EXHIBIT 10.1
CHANGE OF CONTROL AGREEMENT
This Change of Control Agreement (the "Agreement") is entered into on
______, 2000, by and between STANCORP FINANCIAL GROUP, INC., an Oregon
corporation (the "Company"), having it principal place of business at 0000 XX
Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxx 00000, and [insert Executive's name]
("Executive"), [insert Executive's address].
RECITALS
A. The Company is a public company. The Company recognizes that, as is
the case with many publicly held corporations, the possibility of a change of
control may exist, and that such possibility, and the uncertainty and questions
it may raise among management, may result in the departure or distraction of key
management personnel to the detriment of the Company.
B. It is in the best interests of the Company that key management
personnel, including Executive, continue to be employed by the Company or a
subsidiary of the Company, perform the responsibilities of their positions
without undue distraction and exercise their judgment without bias or concern
due to their personal circumstances.
C. Accordingly, the Company has determined that appropriate steps should
be taken to reinforce and encourage the continued attention and dedication of
key members of the Company's management to their assigned duties without
distraction resulting from the possibility of a change of control of the
Company.
D. To induce Executive to remain employed by the Company or a subsidiary
of the Company in the face of uncertainties and a possible change of control,
this Agreement, which has been approved by the Board of Directors of the Company
(the "Board"), sets forth the severance benefits that the Company will provide
to Executive in the event that Executive's employment is terminated subsequent
to a "Change of Control" under the circumstances described below. Capitalized
terms not otherwise defined in this Agreement have the meanings given to such
terms in Section 10.
AGREEMENT
THEREFORE, in consideration of the foregoing recitals and the mutual
covenants and agreements set forth below, the parties agree as follows:
1. Employment Relationship. Executive is currently employed by the
Company or by a subsidiary of the Company, as [insert Executive's current
position]. Executive and the Company acknowledge that the Company or the
subsidiary of the Company employing Executive (the "Employing Subsidiary") may
terminate Executive's employment for any or no reason at any time, subject to
the obligation (if any) of the Company to provide the severance benefits
specified in this Agreement in accordance with the terms hereof.
2. Release of Claims. In consideration for and as a condition precedent
to receiving the severance benefits outlined in this Agreement, Executive agrees
to execute a Release in the form attached as Exhibit A (the "Release").
Executive promises to execute and deliver the Release to the Company within the
later of (a) 45 days after the date Executive receives the Release or (b) the
last day of Executive's active employment. Any payments required under this
Agreement will be payable only after receipt by the Company of a signed Release
from Executive.
3. Term and Termination of Agreement. This Agreement shall commence on
_________, 2000) (the "Effective Date") and shall continue in effect through
December 3l, 2001 (the "Expiration Date"); provided, however, that commencing on
January 1, 2002, and each January 1 thereafter, the term of this Agreement shall
automatically be extended for one additional year unless, not later than
September 30 of the preceding year, the Company shall have given notice that it
does not wish to extend this Agreement; provided, that no such notice may be
given during the pendency of a potential Change of Control, as defined in
Section 10.2; provided, further, that if a Change of Control shall have occurred
during the original or extended term of this Agreement, this Agreement shall
continue in effect for a period of 24 months beyond the month in which such
Change of Control occurred.
3.1 Notwithstanding the foregoing, this Agreement shall terminate
immediately if:
3.1.1 Executive voluntarily terminates employment with the
Company or the Employing Subsidiary other than for Good Reason;
3.1.2 Executive's employment by the Company or the Employing
Subsidiary is terminated by reason of Executive's death, Disability or voluntary
retirement under any of the Company's retirement plans; or
3.1.3 the Company or the Employing Subsidiary terminates
Executive's employment prior to a Change of Control.
3.2 The Company may terminate this Agreement during Executive's
employment, if, prior to a Change of Control, Executive ceases to hold
Executive's current position with the Company or the Employing Subsidiary (other
than as a result of a promotion).
3.3 If a Change of Control shall have occurred at any time after the
first anniversary of the Effective Date, this Agreement shall continue in effect
for a period of 24 months beyond the month in which such Change of Control
occurred.
3.4 If on or before the Expiration Date, the Company has entered into
an agreement or announced publicly its intent to enter into an agreement the
consummation of
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which would constitute a Change of Control, this Agreement shall continue in
effect for 24 months beyond the effective date of the Change of Control.
4. Duties. The Executive shall cooperate with the Company and the
Employing Subsidiary and shall promptly and fully perform such duties and
discharge such responsibilities on a full-time basis as may reasonably be
assigned by the Company or the Employing Subsidiary to Executive from time to
time.
5. Termination Following Change of Control. If any of the events
described in Section 10.2 constituting a Change of Control of the Company shall
have occurred, Executive shall be entitled to the benefits provided for in this
Section 5 upon the subsequent termination of Executive's employment within 24
months after a Change of Control unless such termination is (a) because of
Executive's death, Disability or voluntary retirement under any of the Company's
retirement plans, (b) by the Company or the Employing Subsidiary for Cause, or
(c) by Executive other than for Good Reason. If Executive's employment with the
Company or the Employing Subsidiary is terminated for any reason and
subsequently a Change of Control of the Company occurs, Executive shall not be
entitled to any benefits under this Agreement.
5.1 As severance pay and in lieu of any other compensation for
periods subsequent to the Termination Date, as defined in Section 10.5, the
Company shall pay Executive an amount in cash equal to three times the sum of
(a) Executive's annual base salary in effect at the time the Change of Control
occurs and (b) the incentive compensation payable to Executive under the
Company's Short Term Incentive Plan at the target bonus for the year in which
the Change of Control occurs.
5.2 For the thirty-month period commencing with the Termination Date,
the Company shall arrange to provide Executive with group health, dental and
life insurance benefits substantially similar to those which Executive was
receiving immediately prior to the Change of Control, and paid for by the
Company or the Employing Subsidiary and the Executive in the same manner as
immediately prior to the Change of Control. Notwithstanding the foregoing, the
Company or the Employing Subsidiary shall not provide any benefit otherwise
receivable by Executive pursuant to this Section 5.2 to the extent that a
similar benefit is actually received by Executive from a subsequent employer
during such thirty-month period, and any such benefit actually received by
Executive shall be promptly reported by Executive to the Company.
5.3 All benefits to which Executive is entitled under the Company's
Defined Benefit Retirement Plan, the Senior Officers Deferred Compensation Plan,
Senior Officers Supplemental Retirement Plan and any other retirement or
deferred compensation plan shall immediately vest.
5.4 All outstanding stock options, stock bonuses or other stock
awards held by Executive under all stock option and stock incentive plans of the
Company shall become immediately vested and exercisable in full and all
outstanding stock options shall remain exercisable until the earlier of (a) the
first anniversary of the Termination Date (or, with respect
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to any incentive stock option, the date that is three months after the
Termination Date) or (b) the option expiration date as set forth in the
applicable option agreement.
5.5 The Company shall pay Executive an amount in cash equal to the
target bonus payable to Executive under any cash long term incentive plan in
operation immediately prior to the Change of Control, which amount shall be
prorated based on the number of months of operation prior to the Change of
Control; except, that if Executive received payment under such plan before the
Termination Date, then Executive shall not receive any payment under this
Section 5.5.
5.6 Notwithstanding anything in this Agreement to the contrary,
whether or not Executive becomes entitled to any benefits under this Section 5,
if any of the benefits under this Section 5 or any other payment or benefit
received or to be received by Executive in connection with a Change of Control
of the Company (collectively, "Severance Payments") will be subject to the tax
(the "Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986,
amended (the "Code) (or any similar tax that may hereafter be imposed) the
Company shall pay to Executive at the time specified in Section 8 an additional
amount (the "Gross-Up Payment") such that the net amount retained by Executive,
after deduction of any Excise Tax on the Severance Payments and any federal,
state and local income tax and Excise Tax upon the payment provided for by this
subsection (i.e., upon the components of the Gross-Up Payment), shall be equal
to the Severance Payments.
For purposes of determining whether any amounts will be subject to the
Excise Tax and the amount of such Excise Tax, (a) all amounts representing the
Severance Payments shall be treated as "parachute payments" within the meaning
of Section 280G(b)(2) of the Code, and all "excess parachute payments" within
the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the
Excise Tax, unless in the opinion of tax counsel selected by the Company's
independent auditors and acceptable to Executive, the Severance Payments (in
whole or in part) do not constitute parachute payments, or such excess parachute
payments (in whole or in part) represent reasonable compensation for services
actually rendered within the meaning of Section 280G(b)(4) of the Code in excess
of the base amount within the meaning of Section 280G(b)(3) of the Code, or are
otherwise not subject to the Excise Tax, (b) the amount of the Severance
Payments which shall be treated as subject to the Excise Tax shall be equal to
the lesser of (1) the total amount of the Severance Payments or (2) the amount
of excess parachute payments within the meaning of Section 280G(b)(1) of the
Code (after applying clause (a), above), and (c) the value of any non-cash
benefits or any deferred payment or benefit shall be determined by the Company's
independent auditors in accordance with the principles of Sections 280G(d)(3)
and (4) of the Code.
For purposes of determining the amount of the Gross-Up Payment, Executive
shall be deemed to pay federal income taxes at the highest marginal rate of
federal income taxation in the calendar year in which the Gross-Up Payment is to
be made and state and local income taxes at the highest marginal rate of
taxation in the state and locality of Executive's residence on the
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Termination Date, net of the maximum reduction in federal income taxes which
could be obtained from deduction of such state and local taxes.
In the event that the Excise Tax is subsequently determined to be less than
the amount taken into account hereunder at the time of termination of
Executive's employment, Executive shall repay to the Company at the time that
the amount of such reduction in Excise Tax is finally determined the portion of
the Gross-Up Payment attributable to such reduction (plus the portion of the
Gross-Up Payment attributable to the Excise Tax and federal and state and local
income tax imposed on the Gross-Up Payment being repaid by Executive if such
repayment results in a reduction in Excise Tax and/or a federal and state and
local income tax deduction) plus interest on the amount of such repayment at the
rate provided in Section 1274(b)(2)(B) of the Code. In the event that the
Excise Tax is determined to exceed the amount taken into account hereunder at
the time of the termination of Executive's employment (including by reason of
any payment the existence or amount of which cannot be determined at the time of
the Gross-Up Payment), the Company shall make an additional gross-up payment in
respect of such excess (plus any interest payable with respect to such excess)
at the time that the amount of such excess is finally determined.
6. Conditions on Eligibility for Severance Benefits. Executive shall not
be eligible to receive the benefits provided for in Section 5 if any of the
following applies:
6.1 Executive fails to execute and deliver the Release in the time
period set forth in Section 2, or, if applicable, Executive executes and later
revokes the Release within the revocation period; or
6.2 Executive fails to comply with Section 12 hereof.
7. Tax Withholding; Subsequent Employment.
7.1 All compensation, benefits and payments provided for in this
Agreement shall be paid after any withholding for taxes or other charges and
authorized deductions required (or permitted) to be withheld by the Company or
the Employing Subsidiary, including but not limited to any federal income taxes,
any applicable state taxes, FICA, Medicare and any similar state or federal
taxes or required state or federal withholdings.
7.2 Except as provided in Section 5.2, the amount of any payment or
benefit provided for in this Agreement shall not be reduced, offset or subject
to recovery by the Company by reason of any compensation earned by Executive as
the result of employment by another employer after termination.
8. Payments. All amounts to be paid by the Company to Executive pursuant
to Section 5 shall be made not later than thirty days following the Termination
Date; provided, however, that if the amounts of such payments cannot be fully
determined on or before such date,
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the Company shall pay to Executive on such day an estimate, as determined in
good faith by the Company, of the minimum amount of such payments and shall pay
the remainder of such payments (together with interest at the rate provided in
Section 1274(b)(2)(B) of the Code) as soon as reasonably practicable after the
amount thereof can be determined, but in no event later that the ninetieth day
after the Termination Date. If the amount of the estimated payment exceeds the
amount subsequently determined to have been due, such excess shall constitute a
loan by the Company to the Executive payable on the fifth business day after
demand therefor by the Company (together with interest at the rate provided in
Section 1274(b)(2)(B) of the Code).
9. Other Agreements. This Agreement shall supersede any prior change of
control agreement or employment continuation agreement between Company or any
subsidiary of the Company and Executive.
10. Definitions.
10.1 "Cause" shall mean termination of Executive in any of the
following circumstances:
10.1.1 In the reasonable judgment of the Board, Executive has
neglected or willfully failed or refused to perform substantially Executive's
reasonably assigned duties with the Company or the Employing Subsidiary (other
than any such failure resulting from Executive's Disability) and such failure
continues for thirty days after a demand for substantial performance is
delivered to Executive by the Board, the Chief Executive Officer or the
President of the Company which specifically identifies the manner in which the
Board believes that Executive has neglected or willfully failed or refused to
perform substantially Executive's duties;
10.1.2 In the reasonable judgment of the Board, Executive has
engaged in dishonesty in connection with or related to the performance of
Executive's material duties with the Company or the Employing Subsidiary;
10.1.3 Executive is found guilty by a court or regulatory body
of having committed fraud or theft against the Company, the Employing Subsidiary
or any governmental entity or of having committed a felony;
10.1.4 Executive breaches in any material respect or voluntarily
terminates this Agreement; or
10.1.5 In the reasonable judgment of the Board, Executive
engaged in gross negligence or willful misconduct that causes or may reasonably
be expected to cause material harm to the business, operations or reputation of
the Company or any of its subsidiaries or affiliates.
10.2 "Change of Control" shall mean that one of the following events
has taken place:
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10.2.1 Any "Person," as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")
(other than the Company, any trustee or other fiduciary holding securities under
an employee benefit plan of the Company, or any company owned, directly or
indirectly, by the shareholders of the Company in substantially the same
proportions as their ownership of stock of the Company ), is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly
or indirectly, of securities of the Company representing 30% or more of the
combined voting power of the Company's then outstanding securities;
10.2.2 The shareholders of the Company approve a merger or other
consolidation of the Company with any other company, other than (a) a merger or
consolidation which would result in the voting securities of the Company
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity) 51% or more of the combined voting power of the voting
securities of the Company or such surviving entity outstanding immediately after
such merger or consolidation or (b) a merger or consolidation effected to
implement a recapitalization of the Company (or similar transaction) in which no
Person acquires more than 30% of the combined voting power of the Company's then
outstanding securities;
10.2.3 The shareholders of the Company approve an agreement for
the sale or disposition by the Company of all or substantially all of its
assets;
10.2.4 A tender or exchange offer is made for Common Stock (or
securities convertible into Common Stock) of the Company and such offer results
in a portion of those securities being purchased and the offeror after the
consummation of the offer is the beneficial owner (as determined pursuant to
Section 13(d) of the Exchange Act), directly or indirectly, of securities
representing at least 30% of the voting power of outstanding securities of the
Company; or
10.2.5 During any period of twelve months or less, individuals
who at the beginning of such period constituted a majority of the Board cease
for any reason to constitute a majority of the Board unless the nomination or
election of such new directors was approved by a vote of at least two-thirds of
the directors then still in office who were directors at the beginning of such
period.
10.2.6 Any other event or combination of events which the Board,
acting in its sole discretion, determines to be a "Change of Control" for
purposes of this Agreement.
Notwithstanding anything set forth in this Section 10.2, no Change of Control
shall be deemed to have occurred for purposes of this Agreement by virtue of any
transaction which results in Executive, or a group of Persons which includes
Executive, acquiring, directly or indirectly, 25% or more of the combined voting
power of the Company's voting securities.
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10.3 "Disability" shall mean disability as determined under the
Company's long-term disability plans.
10.4 "Good Reason" shall mean and include any of the following:
10.4.1 The assignment of Executive to a different title, job or
responsibilities that results in a material decrease in the level of
responsibility of Executive or in the nature or status of Executive's position
with respect to the surviving company after the Change of Control when compared
to Executive's level of responsibility for the Company's or the Employing
Subsidiary's operations or the nature or status of Executive's position prior to
the Change of Control; provided, that Good Reason shall not exist if Executive
continues to have the same or a greater general level of responsibility with
respect to the former Company or Employing Subsidiary operations or a position
of the same or greater nature or status after the Change of Control as Executive
had prior to the Change of Control even if the former Company or Employing
Subsidiary operations are a subsidiary or division of the surviving company.
10.4.2 A reduction by the Company, the Employing Subsidiary or
the surviving company in Executive's annual base salary as in effect immediately
prior to the Change of Control.
10.4.3 A material reduction by the Company, the Employing
Subsidiary or the surviving company in total benefits available to Executive
under cash incentive, stock incentive and other employee benefit plans after the
Change of Control compared to the total package of such benefits as in effect
prior to the Change of Control.
10.4.4 The failure by the Company to obtain from any successor
(whether direct or indirect, by purchase, merger, consolidation or otherwise) to
all or substantially all of the business or assets of the Company the assent to
this Agreement contemplated by Section 11 hereof.
10.4.5 The Company, Employing Subsidiary or the surviving
company requires Executive to be based more than fifty miles from where
Executive's office is located immediately prior to the Change of Control, except
for required travel on company business to an extent substantially consistent
with the business travel obligations which Executive undertook on behalf of the
Company or Employing Subsidiary prior to the Change of Control.
Notwithstanding anything to the contrary set forth herein, the acceptance of any
of the aforementioned reductions, modifications or relocation for not longer
than three months shall not be deemed to be a waiver of the Executive's right to
terminate for Good Reason.
10.5 "Termination Date" shall mean the final day of Executive's
active employment by the Company or the Employing Subsidiary or the surviving
company after a Change of Control.
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11. Successors; Binding Agreement.
11.1 The Company will require any successor (whether direct or
indirect, by purchase, merger, reorganization, consolidation or otherwise to all
or substantially all of the business or assets of the Company ("Successor")
expressly to assume and agree to perform this Agreement in the same manner and
to the same extent that the Company would be required to perform it if no such
succession had taken place. As used in this Agreement, "Company" shall mean the
Company as herein before defined and any Successor which assumes and agrees to
perform this Agreement by operation of law, or otherwise.
11.2 This Agreement is personal to Executive and may not be
transferred or assigned by Executive other than by will or the laws of descent
and distribution without the prior written consent of the Company. This
Agreement shall inure to the benefit of and be enforceable by Executive and
Executive's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. If Executive should die
while any amount would still be payable to Executive hereunder had Executive
continued to live, all such amounts, unless otherwise provided herein, shall be
paid in accordance with the terms of this Agreement to Executive's devisee,
legatee or other designee or, if there is no such designee, to Executive's
estate.
12. Resignation of Corporate Offices. Executive will resign Executive's
office, if any, as a director, officer or trustee of the Company, its
subsidiaries or affiliates and of any other corporation or trust of which
Executive serves as such at the request of the Company, effective as of the
Termination Date. Executive agrees to provide the Company such written
resignation(s) upon request and that no severance will be paid until after such
resignation(s) are provided.
13. Legal Fees and Expenses. If Executive asserts any claim in any
contest (whether initiated by Executive or by the Company) as to the validity,
enforceability or interpretation of any provision of this Agreement, the Company
shall pay Executive's legal expenses (or cause such expenses to be paid)
including, without limitation, reasonable attorney's fees, on a quarterly basis,
upon presentation of proof of such expenses; provided, that Executive shall
reimburse the Company for such amounts, plus simple interest thereon at the 90-
day United States Treasury Xxxx rate as in effect at the relevant time,
compounded annually, if Executive shall not prevail, in whole or in part, as to
any material issue as to the validity, enforceability or interpretation of any
provision of this Agreement.
14. Governing Law, Arbitration. This Agreement shall be construed in
accordance with and governed by the laws of the State of Oregon applied without
reference to conflicts of laws principles. Any dispute or controversy arising
under or in connection with this Agreement or the Release or the breach thereof,
shall be settled exclusively by binding arbitration. The arbitration shall be
held at a site selected by the arbitrator(s) and shall be conducted in
accordance with the Expedited Employment Arbitration Rules of the American
Arbitration Association then in effect. The arbitrator shall be selected by the
mutual consent of the Company and Executive. If the parties cannot agree on an
arbitrator, the dispute shall be heard by a panel
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of three arbitrators, one appointed by each of the parties and the third
appointed by the other two arbitrators. Judgment may be entered on the award of
the arbitrator(s) in any court having jurisdiction.
15. Miscellaneous. No provision of this Agreement may be modified, waived
or discharged unless such waiver, modification or discharge is agreed to in
writing and signed by Executive and the Company. No waiver by either party
hereto at any time of any breach by the other party hereto of, or compliance
with, any condition or provision of this Agreement to be performed by such other
party shall be deemed a waiver of similar or dissimilar provisions or conditions
at the same or at any prior or subsequent time. No agreements or
representations, oral or otherwise, express or implied, with respect to the
subject matter hereof have been made by either party which are not expressly set
forth in this Agreement.
16. Severability. If any of the provisions or terms of this Agreement
shall for any reason be held invalid or unenforceable, such invalidity or
unenforceability shall not affect any other terms of this Agreement, and this
Agreement shall be construed as if such unenforceable term had never been
contained in this Agreement.
17. Entire Agreement. This Agreement sets forth the entire agreement of
the parties hereto in respect of the subject matter contained herein and during
the term of the Agreement supersedes the provisions of all prior agreements,
promises, covenants, arrangements, communications, representations or
warranties, whether oral or written, by any officer, employee or representative
of any party hereto with respect to the subject matter hereof. Executive
acknowledges that Executive is entering into this Agreement of his or her own
free will and accord and with no duress. Executive has read the Agreement and
the Release, and Executive understands the legal consequences of the Agreement
and the Release.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
STANCORP FINANCIAL GROUP, INC.
By:_____________________________
Name:___________________________
Title: Chairman, President and
Chief Executive Officer
Attest:
By:_____________________________
Name:__________________________
Title: Corporate Secretary
[EXECUTIVE]
_________________________________
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EXHIBIT A
RELEASE
1. Parties. The parties to this Release (hereinafter "Release") are
___________________________________________________________ and StanCorp
Financial Group, Inc., an Oregon corporation.
1.1 Executive. For the purposes of this Release, "Executive" means
_______________________________________________________, and his or her
attorneys, heirs, executors, administrators, assigns, and spouse.
1.2 The Company. For purposes of this Release, the "Company" means
StanCorp Financial Group, Inc., an Oregon corporation, its predecessors and
successors, corporate affiliates, and all of each corporation's officers,
directors, employees, insurers, agents, or assigns, in their individual and
representative capacities.
2. Background and Purpose. Executive was employed by the Company or
subsidiary of the Company ("Employing Subsidiary"). Executive's employment is
ending effective __________ following a Change of Control as defined in Section
10.2 ("Change of Control") of the Change of Control Agreement ("Agreement").
The purpose of this Release is to settle, and the parties hereby
settle, fully and finally, any and all claims Executive may have against the
Company or Employing Subsidiary, whether asserted or not, known or unknown,
including, but not limited to, claims arising out of or related to Executive's
employment, any claim for reemployment, or any other claims whether asserted or
not, known or unknown, past or future, that relate to Executive's employment,
reemployment, or application for reemployment.
3. Release. Except as reserved in paragraphs 3 or 3.1, Executive waives,
acquits and forever discharges the Company and the Employing Subsidiary from any
obligations the Company has and all claims Executive may have including but not
limited to obligations and/or claims arising from the Agreement or any other
document or oral agreement relating to employment compensation, benefits
severance or post-employment issues. Except as reserved in Paragraph 3.1 or
where expressly prohibited by law, Executive hereby releases the Company and the
Employing Subsidiary from any and all claims, demands, actions, or causes of
action, whether known or unknown, arising from or related in any way to any
employment of or past or future failure or refusal to employ Executive by the
Company or the Employing Subsidiary, or any other past or future claim that
relates in any way to Executive's employment, compensation, benefits,
reemployment, or application for employment, with the exception of any claim
Executive may have against the Company or the Employing Subsidiary for
enforcement of this Release. This Release includes any and all claims, direct
or indirect, which might otherwise be made under any applicable local, state or
federal authority, including but not limited to any claim arising under the
Oregon statutes dealing with employment, discrimination in employment, Title VII
of the Civil Rights Act of 1964, the Civil Rights Act of 1991, the Americans
With
Disabilities Act, the Family and Medical Leave Act of 1993, the Equal Pay Act of
1963, Executive Order 11246, the Rehabilitation Act of 1973, the Uniformed
Services Employment and Reemployment Rights Act of 1994, the Age Discrimination
in Employment Act, the Fair Labor Standards Act and Oregon wage and hour
statutes, all as amended, any regulations under such authorities, and any
applicable contract, tort, or common law theories.
3.1 Reservations of Rights. This Release shall not affect any rights
which Executive may have under any medical insurance, disability plan, workers'
compensation, unemployment compensation, applicable Company stock incentive
plan(s), indemnifications, or the 401(k) plan maintained by the Company.
3.2 No Admission of Liability. It is understood and agreed that the
acts done and evidenced hereby and the release granted hereunder is not an
admission of liability on the part of Executive, the Company or the Employing
Subsidiary.
4. Consideration to Executive. The consideration to Executive for
execution and delivery of this Release to the Company is the obligations of the
Company to provide severance payments to Executive on the terms specified in the
Agreement.
5. No Disparagement. Executive agrees that, after the date of this
Release, Executive will not disparage or make false or adverse statements about
the Company or the Employing Subsidiary. The Company shall report to Executive
any actions or statements that are attributed to Executive that the Company
believes are disparaging. The Company may take actions consistent with breach
of this Release should it determine that Executive has disparaged or made false
or adverse statements about the Company or the Employing Subsidiary.
6. Confidentiality, Proprietary, Trade Secret and Related Information.
In addition to Executive's obligations under any other confidentiality
agreements with respect to information about the Company or the Employing
Subsidiary, Executive agrees not to make unauthorized use or disclosure of any
confidential, proprietary or trade secret information learned as an employee
about the Company or the Employing Subsidiary, its products, customers and
suppliers, and covenants not to breach that duty. Should Executive, Executive's
attorney or agents be requested in any judicial, administrative, or other
proceeding to disclose confidential, proprietary or trade secret information
Executive learned as an employee of the Company or the Employing Subsidiary,
Executive shall promptly notify the Company of such request by the most
expeditious means in order to enable the Company to take any reasonable and
appropriate action to limit such disclosure.
7. Scope of Release. The provisions of this Release shall be deemed to
obligate, extend to, and inure to the benefit of the parties; the Company's
parents, subsidiaries, affiliates, successors, predecessors, assigns, directors,
officers, and employees; and each parties insurers, transferees, grantees,
legatees, agents and heirs, including those who may assume any and all of the
above-described capacities subsequent to the execution and effective date of
this Release.
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8. Opportunity for Advice of Counsel. Executive acknowledges that
Executive has been encouraged to seek advice of counsel with respect to this
Release and has had the opportunity to do so.
9. Entire Release. This Release and the Agreement signed by Executive
contain the entire agreement and understanding between the parties and, except
as reserved in paragraph 3 and 3.1, supersede and replace all prior agreements
written or oral. Executive and the Company acknowledge that no other party, nor
agent nor attorney of any other party, has made any promise, representation, or
warranty, express or implied, not contained in this Release concerning the
subject matter of this Release to induce this Release, and Executive and the
Company acknowledge that they have not executed this Release in reliance upon
any such promise, representation, or warranty not contained in this Release.
10. Severability. Every provision of this Release is intended to be
severable. In the event any term or provision of this Release is declared to be
illegal or invalid for any reason whatsoever by a court of competent
jurisdiction or by final and unappealed order of an administrative agency of
competent jurisdiction, such illegality or invalidity should not affect the
balance of the terms and provisions of this Release, which terms and provisions
shall remain binding and enforceable.
11. Parties May Enforce Release. Nothing in this Release shall operate to
release or discharge any parties to this Release or their successors, assigns,
legatees, heirs, or personal representatives from any rights, claims, or causes
of action arising out of, relating to, or connected with a breach of any
obligation of any party contained in this Release.
12. Costs and Attorney's Fees. If Executive asserts any claim in any
contest (whether initiated by Executive or by the Company) as to the validity,
enforceability or interpretation of any provision of this Release, the Company
shall pay Executive's legal expenses (or cause such expenses to be paid)
including, without limitation, reasonable attorney's fees, on a quarterly basis,
upon presentation of proof of such expenses; provided, that Executive shall
reimburse the Company for such amounts, plus simple interest thereon at the 90-
day United States Treasury Xxxx rate as in effect at the relevant time,
compounded annually, if Executive shall not prevail, in whole or in part, as to
any material issue as to the validity, enforceability or interpretation of any
provision of this Release.
13. Acknowledgments. Executive acknowledges that the Agreement provides
severance pay and benefits which the Company would otherwise have no obligation
to provide.
Executive acknowledges that the Company has provided the following
information: (a) the class or group of employees offered the opportunity to
obtain severance benefits similar to those in the Release, (b) the eligibility
factors required to obtain severance benefits similar to those in the Release,
(c) the time limits required to obtain severance benefits similar to those in
the Release, (d) the job titles and ages of employees eligible or selected for
severance benefits
3
similar to those in the Release, and (e) the ages of employees in the same
classification either not eligible or not selected.
14. Revocation. As provided by the Older Workers Benefit Protection Act,
Executive's is entitled to have forty-five days to consider this Release. For a
period of seven days from execution of this Release, Executive may revoke this
Release. Upon receipt of Executive's signed Release and the end of the
revocation period, payment by the Company as described in paragraph 4 above will
be forwarded by mail in a timely manner as provided herein.
Dated: ___________, 2000
____________________________
[Name of Executive]
STATE OF OREGON )
) ss.
County of _________ )
Personally appeared the above named ____________________________ and
acknowledged the foregoing instrument to be his or her voluntary act and deed.
Before me ____________________________
Notary Public for
My commission expires:
Dated:_______________, 2000
StanCorp Financial Group, Inc.
By:____________________________
Name:__________________________
Title:___________________________
4
