Agreement will be subject to such payroll and
withholding deductions as may be required by law and such other deductions as
are applied generally to employees of Veritas for insurance and other employee
benefit plans in which ▇▇▇▇▇▇ participates.
(c) The CEO's Salary and any other cash amounts Veritas
is obligated to pay ▇▇▇▇▇▇ pursuant to this Agreement are denominated in U.S.
dollars but shall actually be paid to ▇▇▇▇▇▇ in Canadian dollars converted on
the date of payment.
Section 3. Fiduciary Duty; Confidentiality.
(a) In keeping with ▇▇▇▇▇▇'▇ fiduciary duties to Veritas,
▇▇▇▇▇▇ agrees that he will not knowingly take any action that would create a
conflict of interest with Veritas, or upon discovery thereof, allow such a
conflict to continue. In the event that ▇▇▇▇▇▇ discovers that such a conflict
exists, ▇▇▇▇▇▇ agrees that he will disclose to the Board any facts which might
involve a conflict of interest that has not been approved by the Board.
(b) As part of ▇▇▇▇▇▇'▇ fiduciary duties to Veritas,
▇▇▇▇▇▇ agrees to protect and safeguard Veritas's information, ideas, concepts,
improvements, discoveries, and inventions and any proprietary, confidential and
other information relating to Veritas or its business (collectively,
"Confidential Information") and, except as may be required by Veritas, ▇▇▇▇▇▇
will not knowingly, either during his employment by Veritas or thereafter,
directly or indirectly, use for his own benefit or for the benefit of another,
or disclose to another, any Confidential Information, except (i) with the prior
written consent of Veritas; (ii) in the course of the proper performance of
▇▇▇▇▇▇'▇ duties under this Agreement; (iii) for information that becomes
generally available to the public other than as a result of the unauthorized
disclosure by ▇▇▇▇▇▇; (iv) for information that becomes available to ▇▇▇▇▇▇ on a
nonconfidential basis from a source other than Veritas or its affiliated
companies who is not bound by a duty of confidentiality to Veritas; or (v) as
may be required by any applicable law, rule, regulation or order.
(c) Upon termination of his employment with Veritas,
▇▇▇▇▇▇ will immediately deliver to Veritas all documents in ▇▇▇▇▇▇'▇ possession
or under his control which embody any of Veritas's Confidential Information.
(d) ▇▇▇▇▇▇ acknowledges that he has entered into a
Confidentiality and Intellectual Property Agreement with Veritas, effective
October 22, 2001, which agreement remains in effect.
Section 4. Term.
▇▇▇▇▇▇'▇ employment with Veritas, having previously commenced,
will continue until terminated in accordance with Section 5.
Section 5. Termination.
(a) Unless earlier terminated in accordance with Section
5(b), ▇▇▇▇▇▇'▇ employment will automatically terminate effective with
adjournment of the next annual meeting
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of Veritas stockholders (the "Effective Time"). Such annual meeting is
tentatively scheduled for December 7, 2004 but will not be formally called by
the Board until September or October 2004.
(b) ▇▇▇▇▇▇'▇ employment will terminate prior to the
Effective Time, upon the first to occur of the following:
(1) The successor chief executive officer
actually commences his employment at Veritas. ▇▇▇▇▇▇'▇ employment will
immediately terminate on that date and time when a successor chief
executive officer actually commences his employment at Veritas. In the
event of such termination, ▇▇▇▇▇▇ will immediately tender his written
resignation as a director of Veritas.
(2) ▇▇▇▇▇▇ elects to terminate. At any time on
or after April 1, 2004, ▇▇▇▇▇▇ may terminate his employment for any or
no reason by (i) giving the chairman of the Compensation Committee of
the Board ten days' written notice that he elects to terminate his
employment and (ii) tendering his written resignation as a director of
Veritas effective upon the Date of Termination.
(3) Veritas elects to terminate. At any time on
or after April 1, 2004, the Board may terminate ▇▇▇▇▇▇'▇ employment for
any or no reason by giving him ten days' written notice of such
termination. In the event of such termination, ▇▇▇▇▇▇ agrees to tender
to the Secretary of Veritas his written resignation as a director of
Veritas effective upon the Date of Termination.
(4) ▇▇▇▇▇▇'▇ death.
(c) As used in this Agreement, "Date of Termination"
means:
(1) If ▇▇▇▇▇▇'▇ employment with Veritas is
terminated in accordance with Section 5(a), that date on which the Effective
Time occurs;
(2) If ▇▇▇▇▇▇'▇ employment with Veritas is
terminated by Veritas in accordance with Section 5(b)(1), that date when the
successor chief executive officer actually commences his employment at Veritas;
(3) If ▇▇▇▇▇▇'▇ employment with Veritas is
terminated by ▇▇▇▇▇▇ in accordance with Section 5(b)(2), that date which is ten
(10) days after Veritas's receipt of ▇▇▇▇▇▇'▇ notice of termination and letter
of resignation as a director;
(4) If ▇▇▇▇▇▇'▇ employment with Veritas is
terminated by Veritas in accordance with Section 5(b)(3), that date which is ten
(10) days after ▇▇▇▇▇▇'▇ receipt of the Board's written notice of termination;
or
(5) If ▇▇▇▇▇▇'▇ employment is terminated as a
result of his death, his date of death.
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Section 6. Effects of Termination.
(a) Upon termination of ▇▇▇▇▇▇'▇ employment in accordance
with any provision of Section 5, the obligations of Veritas and ▇▇▇▇▇▇ under
Sections 1 and 2 will terminate as of the Date of Termination, and Veritas will
thereafter pay or provide to ▇▇▇▇▇▇ (or to his legal representative, in the case
of his death) the following listed items.
(1) Veritas will pay ▇▇▇▇▇▇ (or his legal
representative, in the case of his death):
(i) The CEO's Salary through the Date
of Termination;
(ii) If the Date of Termination is on or
after the date incentive payments
are made to other executives under
the Key Contributor Plan, any
incentive compensation then due him
under Section 2(a)(2); and
(iii) During the three-year period ending
on the third anniversary of the
Date of Termination, an aggregate
amount (the "Severance Payment")
equal to three (3) times the CEO's
Salary, which Severance Payment
will be paid to ▇▇▇▇▇▇ in equal
installments every two weeks during
such three-year period; provided,
however, that at any time during
such three-year period Veritas may,
in its discretion, elect to pay to
▇▇▇▇▇▇ the then remaining balance
of the Severance Payment in the
form of a lump sum cash payment.
(2) Veritas will provide, at its expense, to
▇▇▇▇▇▇ and his wife, Val, the following insurance coverage in the U.S.
and Canada for each of their respective lifetimes, subject to the
limitations set forth below:
(i) In the U.S.: group health insurance
(currently including group medical,
hospitalization and prescription
drug benefits) of the same type
Veritas makes available to
executive officers of Veritas
located in the United States; and,
(ii) In Canada:
(A) Provincial health care coverage
for of ▇▇▇▇▇▇ and his wife, Val
,until they reach age 70; and
(B) Private group health insurance
of the same type Veritas makes
available to its key management
employees located in the
Province of Alberta, Canada
(such coverage is currently
provided by
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Great Western and includes
hospitalization and
prescription drug insurance in
excess of provincial health
coverage).
(iii) The amounts and types of group
insurance coverage Veritas will
provide under Sections 6(a)(2)(i)
and 6(a)(2)(ii) may vary from time
to time and some or all of the
coverage may be modified, reduced
or eliminated at any time -
Veritas's sole obligation is to
provide the same types and amounts
of group health coverage made
available during the period in
question to executive officers of
Veritas in the U.S. with respect to
U.S. insurance coverage and to key
management employees of Veritas in
the province of Alberta, Canada
with respect to Canadian insurance
coverage. ▇▇▇▇▇▇ acknowledges and
agrees that he and his wife will
provide such information and
complete such forms as Veritas or
its insurance providers may
reasonably request in connection
with such insurance.
(3) Each Option ▇▇▇▇▇▇ holds that is not vested
on the Date of Termination will terminate on the Date of Termination.
Each vested Option ▇▇▇▇▇▇ holds on the Date of Termination will, except
in the event of ▇▇▇▇▇▇'▇ subsequent death, terminate on the earlier of
the expiration of the original term of the Option or three years. In
the event of ▇▇▇▇▇▇'▇ death after the Date of Termination all
outstanding Options he then holds will terminate on the earlier of the
date of expiration of the term of the Option as specified in the
relevant Option grant letter or the first anniversary of the date of
▇▇▇▇▇▇'▇ death.
(4) For a period of nine (9) months following
the Date of Termination, Veritas will provide ▇▇▇▇▇▇ with reasonable
secretarial and administrative assistance to aid him in winding up his
personal affairs in Houston, moving his personal effects out of his
Houston residence, and selling that residence. Such Veritas personnel
will be made available for reasonable amounts of time during Veritas's
regular business hours and only in Houston.
(b) As a condition to making the payments and providing
the benefits specified in this Section 6, Veritas will require (i) that ▇▇▇▇▇▇
(or his legal representative, in the event of his earlier death) execute a
release of all claims ▇▇▇▇▇▇ may have against Veritas on the Date of Termination
(such release will be in substantially the same form as Exhibit A attached
hereto modified to take into account the actual circumstances); and (ii) in the
case of termination in accordance with Sections 5(b)(1), 5(b)(2) or 5(b)(3),
that ▇▇▇▇▇▇ execute and deliver to Veritas his written resignation as a director
of Veritas.
Section 7. No Obligation to Mitigate; No Rights of Offset.
(a) ▇▇▇▇▇▇ shall not be required to mitigate the amount
of any payment or other benefit required to be paid to ▇▇▇▇▇▇ pursuant to this
Agreement, whether by seeking other
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employment or otherwise, nor shall the amount of any such payment or other
benefit be reduced on account of any compensation earned by ▇▇▇▇▇▇ as a result
of employment by another person.
(b) Veritas's obligation to make the payments provided
for in this Agreement and otherwise to perform its obligations hereunder shall
not be affected by any set-off, counterclaim, recoupment, defense or other
claim, right or action which Veritas may have against ▇▇▇▇▇▇ or others.
Section 8. No Effect on Other Rights.
Nothing in this Agreement shall prevent or limit ▇▇▇▇▇▇'▇ continuing or
future participation in any plan, program, policy or practice of or provided by
Veritas or any of its affiliates and for which ▇▇▇▇▇▇ may qualify, nor shall
anything herein limit or otherwise affect such rights as ▇▇▇▇▇▇ may have under
any stock option or other agreements with Veritas or any of its affiliates.
Amounts which are vested benefits or which ▇▇▇▇▇▇ is otherwise entitled to
receive under any plan, program, policy or practice of or provided by, or any
other contract or agreement with, Veritas or any of its affiliates at or
subsequent to the Date of Termination shall be payable or otherwise provided in
accordance with such plan, program, policy or practice or contract or agreement
except as explicitly modified by this Agreement.
Section 9. Successors; Binding Agreement.
(a) This Agreement is personal to ▇▇▇▇▇▇ and without the
prior written consent of Veritas shall not be assignable by ▇▇▇▇▇▇ otherwise
than by will or the laws of descent and distribution. This Agreement shall inure
to the benefit of and be enforceable by ▇▇▇▇▇▇'▇ personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees.
(b) This Agreement shall inure to the benefit of and be
binding upon Veritas and its successors and assigns.
(c) Veritas will require any successor (whether direct or
indirect, by purchase, merger, amalgamation, consolidation or otherwise) to all
or substantially all of the business and/or assets of Veritas, by agreement in
form and substance reasonably satisfactory to ▇▇▇▇▇▇, to expressly assume and
agree to perform this Agreement in the same manner and to the same extent that
Veritas would be required to perform it if no such succession had taken place.
As used in this Agreement, "Veritas" shall mean Veritas as hereinbefore defined
and any successor to its business and/or assets as aforesaid.
Section 10. Non-Competition; Non-Solicitation; No Hire.
(a) ▇▇▇▇▇▇ agrees that during the Non-Compete Period (as
defined below), ▇▇▇▇▇▇ shall not, without the prior written consent of Veritas,
directly or indirectly, anywhere in the world, engage, invest, own any interest,
or participate in, consult with, render services to, or be employed by any
business, person, firm or entity that is in competition with the "Business" [as
defined in Section 10(d)(1)] of Veritas or any of its subsidiaries or
affiliates, except for the account of Veritas and its subsidiaries and
affiliates; provided, however, that during the Non-Compete Period ▇▇▇▇▇▇ may
acquire, solely as a passive investment, not more than five percent
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(5%) of the outstanding shares or other units of any security of any entity
subject to the requirements of Section 13 or 15(d) of the Exchange Act. ▇▇▇▇▇▇
acknowledges that a remedy at law for any breach or attempted breach of this
covenant not to compete will be inadequate and further agrees that any breach of
this covenant not to compete will result in irreparable harm to Veritas, and,
accordingly, Veritas shall, in addition to any other remedy that may be
available to it, be entitled to specific performance and temporary and permanent
injunctive and other equitable relief (without proof of actual damage or
inadequacy of legal remedy) in case of any such breach or attempted breach.
▇▇▇▇▇▇ acknowledges that this covenant not to compete is being provided as an
inducement to Veritas to enter into this Agreement and that this covenant not to
compete contains reasonable limitations as to time, geographical area and scope
of activity to be restrained that do not impose a greater restraint than is
necessary to protect the goodwill or other business interest of Veritas.
Whenever possible, each provision of this covenant not to compete shall be
interpreted in such a manner as to be effective and valid under applicable law
but if any provision of this covenant not to compete shall be prohibited by or
invalid under applicable law, such provision of this covenant not to compete
shall be prohibited by or invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remaining provisions of this covenant not to compete. If any
provision of this covenant not to compete shall, for any reason, be judged by
any court of competent jurisdiction to be invalid or unenforceable, such
judgment shall not affect, impair or invalidate the remainder of this covenant
not to compete but shall be confined in its operation to the provision of this
covenant not to compete directly involved in the controversy in which such
judgment shall have been rendered. In the event that the provisions of this
covenant not to compete should ever be deemed to exceed the time or geographic
limitations permitted by applicable laws, then such provision shall be reformed
to the maximum time or geographic limitations permitted by applicable law.
(b) In addition to the restrictions set forth in Section
10(a), ▇▇▇▇▇▇ agrees that, effective as of the Effective Date and for a period
that includes the term of this Agreement and one (1) year thereafter, ▇▇▇▇▇▇
will not, either directly or indirectly, (i) make known to any person, firm or
entity that is in competition with the Business of Veritas or any of its
subsidiaries or affiliates the names and addresses of any of the suppliers or
customers of Veritas or any of its subsidiaries or affiliates, potential
customers of Veritas or any of its subsidiaries or affiliates upon whom Veritas
or any of its subsidiaries or affiliates has called upon in the last twelve (12)
months or contacts of Veritas or any of its subsidiaries or affiliates or any
other information pertaining to such persons, or (ii) call on, solicit, or take
away, or attempt to call on, solicit or take away any of the suppliers or
customers of Veritas or any of its subsidiaries or affiliates, whether for
▇▇▇▇▇▇ or for any other person, firm or entity.
(c) Effective as of the Effective Date and for a period
that includes the term of this Agreement and one year (1) year thereafter,
▇▇▇▇▇▇ will not, either on his own account or for any other person, firm,
partnership, corporation, or other entity (i) solicit any Key Employee of
Veritas or any of its subsidiaries or affiliates to leave such employment; or
(ii) induce or attempt to induce any such Key Employee to breach her or his
employment agreement with Veritas or any of its subsidiaries or affiliates.
(d) The following definitions apply to this Section 10:
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(1) "Business" means the business of acquiring,
processing and/or interpreting geophysical data and/or producing and/or
conducting geophysical surveys, including, but not limited to, (x) the
business of surface seismic acquisition and/or surface seismic data
processing and/or interpretation for the purpose of providing and/or
interpreting seismic images of the subsurface of the earth, and (y) the
following activities and services: (i) all forms of surface land,
marine, ocean bottom cable and transition zone seismic data
acquisition; (ii) all forms of surface seismic data processing,
including the processing of two, three and/or four dimensional vertical
seismic profiling; (iii) recording of data from wellbore seismic arrays
performed during simultaneous acquisition of surface two, three and/or
four dimensional data; (iv) trenched in, buried near surface or seabed
permanent array installation and acquisition; (v) surface seismic
acquisition, processing, interpretation and/or sales, in each case, of
multiclient surveys; (vi) maintenance of surface seismic data
processing centers, including licensing and support of surface seismic
processing software; (vii) equipment design and manufacture for surface
seismic acquisition, processing and interpretation; (viii) research and
development programs for any of the items described in this Section
10(d)(1) and seismically-assisted reservoir solutions, including
software relating thereto; (ix) surface seismic data management
services; (x) interpretation activities related to or in support of
acquisition and processing activities described in this Section
10(d)(1); (xi) borehole seismic acquisition and installation and
acquisition of data from wellbore seismic arrays; (xii) reservoir
management; (xiii) commercial seismically-assisted reservoir solutions;
and (xiv) non-seismic data management and non-seismic dynamic reservoir
characterization and performance prediction.
(2) "Key Employee" means an individual employed
by Veritas or one of its affiliates who is involved directly in seismic
acquisition activities, seismic data processing, seismic technology
development or other research and development.
(3) "Non-Compete Period" means that period of
time commencing on the Effective Date and continuing for eighteen (18)
months after the Date of Termination.
Section 11. Miscellaneous.
(a) All notices and other communications required or
permitted hereunder or necessary or convenient in connection herewith will be in
writing and will be delivered by hand; by overnight courier; by electronic mail;
or by registered or certified mail, return receipt requested to the addresses
set forth below in this Section 11(a):
If to Veritas, to:
Veritas DGC Inc.
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Vice President, Human Resources
Email: ▇▇▇▇▇_▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
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If to ▇▇▇▇▇▇, to:
▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
No. ▇▇▇, ▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Email: ▇▇▇▇_▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
or to such other names or addresses as Veritas or ▇▇▇▇▇▇, as the case may be,
designate by notice to the other party hereto in the manner specified in this
Section.
(b) With the exception of the Indemnity Agreement by and
between Veritas and ▇▇▇▇▇▇ dated as of March 7, 2000 which is specifically not
superceded or replaced by or merged into this Agreement, this Agreement
(including the Exhibits attached hereto) supersedes, replaces and merges all
previous agreements and discussions relating to the same or similar subject
matters between ▇▇▇▇▇▇ and Veritas (including any such agreements or discussions
between ▇▇▇▇▇▇ and any past or present subsidiary or affiliate of Veritas) and
constitutes the entire agreement between ▇▇▇▇▇▇ and Veritas with respect to the
subject matter of this Agreement. Specifically, this Agreement supercedes and
replaces the Prior Employment Agreement. This Agreement may not be modified in
any respect by any verbal statement, representation or agreement made by any
employee, officer, or representative of Veritas or by any written agreement
unless signed by an officer of Veritas who is expressly authorized by the Board
to execute such document.
(c) If any provision of this Agreement or application
thereof to anyone or under any circumstances should be determined to be invalid
or unenforceable, such invalidity or unenforceability will not affect any other
provisions or applications of this Agreement which can be given effect without
the invalid or unenforceable provision or application. In addition, if any
provision of this Agreement is held by an arbitration panel or a court of
competent jurisdiction to be invalid, unenforceable, unreasonable, unduly
restrictive or overly broad, the parties intend that such arbitration panel or
court modify said provision so as to render it valid, enforceable, reasonable
and not unduly restrictive or overly broad.
(d) The internal laws of the State of Texas will govern
the interpretation, validity, enforcement and effect of this Agreement without
regard to the place of execution or the place for performance thereof.
Section 12. Arbitration.
(a) Veritas and ▇▇▇▇▇▇ agree to submit to final and
binding arbitration any and all disputes or disagreements concerning the
interpretation or application of this Agreement. Any such dispute or
disagreement will be resolved by arbitration in accordance with the National
Rules for the Resolution of Employment Disputes of the American Arbitration
Association (the "AAA Rules"). Arbitration will take place in Houston, Texas,
unless the parties mutually agree to a different location. Within 30 calendar
days of the initiation of arbitration hereunder, each party will designate an
arbitrator. The appointed arbitrators will then appoint a third arbitrator.
▇▇▇▇▇▇ and Veritas agree that the decision of the arbitrators will be final and
binding on both parties. Any court having jurisdiction may enter a judgment upon
the award rendered by the
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arbitrators. In the event the arbitration is decided in whole or in part in
favor of ▇▇▇▇▇▇, Veritas will reimburse ▇▇▇▇▇▇ for his reasonable costs and
expenses of the arbitration (including reasonable attorneys' fees). Regardless
of the outcome of any arbitration, Veritas will pay all fees and expenses of the
arbitrators and all of Veritas's costs of such arbitration.
(b) Notwithstanding the provisions of Section 12(a),
Veritas may, if it so chooses, bring an action in any court of competent
jurisdiction for injunctive relief to enforce ▇▇▇▇▇▇'▇ obligations under
Sections 3(b), 3(c), 3(d) or 10 hereof.
IN WITNESS WHEREOF, the undersigned, intending to be legally bound,
have executed this Agreement as to be effective as of the Effective Date.
VERITAS:
VERITAS DGC INC.
By:
_______________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇
Director
▇▇▇▇▇▇:
_______________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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AGREEMENT AND RELEASE OF ALL CLAIMS
This Agreement, entered into as of the date written by Employee's
signature below, is by and between Veritas DGC Inc. ("Veritas"), a Delaware
corporation, and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("Employee"). (As used in this Agreement, the
term "Veritas" includes Veritas DGC Inc. and all of its subsidiary and
affiliated companies).
Veritas and Employee agree as follows:
Section 1. Within 5 business days after the Date of Termination, as
defined in Section 3 below, and whether or not Employee executes and returns
this Agreement, Veritas will pay Employee the following amounts:
- The CEO's Salary [as defined in Section 2(a)(1) of the
Retirement Agreement between Employer and Employee dated
effective January 10, 2004, the "Retirement Agreement"]
prorated through the Date of Termination;
- Employee's vacation pay accrued as of the Date of Termination;
and
- Any expense reimbursement owed to Employee under Section
2(b)(3) of the Retirement Agreement.
All of the above amounts will be REDUCED by applicable taxes and withholding.
Section 2. In addition, Veritas will:
- During the three-year period ending on the third anniversary
of the Date of Termination, pay Employee an aggregate amount
(the "Severance Payment") equal to three (3) times the CEO's
Salary (as defined in Section 2(a)(1) of the Retirement
Agreement) which Severance Payment will be paid to Employee in
equal installments every two weeks during such three-year
period; provided, however, that at any time during such
three-year period Veritas may, in its
EXHIBIT A
discretion, elect to pay to Employee the then remaining
balance of the Severance Payment in the form of a lump sum
cash payment; and
- Provide Employee and his wife, Val, for each of their
respective lifetimes group health insurance in accordance with
Section 6(a)(2) of the Retirement Agreement.
- Provide ▇▇▇▇▇▇ with secretarial and administrative assistance
in accordance with Section 6(a)(4) of the Retirement
Agreement.
Section 3. Employee's termination from employment will be effective at
the close of business on the Date of Termination. The DATE OF TERMINATION as
used in this Agreement means _________.
Section 4. Employee agrees to release Veritas from any claims he has or
may have against Veritas as of the date he signs this Agreement. The claims he
is releasing include all of the following:
- any claims under any bonus or incentive plans;
- any claims for tortious action or inaction of any sort
("tortious action or inaction" means, among other things,
claims for such things as negligence, fraud, libel, or
slander);
- any claims arising under the Age Discrimination in Employment
Act of 1967 as amended (29 U.S.C. Section 621, et seq.) (the
Age Discrimination in Employment Act of 1967 prohibits, in
general, discrimination against employees on the basis of
age);
- any claims arising under Title VII of the Civil Rights Act of
1964 as amended (42 U.S.C. Section 2000e, et seq.), or the
Texas Commission on Human Rights Act (Texas Labor Code Section
21.001, et seq.) (both of these statutes, in general, prohibit
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discrimination in employment on the basis of race, religion,
national origin or gender);
- any claims arising under the Americans with Disabilities Act
of 1990, as amended (42 U.S.C. Section 12101, et seq.) (the
Americans with Disabilities Act of 1990 prohibits, in general,
discrimination in employment on the basis of an employee's or
applicant's disability);
- any claims arising under Texas Labor Code Sections 451.001, et
seq. for retaliation or discrimination in connection with a
claim for workers' compensation benefits; and,
- any claims for breach of contract, wrongful discharge,
constructive discharge, retaliation, or conspiracy; and
- any claims relating to Employee's employment or termination of
his employment including any and all claims for damages,
costs, salary, wages, termination pay, severance pay, vacation
pay, commissions, expenses, allowances, insurance, or any
other benefit arising out of Employee's employment with
Veritas, with the exception of those benefits specifically
excluded below in this Section 4.
Employee acknowledges that the execution of this Agreement and Release
of All Claims has the effect of precluding the consideration of any complaint by
the Alberta Human Rights Commission pursuant to the Alberta Human Rights,
Citizenship and Multicultualism Act, or any other applicable human rights
legislation.
The release contained in this Section 4 WILL NOT affect any of the
following:
- Any claim by Employee under this Agreement;
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- Employee's rights or benefits under Veritas's 401(k)
retirement savings plan, Veritas's Employee Stock Purchase
Plan, or any pension or retirement plan in which Employee is a
participant on the Date of Termination (Employee's rights and
benefits will be determined by the applicable plan);
- Employee's right to elect continued health and/or dental
benefits under the Consolidated Omnibus Budget Reconciliation
Act of 1985 ("COBRA");
- Employee's right to exercise any options to purchase Veritas
DGC Inc. common stock in accordance with the terms of the
applicable stock option grant, as such terms are modified by
Section 6(a)(3) of the Retirement Agreement;
- Employee's rights to indemnity under that (i) one certain
Indemnity Agreement effective March 7, 2000, by and between
Employer and Employee, (ii) the certificate of incorporation,
bylaws or other organizational documents of Veritas (x) as in
effect on December 3, 2003, or (y) as the same may be
subsequently changed, but in the case of this clause (y) only
to the extent any such changes shall enlarge the rights of a
party seeking indemnity;
- Any other benefit to which Employee may be entitled under any
other health or benefit plan in accordance with the applicable
plan documents; or
- Employee's rights under any workers' compensation statue; the
▇▇▇▇▇ Act, 46 U.S.C. Appx. Section 688, as amended; general
maritime law or similar laws; and any other right Employee may
have with respect to bodily injury.
Section 5. Veritas and Employee agree that this Agreement is a binding
contract. The purpose of the Agreement is to compromise doubtful or disputed
claims, avoid litigation, and
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buy peace. Employee agrees that although Veritas is making payment to Employee
in exchange for a release of claims, Veritas does not admit any wrongdoing of
any kind.
Section 6. Employee agrees to assist Veritas in defending any legal
proceedings against Veritas arising out of matters which occurred on or prior to
the Date of Termination. Veritas agrees to reimburse Employee for his time and
expense or costs he may incur in that regard.
Section 7. Employee confirms that after the Effective Date he remains
subject to and agrees to comply with:
- those obligations of confidentiality contained in Section 3(b)
and 3(c) of the Retirement Agreement;
- the provisions relating to competition with Employer contained
in Section 10 of the Retirement Agreement;
- the provisions relating to solicitation or hiring of
Employer's employees contained in Section 10 of the Retirement
Agreement; and
- the terms of the Employee Confidentiality and Intellectual
Property Agreement with Employer which Employee signed
effective October 22, 2001.
Section 8. This Agreement has been delivered to Employee on
_____________.
- Employee will have 21 calendar days from ___________ or until
the close of business on ___________ to decide whether to sign
and return this Agreement and be bound by its terms. In the
event Employee has not signed and returned this Agreement to
Veritas on or before __________, this Agreement will become
null and void.
- Veritas and Employee agree that if they agree to change the
terms of this Agreement in any manner after it is delivered to
Employee, even if the changes
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are material, the 21-day period specified in the previous paragraph
will not restart or be extended.
- After signing this Agreement, Employee will have the right to
revoke the Agreement for a period of 7 calendar days after
signing it by (a) notifying Veritas in writing that Employee
revokes the Agreement and (b) returning to Veritas any
consideration paid Employee under Section 2 above. In the
event Employee revokes the Agreement, it will become null and
void.
Section 9. Employee acknowledges that he has read this Agreement. He
understands that, except for the exceptions set out in Section 4 above, this
Agreement will have the effect of waiving any claim he may pursue against
Veritas.
Section 10. Employee acknowledges that he makes this Agreement
knowingly and voluntarily.
Section 11. This Agreement constitutes the entire understanding between
Veritas and Employee with respect to the subject matter hereof.
Section 12. This Agreement will benefit and be binding upon Veritas and
its successors and assigns and Employee and his successors and legal
representatives. Employee will not assign or attempt to assign any of his rights
under this Agreement.
Section 13. If a court determines that any provision of this Agreement
is invalid, the other provisions will remain in effect.
Section 14. This Agreement will be governed by, construed under, and
enforced in accordance with the laws of the State of Texas, not including,
however, its conflicts of law rules that might otherwise refer to the law of
another forum or jurisdiction.
Section 15. This Agreement will become effective and enforceable only
after a period of
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7 days has expired following Employee's execution and delivery of this Agreement
to Veritas (this date is referred to in this Agreement as the "EFFECTIVE DATE").
THIS AGREEMENT IS SUBJECT TO ARBITRATION IN
ACCORDANCE WITH THE FOLLOWING SECTION
Section 16. Employer and Employee agree to submit to final and binding
arbitration any and all disputes or disagreements concerning the interpretation
or application of this Agreement. Any such dispute or disagreement will be
resolved by arbitration in accordance with the National Rules for the Resolution
of Employment Disputes of the American Arbitration Association (the "AAA
Rules"). Arbitration will take place in Houston, Texas, unless the parties
mutually agree to a different location. Within 30 calendar days of the
initiation of arbitration hereunder, each party will designate an arbitrator.
The appointed arbitrators will then appoint a third arbitrator. Employee and
Employer agree that the decision of the arbitrators will be final and binding on
both parties. Any court having jurisdiction may enter a judgment upon the award
rendered by the arbitrators. In the event the arbitration is decided in whole or
in part in favor of Employee, Employer will reimburse Employee for his
reasonable costs and expenses of the arbitration (including reasonable
attorneys' fees). Regardless of the outcome of any arbitration, Employer will
pay all fees and expenses of the arbitrators and all of Employer's costs of such
arbitration.
Notwithstanding the provisions of the previous paragraph, Employer may,
if it so chooses, bring an action in any court of competent jurisdiction for
injunctive relief to enforce Employee's obligations under Section 7 of this
Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement effective
as of the Effective Date.
VERITAS:
VERITAS DGC INC.
and subsidiary and affiliated
companies
By:
___________________________
NOTICE TO EMPLOYEE
BY SIGNING THIS DOCUMENT, YOU MAY BE GIVING UP IMPORTANT LEGAL RIGHTS. YOU ARE
ADVISED TO CONSULT WITH AN ATTORNEY PRIOR TO SIGNING AND RETURNING THIS DOCUMENT
TO VERITAS.
EMPLOYEE:
_______________________________
Date:
_________________________
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