Exhibit 10.24
SEPARATION AGREEMENT, dated as of February 28, 2002 (the "Agreement"), by
and among Acterna Corporation, a Delaware corporation (the "Company"), and
____________ ("Executive").
W I T N E S S E T H:
WHEREAS, Executive has previously been granted options (collectively, the
"Initial Options") to purchase ______ shares of the Common Stock, par value $.01
per share (the "Common Stock"), pursuant to the Management Equity Agreement,
dated as of May 21, 1998, between the Company, Xxxxxxx, Dubilier & Rice Fund V
Limited Partnership, a Cayman Islands limited partnership (the "Fund"), and
Executive (the "Equity Agreement");
WHEREAS, the Executive has also been granted options pursuant to the
Dynatech Corporation Amended and Restated 1994 Stock Option and Incentive Plan
(the "Stock Option Plan") to purchase ______ shares of the Common Stock
(collectively, the "Subsequent Options");
WHEREAS, Executive and the Company have determined that it would be in each
of their respective best interests for Executive's employment with the Company
to terminate;
WHEREAS, pursuant to a Non-Disclosure, Non-Competition and Non-Solicitation
Agreement, dated as of May 21, 1998, between the Company and the Executive (the
"Non-Disclosure Agreement"), Executive has agreed to be bound by certain
covenants and restrictions concerning non-competition, non-disclosure and
non-solicitation following any termination of his employment;
WHEREAS, due to economic circumstances, the Company will be ceasing its
operations at the location at which the Executive has been performing his
services;
WHEREAS, the Company and Executive wish to agree upon the consequences of
the termination of Executive's employment.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and promises contained herein and for other good and valuable consideration, the
Company and Executive hereby agree as follows:
1. Employment.
At the request of the Company, Executive shall resign, effective as of a
date mutually agreed upon by the parties, but in no event later than ________
(the
"Termination Date"), from any and all positions he then holds with the
Company or any of its direct or indirect subsidiaries or affiliates. Executive
agrees to execute any document the Company shall reasonably request to effect
such resignation. Such resignation is hereinafter referred to as "Executive's
Resignation".
2. Consequences of Executive's Resignation Under Certain Agreements.
(a) In General. The Company and Executive each hereby acknowledges and
agrees that, for purposes of the Equity Agreement, Executive's Resignation is
and will be treated solely as a termination by the Company Without Cause.
(b) Payment of Accrued Obligations. Executive shall be entitled to payment
of his current base salary ("Base Salary") through the Termination Date.
Executive shall not be paid any annual bonus for the period from April 1, 2001
through the Termination Date. Any accrued vacation amount shall also be paid on
the Termination Date. Executive agrees to submit to the Company any and all
expenses, which are business-related and reimbursable to Executive by the
Company, on or before the Termination Date.
(c) Continued Payments of Base Salary. Subject to Section 2(f) of this
Agreement, the Company shall continue to make periodic payments to Executive of
his Base Salary in accordance with the Company's regular payroll practices
beginning on the Termination Date, and continuing for a period of twelve months
(the "Salary Continuance Period"). Executive shall not have the right to make
contributions to the Company's 401(k) Savings Plan (the "401(k) Plan") and the
Company's Supplemental 401(k) Savings Plan (the "Supplemental Savings Plan")
from the Base Salary payments made under this Section 2(c).
(d) Continued Payments in Respect of Bonus. Subject to Section 2(f) of this
Agreement, the Company shall pay to Executive, in 12 monthly installments,
commencing on the first day of the calendar month following the Termination
Date, and on the last day of the next 11 succeeding months, an amount equal to
one-twelfth of the average annual bonus (the "Bonus Payment"). The average
annual bonus is equal to$________, so that, subject to Section 2(f) of this
Agreement, each monthly payment will be $_________.
(e) Continued Participation in Benefit Plans.
(i) During the Salary Continuance Period, subject to timely payment by
Executive of all premiums, contributions and other co-payments
required to be paid by senior executives of the Company under the
terms of such plans, the Executive shall be permitted to participate
in the Company's medical
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insurance plans. If such continued participation is either not legally
permissible or otherwise allowed under the terms of the applicable
plan or any insurance policy or other arrangement, the Company will
provide equivalent coverage from its general assets or another
available source.
(ii) During the Salary Continuance Period, the Executive shall be
permitted to participate in the Company's group life insurance plan in
accordance with its terms, on the same basis as similarly situated
employees.
(iii) For purposes of the 401(k) Plan and Supplemental Savings Plan,
the Termination Date will constitute the date of Executive's
"termination." No contributions may be made to such plans after the
Termination Date. Promptly after the Termination Date Executive shall
be paid his balance residing in the Supplemental Savings Plan.
(iv) Executive shall be eligible to receive senior executive
outplacement services from the Company. Executive's participation in
any other employee or executive benefit or perquisite plan or program
not specifically addressed in this Section 2(e), including, but not
limited to any monthly car allowance previously made available, shall
cease as of the Termination Date.
(f) Mitigation. The Executive has a duty to mitigate the costs to the
Company of providing the payments and benefits described in Sections 2(a)
through (e), by seeking appropriate employment during the Salary Continuance
Period. If Executive obtains new employment (including self-employment and
services as a consultant) (i) during the Salary Continuance Period, any salary
continuation payments or Bonus Payments to which Executive is entitled pursuant
to Section 2(c) or 2(d) shall be reduced by the amount of any compensation
earned by Executive (whether paid currently or deferred) from any subsequent
employer or other person for which Executive performs services, including but
not limited to consulting services, and (ii) the continued medical benefits
coverage to which Executive is entitled pursuant to Section 2(e) shall cease as
of the date Executive is eligible for any other medical benefit coverage from
any subsequent employer or other person for which Executive performs services,
including, but not limited to, consulting services, at any time after the
Termination Date.
3. Options.
(a) Vesting. The Company, the Fund and Executive each hereby acknowledges
and agrees that if the Termination Date occurs before ______, _______ shares
subject to the Initial Options and the Subsequent Options (collectively, the
"Aggregate Options") are or will become vested or exercisable (the "Vested
Options") and ______ shares
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subject to the Aggregate Options are not and will not become vested or
exercisable (the "Unvested Options). All of the Unvested Options will be
canceled and forfeited on and as of the Termination Date without the payment of
any consideration or amount in respect thereof.
(b) Termination.
(i) Each of the Vested Options which is an Initial Option shall
terminate, and unless earlier exercised in accordance with its terms,
be canceled on the earlier of: (x) its original termination date and
(y) the later of (A) the six month anniversary of the date of the
expiration of any initial lock-up period imposed on sales of Common
Stock in connection with the first Public Offering and (B) the second
anniversary of the Termination Date. Notwithstanding the foregoing all
Vested Options which are intended to qualify as incentive stock
options under the Internal Revenue Code of 1986, as amended, shall
continue to be governed by the terms of their granting documents.
(ii) Each of the Vested Options which is a Subsequent Option shall
terminate, and unless earlier exercised in accordance with its terms,
be canceled on the second anniversary of the Termination Date.
(c) Repurchase.
(i) The Company and, by signing the acknowledgment of this Agreement
where noted below, the Fund each waives its rights under the Equity
Agreement to purchase any Covered Securities (as defined in the Equity
Agreement).
(ii) The Company and, by signing the acknowledgement of this Agreement
where noted below, the Fund each waives its rights under the Stock
Option Plan to purchase any of the vested Subsequent Options.
4. Transfer Restrictions. All transfer restrictions in Sections 5(a) and
5(b) of the Equity Agreement shall lapse on the Termination Date.
5. Termination of Agreements.
The Non-Disclosure Agreement shall survive Executive's termination and
thereafter shall remain in full force and effect as though incorporated herein
and made a part hereof, with the restrictive periods commencing on the
Termination Date. The Equity Agreement shall survive Executive's termination and
thereafter shall remain in
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full force and effect.
6. Executive's Release of Claims.
In consideration of the Company's release of claims against Executive
pursuant to Section 7 hereof, Executive hereby agrees to execute and deliver to
the Company on the Termination Date the Confidential General Release Agreement
attached hereto as Exhibit A.
7. Release of Claims Against Executive.
In consideration of and subject to Executive's execution and delivery of
the Confidential General Release Agreement attached hereto as Exhibit A, the
Company, on its own behalf and on behalf of each of its respective subsidiaries
and affiliates and each of their respective officers, directors, employees,
agents, representatives, successors and assigns (collectively, the "Releasors")
does hereby fully and generally release, settle, cancel, discharge and
acknowledge to be fully satisfied, and covenant not to xxx any Releasee (as
defined below) in respect of, any and all claims, contractual or otherwise,
demands, costs, rights, causes of action, charges, complaints, losses, damages
and all liability of whatever kind and nature, whether known or unknown, which
any Releasor may have at the time of signing this Agreement, or had at any time
prior thereto, against any of Executive or Executive's agents, representatives,
assigns, heirs, executors or administrators (collectively, the "Releasees")
which may in any way be connected with or related to Executive's employment with
the Company or the severing or permanent discontinuance of that employment
(collectively, the "Claims"), other than the Excluded Claims (as defined below).
This release specifically includes Claims in respect of any injuries which may
now exist but which, at this time, are unknown, unknowable, or unanticipated, or
which may or may not develop further at some time in the future, and all
potential Claims concerning any unforeseeable or unanticipated further
development or consequences of known injuries, other than the Excluded Claims.
For purposes of this Agreement, the term "Excluded Claims" means Claims (i)
arising under the terms of this Agreement, (ii) related to Executive's covenants
under the Non-Disclosure Agreement or (iii) arising out of or related to
Executive's willful misconduct in connection with his employment by the Company.
For purposes of this Agreement, no act or failure to act by the Executive shall
be considered "willful" unless it is done, or omitted to be done, in bad faith
and without reasonable belief that the Executive's action or omission was in the
best interests of the Company.
8. Entire Agreement; Related Documents.
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This Agreement (including Exhibit A hereto), the Non-Disclosure Agreement,
and the agreements governing the terms of the Aggregate Options that are Vested
Options, constitute the entire agreement among the parties hereto with respect
to the subject matter hereof. Except as otherwise expressly provided herein, all
prior correspondence and proposals (including summaries of proposed terms) and
all prior promises, representations, understandings, arrangements and agreements
relating to such subject matter (including but not limited to those made to or
with Executive by any other person or entity) are merged herein and superseded
hereby.
9. Miscellaneous; Binding Effect; Assignment.
(a) Assignment and Successors. This Agreement shall be binding on and inure
to the benefit of the Company and its respective successors and permitted
assigns. This Agreement shall also be binding on and inure to the benefit of
Executive and his heirs, executors, administrators and legal representatives.
This Agreement shall not be assignable by any party hereto without the prior
written consent of the other parties hereto. The Company may effect such an
assignment without prior written approval of Executive upon the transfer of all
or substantially all of its business and/or assets (whether by purchase, merger,
consolidation or otherwise).
(b) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts, without giving
effect to its principles or rules of conflict of laws to the extent such
principles or rules would require or permit the application of the laws of
another jurisdiction.
(c) Taxes. The Company may withhold from any payments made under this
Agreement all federal, state, city or other applicable taxes as shall be
required by law.
(d) Amendments. No provision of this Agreement may be modified, waived or
discharged unless such modification, waiver or discharge is approved by the
Board of Directors of the Company and is agreed to in writing by Executive. No
waiver by any party hereto at any time of any breach by any 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
waiver of any provision of this Agreement shall be implied from any course of
dealing between or among the parties hereto or from any failure by any party
hereto to assert its rights hereunder on any occasion or series of occasions.
(e) Severability. In the event that any one or more of the provisions of
thi Agreement shall be or become invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained herein shall not
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be affected thereby.
(f) Notices. Any notice or other communication required or permitted to be
delivered under this Agreement shall be (i) in writing, (ii) delivered
personally, by courier service or by certified or registered mail, first-class
postage prepaid and return receipt requested, (iii) deemed to have been received
on the date of delivery or on the third business day after the mailing thereof,
provided that the party giving such notice or communication shall have attempted
to telephone the party or parties to which notice is being given during regular
business hours on or before the day such notice or communication is being sent,
to advise such party or parties that such notice is being sent, and (iv)
addressed as follows (or to such other address as the party entitled to notice
shall hereafter designate in accordance with the terms hereof):
(A) if to the Company, to it at:
Acterna Corporation
00000 Xxxxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
(B) if to Executive, to him at:
___________________________
___________________________
Copies of any notices or other communications given under this Agreement
shall also be given to:
Xxxxxxx, Dubilier & Rice, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxx X. Xxxx
and
Debevoise & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx, Esq.
(g) Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original and all of which together shall constitute one
and the
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same instrument.
(h) Headings. The section and other headings contained in this Agreement
are for the convenience of the parties only and are not intended to be a part
hereof or to affect the meaning or interpretation hereof.
IN WITNESS WHEREOF, the Company has duly executed this Agreement by its
authorized representatives and Executive has hereunto set his hand, in each case
effective as of the date first above written.
ACTERNA CORPORATION
By:____________________________
Name:
Title:
________________________________
EXECUTIVE
ACKNOWLEDGED and, for purposes
of Sections 3, 4. 6, and 8
agreed
XXXXXXX XXXXXXXX & XXXX
FUND V LIMITED PARTNERSHIP
By:_____________________________
Name:
Title:
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EXHIBIT A
Confidential General Release Agreement
THIS CONFIDENTIAL GENERAL RELEASE AGREEMENT (hereinafter "Agreement") is
made and entered into this 28/th/ day of February, 2002 by and between Acterna
Corporation, a Delaware corporation (the "Company"), and __________ (the
"Executive") (collectively, hereinafter the "Parties").
W I T N E S S E T H :
WHEREAS, the Parties have determined that it is in their mutual interest
for Executive's employment with the Company and each of its direct or indirect
subsidiaries (the Company and such subsidiaries collectively referred to as the
"Companies") to terminate;
WHEREAS, the Company and Executive have entered into a Separation
Agreement, dated as of the date hereof, to which this Confidential General
Release Agreement is attached as Exhibit A (the "Separation Agreement"),
providing for, among other things, certain additional compensation, benefits and
rights of and to Executive identified therein in connection with the termination
of his employment (such additional compensation, benefits and rights, the
"Additional Benefits");
IN CONSIDERATION THEREOF, the Companies desire to settle, conclude and
obtain the final release of all possible matters and claims which Executive has
now or may have in the future, whether known or unknown against any of the
Companies;
NOW, THEREFORE, in consideration of the Company's promise to provide the
Additional Benefits to Executive pursuant to the Separation Agreement, the
premises and promises herein contained, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, IT
IS AGREED AS FOLLOWS:
1. The Company shall provide the Additional Benefits to Executive.
2. In return for the receipt of such Additional Benefits, Executive, on his
own behalf and on behalf of each of his agents, representatives, assigns, heirs,
executors and administrators (the "Releasors"), does hereby fully and generally
release, settle, cancel, discharge and acknowledge to be fully satisfied, and
covenant not to xxx any Releasee (as defined below) in respect of, any and all
claims, contractual or otherwise, demands, costs, rights, causes of action,
charges, complaints, losses, damages and all liability of whatever kind and
nature, whether known or unknown, which he may have at the time of signing this
Agreement, or had at any time prior thereto, against any of the Company, any
subsidiary or
affiliate of the Company, any successor or assign of any such entity or any of
their respective current or former employees, directors, officers, attorneys,
agents or other representatives (collectively, the "Releasees") which may in any
way be connected with or related to (i) Executive's employment with the Company
or any of their respective subsidiaries or the severing or permanent
discontinuance of that employment or any of the events or circumstances leading
thereto, (ii) Executive's purchase or holding of shares (the "Shares") of common
stock of the Company (the "Common Stock"), (iii) the grant to Executive of
options (the "Options") to purchase additional shares of Common Stock (the
"Option Shares"), the vesting, exercisability or other right or obligation of
any Releasor in connection with the Options, or the Option Shares and the
cancellation of the Unvested Options pursuant to the Separation Agreement, (iv)
the Letter Agreement, dated as of May 21, 1998, by and between the Company and
Executive, or (v) the Management Equity Agreement, dated as of May 21, 1998,
between the Company, Xxxxxxx, Dubilier & Rice Fund V Limited Partnership, a
Cayman islands limited Partnership, and Executive (collectively, the "Claims"),
other than the Excluded Claims (as defined below). This release specifically
includes Claims in respect of all personal injuries and consequences thereof,
including death and pain and suffering, and any injuries which may now exist but
which, at this time, are unknown, unknowable, or unanticipated, or which may or
may not develop further at some time in the future, and all potential Claims
concerning any unforeseeable or unanticipated further development or
consequences of known injuries, other than the Excluded Claims.
Without limiting the generality of the foregoing, it is expressly agreed
and understood that this release includes, but is not limited to, any Claim
before any court, government agency or in any other forum, including but not
limited to, Claims under Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C.(S).2000 et seq. (Race and sex discrimination); the Age Discrimination
in Employment Act 29 U.S.C.(S).621 et seq. (age discrimination), the National
Labor Relations Act, as amended, 29 U.S.C.(S).141 et seq. (union and collective
activity), the Equal Pay Act of 1963, 29 U.S.C.(S).201 et seq. (equal pay), the
Americans with Disabilities Act, 42 U.S.C.(S). 12101 (disability
discrimination), the Rehabilitation Act of 1973, 29 U.S.C.(S).701 (disability
discrimination), the Civil Rights Acts of 1866 and 1871, as amended, 29
U.S.C.(S).1981 et seq. (civil rights), the Consolidated Omnibus Budget
Reconciliation Act of 1985, as amended, (COBRA-group health insurance), the
Employee Retirement and Income Security Act, as amended, 29 U.S.C.(S).1001 et
seq. (employee benefits), the Fair Labor Standards Act, as amended, 29
U.S.C.(S).201 et seq. (minimum wage, overtime pay and working hours), the Family
Medical Leave Act of 1993, as amended, 42 U.S.C.(S).2601 et seq. (leaves of
absence), the
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Massachusetts Human Rights Act, as amended, actions for race, color, religion,
age, sex, national origin and handicap discrimination or for work-related
injuries or payment of wages arising under state law, for wrongful discharge
based upon an implied contract or public policy, and any other federal, state or
local statute, public policy, order, regulation, tort or contract claim, in each
case, other than the Excluded Claims.
For purposes of this Agreement, the term "Excluded Claims" means (i) Claims
under the terms of the Separation Agreement (including, without limitation,
claims under the terms and conditions of any agreement relating to Options that
remain outstanding after the date hereof pursuant to the terms of the Separation
Agreement), and (ii) any Claims for indemnification or contribution with respect
to any liability incurred by Executive as a director, officer or employee of the
Company.
3. Executive understands, agrees and acknowledges that this Agreement is
intended to include in its effect, without limitation, claims and causes of
action which he does not know of or suspect to exist in his favor at the time of
executing this Agreement, and that this Agreement contemplates extinguishment of
all such claims and causes of action.
4. Executive understands, agrees and acknowledges that by signing this
Agreement he is not relying on any representation, promise or statement, either
oral or written, not contained in this Agreement or the Separation Agreement.
5. Executive understands, agrees and acknowledges that:
(A) he has been encouraged by representatives of the Company to have this
Agreement reviewed by legal counsel of his own choosing and that he
has been given ample time to do so prior to signing it;
(B) he has had the opportunity to negotiate concerning the terms of this
Agreement;
(C) he has been provided the opportunity to take up to twenty-one (21)
days to consider this Agreement, but has elected to waive such full 21
day period by executing this Agreement;
(D) he shall have the right to revoke this Agreement within seven (7) days
following the date he executes this Agreement. Any revocation of this
Agreement must be in writing and received by the Company by the close
of
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business on the seventh day following the execution of this Agreement
and shall be delivered to Secretary, c/o Acterna Corporation, 00000
Xxxxxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxx 00000. Upon any revocation in
accordance herewith, Executive's right to the Additional Benefits
shall terminate, the Separation Agreement will be rendered void and
without effect and the Equity Agreement will continue in full force
and effect unamended by the Separation Agreement and this Agreement;
and
(E) by signing this Agreement, he represents that he fully understands the
terms and conditions stated in it and intends to be legally bound by
them.
6. Executive represents and warrants to the Company that he has not engaged
in any acts of dishonesty or in willful and serious misconduct, which misconduct
has caused or is reasonably expected to result in direct or indirect material
injury to the Company or any of its affiliates. For and in consideration of the
representations and promises made by Executive herein and other good and
valuable consideration, except as otherwise expressly provided herein, the
Company hereby waives, releases and forever discharges Executive and Executive's
heirs, successors and assigns of and from all actions, causes of actions, suits,
debts sums of money, accounts, bonds, bills, covenants, contracts,
controversies, agreements, promises, damages, judgments, claims and demands
whatsoever, in law in equity, whether known or unknown, of every kind and nature
whatsoever, including any claims that may be brought on the Company's behalf by
any third party, relating to Executive's employment with or services (including
as a director) for the Company and any of its Subsidiaries, or under the Equity
Agreement ("Company Claims"), provided, however, that the foregoing release
shall not apply to any Company Claim arising out of or under the Separation
Agreement (including, without limitation, the portions of the Equity Agreement
incorporated therein by reference) or this Agreement.
7. Executive and the Company each represents to the other that he or it has
not heretofore assigned or transferred or purported to assign or transfer, to
any person or entity, any of the Claims or Company Claims, any portion thereof,
or any interest therein.
8. Executive agrees that he will not make any untruthful and disparaging
statements about the Company or any of its Affiliates or any clients,
competitors, suppliers, employees or former employees of the Company or of any
of its Affiliates to any such person or any other persons (including but not
limited to the press or other media). The Company agrees that it will not make
any untruthful and disparaging statements about Executive to any person
(including but not limited to the press or other media).
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9. Any breach by Executive or the Company of a condition of this Agreement
with an attendant failure to remedy the breach within ten (10) days of receiving
notice of it from the other Party shall subject the breaching Party to any and
all equitable and/or monetary relief required to prevent further damage to the
other Party and to compensate same for any damages suffered as a consequence of
the breach of this Agreement.
10. Executive and the Company are of the mutual understanding and agreement
that the provisions of the Separation Agreement provide Executive with rights
and benefits in addition to those otherwise committed to him under any other
agreement with the Company or any affiliate (including, without limitation, the
Equity Agreement).
11. Nothing in the Separation Agreement or this Agreement shall be
construed as an admission of any improper action or conduct by Executive or by
the Company, the Fund or any of their respective affiliates, subsidiaries, joint
venturers, or directors, officers, employees, agents, representatives or assigns
of any violation or noncompliance with any obligation, legal or otherwise.
12. This Agreement shall be governed by and construed in accordance with
the laws of the Commonwealth of Massachusetts, without giving effect to its
principles or rules of conflict of laws to the extent such principles or rules
would require or permit the application of the laws of another jurisdiction.
13. The Parties intend that the invalidity or unenforceability of any
provision of this Agreement shall not affect or render invalid or unenforceable
any other provision.
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14. This Agreement shall be binding upon and inure to the benefit of the
Parties hereto and their respective heirs, administrators, representatives,
executors, successors and assigns.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed
as of the day and year first above written.
IN THE PRESENCE OF: ACTERNA CORPORATION
By:
Name:
Date: Title:
IN THE PRESENCE OF:
EXECUTIVE
Date:
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