AGREEMENT & RELEASE
Exhibit 10.1
AGREEMENT & RELEASE
GenCorp Inc. (Company) and Xxxxxxx X. Xxxxx, Xx. (Employee) have entered into this Agreement &
Release (Agreement & Release) to agree to Employee’s resignation as an officer of the Company, to
establish Employee’s continued employment duties and to settle all issues between the parties
hereto. Except to the extent governed by federal law, this Agreement & Release shall be governed
by the statutes and common law of California, excluding any that mandate the use of another
jurisdiction’s laws.
RECITALS
| A. | Effective March 11, 2002, Employee commenced employment with the Company in the position of President, Real Estate and has been continuously employed in that position since that time. | ||
| B. | The Company desires to reassign Employee and establish new duties for Employee. | ||
| Accordingly, the Company and Employee agree as follows: |
Section 1 — Resignation as Officer; Other Agreements
(a) Resignation as Officer: Effective on January 29, 2007 (Effective Date), Employee will
resign his position as Vice President of the Company and President, Real Estate and will assume the
new position and duties described in Section 2(a) hereof.
(b) Resignation of Employment: Unless this Agreement & Release is earlier terminated,
effective June 30, 2008, Employee will resign from all employment with the Company, and on such
date, or if earlier, his last day of employment (Termination Date), Employee will re-execute this
Agreement & Release after which the Company will provide the consideration described more fully in
Section 2(d)(ii) hereof.
(c) Re-Execution of Agreement & Release: Employee agrees that his re-execution of this
Agreement & Release shall update this Agreement & Release to waive any Claims (as defined in
Section 5(b) hereof) that may have accrued since Employee first executed this Agreement & Release.
(d) Termination of Severance Agreement: In consideration of the benefits and payments made to
Employee under this Agreement & Release as provided in Section 2 hereof, and in consideration of
the additional amount of $1,000 to be paid to Employee within fifteen (15) days after the Effective
Date as well as other good and valuable consideration, Employee hereby agrees that that certain
Severance Agreement by and between the Company and Employee signed on August 28, 2006 but effective
as of January 1, 2006 (Change in Control Agreement), is hereby terminated as of the Effective Date,
and Employee shall have no rights under the Change in Control Agreement after the Effective Date,
and such Change in Control Agreement shall be null and void as of the Effective Date.
Section 2 — Benefits and Consideration for Release
If Employee signs and does not revoke this Agreement & Release, then in return for the
promises and acknowledgements herein, the Company will provide Employee with the following
consideration, amounts and/or benefits set forth in this Section 2, which consideration is
conditioned on Employee’s promise to re-execute this Agreement & Release on the Termination Date:
(a) New Duties: Commencing on the Effective Date, Employee will be re-assigned to a new
position with the Company, the duties of which are set forth on Schedule A attached hereto and made
a part hereof (Duties). Employee agrees to use his reasonable commercial efforts to carry out his
Duties. Employee will report to the Company’s Chief Executive Officer or his designee.
(b) Pre-Termination Consideration: Commencing on the Effective Date, Employee will receive
salary (at the rates specified below) less appropriate deductions, and pro-rated for any partial
months, which shall be paid on the Company’s regular paydays, through June 30, 2008 or, if earlier,
the Termination Date. Subject to the provisions of Section 5(f) hereof, prior to the Termination
Date, salary will be paid at the rate of (i) $24,167 per month during the period commencing on the
Effective Date and ending on the March 31, 2008, and (ii) $17,500 per month during the period
commencing on April 1, 2008 and ending on June 30, 2008. Except as otherwise noted herein, until
the Termination Date, Employee will continue to be eligible to participate in all applicable
Company medical, dental, vision, life insurance, healthcare spending account, retirement and
benefit restoration plans, as well as any other benefits provided by the Company, in which Employee
participated prior to the Effective Date.
(c) Accrued Vacation Pay: Within fifteen (15) days after the Effective Date, the Company will
pay to Employee a lump sum amount, less applicable withholding taxes and other deductions equal to
the amount of his vacation pay accrued through the Effective Date.
(d) Cash Payments:
(i) Employee will receive a lump sum payment of $2,500 within fifteen (15) days after
Employee first executes this Agreement & Release.
(ii) Upon the Termination Date and re-execution of this Agreement & Release, the
Company will pay Employee $20,000 unless Employee thereafter properly revokes his waiver of
ADEA claims in accordance with Section 5(f) hereof, in which case the portion of such
payment being paid for his ADEA waiver (as specified in Section 5(f) hereof) shall not be
paid.
(e) Golf Membership: Within fifteen (15) days after the Effective Date, Employee shall pay to
the Company the amount of $30,000 in payment for that certain golf membership owned by the Company
pursuant to that certain Subscription Agreement by and between the Company and Granite Bay Golf
Club, Inc. dated November 2002 and related documents (the “Membership”), to the extent the
Membership allows such transfer. Employee and the Company agree to execute any and all documents
necessary to transfer the Membership to Employee to the extent the Membership allows such transfer.
Employee shall be responsible for any taxes associated with such transfer.
(f) Unvested Equity: As of the Effective Date, the equity awards previously awarded to
Employee that remain unvested as set forth on Schedule B attached hereto and made a part hereof
shall be forfeited by Employee. Within fifteen (15) days after Employee first executes
this Agreement & Release, the Company shall pay to Employee the amount of $62,500 in
consideration for forfeiting and cancelling all such unvested awards and Employee shall have no
rights to any of such awards. Employee and the Company agree to execute any and all documents
necessary to accomplish the forfeiture and cancellation of such awards. Nothing in this Agreement
& Release is intended to diminish or alter any rights Employee may have in any vested equity awards
(e.g. stock and/or stock options) that vested and became non-forfeitable prior to the Effective
Date.
Section 3 — Benefits After the Effective Date
(a) Compensation and Benefit Plans Terminating on the Effective Date: Notwithstanding
anything contained in this Agreement & Release to the contrary, Employee will not participate under
any stock option, bonus, incentive compensation, or commission plan of the Company or any affiliate
following the Effective Date. Employee acknowledges and understands that, following the Effective
Date, he will not be eligible for any future grants of stock options, stock appreciation rights,
stock grants or other equity based compensation, whether non-qualified, restricted or other.
(b) Compensation and Benefit Plans Terminating on the Termination Date: Employee will not
participate in any medical, dental, vision, life insurance, retirement, and other compensation or
benefit plans of the Company or any affiliate following the Termination Date. Thereafter, Employee
will have no rights under any of those plans, except as follows:
(i) Group Insurance: Employee will have his legally-mandated rights, if any,
to COBRA continuation coverage as to any Company-provided medical, dental, or vision plan
in which he participates.
(ii) Retirement Benefits: Employee will retain his vested benefits under all
qualified and non-qualified retirement plans of the Company and all rights associated with
such benefits, as determined under the official terms of those plans.
(c) Payments under this Agreement & Release: Payments made under this Agreement & Release
(other than payments of salary as provided in Section 2(b) hereof; if applicable, payments of
salary as provided in Section 4(b) hereof; and payments for accrued vacation as provided in Section
2(c) hereof) will not be included in Employee’s compensation for purposes of calculating the
benefits to which he is entitled under any employee benefit program, notwithstanding anything in it
to the contrary.
(d) Vacation: Following the Effective Date, Employee will no longer accrue any vacation.
Section 4 — Termination of Employment Prior to June 30, 2008
(a) Termination: The Company and Employee agree that, regardless of any other provision
herein, Employee’s employment hereunder may be terminated under the following circumstances.
However, the Company and Employee agree that if employment is terminated under
the following
circumstances, this Agreement & Release is not cancelled and the consideration provisions below
provide Employee’s exclusive remedy for termination of employment:
(i) Death. Employee’s employment with the Company shall terminate upon his
death;
(ii) Termination by Company for Cause. Upon fifteen (15) days written notice
to Employee, and subject to Employee’s right to cure as described in Section 4(b)(iii)
hereof, the Company may terminate Employee’s employment with the Company for Cause (as
defined below);
(iii) Termination by Company without Cause. Upon written notice to Employee,
the Company may terminate Employee’s employment with the Company without Cause;
(iv) Termination by Employee for Good Reason. Upon fifteen (15) days written
notice to the Company, and subject to the Company’s right to cure as described in Section
4(b)(iv) hereof, Employee may terminate his employment with the Company for Good Reason (as
defined below); or
(v) Termination by Employee without Good Reason. Upon written notice to the
Company, Employee may terminate his employment with the Company without Good Reason.
(b) Consideration Upon Termination:
(i) Termination by the Company without Cause or by Employee for Good Reason or by
Employee’s Death. If prior to June 30, 2008, (1) the Company terminates Employee’s
employment without Cause, (2) Employee resigns his employment for Good Reason (subject to
the Company’s right to cure described in Section 4(b)(iv) hereof), or, (3) Employee’s
employment is terminated by his death, then upon re-execution of the Agreement & Release by
Employee (or his legal representative as the case may be) after such termination as
provided in Section 2(d) hereof, the Company shall pay to Employee (or his estate as
applicable) not later than fifteen (15) days following the date of such termination an
amount equal to (i) the total amount of salary and accrued vacation payments required
under Sections 2(b) and 2(c) hereof, less (ii) any salary or accrued vacation amounts
already paid under Sections 2(b) and 2(c) hereof after the Effective Date; and any amounts
due and payable under Sections 2(d) and 2(f) hereof.
(ii) Termination by the Company with Cause or by Employee for any reason except
Good Reason. Subject to Employee’s right to cure described in Section 4(b)(iii)
hereof, if, before June 30, 2008, Employee’s employment is terminated by the Company with
Cause or by Employee for any reason other than Good Reason, the Company shall have no
further obligation to Employee for any benefits under Sections 2(b) and 2(d) hereof.
(iii) Definition of Cause. For purposes of this Agreement & Release, “Cause”
means that Employee shall have committed:
| a. | a criminal violation involving fraud, embezzlement or theft in connection with his duties or in the course of his employment with the Company or any subsidiary; | ||
| b. | intentional wrongful damage to property of the Company or any subsidiary; or | ||
| c. | intentional wrongful disclosure of information of the Company or any subsidiary that Employee knows or reasonably should have known is confidential. |
In the event that the Company gives Employee written notice that it intends to terminate
Employee’s employment for Cause, then in such written notice the Company shall set forth the basis
for its conclusion that it has Cause to terminate Employee’s employment. Employee shall thereafter
have fifteen (15) days within which to cure the conduct alleged to be Cause for termination and/or
to demonstrate to the Company’s satisfaction, which satisfaction shall not unreasonably be
withheld, why no Cause for termination exists.
(iv) Definition of Good Reason. For purposes of this Agreement & Release,
“Good Reason” means:
| a. | a significant increase in, or significant adverse change in the nature or scope of, the Duties; | ||
| b. | conduct by the Company that otherwise would support a claim of “constructive discharge” within the meaning of California law; or | ||
| c. | material breach by the Company of any of its obligations under this Agreement & Release including, but not limited to, a failure to pay when due any of the amounts under Sections 2(b)-(d) and Section 2(f), inclusive. |
In the event that Employee gives the Company written notice that he intends to terminate his
employment for Good Reason, then in such written notice Employee shall set forth the basis for his
conclusion that he has Good Reason to terminate his employment. The Company shall thereafter have
fifteen (15) days within which to cure the conduct alleged to be Good Reason for termination and/or
to demonstrate to Employee’s satisfaction, which satisfaction shall not unreasonably be withheld,
why no Good Reason for termination exists.
(v) No Termination Without Cause Period. Prior to September 30, 2007, the
Company may not terminate Employee’s employment hereunder, except for Cause. If, prior to
September 30, 2007, Employee terminates his employment hereunder for Good Reason, then such
termination shall be deemed to have occurred and to be effective no earlier than September
30, 2007.
Section 5 — Employee Release
(a) In General: Employee irrevocably and unconditionally releases all the claims described in
Section 5(b) hereof that he may now have against the Released Parties listed in Section 5(d)
hereof.
(b) Claims Released: The claims released under Section 5(a) hereof include all known and
unknown claims, promises, causes of action, or similar rights of any type that Employee presently
may have (Claims) with respect to any Released Party listed in Section 5(d) hereof. Employee
understands that the Claims he is releasing might arise under many different foreign, domestic,
national, state, or local laws (including statutes, regulations, other administrative guidance, and
common law doctrines), such as the following:
Anti-discrimination statutes, such as the Age Discrimination in Employment
Act and Executive Order 11,141, which prohibit age discrimination in employment;
Title VII of the Civil Rights Act of 1964, Sections 1981 and 1983 of the Civil
Rights Act of 1866, and Executive Order 11,246, which prohibit discrimination
based on race, color, national origin, religion, or sex; the Equal Pay Act, which
prohibits paying men and women unequal pay for equal work; the Americans With
Disabilities Act and Sections 503 and 504 of the Rehabilitation Act of 1973, which
prohibit discrimination based on disability; and any other federal, state, or
local laws prohibiting discrimination, such as the California Fair Employment and
Housing Act, which prohibits discrimination in employment based on actual or
perceived race, religion, color, national origin, ancestry, physical or mental
disability, medical condition, marital status, sex, age, sexual orientation, or
association with a person who has, or is perceived to have, and any of those
characteristics.
Federal employment statutes, such as the WARN Act, which requires that
advance notice be given of certain work force reductions; Employee Retirement
Income Security Act of 1974, which, among other things, protects employee
benefits; the Fair Labor Standards Act of 1938, which regulates wage and hour
matters; the Family and Medical Leave Act of 1993, which requires employers to
provide leaves of absence under certain circumstances; and any other federal laws
relating to employment, such as veterans’ reemployment rights laws.
Other laws, such as any federal, state, or local laws providing workers’
compensation benefits, mandating leaves of absence, restricting an employer’s
right to terminate employees, or otherwise regulating employment; any federal,
state, or local law enforcing express or implied employment contracts or requiring
an employer to deal with employees fairly or in good faith; any other federal,
state, or local laws providing recourse for alleged wrongful discharge, tort,
physical or personal injury, emotional distress, fraud, negligent
misrepresentation, defamation, and similar or related claims, and any other law,
such as California Labor Code Section 200 et seq., relating to salary, commission,
compensation, benefits, and other matters, the California Workers’ Compensation
Act, and any applicable California Industrial Welfare Commission order.
Examples of released Claims include, but are not limited to the following
(except to the extent explicitly preserved by Sections 2(b), 3(b), 5(e) or 5(f)
hereof): (i) Claims that in any way relate to or arose during Employee’s
employment with the Company, or the termination of that employment, such as Claims
for compensation, bonuses, commissions, lost wages, or unused accrued vacation or
sick pay; (ii) Claims that in any way relate to the design or administration of
any employee benefit program; (iii) Claims that Employee has irrevocable or vested
rights to severance or similar benefits or to post-employment health or group
insurance benefits; (iv) any Claims to attorneys’ fees or other indemnities (such
as under the Civil Rights Attorneys’ Fees Act), with respect to Claims Employee is
releasing; or (v) any rights under the Change in Control Agreement described in
Section 1(d) hereof.
(c) Unknown Claims: Employee expressly waives all rights he might have under any law that is
intended to protect him from waiving unknown claims (such as California Civil Code Section 1542),
and understand that this Release extends to unknown claims as well.
(d) Released Parties: The Released Parties are the Company, all current and former parents,
subsidiaries, related companies, partnerships, or joint ventures, and, with respect to each of
them, their predecessors and successors; and, with respect to each such entity, all of its past,
present, and future employees, officers, directors, stockholders, owners, representatives, assigns,
attorneys, agents, insurers, employee benefit programs (and the trustees, administrators,
fiduciaries, and insurers of such programs), and any other persons acting by, through, under or in
concert with any of the persons or entities listed in this Section 5(d), and their successors.
(e) Claims Not Released and Excluded Claims: This Agreement & Release does not release: (i)
any rights or claims that arise after the Effective Date until Employee re-executes this Agreement
& Release as provided in Section 1(b) hereof; (ii) any rights or claims that arise after the
Termination Date; or (iii) Employee’s right to enforce this Agreement & Release. Excluded from
the general releases above are any claims or rights that cannot be waived by law including, but not
limited to, Employee’s right to be indemnified by Company as provided in California Labor Code §
2802. Also excluded from the general release is Employee’s right to file a charge with an
administrative agency or participate in any agency investigation. Employee understands, however,
that he is waiving, and hereby does, waive the right to recover any money in connection with such a
charge or investigation.
(f) Revocation Rights of ADEA Waiver:
(1) Revocation Following Execution Date: Employee understands that he may revoke this
Agreement & Release, including the waiver of ADEA claims in Sections 5(b) and 7(b) hereof within
seven (7) days after first executing this Agreement & Release. The last day on which this
Agreement Release can be revoked is called the “Last Revocation Day.” Revocation can be made by
delivering a written notice of revocation to:
(courier service — Xxxxxxx 00 & Xxxxxxx Xxxx
Xxxxxx Xxxxxxx, XX 95742)
Tel: (000) 000-0000
Fax: (000) 000-0000
Xxxxxx Xxxxxxx, XX 95742)
Tel: (000) 000-0000
Fax: (000) 000-0000
For this revocation to be effective, it must be received no later than the close of business on the
Last Revocation Day. If Employee revokes, this Agreement & Release shall not be effective and
Employee will not receive the benefits described in Section 2 hereof (other than those benefits
required to be provided to Employee by law (e.g. payment of accrued vacation). If Employee does
not revoke this Agreement & Release, it shall go into effect on the day after the Last Revocation
Day and the benefits described in Section 2 shall be provided, subject to the provisions of Section
5(f)(2) hereof.
(2) Revocation Following Termination Date: Employee further understands that within
seven (7) days after re-executing this Agreement & Release following the Termination Date, Employee
has a right to revoke only the portion of the Agreement & Release covering the waiver of ADEA
claims in Sections 5(b) and 7(b) hereof arising after the Effective Date but before the Termination
Date. Employee acknowledges that seventy five percent (75%) of the consideration paid under
Section 2(d) hereof is to induce him to release any claims he may have under the Age Discrimination
in Employment Act (ADEA). If Employee properly revokes his waiver of ADEA claims in accordance
with this Section 5(f)(2), the portion of each such payment being paid for his ADEA waiver under
Section 2(d)(ii) hereof (as specified in this Section 5(f)(2)) shall not be paid, in which case he
will not receive the amounts or benefits that are being paid to for his release of ADEA claims and
his agreement to release ADEA claims will never go into effect. Employee acknowledges that his
waiver of ADEA claims under those sections constitutes an entirely separate agreement from the
balance of this Agreement & Release (including those sections to the extent they waive non-ADEA
claims).
Section 6 — Company Release
The Company, on behalf of itself and the other Released Parties:
(i) irrevocably and completely releases Employee, his heirs, administrators,
executors, successors and assigns, from any and all known and unknown claims, promises,
causes of action, damages, costs, liabilities or similar rights of any type that the
Company and Released Parties now have or may have had against Employee at any time up to
the Effective Date;
(ii) acknowledges and agrees that delivery to Employee of the final payment required
to be made pursuant to Section 2(d)(ii) will be deemed to update this Company Release to
waive any claims that the Company and Released Parties may have accrued since the Company
first executed this Agreement & Release; and
(iii) expressly waives all rights the Company and the Released Parties might have
under any law that is intended to protect them from waiving unknown claims (such as
California Civil Code Section 1542).
Section 7 — Promises
(a) Employment Termination: Employee agrees that his employment with the Company and its
affiliates will end on the Termination Date and that he is accepting payments and benefits under
this Agreement & Release in lieu of any other rights or benefits to which he possibly could be or
become entitled as a result of his continued employment with the Company.
(b) Pursuit of Claims: Neither party hereto has filed, initiated, or prosecuted (or caused to
be filed, initiated, or prosecuted) any lawsuit, complaint, charge, action, compliance review,
investigation, or proceeding with respect to any claim released in Section 5 or 6 (as applicable)
hereof, and each party hereto promises never to do so in the future, whether as a named plaintiff,
class member, or otherwise. Employee promises to request any administrative agency or other body
assuming jurisdiction of any such lawsuit on his behalf, to withdraw from the matter or dismiss it
with prejudice. However, the two preceding sentences shall not preclude Employee from filing or
prosecuting a charge with any administrative agency with respect to any such Claim as long as
Employee does not seek any damages, remedies, or other relief recovery of which has been released
by virtue of this Agreement & Release. This Section 7(b) shall not prohibit Employee from
challenging the validity of the ADEA Claim release in Section 5(b) hereof. If Employee is ever
awarded or recovers any amount as to a Claim Employee has purported to waive in this Agreement &
Release, Employee agrees that the amount of the award or recovery shall be reduced by the amounts
Employee was paid under this Agreement & Release, increased appropriately for the time value of
money, using an interest rate of ten percent (10%) per annum. To the extent such a setoff is not
effected, Employee promises to pay, or assign to the Company his right to receive, the amount that
should have been set off. Employee promises never to bring or participate in an action against any
Released Party under California Business & Professions Code Section 17200 or under any other unfair
competition law of any jurisdiction.
(c) Company Property and Debts: On or before the Termination Date, or earlier at the request
of the Company, Employee will return to the Company all files, memoranda, documents, records,
copies of the foregoing, Company-provided credit cards, keys, building passes, security passes,
access or identification cards, and any other property of the Company or any Released Party in his
possession or control and will have cleared all expense accounts, repaid everything he may owe to
the Company or any Released Party, paid all amounts he may owe on Company-provided credit cards or
accounts (such as cell phone accounts), and canceled or personally assumed any such credit cards or
accounts.
(d) Taxes: Employee acknowledges that he is responsible for paying any taxes on amounts he
actually or constructively receives as a result of this Agreement & Release. Employee agrees that
the Company is to report such payments to tax authorities and to withhold taxes from them as it
determines it is legally required to do.
(e) Ownership of Claims: The parties represent that they have not assigned or transferred any
claim they are purporting to release, nor have they attempted to do so.
(f) Non-admission of Liability: Nothing in this Agreement & Release is intended to be or
should be construed as an admission of wrongdoing or liability by either party hereto.
(g) No Disparagement or Harm: The parties hereto agree not to criticize, denigrate, or
otherwise disparage one another. Specifically, Employee agrees not to criticize, denigrate, or
otherwise disparage any Released Party or any of the Company’s products, processes, experiments,
policies, practices, standards of business conduct, or areas or techniques of research. In the
event that any future potential employer of Employee contacts the Company for an employment
recommendation, the Company is authorized to state the dates of Employee’s employment with the
Company, his position(s) with the Company and his ending salary. Nothing in this Section 7(g)
shall prohibit Employee from responding truthfully to any inquiry made of him by any officer,
employee or director of the Company with respect to any matter pertaining either to the business of
the Company or to any Released Party. In addition, nothing in this Section 7(g) shall prohibit
either party from complying with any lawful subpoena or court order or taking any other actions
affirmatively authorized or required by law.
(h) Existing Obligations Continue: Employee agrees to remain bound by any Company or Company
affiliate agreement or policy relating to confidential information, invention, or similar matters
to which he may now be subject. Nothing in this Section 7(h) is intended to prohibit Employee from
engaging in personal business activities that do not materially interfere with the performance of
his Duties.
(i) Implementation and Cooperation: The parties agree to cooperate as necessary with one
another, including executing any documents, to implement this Agreement & Release and in connection
with any transfer of responsibilities from Employee to others.
(j) False Claims Representations and Promises: Employee has disclosed to the Company any
information he has concerning any conduct involving the Company or any affiliate that he has any
reason to believe may be unlawful or that involves any false claims to the United States. Employee
promises to cooperate fully in any investigation the Company or any affiliate undertakes into
matters occurring during his employment with the Company or any affiliate. Employee understands
that nothing in this Agreement & Release prevents him from cooperating with any U.S. government
investigation. In addition, to the fullest extent permitted by law, Employee hereby irrevocably
assigns to the U.S. government any right he may have to any proceeds or awards in connection with
any false claims proceedings against the Company or any affiliate.
(k) Confidentiality: Employee understands that the Company is required to publicly file a
copy of this Agreement & Release with the Securities & Exchange Commission and the Company may do
so without the prior approval of Employee. After the Effective Date, except as required by law,
Employee agrees to keep the substance of the negotiations leading to this Agreement & Release
confidential and shall not disclose such matters to any third person, other than attorneys,
accountants, tax preparers and other financial advisors for Employee. If Employee is served with a
subpoena or other legal process that would require the disclosure of such matters, Employee shall
immediately notify the Company so that the Company may seek a protective order or other appropriate
remedy and/or waive compliance with the provisions of this Section 7(k).
(l) Consideration of Release: Employee acknowledges that, in compliance with the Age
Discrimination in Employment Act, before signing this Agreement & Release and before re-executing
it upon his Termination Date, he was given at least 21 days in which to consider this Agreement &
Release. Employee waives any right he might have to additional time within which to consider this
Agreement & Release. Employee further acknowledges that: (1) he took advantage of the time he was
given to consider this Agreement & Release before signing it; (2) he carefully read
this Agreement & Release; (3) he fully understands it; (4) he is entering into it voluntarily;
(5) he is receiving valuable consideration in exchange for the execution of this Agreement &
Release that he would not otherwise be entitled to receive; and (6) the Company, in writing,
encouraged him to discuss this Agreement & Release with my attorney (at his own expense) before
signing it, and that he did so to the extent he deemed appropriate. Employee also acknowledges and
understands that he may revoke this Agreement & Release anytime within seven (7) days after signing
it.
Section 8 — Miscellaneous
(a) Entire Agreement: This Agreement & Release is the entire agreement between the parties
relating to Employee’s employment with the Company after the Effective Date, and the termination of
employment or the subject matter of this Agreement & Release. This Agreement & Release may not be
modified or canceled in any manner, nor may any provision of it or any legal remedy with respect to
it be waived, except by a writing signed by both Employee and an authorized Company official.
Employee acknowledges that the Company has made no representations or promises to him (such as that
his former position will remain vacant), other than those in or referred to by this Agreement &
Release. If any provision in this Agreement & Release is found to be unenforceable, all other
provisions will remain fully enforceable.
(b) Successors: This Agreement & Release shall be binding upon, and inure to the benefit of,
the parties, and their respective heirs, administrators, representatives, executors, successors,
and assigns.
(c) Interpretation: This Agreement & Release shall be construed as a whole according to its
fair meaning. It shall not be construed strictly for or against Employee, the Company or any
Released Party. Unless the context indicates otherwise, the term “or” shall be deemed to include
the term “and” and the singular or plural number shall be deemed to include the other. Captions
are intended solely for convenience of reference and shall not be used in the interpretation of
this Agreement & Release.
Section 9 — Arbitration of Disputes
(a) Arbitrable Disputes: The parties agree to resolve any claims they may have with each
other (except, if either party so elects, any dispute for which injunctive relief is a principal
remedy) through final and binding arbitration in accordance with this Section 9. Employee also
agrees to resolve in accordance with this Section 9 any claim between him and any other Released
Party who offers or agrees to arbitrate the claim in this manner. This arbitration requirement
applies to, among other things, disputes about the validity, interpretation, or effect of this
Agreement & Release or alleged violations of it, claims of discrimination under federal or state
law, or other statutory violation claims.
(b) The Arbitration: The parties are parties to a Mutual Agreement to Arbitrate Claims, dated
March 11, 2002, a copy of which is attached hereto as Schedule C. Except as otherwise provided in
this Section 9, the parties’ rights and obligations in connection with the arbitration, as well as
the conduct of the arbitration, shall be in accordance with the requirements set forth in the
following sections of Schedule C: Time Limits for Commencing Arbitration and Required Notice of All
Claims; Representation; Discovery; Designation of Witnesses; Subpoenas; Arbitration Procedures;
Arbitration Fees and Costs; and Judicial Review.
(c) Fees and Expenses: In any arbitration brought to enforce any provision of this
Agreement & Release, the prevailing party shall be entitled to reasonable attorney’s fees incurred
in connection with such arbitration, in addition to any other relief that may be awarded.
(d) Exclusive Remedy: Arbitration in this manner shall be the exclusive remedy for any claim
that must be arbitrated pursuant to this Section 9. Should either party attempt to resolve such a
claim by any method other than arbitration pursuant to this Section 9, the responding party will be
entitled to recover from the initiating party all damages, expenses, and attorneys’ fees incurred
as a result of that breach.
Initialed: Company ___ Employee ___
Executed on this 29th day of January, 2007.
| /S/ Xxxxxxx X. Xxxxx
|
Executed on this 29th day of January, 2007.
| GENCORP INC. | ||||||
| By: Its: |
/S/ Xxxx X. Xxxxxxx
|
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Re-executed after my , 200___Termination Date on this ___ day of
, 200___.
