EX-10.14 6 d289278dex1014.htm FORM OF AGREEMENT FOR THE PAYMENT OF BENEFITS FORM OF AGREEMENT FOR THE PAYMENT OF BENEFITS FOLLOWING TERMINATION OF EMPLOYMENT AGREEMENT dated as of October 4, 2011 (the “Effective Date”) between , a Delaware corporation...
Exhibit 10.14
FORM OF
AGREEMENT FOR THE PAYMENT OF BENEFITS
FOLLOWING TERMINATION OF EMPLOYMENT
AGREEMENT dated as of October 4, 2011 (the “Effective Date”) between , a Delaware corporation (the “Company”), and (the “Executive”),
WHEREAS, the Executive is employed by the Company; and
NOW, THEREFORE, in consideration of the foregoing, the parties agree as follows:
(a) Cause. “Cause” shall mean:
(i) the Executive’s willful and continuous failure to substantially perform his or her material duties (other than a failure due to a Disability);
(ii) the commission of any activities constituting a violation or breach under any federal, state or local law or regulation applicable to the activities of the Company, as determined in the reasonable judgment of the Company;
(iii) fraud, breach of fiduciary duty, dishonesty, misappropriation or other actions that cause significant damage to the property or business of the Company;
(iv) repeated absences from work such that the Executive is unable to perform his or her employment or other duties in all material respects, other than due to Disability;
(v) admission or conviction of, or plea of nolo contendere, to any felony that, in the reasonable judgment of the Company, adversely affects the Company’s reputation or the Executive’s ability to carry out the obligations of his or her employment or services;
(vi) loss of any license or registration that is necessary for the Executive to perform his or her duties for the Company;
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(vii) failure to cooperate with the Company in any internal investigation or administrative, regulatory or judicial proceeding, as determined in the reasonable judgment of the Company;
(viii) any act or omission in violation or disregard of the Company’s policies, including but not limited to the Company’s harassment and discrimination policies and Standards of Conduct then in effect, in such a manner as to cause significant loss, damage or injury to the Company’s property, reputation or employees;
provided, however, that no act or failure to act on the Executive’s part shall be considered “willful” unless it is done, or omitted to be done, by him or her in bad faith or without reasonable belief that his or her action or omission was in the best interests of the Company. Any act or failure to act (A) based upon authority given pursuant to a resolution duly adopted by the Board of Directors of the Company, (B) implementing in good faith the advice of counsel for the Company or (C) that meets the applicable standard of conduct prescribed for indemnification or reimbursement or payment of expenses under the By-laws of the Company or the laws of the state of its incorporation or the directors’ and officers’ liability insurance of the Company, in each case as in effect at the time Cause would otherwise arise, shall be conclusively presumed to be done, or omitted to be done, in good faith and in the best interests of the Company.
(b) Change in Control. A “Change in Control” shall be deemed to have occurred if, prior to the Executive’s Termination of Employment:
| (1) | with respect to the Company: |
| (A) | any person (as that term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) as in effect on the date of this Agreement) (i) is or becomes the beneficial owner (as that term is used in Section 13(d) of the Exchange Act, and the rules and regulations promulgated thereunder, as in effect on the date of this Agreement) of 50% or more of the total fair market value or total voting power (“Voting Securities”) of the Company or (ii) acquires (or has acquired during the 12-month period ending on the date of the most recent acquisition by such person) ownership of the stock of the Company possessing 30% or more of the Voting Securities, excluding, in each case, however, the following: (x) FBHS, (y) any acquisition by an employee benefit plan (or related trust) sponsored or maintained by FBHS or any entity controlled by FBHS (including the Company); and (z) any acquisition by an entity controlled by FBHS; or |
| (B) | the Company shall be merged or consolidated with, or, in any transaction or series of transactions, substantially all of the business or assets of the Company shall be sold or otherwise acquired by, another corporation or entity unless, as a result |
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| thereof, (i) the stockholders of FBHS or FBHS shall beneficially own, directly or indirectly, at least 60% of the combined Voting Securities of the surviving, resulting or transferee corporation or entity (including, without limitation, a corporation that as a result of such transaction owns the Company or FBHS or all or substantially all of the assets of the Company or FBHS, either directly or through one or more subsidiaries) (“Newco”) immediately thereafter in substantially the same proportions as their ownership immediately prior to such corporate transaction or (ii) no person beneficially owns (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act, and the rules and regulations promulgated thereunder (as in effect on the date hereof)), directly or indirectly, 30% of more of the combined Voting Securities of Newco immediately after such corporate transaction except to the extent that such ownership of the Company or FBHS existed prior to such corporate transaction. |
| (2) | with respect to FBHS: |
| (A) | any person (as that term is used in Sections 13(d) and 14(d) of the Exchange Act as in effect on the date of this Agreement) (i) is or becomes the beneficial owner (as that term is used in Section 13(d) of the Exchange Act, and the rules and regulations promulgated thereunder, as in effect on the date of this Agreement) of 50% or more of the total fair market value or total voting power of the Voting Securities of FBHS or (ii) acquires (or has acquired during the 12-month period ending on the date of the most recent acquisition by such person) ownership of the stock of FBHS possessing 30% or more of the Voting Securities, excluding, in each case, however, the following: (x) any acquisition directly from FBHS, other than an acquisition by virtue of the exercise of a conversion privilege unless the security being so converted was itself acquired directly from FBHS; (y) any acquisition by FBHS; (z) any acquisition by an employee benefit plan (or related trust) sponsored or maintained by FBHS or any entity controlled by FBHS; (xx) the acquisition of additional stock or voting power by a person considered to own more than 50% of the total fair market value or Voting Securities in the case of clause (i) of this clause (A) or by a person considered to own more than 30% of the Voting Securities in the case of clause (ii) of this clause (A); or (yy) any acquisition pursuant to a transaction that complies with clauses (i), (ii) and (iii) of clause (C) below; |
| (B) | more than 50% of the members of the Board of Directors of FBHS (the “FBHS Board”) shall, during a 12-month period, cease to be Continuing Directors (which term, as used herein, means the directors of FBHS: (i) who were members of the FBHS Board on |
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| the date hereof; or (ii) who subsequently became directors of FBHS and who were elected or designated to be candidates for election as nominees of the FBHS Board, or whose election or nomination for election by FBHS’s stockholders was otherwise approved, by a vote of a majority of the Continuing Directors then on the FBHS Board but shall not include, in any event, any individual whose initial assumption of office occurs as a result of either an actual or threatened election contest (as such terms are used in Rule 14(a)-11 of Regulation 14A promulgated under the Exchange Act) or other actual or threatened solicitation of proxies or consents by or on behalf of a person other than the FBHS Board); or |
| (C) | FBHS shall be merged or consolidated with, or, in any transaction or series of transactions, substantially all of the business or assets of FBHS shall be sold or otherwise acquired by, another corporation or entity unless, as a result thereof: (i) the stockholders of FBHS immediately prior thereto shall beneficially own, directly or indirectly, at least 60% of the combined Voting Securities of the surviving, resulting or transferee corporation or entity (including, without limitation, a corporation that as a result of such transaction owns FBHS or all or substantially all of the assets of FBHS, either directly or through one or more subsidiaries) (“FBHS Newco”) immediately thereafter in substantially the same proportions as their ownership immediately prior to such corporate transaction; (ii) no person beneficially owns (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act, and the rules and regulations promulgated thereunder (as in effect on the date hereof)), directly or indirectly, 30% or more of the combined Voting Securities of FBHS Newco immediately after such corporate transaction except to the extent that such ownership of FBHS existed prior to such corporate transaction, and (iii) more than 50% of the members of the Board of Directors of FBHS Newco shall be Continuing Directors. |
(d) Code. “Code” shall mean the Internal Revenue Code of 1986, as amended.
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(i) a material change in the Executive’s duties, responsibilities and status, or, in the event of a Change in Control, a material change in Executive’s reporting responsibilities, titles or offices as in effect at the time of a Change in Control;
(ii) a material reduction in the Executive’s then current base salary;
(iii) material reduction in the value of the benefits provided to the Executive (other than those plans or improvements that have expired in accordance with their original terms); provided that Good Reason shall not exist to the extent such benefits are similarly reduced or eliminated with respect to similarly situated senior executives of the Company or FBHS, as applicable;
(iv) after a Change in Control, the target bonus awarded by FBHS’s Compensation Committee to Executive under FBHS’s Annual Executive Incentive Compensation Plan (“Incentive Plan”) subsequent to a Change in Control is materially less than such amount last awarded to Executive prior to a Change in Control;
(v) after a Change in Control, the sum of the Executive’s base salary and amount paid to him or her as incentive compensation under the Incentive Plan for the calendar year in which the Change in Control occurs or any subsequent year is materially less than the sum of the Executive’s base salary and the amount awarded (whether or not fully paid) to him or her as incentive compensation under the Incentive Plan for the calendar year prior to the Change in Control or any subsequent calendar year in which the sum of such amounts was materially greater;
(vi) the relocation of the offices at which Executive is employed to a location more than 35 miles away or the Company requiring Executive to be based anywhere other than at a Company office within 35 miles of the offices at which the Executive is employed, except for required travel on Company business to an extent substantially consistent with Executive’s position;
(vii) any failure of the Company or FBHS to comply with and satisfy Section 8;
(viii) any purported termination of the Executive’s employment which does not comply with Section 1(g) below. For the avoidance of doubt, such purported termination shall not be effective, but shall constitute Good Reason entitling the Executive to terminate his or her employment in accordance with this Section 1(f);
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provided, further, that the Executive must provide written notice to the Company of the existence of Good Reason no later than 90 days after its initial existence, the Company shall have a period of 30 days following its receipt of such written notice during which it may remedy in all material respects the Good Reason condition identified in such written notice, and the Executive must terminate employment no later than two (2) years following the initial existence of the Good Reason condition identified in such written notice.
(h) Termination Date. “Termination Date” shall mean:
(i) in the case of Disability, 30 days after Notice of Termination is given, provided that the Executive shall not have returned to the performance of his or her duties on a full-time basis during such 30-day period;
(ii) in the case of Cause, the date on which Notice of Termination is given;
(iii) in the case of Good Reason, 30 days after the Notice of Termination is given, provided that the Company has not either remedied the conditions giving rise to Good Reason or waived its right to do so; and
(iv) in the event that employment is terminated for any other reason, the date on which the Executive ceases to perform his or her duties for the Company;
provided, however, that, if within 30 days after any Notice of Termination is given, the receiving party notifies the other party that a dispute exists concerning the reasons for such termination of employment, the Termination Date shall be the date finally determined, either by written agreement of the parties or by a final judgment, order or decree of court of competent jurisdiction (the time for appeal having expired and no appeal having been perfected), to be the date that the Executive’s employment terminated; provided further, however, that if such dispute is resolved in favor of the Company, the Termination Date shall be the date determined under clauses (i) through (iv) of this Section 1(h).
(a) the Executive’s employment is terminated either by the Company for reasons other than Disability or Cause or by the Executive for Good Reason; provided, however, that, in order for the Executive to be eligible for any Change in Control Benefits, such termination of employment must occur within 24 months after a Change in Control of either the Company or FBHS;
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(b) the Executive’s Termination Date occurs while this Agreement is in effect; and
(c) a Notice of Termination is provided in a timely manner (as described in Section 1(g)) prior to the Executive’s Termination Date by the Company (in the case of termination other than for Disability or Cause) or the Executive (in the case of termination for Good Reason).
The Executive’s employment shall be deemed to have terminated for Cause if, after the Executive’s Termination Date, facts and circumstances are discovered that would have justified a termination for Cause. In such event, the Company shall immediately cease any and all payments and benefits being paid or provided to the Executive under Section 3 and the Executive shall repay to the Company within thirty (30) days all amounts previously paid to him or her pursuant to Section 3.
Nothing in this Agreement is intended to create or imply a promise or contract of employment for a specified term and either Executive or the Company may terminate the employment relationship at any time, with or without Cause or Good Reason, and with or without notice; provided, however, that the Executive shall not be entitled to any benefits under this Agreement in the event his or her employment is terminated by the Company for Disability or Cause, by the Executive other than for Good Reason or following the Executive’s death or the expiration of this Agreement. This Agreement shall have no effect on any obligations that the Company may have to the Executive if his or her employment terminates under circumstances not described herein.
(i) his or her annual base salary as in effect on the Effective Date, or, if applicable, the date of a Change in Control, plus
(ii) his or her target annual bonus under the Incentive Plan in effect in the calendar year in which the Termination Date occurs, plus
(iii) the amount that would have been required to be allocated to the Executive’s account (assuming that he elected the maximum employee contribution) for the year immediately preceding the year in which the Termination Date occurs under the 401(k) retirement plan in which the Executive is participating on his Termination Date, including the matching contribution and
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profit-sharing contribution of the supplemental non-qualified defined contribution plan in which the Executive is participating on his Termination Date (the “Supplemental Plan”);
Such severance amounts described above shall be paid to the Executive in regular installments through the Company’s normal payroll process and on the Company’s normal payroll dates commencing within 90 days following his or her Termination Date; provided, however, that if such 90-day period begins in a first taxable year and ends in a second taxable year, such severance amounts shall commence no earlier than the first payroll date of the second taxable year.
Notwithstanding anything to the contrary in this Section 3(b), for purposes of calculating a Change in Control Benefit, the multiplier in Section 3(b) above shall be changed to 2 and, provided the Change in Control constitutes a “change in control event,” within the meaning of regulations promulgated under Section 409A of the Code, the severance benefit shall be paid to the Executive in a single lump sum payment within 30 days following the Executive’s Termination Date; provided, however, that if such 30-day period begins in a first taxable year and ends in a second taxable year, such lump sum payment shall be paid to the Executive in the second taxable year.
(i) any unpaid amounts awarded to the Executive as incentive compensation under the Incentive Plan for the calendar year immediately preceding the year in which the Termination Date occurs; and
(ii) an amount equal to the award the Executive would have received under the Incentive Plan based upon the actual performance of the Company and FBHS for the calendar year in which the Termination Date occurs, prorated for the portion of the calendar year during which the Executive was employed.
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adjusted) to an amount that is one dollar less than the smallest amount that would give rise to the Excise Tax (the “Reduced Amount”) if such Reduced Amount would be greater than the net after-tax proceeds (taking into account both the Excise Tax and any interest or penalties payable with respect to the Excise Tax) of the unreduced Change in Control Benefit payable to the Executive. If the Change in Control Benefit is required to be reduced pursuant to this Section 4, there shall be no discretion in the ordering of the Payments payable under this Agreement so reduced, and such reductions shall be applied in the order which results in the best economic benefit to Executive; and to the extent such ordering of reductions is economically equivalent, such Payments shall be reduced on a pro rata basis.
(i) hold all Confidential Trade Secrets in confidence and not discuss, communicate, disclose or transmit to others, or make any unauthorized copy of or use the Confidential Trade Secrets in any capacity, position or business unrelated to the Company;
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(ii) use the Confidential Trade Secrets only in furtherance of proper Company employment related business reasons; and
(iii) take all reasonable action that the Company deems necessary and appropriate to prevent unauthorized use or disclosure of or to protect the Confidential Trade Secrets.
Notwithstanding the foregoing, it is understood and agreed that the Executive’s obligations under this Section 6(a) do not extend to any knowledge or information which is or may become available to the public or to competitors other than by disclosure by the Executive in breach of this Agreement nor to any information the Executive may learn or develop independent of the Confidential Trade Secrets, nor to disclosure compelled by judicial or administrative proceeding after the Executive diligently tries to avoid each disclosure and affords the Company the opportunity to obtain assurance that compelled disclosures will receive confidential treatment.
(i) directly or indirectly, individually engage in nor be competitively employed or retained by, or render any competing services for, or be financially interested in, any firm or corporation engaged in any business in the United States, Australia, Canada, Asia, Mexico or Europe which competes with any business in which the Company, FBHS or any of their affiliates were engaged during the two-year period preceding the Executive’s Termination Date, including, but not limited to any business in which, during such two-year period, the Executive was involved in the Company’s, FBHS’s or any of their affiliates’ planning to enter such business. Notwithstanding the foregoing, this restriction shall not apply to:
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(A) the purchase by the Executive of stock not to exceed 5% of the outstanding shares of capital stock or any corporation whose securities are listed on any national securities exchange; or
(B) the employment of the Executive by a non-competitive subsidiary or non-competitive affiliated entity of a competitor of the Company or FBHS upon the Company’s written consent, which consent shall not be unreasonably withheld.
(ii) solicit business from nor directly or indirectly cause others to solicit business that competes with the Company’s or FBHS’s line of products from any entities which have been customers of the Company during the Executive’s employment or which were targeted as potential customers during the twelve (12) months preceding the Executive’s Termination Date;
provided, however, that the provisions of this Section 6(c) shall not apply if the Executive’s Termination Date occurs after a Change in Control.
(d) Remedies. The Executive recognizes and agrees:
(i) that the covenants and restrictions in paragraphs (a), (b) and (c) of this Section 6 are reasonable and valid and all defenses to the strict enforcement of such sections by the Company and FBHS are waived by the Executive to the full extent permitted by law. In the event, however, that a court of competent jurisdiction should determine in any case that the enforcement of any provision contained in such paragraphs would not be reasonable, it is intended that enforcement of a provision which is determined by such court to be reasonable shall be given effect; and
(ii) that a breach of the covenants and restrictions in paragraphs (a), (b) or (c) of this Section 6 would result in irreparable harm to the Company and FBHS which could not be compensated by money damages alone. Accordingly, the Executive agrees that should there be a breach of any or all of these provisions or a threatened breach, the Company shall be entitled to cease paying amounts under Section 3 and to offset any amounts it owes to Executive against any damage that it has suffered as a result of the breach of any of the covenants and restrictions in paragraphs (a), (b) or (c) of this Section 6 and, in addition to its other remedies, to an order enjoining any such breach or threatened breach without bond. In addition, the Executive agrees that, in the event he or she breaches any of the covenants or restrictions of paragraphs (a), (b) or (c) of this Section 6, he will promptly repay to the Company upon demand any amounts paid to him or her pursuant to Section 3. The Executive further agrees that if the Company or FBHS prevails in any action to enforce these provisions, he or she will reimburse the Company or FBHS for its attorney fees and costs incurred in pursuing such action.
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The Company and FBHS agree that they will seek enforcement of paragraphs (a), (b) and (c) of this Section 6 only in a good faith, reasonable manner and will not seek to enforce such sections solely for malicious and punitive reasons.
8. Successors; Binding Agreement.
(a) The Company shall require any successor to all or substantially all of its business or assets (whether direct or indirect, by purchase, merger, consolidation or otherwise), and any parent company thereof, to expressly assume and agree to perform the Company’s obligations under this Agreement.
(b) This Agreement shall not be assignable by the Executive except by will or the laws of descent and distribution. This Agreement shall inure to the benefit of and be enforceable by the Executive and his or her personal or legal representatives and successors in interest.
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If to the Company:
[Company]
[Address]
[Address] Attention: General Counsel
If to the Executive:
At the address most recently on file with the Company
or to such other address as either party may designate by written notice to the other and shall be deemed to have been given as of the date so personally delivered or mailed.
(a) This Agreement cannot be modified or any term or condition waived in whole or in part except by a writing signed by the party against whom enforcement of the modification or waiver is sought.
(b) This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware.
(c) No waiver by either party at any time of any breach of this Agreement by the other party shall be deemed a waiver of such provisions or conditions at any prior or subsequent time.
(d) The headings in this Agreement are included for convenience and shall not affect the meaning or interpretation of this Agreement.
(e) The invalidity or unenforceability of one or more provisions of this Agreement shall not affect the enforceability any other provision of this Agreement.
(f) This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, and such counterparts will together constitute one Agreement.
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| [COMPANY] | ||
| By: |
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| Name: |
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| Its: |
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| ATTEST: | ||
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| Assistant Secretary |
| EXECUTIVE | ||||
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[Form of Waiver/Release for Executive]
CONFIDENTIAL WAIVER AGREEMENT AND GENERAL RELEASE
| 1. | Introduction and General Information |
Signing this Confidential Waiver Agreement and General Release (the “Waiver/Release”) is one condition to receiving certain separation benefits provided by Fortune Brands Home & Security, Inc. (the “Company”) under the Agreement for the Payment of Benefits Following Termination of Employment dated , 2011 and currently in effect between me and the Company (the “Agreement”). I will thoroughly review and understand the effect of the Waiver/Release before signing it, and have been advised to consult an attorney before signing this Waiver/Release. I may take up to twenty-one (21) calendar days to consider whether or not to sign this Waiver/Release. However, if I wish to receive benefits under the Agreement from the Company, I must sign this Waiver/Release and return it to the Senior Vice President of Human Resources within the 21-day period.
| 2. | The Nature of this Waiver/Release |
I, [EXECUTIVE], voluntarily and of my own free will sign this Waiver/Release because the Company is agreeing to give me something of value in return for my signing this Waiver/Release (the “Consideration”). The Consideration is described in the Agreement. I understand that in return for the Consideration to be provided to me by the Company, I am waiving and releasing any claims that I might have against the Company and certain other related persons or organizations, and will make other commitments listed below. I also understand that the Agreement and the Waiver/Release reflect the final agreement between the Company and me regarding the end of my employment.
| 3. | Coverage of Waiver/Release |
I intend that this Waiver/Release bind not only me, but also my heirs, executors, administrators, successors and assigns. I also intend that this Waiver/Release cover the Company and the Company’s present and former employees, agents, directors, officers, representatives, servants subsidiaries, divisions, affiliates, parents, owners, partners, successors and assigns (“Released Parties”).
| 4. | Claims Waived and Released |
By signing this Waiver/Release, and in exchange for receiving the Consideration described in the Agreement, I completely release all claims I may have against each and every one of the Released Parties, except for the Exceptions to Release described in Paragraph 5, and including any claims I ever had or now have or can have of any nature whatsoever, whether now known to me or not known, through the date of my signing of this Waiver/Release. I understand that by waiving and releasing my claims, I am giving up my right to xxx any of the Released Parties based on any claim I may have on the date I sign this Waiver/Release.
My waiver, release and discharge of claims includes, but is not limited to, any claims arising in any way from my employment with the Company or the termination of my employment, subject to the Exceptions to Release, including local, state or federal law relating to:
a. Discrimination of the basis of sex, race, color, national origin, sexual orientation, religion, disability or veteran status;
b. Wrongful discharge (including retaliatory discharge) or any other possible restrictions on the Company’s ability to terminate its employees at will, including (i) violation of public policy, (ii) breach of any express or implied covenant of any employment contract, and (iii) breach of any covenant of good faith and fair dealing;
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c. Discrimination on the basis of age, including claims under the Age Discrimination in Employment Act (the “ADEA”), which is located at 00 Xxxxxx Xxxxxx Code, Sections 621 through 634 and any applicable state or local law prohibiting age discrimination; and
d. Civil actions relating to negligence, compensation, defamation, invasion of privacy, fraud, misrepresentation, breach of contract, denial of leave or other terms and conditions of employment, or infliction of emotional or mental distress.
[NOTE: May also include state-specific language, as applicable and required by law.]
| 5. | Exceptions to Release |
The only claims that this Waiver/Release do not include are:
a. Any claims related to the Consideration (such as claims that I did not actually receive payment or other benefits promised me in the Agreement);
| b. | Any claims related to the business expense reimbursement policy of the Company; |
c. Any claims related to my rights under the employee benefits plans of the Company, as applicable to me on the date I received this Waiver/Release;
d. Any claims that controlling law clearly states may not be released by settlement or that may not be released by private agreement; and
e. Any claims that may arise after the date this Waiver/Release is signed.
[NOTE: In many states, workers’ compensation claims cannot be waived or released privately.]
| 6. | 21-Day Consideration Period |
I have up to twenty-one (21) calendar days after receipt (the “Consideration Period”) to consider this Waiver/Release. I knowingly and voluntarily waive the remainder of the Consideration Period, if any, following the date I signed this Waiver/Release below. I have not
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been asked by the Company to shorten my time-period for consideration of whether to sign this Waiver/Release. The Company has not threatened to withdraw or alter the benefits due me prior to the expiration of the Consideration Period nor has the Company provided different terms to me if I decide to sign the Waiver/Release prior to the expiration of the Consideration Period.
| 7. | Revocation Period |
I understand that I have a seven-day period after signing this Waiver/Release in which to revoke or rescind my release, by informing the Company’s Senior Vice President of Human Resources in writing of my decision to revoke or rescind, and that this release will not be enforceable until the end of the seven-day period. No benefits will be paid under this Waiver/Release prior to the eighth day after I sign this Waiver/Release. I understand that following the seven-day revocation period, this Waiver/Release will be final and binding.
| 8. | Covenant Not to Xxx |
I promise that I will not file (or ask or allow anyone to file on my behalf) any charge, complaint, claim or lawsuit of any kind in connection with any claim released by this Waiver/Release. If I break this promise, I agree to pay all of the Company’s costs and expenses (including reasonable attorney’s fees) related to the defense of any claims. However, this promise not to xxx does not apply to non-waiveable charges or claims such as those under the Older Workers Benefit Protection Act (OWBPA) and the ADEA. Although I am releasing claims that I may have under the OWBPA and ADEA, I understand that I may challenge the knowing and voluntary nature of this Waiver/Release before a court, the Equal Employment Opportunity Commission (EEOC), or any other federal, state or local agency charged with the enforcement of any employment laws. I also understand that nothing in this Waiver/Release prevents me from filing a charge or complaint with or from participating in an investigation or
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proceeding conducted by the EEOC or any other federal, state or local agency charged with the enforcement of any employment laws. I understand, however, that if I pursue a claim against the Company under the OWBPA and/or the ADEA to challenge the validity of this Waiver/Release and prevail on the merits of an ADEA claim, a court has the discretion to determine whether the Company is entitled to restitution, recoupment, or set-off (a “Reduction”) against a monetary award obtained by me in the court proceeding. A Reduction never can exceed the amount I recover, or the Consideration, whichever is less. I also recognize that the Company may be entitled to recover costs and attorneys fees incurred by the Company as specifically authorized under applicable law.
| 9. | No Claims Implied |
The fact that I am waiving and releasing claims I may have against the Released Parties will not be construed as a suggestion that I have any such claims.
| 10. | No Admission of Liability |
It is agreed that this Waiver/Release and accompanying Agreement are not to be construed in any way as an admission of any liability whatsoever by any one or more of the Released Parties. I understand that any such liability has been expressly denied by the Released Parties.
| 11. | Confidentiality |
I agree to keep the terms and provisions of this Waiver/Release and the Agreement in strictest confidence. I will not reveal to anyone, either directly or indirectly, the Consideration involved or other terms and provisions, except the following people after I have first had them promise to keep the information confidential: my personal attorney; my tax adviser; members of my immediate family. If any of those individuals disclose the Consideration and/or other terms
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or provisions, such disclosure will be considered an indirect disclosure in breach of this provision for which I will be liable. As an exception to my obligation to keep the terms and provisions confidential, I understand that I may make disclosures of the Consideration and/or other terms and provisions as are required by law or as necessary for legitimate enforcement or compliance purposes.
| 12. | Additional Agreements and Representations |
I further agree and represent that:
a. I have not filed any legal proceedings, complaints or charges against any of the Released Parties that have not been discontinued, withdrawn or fully and finally resolved;
b. To the best of my knowledge, and with the exception of any current and pending claims, I have not suffered any workplace injury that could be the basis for a workers’ compensation or other claim.
c. I will not encourage, urge or suggest to any former or current employee of the Company or of any other of the Released Parties that she or he should file any claim or complaint against the Company or against any other of the Released Parties. However, nothing in this provision is intended to prevent or discourage me from truthfully testifying in any court or agency proceeding, or providing information to any government agency upon request.
d. It is my responsibility together with my personal legal and tax advisers to consider the effect of this Waiver/Release and Agreement on my individual tax situation, if any. It is also my responsibility to pay any taxes that any tax authority may claim are payable. I understand that neither the Company, any other of the Released Parties, nor any of their representatives make any representation to me with respect to taxes.
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e. I understand that I have agreed to certain obligations as described in this Waiver/Release and the Agreement and that these obligations are a material part of the agreement between the Company and me.
| 13. | Entire Agreement/Modification |
I understand that this Waiver/Release and the Agreement supersede any prior agreement or understanding between the Company and me and, unless expressly set forth in writing otherwise, the terms offered will constitute the sole obligations of the Company to me. Except as set forth below or in the Agreement, no other promises or representations will be binding unless in writing and signed by the Company and me. This Waiver/Release and the Agreement, however, do not affect the validity or enforceability of any obligations that I undertook or agreements I signed relating to (i) intellectual property, (ii) confidentiality, or (iii) non-solicitation and/or non-competition. These obligations remain in effect and will continue to be binding. Such obligations and agreements may include without limitation (i) the duty to sign future documents (e.g., assignments, transfers, etc.) and otherwise cooperate so that intellectual property created in the course of my employment can be recorded in the name of the Company or otherwise protected and enforced, and (ii) the duty to hold in strict confidence any proprietary, confidential or trade secret information which was disclosed to me during my employment and/or (iii) the duty to refrain from soliciting Company employees and/or customers or from otherwise competing with the Company.
| 14. | Acknowledgments |
I acknowledge that I have been advised by the Company to consult with an attorney in deciding whether to sign this Waiver/Release and Agreement prior to signing. I also acknowledge and agree that the Consideration I have received for signing this Waiver/Release is in addition to anything of value to which I was already entitled.
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| 15. | Voluntary and Knowing Execution |
I declare and represent that I have carefully read and fully understand the terms of this Waiver/Release and Agreement. I knowingly and voluntarily, of my own free will without any pressure or duress, being fully informed and after due deliberation, accept the terms of this Waiver/Release and Agreement in full compromise and settlement of all my claims. I sign this Waiver/Release and the Agreement as my own free act on the date indicated below.
| 16. | General Provisions |
The headings in this Waiver/Release are for reference only, and will not in any way affect the meaning or interpretation of this Waiver/Release. I agree that this Waiver/Release may be used as evidence in a subsequent proceeding in which the Company or I allege a breach of this Waiver/Release or as a complete defense to any lawsuit. Other than this exception, I agree that if any part of this Waiver/Release is found to be void or unenforceable by a court of competent jurisdiction, that determination will not affect the remainder of this Waiver/Release; rather, the portion found to be void or unenforceable will be deemed not to be part of this Waiver/Release or the Agreement. I also understand that any waiver of any provision of this Waiver/Release or the Agreement will not constitute a waiver of any other provision. I understand and agree that this Waiver/Release and the Agreement may be assigned by the Company and in such case will be enforceable by the Company’s successors and assignees.
| 17. | Applicable Law |
It is agreed that this Waiver/Release will be governed by the laws of Illinois, and in all cases will be interpreted according to its plain meaning, and not strictly for or against any party.
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This Waiver/Release and the Agreement may be executed in counterparts and a fully executed photocopy or facsimile copy may be used in place of the original at any time for any purpose.
| [EXECUTIVE] | Fortune Brands Home & Security, Inc. | |||||
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| By: |
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| Signature | ||||||
| Signed this day of | Signed this day of | |||||
| , | , |
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