EXHIBIT 10(rr)
POST-EMPLOYMENT AGREEMENT
AGREEMENT made as of the 10th day of March, 2004, by and between Hasbro, Inc., a
Rhode Island corporation, ("Hasbro" or the "Company") and Xxxxxx X. Xxxxxxxxxx
(the "Executive").
WHEREAS, the Executive is currently employed by the Company as Chief
Executive Officer and President;
WHEREAS, the Compensation and Stock Option Committee of the Board of
Directors of the Company has determined that it is in the best interest of the
Company and its shareholders to assure that the Executive enter into certain
post-employment obligations that will protect the Company;
WHEREAS, the Executive and the Company wish to enter into certain financial
undertakings that are competitive with other companies;
NOW, THEREFORE, in consideration of the promises and conditions set forth
herein, the sufficiency of which is hereby acknowledged, the Company and the
Executive agree as follows:
1. SEVERANCE BENEFITS.
1.1 SEVERANCE PAY UPON TERMINATION BY THE COMPANY WITHOUT CAUSE OR
BY THE EXECUTIVE FOR GOOD REASON. Subject to Section 1.10, in the event that the
Executive's employment is terminated by the Company Without Cause or by the
Executive for Good Reason, as defined herein, and provided that the Executive
executes a Severance and Settlement Agreement (including a release of claims)
drafted by the Company, substantially in the form attached hereto as Attachment
A, the Company shall pay the Executive Severance Pay of up to three (3) years
Annual Base Salary and Annual Bonus as follows: (a) if the Executive's
employment is terminated by the Company Without Cause or by the Executive with
Good
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Reason on or before September 1, 2006, the Executive shall be eligible for
Severance Pay of thirty-six (36) months Monthly Base Salary and Monthly Bonus;
(b) if the Executive's employment is terminated by the Company Without Cause or
by the Executive with Good Reason after September 1, 2006, but before March 1,
2008, the Executive shall be eligible for Severance Pay of Monthly Base Salary
and Monthly Bonus for the number of months equal to thirty-six (36) months, less
the number of whole months after September 1, 2006 during which the Executive is
employed prior to the termination of his employment by the Company; and (c) if
the Executive's employment is terminated by the Company Without Cause or by the
Executive with Good Reason on or after March 1, 2008, the Executive shall be
eligible for Severance Pay in an amount equal to eighteen (18) months of Monthly
Base Salary and Monthly Bonus. If the Executive is terminated by the Company
Without Cause and, at the time the Executive initially becomes entitled to
Severance Pay pursuant to this Section 1.1 there is in effect a Company
severance plan of general applicability for which the Executive is eligible, the
Executive shall be entitled to the greater of (a) the Severance Pay to which he
would be entitled under this Section 1.1 or (b) the severance pay to which he
would otherwise be entitled under the applicable Company severance plan. Except
as provided above, the Executive shall not be entitled to severance benefits
beyond that provided for this Agreement, regardless of any Company policy,
practice or plan.
1.2 BASE SALARY AND BONUS. For the purpose of this Agreement, the
following definitions shall apply: "Annual Base Salary" shall mean the annual
salary paid or due to the Executive for the fifty-two weeks immediately
preceding the week in which the Executive's employment is terminated. Salary
shall not include any bonuses, incentive compensation of any kind, any profit
sharing, or any Company contributions to any benefit plan. "Monthly Base
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Salary" shall be an amount equivalent to the Annual Base Salary divided by
twelve. "Annual Bonus" shall mean the target bonus provided by the 2003 Senior
Management Annual Performance Plan (100% of Annual Base Salary) or any successor
or replacement plan (in an amount of 100% Annual Base Salary unless otherwise
agreed in writing by the parties); provided, however, that if the target bonus
for the year in which the Executive's employment is terminated is eliminated by
the Company or has not been established, the Annual Bonus shall be equal to the
bonus received by the Executive in the most recent year for which the bonus was
paid. "Monthly Bonus" shall be an amount equivalent to the Annual Bonus divided
by twelve.
1.3 MEDICAL, DENTAL AND LIFE INSURANCE. As set forth herein, during
the period of time during which the Executive is receiving Severance Pay under
Section 1.1, 1.8 or 1.9, whichever is applicable (the "Severance Period"), the
Executive shall be eligible to participate in the Company's group medical,
dental and life insurance plans then in effect, or as may be amended, for
employees of the Company (provided that the Executive is otherwise eligible for
such insurance) and the Company shall pay, during that period, that portion of
the premium for group medical, dental and life insurance coverage which it
otherwise would have paid if the Executive were an active employee. Following
the Severance Period, if the Executive timely elects and is eligible for medical
and dental insurance coverage pursuant to the Federal "COBRA" law, 29 U.S.C.
Section 1161 ET SEQ., all premium costs for such coverage shall be paid by the
Executive on a monthly basis for as long as, and to the extent that, the
Executive remains eligible for and elects to continue receiving such coverage.
1.4 SEVERANCE PAYMENTS. The Severance Pay set forth in Sections 1.1,
1.8 and 1.9 shall be paid in accordance with the Company's regular payroll
practices; provided, however, that in no event shall the payment of such
Severance Pay commence until after the Severance
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and Settlement Agreement becomes final and binding. Any and all applicable
federal, state and local taxes and withholdings shall be withheld from any
severance payments.
1.5 COORDINATION WITH CHANGE IN CONTROL AGREEMENT. The benefits
payable hereunder shall be reduced by any termination benefits payable under
that certain Change in Control Agreement by and between the Company and the
Executive dated as of July 5, 1989 and amended as of March 10, 2000 (the "Change
of Control Agreement"); provided, however, that, in the event a dispute arises
regarding the Executive's entitlement to termination benefits under the Change
of Control Agreement, and provided further that such dispute does not raise an
issue regarding the Executive's entitlement to Severance Pay under Section 1.1,
the Company shall provide the Executive with unreduced Severance Pay while such
dispute is being resolved. If it is determined at any time that the Executive's
Severance Pay should have been reduced by termination benefits under the Change
of Control Agreement, the amount of any reduction shall be deducted from any
payments to the Executive under the Change of Control Agreement, or shall be
immediately repaid by the Executive.
1.6 TERMINATION BY THE COMPANY FOR CAUSE AND WITHOUT CAUSE. For
purposes of this Agreement, the following definitions shall apply: Termination
by the Company for "Cause" shall mean termination of the Executive's employment
by the Company for any of the following reasons: (a) material failure by the
Executive to perform his duties for the Company which is not remedied within a
reasonable period not to exceed 30 days, as specified in a written notice; (b)
misconduct materially and demonstrably injurious to the Company; (c) a
conviction of a felony; or (d) fraud or embezzlement of Company assets. The
Company's financial performance shall not constitute a basis for the Company to
terminate the Executive for Cause or refuse to provide the Severance Pay or
Enhanced Retirement Benefits under this Agreement.
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Termination by the Company "Without Cause" shall mean termination of the
Executive's employment by the Company for any reason other than termination for
Cause. Notwithstanding the provisions of this Section, during the three-year
period following the occurrence of a Change of Control (as defined in the Change
of Control Agreement), the term "Cause" shall have the meaning assigned to that
term under the Change of Control Agreement.
1.7 TERMINATION BY THE EXECUTIVE FOR GOOD REASON. For purposes of
this Agreement, the following definition shall apply: Termination by the
Executive for "Good Reason" shall mean termination of the Executive's employment
by the Executive, upon thirty (30) days written notice, for either of the
following reasons: (a) a material demotion of the Executive, without the
Executive's consent; or (b) a material reduction in the Executive's base salary
or target bonus, without his consent, unless such reduction is due to a
generally applicable reduction in the compensation of senior executives;
provided, however, that the Executive may not terminate his employment for "Good
Reason" unless (i) he gives notice of his intent to terminate his employment
under this provision, which notice specifies the basis(es) for invoking this
provision and (ii) the Company fails to cure any material demotion (as set forth
in subsection (a) above) or material reduction (as set forth in subsection (b)
above) so specified within thirty (30) days of the Company's receipt of the
written notice.
1.8 SEVERANCE PAY UPON TERMINATION BY MUTUAL AGREEMENT. Subject to
Section 1.10, if the Executive's employment is terminated by the parties' mutual
written agreement as a result of a family medical emergency or for such other
reason beyond the control of the Executive that results in him being unable to
work as may be mutually determined by the Company's Board of Directors and the
Executive, the Executive will not be entitled to Severance Pay under Section
1.1, but instead will be eligible for Severance Pay of eighteen (18) months
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Monthly Base Salary and Monthly Bonus, provided that the Executive executes a
Severance and Settlement Agreement (including a release of claims) drafted by
the Company, substantially in the form attached hereto as Attachment A.
1.9 SEVERANCE PAY UPON TERMINATION BECAUSE OF DISABILITY. Subject to
Section 1.10, if the Executive's employment is terminated because of disability,
the Executive will not be entitled to Severance Pay under Section 1.1, but
instead will be eligible for Severance Pay of eighteen (18) months Monthly Base
Salary and Monthly Bonus, provided that the Executive or his estate, as
applicable, executes a Severance and Settlement Agreement (including a release
of claims) drafted by the Company, substantially in the form attached hereto as
Attachment A. As used in this Agreement, the term "disability" shall mean the
inability of the Employee to perform the essential functions of his job, with or
without reasonable accommodation as may be required by State or Federal law, due
to a physical or mental disability, for a period of 120 days, whether or not
consecutive, during a rolling one-year period of the Executive's employment. A
determination of disability shall be made by a physician satisfactory to both
the Executive and the Company, PROVIDED THAT if the Executive and the Company do
not agree on a physician, the Executive and the Company shall each select a
physician and these two together shall select a third physician, whose
determination as to disability shall be binding on all parties. Any severance
payments under this Section 1.9 shall be reduced by any payments made under any
Short Term Disability or Long Term Disability policies.
1.10 CESSATION OF BENEFITS. The Company shall have no further
obligation to provide the Executive with the severance benefits set forth in
Sections 1.1, 1.3, 1.5, 1.8 and/or 1.9 ("Severance Benefits") if the Executive
violates any provision set forth in Sections 3 and/or 4
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of this Agreement and all Severance Benefits shall cease as of the date of the
violation of any provision in such Sections. Similarly, the Company shall have
no further obligation to provide the Executive with the Severance Benefits if
the Executive engages in Regular Full-Time Work during the Severance Period, of
a similar or comparable nature, whether as an employee, consultant or otherwise,
unless such activities are expressly agreed to in writing by the Company. During
the Severance Period, the following activities shall not subject the Executive
to cessation of Severance Benefits based upon his engaging in Regular Full-Time
Work: (a) service on corporate boards or committees, (b) service for civic,
charitable, or non-profit organizations, (c) lectures, speaking engagements or
teaching at educational institutions, or (d) management of personal investments.
The amount or cost of Severance Benefits, if any, provided to the Executive
after any violation of Sections 3 and/or 4 or the commencement of Regular
Full-Time Work shall be repaid to the Company immediately upon the Company's
demand for such repayment.
2. ENHANCED RETIREMENT BENEFITS.
2.1 Subject to Sections 2.5 and 2.6 herein, the Executive shall
receive an annuity payable in monthly installments, the first such installment
being paid on the first day of the month following the month in which the
Executive's employment terminates, and the last such installment being paid on
the first day of the month in which the Executive dies, in which the annual
amount is 1.5% of the Executive's Final Average Pay (as defined herein) times
his year of Benefit Service (as defined in the Hasbro, Inc. Pension Plan), but
not to exceed 60% of Final Average Pay; PROVIDED, however that if the Executive
retires or his employment is terminated before February 1, 2005 the annual
amount of such benefits shall be reduced by one third of one-percent for each
full month remaining between the month that the Executive's
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employment ends and March 1, 2005 (E.G., if the Executive's employment ends
twelve (12) months prior to March 1, 2005, the Executive shall be eligible for
96% of the otherwise due annual annuity) (such benefits, reduced as set forth in
the following sentence, shall be referred to hereafter as the "Enhanced
Retirement Benefits"). The amount payable under the preceding sentence shall be
reduced by (a) the lifetime benefits (straight life annuity) payable under the
Hasbro, Inc. Pension Plan (the "Pension Plan") and (b) the excess pension
benefits payable under the Hasbro, Inc. Supplemental Benefit Retirement Plan
(the "Supplemental Benefit Plan"). For purposes of this Section 2.1, the
Executive's Final Average Pay per year is equal to: his Five Year Average
Compensation as such term is defined in the Pension Plan, determined without
regard to any limitations imposed by Section 401(a)(17) or Section 415(b) of the
Internal Revenue Code, but including as compensation any of the Executive's
elective deferrals under Hasbro's Deferred Compensation Plan.
2.2 At the Executive's option, the benefit described in Section 2.1
shall be payable in any actuarially equivalent form of benefit provided under
the Supplemental Benefit Plan, determined using the actuarial conversion factors
used for the Supplemental Benefit Plan. Alternatively, the Executive may elect
to receive this benefit as an actuarially equivalent single lump sum using the
actuarial conversion factors used for the Supplemental Benefit Plan for this
purpose; provided, however, that the Executive must have affirmatively made such
election at least twelve (12) months in advance of the date benefits are
otherwise payable under Section 2.1.
2.3 If the Executive's employment terminates due to the Executive's
death, the Executive's spouse shall be entitled to the actuarial equivalent of a
survivor benefit equal to 100% of the Enhanced Retirement Benefits set forth in
Section 2.1 that the Executive would have received if he had begun to receive
benefits on the first day of the month following his date
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of death. The amount payable under the preceding sentence shall be reduced by
the Executive's spouse's lifetime benefits payable under the Pension Plan and
Supplemental Benefit Plan as of the date benefits are payable under this Section
2.3.
2.4 The benefits provided under Sections 2.1, 2.2 and 2.3 shall be
unfunded and shall be paid from the general assets of the Company. The
Executive's and/or his spouse's right to such benefits shall be no greater than
the rights of an unsecured general creditor of the Company. The benefits are not
assignable by the Executive prior to receipt. In the event that the Company
shall adopt a policy of funding severance or non-qualified retirement benefits
that is generally applicable to senior executives, the benefits to the Executive
will be funded in accordance with such policy.
2.5 In the event that the Executive's employment is terminated by
the Company for Cause, the Executive will not be entitled to any Enhanced
Retirement Benefits set forth in this Agreement.
2.6 If the Executive violates any provision set forth in Sections 3
and/or 4 of this Agreement, the Company shall have no further obligation to
provide the Executive with Enhanced Retirement Benefits and all such benefits
shall cease as of the date of the first such violation. The amount of Enhanced
Retirement Benefits, if any, paid to the Executive after the date of the
violation of any provision in Sections 3 and/or 4 shall be repaid to the Company
immediately upon the Company's demand for such repayment.
3. NON-COMPETITION AND NON-SOLICITATION.
3.1 While employed by the Company, the Executive shall devote all of
his business time, attention, skill and effort to the faithful performance of
his duties for the Company. However, it shall not be a violation of this
Agreement if the Executive engages in any
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of the actions permissible under Section 4(a)(ii) of the Change in Control
Agreement. For a period of eighteen (18) months after the termination or
cessation of the Executive's employment for any reason, or during the Severance
Period, whichever is greater (the "Non-Competition Period"), the Executive will
not, in the geographical areas that the Company or any of its subsidiaries does
business or has done business at the time of the Executive's departure, directly
or indirectly:
(a) Engage in any business or enterprise (whether as owner,
partner, officer, director, employee, consultant, investor, lender or otherwise,
except as the holder of not more than 1% of the outstanding stock of a
publicly-held company) that is competitive with the Company's business,
including but not limited to any business or enterprise that develops,
manufactures, markets, or sells any product or service that competes with any
product or service developed, manufactured, marketed or sold, or planned to be
developed, manufactured, marketed or sold, by the Company or any of its
subsidiaries while the Executive was employed by the Company; provided, that,
for the purposes of this Section 3.1(a), products or services that are "planned
to be developed" shall not include preliminary development plans not reduced to
writing or communicated to the Executive; or
(b) Either alone or in association with others (i) solicit,
recruit, induce, attempt to induce, or permit any organization directly or
indirectly controlled by the Executive to solicit, recruit, induce, or attempt
to induce any employee of the Company to leave the employ of the Company, or
(ii) solicit, recruit, induce, attempt to induce for employment or hire or
engage as an independent contractor, or permit any organization directly or
indirectly controlled by the Executive to solicit, recruit, induce, attempt to
induce for employment or hire or engage as an independent contractor, any person
who is employed by
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the Company or who was employed by the Company at any time during the term of
the Executive's employment with the Company; provided, that this clause (ii)
shall not apply to any individual whose employment with the Company has been
terminated for a period of six months or longer; or
(c) Either alone or in association with others, solicit,
divert or take away, or attempt to solicit, divert or take away, or permit any
organization directly or indirectly controlled by the Executive to solicit,
divert or take away, or attempt to solicit, divert or take away, the business or
patronage of any of the clients, customers or accounts, or prospective clients,
customers or accounts of the Company, which were contacted, solicited or served
by the Company at any time during the term of the Executive's employment with
the Company.
3.2 If the Executive violates the provisions of this Section 3, the
Executive shall continue to be bound by the restrictions set forth herein until
a period of eighteen (18) months (counting the period before the violation
commenced and after the violation has ceased) has expired without any violation
of such provisions or until the Non-Competition Period has expired, whichever is
longer. If any restriction set forth in this Section 3 is found by any court of
competent jurisdiction to be unenforceable because it extends for too long a
period of time or over too great a range of activities or in too broad a
geographic area, it shall be interpreted to extend only over the maximum period
of time, range of activities or geographic area as to which it may be
enforceable.
4. PROPRIETARY AND CONFIDENTIAL INFORMATION.
4.1 The Executive agrees that all information, whether or not in
writing, of a private, secret or confidential nature concerning the Company's
business, business relationships or financial affairs (collectively,
"Proprietary Information") is and shall be the exclusive property of the
Company. By way of illustration, but not limitation, Proprietary Information may
include
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discoveries, inventions, products, product improvements, product enhancements,
processes, methods, techniques, formulas, compositions, compounds, negotiation
strategies and positions, projects, developments, plans (including business and
marketing plans), research data, clinical data, financial data (including sales
costs, profits, pricing methods), personnel data, computer programs (including
software used pursuant to a license agreement), customer and supplier lists, and
contacts at or knowledge of customers or prospective customers of the Company.
The Executive will not disclose any Proprietary Information to any person or
entity other than employees of the Company or use the same for any purposes
(other than in the performance of his duties as an employee of the Company)
without written approval by an officer of the Company, either during or after
his employment with the Company, unless and until such Proprietary Information
has become public knowledge without fault by the Executive. It is understood
that disclosure of Proprietary Information by the Executive to a government
agency or court pursuant to an order from such agency or court shall not
constitute a breach of this Agreement; PROVIDED, however, that: (a) prior to
disclosing such information, and to the extent consistent with applicable law,
the Executive must provide sufficient notice of any such order to the Company to
allow the Company to oppose the disclosure; and (b) any such disclosure shall
not otherwise alter the Executive's obligations under this Agreement to keep
such information confidential.
4.2 The Executive agrees that all files, documents, letters,
memoranda, reports, records, data, sketches, drawings, models, laboratory
notebooks, program listings, computer equipment or devices, computer programs or
other written, photographic, or other tangible material containing Proprietary
Information, whether created by the Executive or others, which shall come into
his custody or possession, shall be and are the exclusive property of the
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Company to be used by the Executive only in the performance of his duties for
the Company and shall not be copied or removed from the Company premises except
in the pursuit of the business of the Company. All such materials or copies
thereof and all tangible property of the Company in the custody or possession of
the Executive shall be delivered to the Company, upon the earlier of (i) a
request by the Company or (ii) termination of the Executive's employment. After
such delivery, the Executive shall not retain any such materials or copies
thereof nor any such tangible property.
4.3 The Executive agrees that his obligation not to disclose or to
use information and materials of the types set forth in Sections 4.1 and 4.2
above, and his obligation to return materials and tangible property set forth in
Section 4.2 above also extends to such types of information, materials and
tangible property of customers of the Company or suppliers to the Company or
other third parties who may have disclosed or entrusted the same to the Company
or to the Executive.
5. NOT AN EMPLOYMENT CONTRACT. The Executive acknowledges that this
Agreement does not constitute a contract of employment, either express or
implied, and does not imply that the Company will continue the Executive's
employment for any period of time. This Agreement shall in no way alter the
Company's policy of employment at will, under which both the Executive and the
Company remain free to terminate the employment relationship, with or without
cause, at any time, with or without notice.
6. GENERAL PROVISIONS.
6.1 ENTIRE AGREEMENT. This Agreement supersedes all prior
agreements, written or oral, between the Executive and the Company relating to
the subject matter of this Agreement. This Agreement may not be modified,
changed or discharged in whole or in part,
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except by an agreement in writing signed by the Executive and the Company. The
Executive agrees that any change or changes in his duties, salary or
compensation after the signing of this Agreement shall not affect the validity
or scope of this Agreement. Nothing in this Section 6.1 shall modify, cancel or
supersede the Change in Control Agreement, Pension Plan or Supplement Benefit
Plan, all as amended, each of which remains in full force and effect.
6.2 CONTINUING OBLIGATIONS. The Executive acknowledges that he shall
be bound by the obligations set forth in Sections 3 and 4 without regard to
whether he is provided with the Severance Pay and/or Enhanced Retirement
Benefits set forth herein; provided, however, that if the Company breaches this
Agreement by failing to pay Severance Pay and/or Enhanced Retirement Benefits
due under this Agreement, and the Company does not cure the failure within 30
days of written notice of such failure, the Executive shall not be bound by the
obligations set forth in Section 3 to the extent that and for as long as such
breach continues.
6.3 SEVERABILITY. The invalidity or unenforceability of any
provision of this Agreement shall not affect or impair the validity or
enforceability of any other provision of this Agreement.
6.4 WAIVER. No delay or omission by the Company in exercising any
right under this Agreement will operate as a waiver of that or any other right.
A waiver or consent given by the Company on any one occasion is effective only
in that instance and will not be construed as a bar to or waiver of any right on
any other occasion.
6.5 EXECUTIVE ACKNOWLEDGMENT AND EQUITABLE REMEDIES. The Executive
acknowledges that the restrictions contained in this Agreement are necessary for
the protection of the business and goodwill of the Company and considers the
restrictions to be reasonable for such purpose. The Executive agrees that any
breach of this Agreement is likely to cause the
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Company substantial and irrevocable damage and therefore, in the event of any
breach of this Agreement, the Executive agrees that the Company, in addition to
such other remedies that may be available, shall be entitled to specific
performance and other injunctive relief without posting a bond.
6.6 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of both parties and their respective successors and
assigns, including any corporation or entity with which or into which the
Company may be merged or which may succeed to its assets or business, provided
however that the obligations of the Executive are personal and shall not be
assigned by the Executive.
6.7 SUBSIDIARIES AND AFFILIATES. The Executive expressly consents to
be bound by the provisions of this Agreement for the benefit of the Company or
any subsidiary or affiliate thereof to whose employ the Executive may be
transferred without the necessity that this Agreement be re-signed at the time
of such transfer.
6.8 GOVERNING LAW, FORUM AND JURISDICTION. This Agreement shall be
governed by and construed as a sealed instrument under and in accordance with
the laws of the State of Rhode Island (without reference to the conflicts of law
provisions thereof). Any action, suit, or other legal proceeding that is
commenced to resolve any matter arising under or relating to any provision of
this Agreement shall be commenced only in a court of the State of Rhode Island
(or, if appropriate, a federal court located within Rhode Island), and the
Company and the Executive consent to the jurisdiction of such a court; PROVIDED,
however, that except for a proceeding to enforce Sections 3 and/or 4, which may
be commenced by the Company in any court of competent jurisdiction located
either in Rhode Island or in the state in which the Executive lives at the time
of commencement of any such proceeding, the parties agree to
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participate in non-binding mediation, which shall be held in Providence, Rhode
Island by a mediator mutually agreed upon by the parties. If a dispute involving
or arising out of this Agreement (except for claims under Sections 3 and/or 4)
is not resolved within sixty (60) days of either party giving written notice to
the other requesting mediation, then either party may proceed with litigation as
provided for in this Section.
6.9 CAPTIONS. The captions of the sections of this Agreement are for
convenience of reference only and in no way define, limit or affect the scope or
substance of any section of this Agreement.
6.10 NOTICE AND CURE OF VIOLATIONS. The Company shall provide the
Executive written notice of any violations of Sections 3 and/or 4 which the
Company believes to have occurred if such violations may be cured by the
Executive, and the Executive shall have thirty (30) days following such notice
to cure any such violations; provided, however, that if the Executive fails to
cure, the Company shall be entitled to enforce its remedies hereunder and should
any court or fact-finder find that the Executive breached Sections 3 and/or 4,
such breach shall be deemed to have commenced as of the date of the first
violation.
6.11 NOTICES. All notices required or permitted under this Agreement
shall be in writing and shall be deemed effective upon personal delivery or upon
deposit in the United States Post Office, by registered or certified mail,
postage prepaid, addressed to the other party at the address designated herein,
or at such other address or addresses as either party shall designate to the
other in writing in accordance with this Section 6.11. Notice to the Company
shall be addressed to: Xxxxx Xxxxxx, General Counsel and Senior Vice President,
Hasbro, Inc., 0000 Xxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000-0000 and Xxxx Xxxxxx,
Esq., Xxxx and Xxxx LLP, 00 Xxxxx Xxxxxx, Xxxxxx, XX 00000. Notice to the
Executive shall be addressed to: Xxxxxx Xxxxxxxxxx,
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000 Xxxxxx Xxxxxx, Xxxxxxx, Xxxxx Xxxxxx, 00000 and V. Xxxxxx Xxxxxxx, Esq.,
Xxxxxxx & Xxxxxx LLP, 0000 Xxxxxxxxx Xxxxx, Xxxxxxxxxx, XX 00000.
WITNESS our hands and seals:
HASBRO, INC. XXXXXX X. XXXXXXXXXX
By: /s/ Xxxx X. Xxxxxxxxxx /s/ Xxxxxx X. Xxxxxxxxxx
------------------------------- -------------------------------
Xxxx X. Xxxxxxxxxx,
Chairman
Date: March 10, 2004 Date: March 10, 2004
----------------------------- ---------------------------
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Attachment A
SEVERANCE AND SETTLEMENT AGREEMENT AND RELEASE
AGREEMENT made as of the date set forth below, by and between Hasbro, Inc. (the
"Company") and Xxxxxx X. Xxxxxxxxxx (the "Executive").
WHEREAS, the parties wish to resolve amicably the Executive's separation from
the Company and establish the terms of the Executive's severance arrangement,
enhanced retirement and various other benefits, and settlement of all claims;
NOW, THEREFORE, in consideration of the promises and conditions set forth
herein, the sufficiency of which is hereby acknowledged, the Company and the
Executive agree as follows:
1. SEPARATION DATE. The Executive's effective date of separation
from the Company is _________ (the "Separation Date").
2. POST-EMPLOYMENT PAYMENT AND BENEFITS. In return for the
execution of this Severance and Settlement Agreement and Release (the "Severance
Agreement"), and provided that the Executive does not revoke his execution of
this Agreement during the seven (7) day revocation period, the Company will
provide the Executive with the following post-employment payment and benefits
(collectively "Severance Benefits"):
2.1 SEVERANCE PAY. The Company shall pay the Executive, or
the Executive's Estate as applicable, Severance Pay as set forth in Section 1
of the Post-Employment Agreement executed by the Executive and the Company on
March 10, 2004 (the "Post-Employment Agreement") for a total of ______ months
and calculated as set forth in Section 1 of the Post-Employment Agreement,
totaling ___________ dollars, less all applicable federal, state and local
taxes and withholdings and any voluntarily-authorized deductions. The
Executive acknowledges that no other Severance Pay is due to him by the
Company and that payment of the Severance Pay provided for herein constitutes
full satisfaction of the Company's Severance Pay obligations under the
Post-Employment Agreement. Such payment shall be made in accordance with the
Company's regular payroll practices; provided, however, that no payment shall
be made until the expiration of the seven (7) day revocation period.
2.2 ENHANCED RETIREMENT BENEFITS. The Company shall pay the
Executive or the Executive's surviving spouse, as applicable, Enhanced
Retirement Benefits as set forth in, and calculated pursuant to, Section 2 of
the Post-Employment Agreement. Such Enhanced Retirement Benefits shall be paid
in accordance with the Executive's timely made selections.
2.3 MEDICAL AND DENTAL INSURANCE. The Company shall
continue to provide medical and dental insurance for the Executive during the
Severance Period in the manner set forth in Section 1 of the Post-Employment
Agreement.
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3. RELEASE OF CLAIMS. In consideration of the provision of the
Severance Benefits, which the Executive acknowledges he would not otherwise be
entitled to receive, the Executive hereby fully, forever, irrevocably and
unconditionally releases, remises and discharges the Company, its officers,
directors, stockholders, corporate affiliates, subsidiaries, parent companies,
agents and employees (each in their individual and corporate capacities)
(hereinafter, the "Released Parties") from any and all claims, charges,
complaints, demands, actions, causes of action, suits, rights, debts, sums of
money, costs, accounts, reckonings, covenants, contracts, agreements, promises,
doings, omissions, damages, executions, obligations, liabilities, and expenses
(including attorneys' fees and costs), of every kind and nature which the
Executive ever had or now has against any or all of the Released Parties arising
out of the Executive's employment with or separation from the Company,
including, but not limited to, all employment discrimination claims under Title
VII of the Civil Rights Act of 1964, 42 U.S.C. Section 2000e ET SEQ., the
Americans With Disabilities Act of 1990, 42 U.S.C., Section 12101 ET SEQ., the
Age Discrimination in Employment Act, 29 U.S.C., Section 621 ET seq., and
similar state and local laws including, without limitation, the Fair Employment
Practices Act, R.I. Gen. Laws Section 28-5-1, ET SEQ., Sexual Harassment,
Education and Training Law, R.I. Gen. Laws, c.51, Section 28-51-1 ET SEQ., Equal
Pay Law, R.I. Gen. Laws, c. 42-87, Sections 28-6-17, AIDS Law, R.I. Gen. Laws,
c. 236, Sections 10 to 24, Vol. 4B, ET SEQ., Handicapped Discrimination Law,
R.I. Gen. Laws, c. 42-87, Sections 1 to 5, Vol. 6c, ET SEQ., all as amended, and
all claims arising out of the Fair Credit Reporting Act, 15 U.S.C. Section 1681
ET SEQ., the Executive Retirement Income Security Act of 1974 ("ERISA"), 29
U.S.C.Section 1001 ET SEQ., and the Parental Leave Law, R.I. Gen. Laws, c. 48,
Section 28-48-1 ET SEQ., all as amended; all common law claims including, but
not limited to, actions in tort, defamation and breach of contract, and any
claim or damage arising out of the Executive's employment with or separation
from the Company (including all claims for retaliation) under any common law
theory or any federal, state or local statute or ordinance not expressly
referenced above; provided, however, that nothing in this Agreement prevents the
Executive from filing, cooperating with, or participating in any proceeding
before the EEOC or a state Fair Employment Practices Agency (except that the
Executive acknowledges that he may not be able to recover any monetary benefits
in connection with any such claim, charge or proceeding).
This release does not waive any rights to the pay or benefits to be
provided to the Executive as set forth herein nor to the right to enforce this
Agreement, the Post-Employment Agreement or the Change of Control Agreement, nor
to any claims arising after the effective date of this Agreement. This release
does not apply to any claims arising out of the Executive's status as a
shareholder or investor in the Company or to any rights the Executive may have
under COBRA. This release does not apply to any claims the Executive may have to
any ownership interest in the Company, including but not limited to claims to
vested or non-vested stock or stock options. This release does not affect the
Executive's ability to file a claim for vested benefits, if any, under any and
all employee benefit plans of the Company, including but not limited to the
Hasbro, Inc. Pension Plan (the "Pension Plan") or the Hasbro, Inc. Supplemental
Benefit Retirement Plan (the "Supplemental Benefit Plan") and the various
insurance and disability benefit plans of the Company. This release does not
affect the
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Executive's right to continued coverage under the Company sponsored life
insurance policy applicable to the Executive's life, to the extent the Executive
is otherwise eligible. This release does not affect the Executive's right to any
funds being held for the Executive's benefit or in the Executive's name with any
deferred compensation programs of the Company nor does this release apply to any
claims the Executive may have to such deferred compensation. This release does
not affect the Executive's eligibility for indemnification in accordance with
the Company's Articles of Association or corporate by-laws or under applicable
law or as to any rights the Executive may have under any applicable insurance
policy with respect to any liability the Executive may incur or has incurred as
an employee or officer of the Company. This release does not affect any right
the Executive may have to obtain contribution as permitted by law in the event
of entry of judgment against the Executive as a result of any act or failure to
act for which the Executive and the Company, or any agent of the Company, are
jointly liable.
4. INVENTION, NON-DISCLOSURE, NON-COMPETITION AND NON-SOLICITATION.
The Executive acknowledges his continuing obligations under the Invention and
Non-Disclosure Agreement executed by the Executive on March 10, 2004 ("Invention
Agreement"), the Change of Control Agreement, and the Post-Employment Agreement,
including, but not limited to, his obligations to keep confidential all
non-public information concerning the Company which he acquired during the
course of his employment with the Company, as stated more fully in the Invention
Agreement, Change of Control Agreement and Post-Employment Agreement, which
remain in full force and effect. The Executive also acknowledges his continuing
non-competition and non-solicitation obligations under the Post-Employment
Agreement.
5. RETURN OF COMPANY PROPERTY. The Executive confirms that he has
returned to the Company all keys, files, records (and copies thereof),
documents, equipment (including, but not limited to, computer hardware, software
and printers, wireless handheld devices, cellular phones, pagers, etc.), Company
identification, and any other Company-owned property in the Executive's
possession or control and has left intact all electronic Company documents,
including but not limited to those which the Executive developed or helped
develop during his employment. The Executive further confirms that he has
cancelled all accounts for his benefit, if any, in the Company's name, including
but not limited to, credit cards, telephone charge cards, cellular phone and/or
pager accounts and computer accounts.
6. NON-DISPARAGEMENT. The Executive understands and agrees that as
a condition for payment to him of the Severance Benefits, he will not make any
false, disparaging or derogatory statements to any media outlet, industry group,
financial institution or current or former employee or employer(s), consultant,
client or customer of the Company regarding the Company or any of its directors,
officers, employees, agents or representatives or about the Company's business
affairs and financial condition. Notwithstanding the foregoing, nothing in this
paragraph shall prevent the Executive from making any truthful statement to the
extent (a) necessary with respect to any litigation, arbitration or mediation
involving this Agreement, the Post-Employment Agreement, or the Change in
Control Agreement, and including, but not limited to, the enforcement of these
agreements, (b) required by law or by any court, arbitrator, mediator or
administrative or legislative body (including any committee thereof) with
apparent jurisdiction to order the Executive to disclose or make accessible such
information or (c) necessary to correct or refute an incorrect statement made by
the Company in connection with the Executive's separation from the Company.
7. NATURE OF AGREEMENT. The Executive understands and agrees that
this Agreement is a settlement agreement and does not constitute an admission of
liability or wrongdoing on the part of the Company.
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8. AMENDMENT. This Agreement shall be binding upon the parties and
may not be abandoned, supplemented, changed, amended or modified in any manner,
orally or otherwise, except by an instrument in writing of concurrent or
subsequent date signed by a duly authorized representative of the parties
hereto. This Agreement is binding upon and shall inure to the benefit of the
parties and their respective agents, assigns, heirs, executors, successors and
administrators.
9. WAIVER OF RIGHTS. No delay or omission by the Company or the
Executive in exercising any rights under this Agreement shall operate as a
waiver of that or any other right. A waiver or consent given by either party on
any one occasion shall be effective only in that instance and shall not be
construed as a bar or waiver of any right on any other occasion.
10. VALIDITY. Should any provision of this Agreement be declared or
be determined by any court of competent jurisdiction to be illegal or invalid,
the validity of the remaining parts, terms, or provisions shall not be affected
thereby and said illegal or invalid part, term or provision shall be deemed not
to be a part of this Agreement.
11. APPLICABLE LAW, FORUM AND JURISDICTION. This Agreement shall be
governed by and construed as a sealed instrument under and in accordance with
the laws of the State of Rhode Island (without reference to the conflicts of law
provisions thereof). Any action, suit or other legal proceeding that is
commenced to resolve any matter arising under or relating to any provision of
this Agreement shall be commenced only in a court of the State of Rhode Island
(or, if appropriate, a federal court located within Rhode Island), and the
Company and the Executive consent to the jurisdiction of such a court; provided,
however, that the parties agree to participate in non-binding mediation, which
shall be held in Providence, Rhode Island by a mediator mutually agreed upon by
the parties. If a dispute involving or arising out of this Agreement is not
resolved within sixty (60) days of either party giving written notice to the
other requesting mediation, then either party may proceed with litigation as
provided for in this Section.
12. ACKNOWLEDGMENTS. The Executive acknowledges that he has had an
opportunity to consult with an attorney of his own choosing prior to signing
this Agreement, and has had an opportunity to ask his attorney any questions he
may have about this Agreement. The Executive acknowledges that he has been
provided with 21 days to consider this Agreement. Further, the Executive
acknowledges that he may revoke this Agreement for a period of seven (7) days
after he signs this Agreement, and the Agreement shall not be effective or
enforceable until the expiration of this seven (7) day revocation period. The
Executive acknowledges that he has been reimbursed by the Company for all
relocation costs and business expenses, if any, incurred in conjunction with the
performance of his employment and that no other reimbursements are owed to the
Executive. The Executive further acknowledges that he has received payment in
full for all services rendered in conjunction with his employment by the Company
and that no other compensation is owed to him, except as set forth in this
Agreement or in one of more of the other agreements referred to in this
Agreement.
13. VOLUNTARY ASSENT. The Executive affirms that no other promises
or agreements of any kind have been made to or with him by any person or entity
whatsoever to cause him to sign this Agreement, and that he fully understands
the meaning and intent of this
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Agreement. The Executive further states and represents that he has carefully
read this Agreement and understands the contents therein, freely and voluntarily
assents to all of the terms and conditions of this Agreement, and signs his name
to this Agreement of his own free act.
14. DEFINED TERMS. Any terms not defined in this Agreement shall
have the same definition as provided in the Post-Employment Agreement between
the Company and the Executive dated March 10, 2004.
15. RECITAL PARAGRAPHS. The Recital Paragraphs at the beginning of
this Agreement are hereby incorporated by reference as if fully set forth
herein.
15. CONSTRUCTION. The language used in this Agreement is the
language chosen by the parties to express their mutual intent, and no rule of
strict construction shall be applied against any party.
IN WITNESS WHEREOF, all parties have set their hand and seal to this Agreement
as of the date written below.
HASBRO, INC.
By: Date:
--------------------------------- ------------------------------
By: Date:
--------------------------------- ------------------------------
Xxxxxx X. Xxxxxxxxxx
DEPENDING UPON THE EXECUTIVE'S STATUS AND ELECTIONS RELATIVE TO PARAGRAPH 2
ABOVE, THE EXECUTIVE'S SPOUSE AND/OR A DULY AUTHORIZED REPRESENTATIVE OF THE
EXECUTIVE'S ESTATE WILL BE THE SIGNATORY TO THIS AGREEMENT.
By: Date:
--------------------------------- ------------------------------
[INSERT SPOUSE'S NAME]
By: Date:
--------------------------------- ------------------------------
[INSERT NAME OF DULY AUTHORIZED
REPRESENTATIVE OF ESTATE]
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