Walgreen Co. Rewiring for Growth Salary Continuation Plan Salary Grade 18 and Above Voluntary Group Separation and Release Agreement
Walgreen Co. Rewiring for
Growth Salary Continuation Plan
Salary Grade 18 and Above
Voluntary Group
This
Separation and Release Agreement (“Agreement”) is entered into between the
undersigned employee (“Employee”) and Walgreen Co., its parents, subsidiaries,
affiliated companies, predecessors, successors and assigns ("Walgreens" or the
"Company"), who agree as follows:
1. Termination
Date. The parties agree that Employee resigns and Employee’s
employment with the Company is voluntarily terminated effective March 31, 2009,
or such other date as designated by the Company and agreed to by Employee prior
to execution of this Agreement.
2. General Waiver &
Release. Employee waives and releases any and all claims,
known or unknown, arising on or before the date Employee signs this Agreement,
that Employee has or might have against the Company, its parents, subsidiaries,
affiliated companies, predecessors, successors, and assigns, as well as all of
its and their past and present officers, directors, managers, employees,
attorneys, and agents (collectively “Released Parties”), subject only to the
exceptions identified in paragraph 3 below. These waived and released
claims include but are not limited to: (i) claims that in any way relate to
Employee’s employment, separation from employment and other dealings of any kind
with any Released Party or Parties; (ii) claims of unlawful discrimination,
harassment, retaliation or other alleged violations arising under federal,
state, local or others laws and regulations, including but not limited to claims
arising under the federal Age Discrimination in Employment Act (ADEA); Title VII
of the Civil Rights Act of 1964; the Civil Rights Act of 1866; the Employee
Retirement Income Security Act (ERISA); the Americans with Disabilities Act
(ADA); the Fair Labor Standards Act (FLSA); the Worker Adjustment and Retraining
Notification Act (WARN); and the Family and Medical Leave Act (FMLA); (iii)
claims of wrongful discharge, emotional distress, defamation, misrepresentation,
fraud, detrimental reliance, breach of alleged contractual obligations,
promissory estoppel, negligence, assault and battery, and violation of public
policy; and (iv) claims for monetary damages, other personal recovery or
relief, costs, expenses, and attorneys’ fees of any kind.
3. Claims Not Waived and
Released. The only claims not waived and not released by
Employee under paragraph 2 are (i) claims arising after the date that Employee
signs this Agreement; (ii) any claim that as a matter of law cannot be waived;
and (iii) claims for benefits that are specifically described and provided for
in this Agreement.
4. No
Disparagement. Employee will not make derogatory statements,
either written or oral, or otherwise disparage any Released Party or Walgreens
products or services, except as may be required to be permitted by
law. Nor shall Employee direct, arrange or encourage others to make
any such derogatory or disparaging statements on Employee's behalf.
5. Return of Company
Property. Employee agrees that, no later than his/her
Termination Date, Employee will have returned all Company property, and no
Company property has been retained by the Employee, regardless of the form in
which it was acquired or held by Employee.
6. Confidential Business
Information. Employee agrees not to use or disclose any
Confidential Information, as defined below, to any person or entity other than
the Company, either before or after his/her Termination Date, without the
Company's prior written consent. Confidential Information means
information not generally known by the public about processes, systems, products
or services, including proposed products or services, business information,
pricing, sales, promotions, financial performance, know-how, or trade secrets of
the Company.
7. Non-Admissions. Nothing
in this Agreement constitutes or shall be portrayed or regarded as an admission
of any wrongdoing, fault, violation, liability, or unlawful activity by the
Company or any Released Party.
8. Cooperation. Subject
to paragraph 3 above, upon reasonable notice, Employee agrees at all times to
fully and completely cooperate with the Company and its agents and
representatives, without additional compensation, during and in connection with
all litigation, potential litigation, and internal or external investigations in
which the Company is involved or may become involved, subject to reimbursement
of reasonable travel expenses if travel is requested and approved in advance by
Walgreens.
9. Investigations and Related
Proceedings. Nothing in this Agreement shall affect or
interfere with Employee’s right to participate, cooperate, initiate or assist in
an investigation or proceeding conducted within the Company or by any government
agency, oversight board, commission or other regulatory or investigative
body.
10. Reemployment
Restrictions. Employee acknowledges that he/she will not be
eligible for reemployment with the Company once he/she has terminated
employment.
11. Non-Competition and
Non-Solicitation. Employee has executed a Non-Competition,
Non-Solicitation and Confidentiality Agreement in connection with his or her
award of Restricted Stock Units for fiscal year 2009 (the “RSU Non-Compete”),
and Employee hereby acknowledges and reaffirms his/her continuing obligations
under the RSU Non-Compete in connection with the execution of this Agreement,
subject to the following modifications:
(a) The
non-competition restrictions set forth in Paragraph 2(d) of the RSU Non-Compete
shall apply through Employee’s last day worked and for a period thereafter equal
to the number of weeks for which Employee receives salary continuation benefits
under the Walgreen Co. Rewiring for Growth Salary Continuation Plan (the “Plan”)
and the Supplement for Employees Grades 12 and Higher (the “Supplement”),
regardless of the timing of payment of such benefits; and
(b) The
restrictions set forth in Paragraph 2(a-c) of the RSU Non-Compete shall apply
through Employee’s last day worked and for the two-year period immediately
following such last day worked.
12. Salary Continuation Plan
Benefits. Walgreens agrees to pay Employee benefits under the
Plan and Supplement, provided that Employee is eligible for benefits under the
terms of the Plan and Supplement and executes this
Agreement. Walgreens also agrees to pay Employee additional
compensation and benefits. Such Plan, Supplement and additional
benefits are described in the attached Exhibit A. To the extent that
Employee is eligible under the Plan and/or Supplement for a retirement bridge
under one or more Company benefit plans or programs, Employee’s execution of
this Agreement will constitute his/her official consent to any amendments to any
applicable award agreements or other plan documentation, as may be needed to
carry out the terms of the retirement bridge. Employee will receive
the same notice of changes to plans or stock options as other retired Walgreens
employees.
13. Unemployment
Compensation. Employee acknowledges that he/she is voluntarily
resigning from employment with the Company and that the Company reserves the
right to dispute any claim for unemployment compensation benefits, to the extent
permitted by law.
14. Consequences of Breach by
Employee. Plan benefits are conditioned on compliance with all
Employee commitments set forth in this Agreement. In the event of any
breach of this Agreement by Employee, the Company shall be entitled
to discontinue and recover all Plan benefits otherwise payable to Employee,
except for $200 to be retained by Employee as consideration for enforcement of
non-breached provisions of the Agreement. In addition, Employee
acknowledges that Section 11 of this Agreement is necessary to enable the
Company to maintain its competitive position and any actual or threatened breach
of this covenant will result in irreparable and continuing damage to the Company
for which there will be no adequate remedy at law. In the event of
any actual or threatened breach of these covenants, the Company shall be
entitled to injunctive relief, including the right to a temporary restraining
order, and other relief, including damages, as may be proper along with the
Company’s attorney’s fees and court costs. The foregoing stipulated
damages and remedies of the Company are in addition to, and not to the exclusion
of, any other damages the Company may be able to prove.
15. 409A
Compliance. Employee acknowledges that in order to avoid
adverse tax consequences to Employee under Section 409A of the Internal Revenue
Code, certain benefits under the Plan and Supplement may need to be paid on a
delayed basis as soon as administratively possible following the six-month
anniversary of the Termination Date.
16. New Section: The
Employee and Company agree that material changes have been made to the benefits
originally presented to the Employee by (a) revising Section 12 and adding
Exhibit A, and (b) by adding Section 15. The parties agree that such
modifications shall not restart the running of the 45-day period described in
paragraph 18(f) below.
17. Severability. In
the event that any portion of this Agreement is held by a court of competent
jurisdiction to be invalid or unenforceable, the invalid or unenforceable
portion shall be construed or modified in a manner that gives force and effect,
to the fullest extent possible, to all other portions and provisions of this
Agreement. If any invalid or unenforceable portion of any provision
in this Agreement cannot be construed or modified to render it valid and
enforceable, that portion shall be construed as narrowly as possible and shall
be severed from the remainder of this Agreement, and the remainder of this
Agreement (including the remainder of the section, paragraph, subparagraph or
sentence containing any invalid or unenforceable words) shall remain in effect
to the fullest extent possible.
18. OWBPA Provisions – Additional
Understandings. In compliance with the Older Workers Benefit Protection
Act (“OWBPA”), the Company and Employee agree to the following:
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(a)
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Understandability. This
Agreement is written in a manner calculated to be understood by the
Employee, and Employee understands all terms of this
Agreement;
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(b)
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Age Discrimination (ADEA)
Waiver. This Agreement includes a waiver and release of
claims under the Age Discrimination in Employment Act (ADEA) as described
in paragraph 2 above;
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(c)
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No Future
Waiver. This Agreement only waives and releases rights
arising prior to the date Employee signs this
Agreement;
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(d)
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Valid
Consideration. In exchange for Employee's release and
waiver as part of this Agreement, Employee acknowledges that he/she is
receiving benefits as described in the Plan and Supplement that exceed
those to which Employee is entitled apart from this
Agreement;
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(e)
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Employee Advised to Consult
with an Attorney. By this Agreement, the Company advises
Employee to consult with an attorney before signing this
Agreement;
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(f)
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Period to Consider this
Agreement. Employee has been given a period of 45
calendar days in which to consider this Agreement, and to decide whether
s/he wishes to sign it;
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(g)
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Information
Provided. Employee has received, together with this
Agreement, a listing of job titles and ages of Employees eligible or not
eligible for Plan benefits pursuant to the Rewiring for Growth
Project;
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(h)
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Period to Revoke
Agreement. After Employee signs this Agreement, Employee
has 7 calendar days in which Employee can change his or her mind and
revoke this Agreement. Walgreens and Employee agree that, to revoke this
Agreement, Employee must notify Walgreens in writing that Employee is
revoking this Agreement. Any such notice of revocation must be
received by Xxxxxx Xxxx, Divisional Vice President, Employee Relations,
000 Xxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxx 00000, fax no. (000)000-0000,
xxxxxx.xxxx@xxxxxxxxx.xxx, within the 7-day period;
and
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(i)
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Effective
Date. This Agreement shall not become effective or
enforceable until the 7-day revocation period described above has expired
with no revocation by Employee.
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19. Agreement Not Signed Before
Termination Date. Employee represents and agrees that he/she
has waited until his Termination Date before signing this
Agreement.
20. Governing Law. The
laws of the State of Illinois shall govern the validity, performance,
enforcement, interpretation and any other aspect of this Agreement,
notwithstanding any state’s choice of law provisions to the
contrary.
21. Complete
Agreement. This Agreement constitutes the parties’ entire
agreement and cancels, supersedes, and replaces any and all prior proposals,
understandings, and agreements (written, oral or implied) regarding all matters
addressed herein, except Employee shall continue to be bound by all obligations
set forth in any prior agreements, undertakings, waivers and assignments
involving confidential information, inventions, non-competition,
non-solicitation, non-inducement, patents, copyrights, trademarks and other
intellectual property, and compliance with laws and policies. The
terms of this Agreement may not be altered or modified except by written
agreement of the Employee and the Company. In connection with this
Agreement’s acceptance and execution, neither Employee nor the Company is
relying on any representation or promise that is not expressly stated in this
Agreement.
The
Employee has read everything in this Separation and Release Agreement,
understands it, and signs this Agreement voluntarily and intending to be bound
by it.
This Agreement shall not be signed or returned before the Employee’s Termination
Date.
Dated:
4/2/09
s/ Xxxxxxx X.
Xxxxxxxxxx
Employee Signature
Xxxxxxx X.
Xxxxxxxxxx
Employee Name (Print)
Dated: 4/6/09
s/ Xxxx
Xxxxxxxxx
On behalf of the Company
EXHIBIT
A
Separation Benefits for Xxxx
Xxxxxxxxxx
This
is a summary of your separation benefits. All of the detailed terms
and conditions are set forth in the Plan and Supplement and as applicable in the
underlying compensation and benefit plans and programs.
| Termination Date (PTD) | 3/31/09 |
| Vacation | Current year plus banked |
| Severance and Fiscal 09 Bonus | $1,137,430 |
| Form of vacation/severance | Lump-sum following PTD, subject to six-month delay of a /bonus paymentsportion to comply with tax law requirements (409A)* |
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Deferred
Compensation
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Enhanced
lump-sum with gross-up per Voluntary Program (subject to six-month delay
under 409A)*
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Stock
Option Exercise Periods
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Retirement
provision under stock option agreements apply (in most cases 60 months
from PTD, or 10-year expiration date, if
earlier)
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RPSP
Restricted Shares/Cash
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Accelerated
vesting and paid out at PTD (subject to six-month delay of cash payment
under 409A)*
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Fiscal
2009 Restricted Stock Units
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Pro-rated
vesting through PTD and shares distributed after PTD (subject to six-month
delay under 409A)*
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Fiscal
2009 Performance Shares
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Pro-rated
through PTD and paid out in October 2011 based on actual company
performance
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Profit
Sharing/Restoration
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Deductions
and match apply to vacation but not
severance
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Retiree
Medical
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Eligible
– begins after PTD**
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SVP
Retirement Benefits
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Co.
physical and United preferred status to age
70**
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Other
Benefits
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End
as of PTD
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| Outplacement | Up to 12 months |
* See
separate letter covering timing of payment to ensure 409A
compliance.
** Subject
to any future program/policy changes generally applicable to
retirees.
