Exhibit 10.82
PANAMSAT CORPORATION
EXECUTIVE CHANGE IN CONTROL SEVERANCE AGREEMENT
This Executive Change in Control Severance Agreement (the "Agreement") is
entered into this 8th day of November, 2001 by and between PanAmSat Corporation,
a Delaware corporation (together with its successors and assigns, the
"Company"), and Xxxxx X. Xxxxxxxxxxx (the "Executive").
WHEREAS the Company desires to incentivize the Executive to provide leadership
and support in the event of any "Change in Control" (as defined below) of the
Company; and
WHEREAS, the Company and the Executive desire to enter into this Agreement on
the terms and conditions set forth below. For good and valuable consideration
and the mutual covenants set forth herein, the parties hereto agree as follows:
1. Definitions. The following terms shall have the meaning set forth below
for purposes of this Agreement.
a. "Cause" means the Executive's: (i) conviction of, or plea of
nolo contendere to, a felony; (ii) use or sale of illegal
drugs; or (iii) willful and intentional misconduct, willful
neglect or gross negligence, in the performance of the
Executive's duties, which the Company reasonably believes has
caused a demonstrable and serious injury to the Company,
monetary or otherwise; provided, however, that such acts or
events shall constitute Cause only if the Board of Directors
of the Company so determines by resolution adopted by the vote
of two-thirds of the directors in attendance and the Executive
is given written notice that the Company intends to terminate
his employment for Cause, which notice shall specify the
particular acts or failures to act on the basis of which the
decision to so terminate employment was made. In the case of a
termination for Cause as described in clause (iii) above, the
Executive shall be given the opportunity within 30 days of the
receipt of such notice to meet with the Company to defend and
cure such acts or failures to act, prior to termination. The
Company may suspend the Executive's title and authority
pending such meeting, and such suspension shall not constitute
"Good Reason" (as defined below). For purposes of this
section, an act or failure to act shall be deemed "willful"
only in the absence of good faith on the part of Executive.
b. "Change in Control" means the effective date of any of the
following events occurring during the Term: (a) consummation
of a change in ownership of the Company, whether by sale,
merger, consolidation or reorganization, and whether in one or
more such transactions, pursuant to which Xxxxxx Electronics
Corporation and/or General Motors Corporation does not
directly or indirectly own more than 50% of the outstanding
common stock, in value, of the Company or any successor
surviving entity; or (b) the sale or distribution of all or
substantially all of the assets of the Company to an unrelated
entity or entities or to an entity in which Xxxxxx Electronics
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Corporation and/or General Motors Corporation does not
directly or indirectly own more than 50% in value of the
equity of such entity.
c. "Code" means the Internal Revenue Code of 1986, as amended.
d. "Good Reason" means any of the following events occurring
within three (3) years following a Change in Control:
(i) without the Executive's written consent, (A) any
reduction in the amount of the Executive's annual
base salary, (B) any reduction in the Executive's
aggregate incentive compensation opportunities, (C)
any reduction in the aggregate value of the
Executive's benefits (other than incentive
compensation opportunities in clause (B) above) as in
effect from time to time (unless such reduction is
pursuant to a general change in benefits applicable
to all similarly situated employees of the Company
and its affiliates), (D) any failure of the Company
to pay any compensation to Executive when due, or (E)
any material breach by the Company of a written
employment agreement with the Executive;
(ii) a significant reduction or modification, without the
Executive's written consent, in the Executive's
duties, responsibilities (including, without
limitation, reporting responsibilities), or authority
from that immediately prior to a Change in Control;
or
(iii) without the Executive's written consent, a transfer
of the Executive's principal place of employment to a
location more than fifty (50) miles from the
Executive's principal place of employment immediately
prior to the Change in Control; provided that the
distance between the new principal place of
employment and the Executive's primary residence is
greater than ten (10) miles more than the distance
between the principal place of employment prior to
such transfer and the Executive's primary residence
immediately prior to the Change in Control; provided
further that this clause (iii) shall not apply in the
event that (A) Executive's principal place of
employment immediately prior to the Change in Control
was located in Fairfield County, Connecticut, and (B)
Executive's new principal place of employment is
located in the borough of Manhattan in the City and
State of New York.
Notwithstanding the above, the occurrence of any of
the events described in (i), (ii) or (iii) above will
not constitute Good Reason unless the Executive gives
the Company written notice, within 30 calendar days
after the Executive knew of the occurrence of any of
the events described in (i), (ii) or (iii) above,
that such event constitutes Good Reason, and the
Company thereafter fails to cure the event within
(30) days after receipt of such notice.
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e. "Involuntary Termination" means (i) termination of the
Executive's employment by the Company without Cause or (ii)
termination of the Executive's employment by the Executive for
Good Reason.
f. "Term" means the period commencing on the date of this
Agreement and continuing through January 30, 2004.
2. Accrued Compensation and Severance Benefits.
2.1 Involuntary Termination of Employment. In the event that within three
(3) years following a Change in Control, an Involuntary Termination of
Executive's employment with the Company occurs, the Executive shall be
entitled to (i) payment of accrued compensation pursuant to Section
2.2, (ii) payment of severance compensation pursuant to Section 2.3,
and (iii) receipt of other benefits pursuant to Section 2.4.
2.2 Accrued Compensation. The accrued compensation to which the Executive
is entitled pursuant to Section 2.1 shall be as follows:
a. an amount equal to the Executive's unpaid annual base salary
earned as of the date of Involuntary Termination;
b. an amount equal to the higher of (x) the Executive's unpaid
targeted annual bonus established for the fiscal period in
which the Involuntary Termination occurs or (y) the actual
bonus paid or payable to the Executive in respect of the most
recent full fiscal year of the Company, in each case
multiplied by a fraction, the numerator of which is the number
of days elapsed in the current fiscal period to the date of
Involuntary Termination, and the denominator of which is 365;
and
c. an amount equal to the Executive's accrued balance under the
Company's "Paid Time Off" program (or successor or replacement
program), calculated based on the Executive's annual base
salary; provided, that in the event of an Involuntary
Termination for Good Reason under Section 1(d)(i)(A) above,
the annual base salary amount used for the foregoing
calculation shall be that annual base salary amount in effect
immediately prior to any reduction thereof.
2.3 Amount of Severance Compensation.
a. The amount of severance compensation (the "Severance
Compensation") to which the Executive is entitled pursuant to
Section 2.1 shall be equal to 2.0 (two) times the sum of (i)
the Executive's annual base salary for the year in which the
Involuntary Termination occurs plus (ii) the higher of (x) the
Executive's targeted annual bonus established for the fiscal
period in which the Involuntary Termination occurs or (y) the
actual bonus paid or payable to the Executive in respect of
the most recent full fiscal year of the Company; provided,
that in the event of an Involuntary Termination for Good
Reason
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under Section 1(d)(i)(A) and/or (B) above, the annual base
salary and targeted bonus amounts used for the foregoing
calculation shall be those annual base salary and targeted
bonus amounts in effect immediately prior to any reduction
thereof. Payment of the Severance Compensation shall be
conditioned upon receipt of a written release by the Executive
of any claims against the Company or its subsidiaries, except
those arising under this Agreement or any other written plan
or agreement, which shall be specifically noted in such
release. Such release shall be substantially in the form
attached hereto as Annex A. Payment of the Severance
Compensation shall be made within ten (10) days following the
effective date of such written release. Such Severance
Compensation shall be in lieu of any other payments or
benefits in the nature of severance pay or benefits which the
Executive has received or will receive from the Company or any
of its affiliates. Any other arrangement, plan or program
providing severance benefits shall be deemed to be amended to
eliminate any obligation for benefits to be provided
thereunder. If the Executive is entitled to any notice or
payment in lieu of any notice of termination of employment
required by Federal, state or local law, including but not
limited to the Worker Adjustment and Retraining Notification
Act, the Severance Compensation to which the Executive would
otherwise be entitled under this Agreement shall be reduced by
the amount of any such payment, in lieu of notice.
b. The Executive shall not be entitled to Severance Compensation
hereunder for more than one position with the Company and its
affiliates, therefore, there shall be no duplication of
severance benefits in this regard.
c. The Executive's Severance Compensation under this Agreement
shall not be reduced by the amount of any salary or bonus paid
or payable by any employer of the Executive for any period
after termination of Executive's employment with the Company.
The Executive shall not be obligated to secure new employment,
but shall be obligated to report promptly to the Company any
actual employment obtained during the period for which
employee benefits continue pursuant to Section 2.4.
2.4 Other Benefits.
a. Any unvested stock options, restricted stock units and other
awards ("Stock Awards") granted prior to the Change in Control
under the Company's Long-Term Stock Incentive Plan (or
successor or replacement plan) (the "Plan") held by the
Executive shall immediately become vested and exercisable, and
any restrictions thereon shall lapse, upon the Change in
Control, and, to the extent such Stock Awards are assumed,
substituted or continued, following any Involuntary
Termination such Stock Awards shall be exercisable under the
terms and conditions of the Plan and any award agreements
thereunder for a period equal to the lesser of (i) five years
from the date of the Executive's Involuntary Termination or
(ii) the term of such Stock Award.
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b. The Executive and the Executive's dependents shall be entitled
to participate on the same basis as active employees and their
dependents, respectively, in the Company's group health,
dental and life insurance plans (including premium payments
and credit dollars paid by the Company), or the Company shall
make available comparable benefits (but not any other welfare
benefit plans or any retirement plans, except as described
below) for a period of 2.0 (two) years following a termination
of employment described in Section 2.1 and provided that the
coverage provided under this Agreement is subject to any
limitations under the terms of any applicable contract with an
insurance carrier or third party administrator, except such
coverage shall expire if the Executive becomes eligible for
comparable coverage under a plan of another employer. Nothing
herein shall be deemed to restrict the right of the Company
from amending or terminating any such plan in a manner
generally applicable to similarly situated active executives
employed by the Company and its affiliates, in which event the
Executive shall be entitled to participate on the same basis
(including payment of applicable contributions) as similarly
situated active executives employed by the Company and its
affiliates.
c. The Executive shall be entitled to reimbursement for actual
payments made for professional outplacement services, not to
exceed $25,000.
d. The Executive shall be entitled to reimbursement for all
outstanding unreimbursed business expenses properly incurred
by Executive prior to the Involuntary Termination pursuant to
the Company's policy therefor in effect at the time such
expenses were incurred.
3. Excise Taxes.
a. Anything in this Agreement to the contrary notwithstanding and
except as set forth below, if it is determined that any
payment, benefit or distribution by the Company to or for the
benefit of Executive (whether paid or payable or distributed
or distributable pursuant to the terms of this Agreement or
any other agreement, plan or program of the Company, but
determined without regard to any additional payments required
under this Section 3) (each of such payments, benefits and
distributions, a "Payment") is subject to the excise tax
imposed by Section 4999 of the Code or any similar federal,
state or local law, or any interest or penalties are incurred
by Executive with respect to such excise tax (such excise tax,
together with any such interest and penalties, are hereinafter
collectively referred to as the "Excise Tax"), then the
Company shall pay the Executive an additional cash payment (a
"Gross-Up Payment") in an amount such that after payment by
Executive of all taxes (including any interest or penalties
imposed with respect to such taxes), including, without
limitation, any income taxes (and any interest and penalties
imposed with respect thereto) and Excise Tax imposed upon the
Gross-Up Payment, Executive retains an amount of the Gross-Up
Payment equal to the Excise Tax imposed upon the Payments. For
purposes of determining the Gross-Up Payment, the Executive
shall be deemed to be taxed at the highest marginal rate under
all applicable federal, state and local income tax laws for
the year in
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which the Gross-Up Payment is paid. Notwithstanding the
foregoing provisions of this paragraph "a", if it is
determined that Executive is entitled to a Gross-Up Payment,
but that Executive, after taking into account the Payments and
the Gross-Up Payment, would not receive a net after-tax
benefit of at least $50,000 (taking into account both income
taxes and any Excise Tax) as compared to the net after-tax
proceeds to Executive resulting from an elimination of the
Gross-Up Payment and a reduction of the payments, in the
aggregate, to an amount (the "Reduced Amount") such that the
receipt of Payments would not give rise to any Excise Tax then
no Gross-Up Payment shall be made to Executive and the
Payments, in the aggregate, shall be reduced to the Reduced
Amount.
b. Subject to the provisions of paragraph "a", all determinations
required to be made under this Section 3, including whether
and when a Gross-Up Payment is required and the amount of such
Gross-Up Payment and the assumptions to be utilized in
arriving at such determination, shall be made by a nationally
recognized certified public accounting firm selected by the
Company and reasonably acceptable to the Executive (the
"Accounting Firm") which shall be retained to provide (i)
detailed supporting calculations both to the Company and
Executive within fifteen (15) business days of the receipt of
notice from Executive that there has been a Payment, or such
earlier time as is required by the Company, and (ii) if
applicable, an opinion to the Executive that the Executive is
not required to report any Excise Tax on the Executive's
federal income tax return with respect to the Payments
(clauses (i) and (ii), collectively, the "Determination") .
Within five (5) business days of receipt of the Determination,
Executive shall have the right to dispute such Determination
(a "Dispute"). The existence of such a Dispute shall not in
any way affect the right of the Executive to receive the
Payments in accordance with the Determination. If the
Executive is successful in the Dispute, any additional amount
thereby determined to be owed to Executive shall be paid,
together with interest thereon at an interest rate equal to
the federal short-term rate determined under Section 1274(d)
of the Code (the "Interest Rate"). All fees and expenses of
the Accounting Firm shall be borne solely by the Company. Any
Gross-Up Payment, as determined pursuant to this Section 3,
shall be paid by the Company to Executive within five (5)
business days of the receipt of the Accounting Firm's
Determination. Any Determination by the Accounting Firm shall
be binding upon the Company and Executive, subject to
Executive's right to dispute such Determination provided
above. As a result of the uncertainty in the application of
Section 4999 of the Code at the time of the initial
Determination by the Accounting Firm hereunder, it is possible
that Gross-Up Payments which will not have been made by the
Company should have been made ("Underpayment"), consistent
with the calculations required to be made hereunder. If the
Company exhausts its remedies pursuant to paragraph "c" below
and Executive thereafter is required to make a payment of any
Excise Tax, the Accounting Firm shall determine the amount of
the Underpayment that has occurred and any such Underpayment,
together with interest thereon at the Interest Rate, shall be
promptly paid by the Company to or for the benefit of
Executive.
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c. Executive shall notify the Company in writing of any claim by
the Internal Revenue Service that, if successful, would
require the payment by the Company of the Gross-Up Payment.
Such notification shall be given as soon as practicable but no
later than twenty (20) business days after Executive is
informed in writing of such claim and shall apprise the
Company of the nature of such claim and the date on which such
claim is requested to be paid or appealed. Executive shall not
pay such claim prior to the expiration of the thirty (30) day
period following the date on which it gives such notice to the
Company (or such shorter period ending on the date that any
payment of taxes with respect to such claim is due). If the
Company notifies Executive in writing prior to the expiration
of such period that it desires to contest such claim,
Executive shall:
(a) give the Company any information reasonably required
by the Company relating to such claim;
(b) take such action in connection with contesting such
claims as the Company shall reasonably request in
writing from time to time, including, without
limitation, accepting legal representation with
respect to such claim by an attorney reasonably
selected by the Company;
(c) cooperate with the Company in good faith in order to
effectively contest such claim; and
(d) permit the Company to participate in any proceedings
relating to such claim;
provided, however, that the Company shall bear and pay
directly all costs and expenses (including additional interest
and penalties) incurred in connection with such contest and
shall indemnify and hold Executive harmless, on an after-tax
basis, for any Excise Tax or income tax (including interest
and penalties with respect thereto) imposed as a result of
such representation and payment of costs and expenses. Without
limitation on the foregoing provisions of this paragraph "c",
the Company shall control all proceedings taken in connection
with such contest and, at its sole option, may pursue or forgo
any and all administrative appeals, proceedings, hearings and
conferences with the taxing authority in respect of such claim
and may, at its sole option, either direct Executive to pay
the tax claimed and xxx for a refund or to contest the claim
in any permissible manner, and Executive agrees to prosecute
such contest to a determination before any administrative
tribunal, in a court of initial jurisdiction and in one or
more appellate courts, as the Company shall determine;
provided, however, that if the Company directs Executive to
pay such claim and xxx for a refund, the Company shall advance
the amount of such payment to Executive, on an interest-free
basis, and shall indemnify and hold Executive harmless, on an
after-tax basis, from any Excise Tax or income tax (including
interest or penalties with respect thereto) imposed with
respect to such advance or with respect to any imputed income
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with respect to such advance; and further provided that any
extension of the statute of limitations relating to payment of
taxes for the taxable year of Executive with respect to which
such contested amount is claimed to be due is limited solely
to such contested amount. Furthermore, the Company's control
of the contest shall be limited to issues with respect to
which a Gross-Up Payment would be payable hereunder, and
Executive shall be entitled to settle or contest, as the case
may be, any other issue raised by the Internal Revenue Service
or any other taxing authority.
d. If, after the receipt by Executive of an amount advanced by
the Company pursuant to paragraph "c" above, Executive becomes
entitled to receive any refund with respect to such claim,
Executive shall (subject to the Company's complying with the
requirements of paragraph "c" above) promptly pay to the
Company the amount of such refund (together with any interest
paid or credited thereon after taxes applicable thereto). If
after the receipt by Executive of any amount advanced by the
Company pursuant to paragraph "c" above, a determination is
made that Executive shall not be entitled to any refund with
respect to such claim and the Company does not notify
Executive in writing of its intent to contest such denial of
refund prior to the expiration of 30 days after such
determination, then such advance shall be forgiven and shall
not be required to be repaid and the amount of such advance
shall offset, to the extent thereof, the amount of Gross-Up
Payment required to be paid. In the event that any taxing
authority determines that any additional Excise Tax is owed,
then the Company shall pay an additional Gross Up Amount to
the Executive in a manner consistent with this Section 3 with
respect to such additional Excise Tax and any assessed
interest, fines and penalties.
4. Claims & Arbitration.
4.1 Arbitration of Claims. After exhausting administrative remedies
provided in applicable plans, if any, Executive shall settle by
arbitration any dispute or controversy arising in connection with this
Agreement, whether or not such dispute involves a plan subject to the
Employee Retirement Income Security Act of 1974, as amended ("ERISA").
Such arbitration (including, without limitation, the selection of
arbitrators) shall be conducted in accordance with the employment rules
of the American Arbitration Association before a panel of three
arbitrators sitting in New York, New York. The Company and Executive
agree that the arbitrators shall be empowered to enter an equitable
decree mandating enforcement of the terms of this Agreement. The award
of the arbitrators shall be final and non-appealable, and judgment may
be entered on the award of the arbitrators in any court having proper
jurisdiction. All expenses of such arbitration shall be borne by the
Company in accordance with Section 4.2 hereof.
4.2 Payment of Legal Fees and Costs. The Company agrees to pay as incurred,
to the full extent permitted by law, all legal fees and related
expenses which Executive may reasonably incur as a result of any
contest (regardless of the outcome thereof) by the Company, Executive
or others of the validity or enforceability of, or liability under, any
provision of this Agreement of any guarantee of performance thereof
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(including as a result of any contest by Executive about the amount of
payment pursuant to this Agreement), plus in each case interest on any
delayed payment at the applicable federal rate provided for in Section
7872 (f) (2) (A) of the Code.
4.3 Agent for Service of Legal Process. Service of legal process with
respect to a claim under this Agreement shall be made upon the General
Counsel of the Company.
5. Tax Withholding. All payments to the Executive under this Agreement
will be subject to the withholding of all applicable federal, state and
local employment and income taxes.
6. Employment Rights. This Agreement shall not confer upon the Executive
any right to the continuation of employment with the Company.
7. Severability. In the event that any provision or portion of this
Agreement shall be determined to be invalid or unenforceable for any
reason, the remaining provisions of this Agreement shall be unaffected
thereby and shall remain in full force and effect.
8. Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of the Company and any successors and assigns of the
Company. The Company will require any successor to or assignee of all
or substantially all of the business and/or assets of the Company to
expressly assume and agree to perform this Agreement in the same manner
and to the same extent that the Company would be required to perform if
no succession or assignment had taken place.
9. Notices. Any notice required under this Agreement shall be in writing
and shall be delivered by certified mail return receipt required to
each of the parties as follows:
To the Executive:
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To the Company: PanAmSat Corporation
Xxx Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attn: General Counsel
or to such other address as either party shall have furnished to the
other in writing in accordance herewith.
10. Governing Law. The provisions of this Agreement shall be construed in
accordance of the laws of the state of New York (without regard to
principles of conflict of laws), to the extent not preempted by ERISA.
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11. Miscellaneous. This Agreement may not be amended or modified in any
way, and none of its provisions may be waived, except by a writing
signed by an authorized officer of the party against whom the
amendment, modification or waiver is sought to been enforced. This
Agreement constitutes the entire agreement between the parties, and
supersedes all previous understandings, commitments or representations
concerning the subject matter hereof, including that certain Executive
Change in Control Agreement between Executive and the Company dated as
of January 31, 2001.
.. This Agreement may be executed in
several counterparts, each of which shall be deemed an original, and
all such counterparts together shall constitute but one and the same
instrument.
IN WITNESS WHEREOF, the Executive and the Company have executed this Agreement
as of the date and year first above written.
"Executive"
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Xxxxx X. Xxxxxxxxxxx
"Company"
PANAMSAT CORPORATION
By:
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Name:
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Title:
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ANNEX A
GENERAL RELEASE OF CLAIMS
In consideration of the payments made by the Company to you, pursuant
to Section 2.3 of the Executive Change in Control Severance Agreement (the
"Agreement") between you and PanAmSat Corporation (the "Company"), dated as of
November 8, 2001, you agree to enter into this release (the "Release") releasing
the Company from any and all claims which you may have against it.
1. General. For purposes of this Release, the "Released Parties" means,
individually and collectively, the Company, its present, former and future
shareholders, partners, limited partners, affiliates, parents, subsidiaries,
successors, directors, officers, employees, agents, attorneys, successors and
assigns.
(a) General Waiver and Release. In exchange for the consideration set
forth herein, the receipt and adequacy of which are herein acknowledged, and
intending to be legally bound hereby, you do hereby release and forever
discharge the Released Parties from any and all claims, actions, causes of
action, suits, costs, controversies, judgments, decrees, verdicts, damages,
liabilities, attorneys' fees, covenants, contracts, and agreements that you may
have against the Released Parties based on (i) any event occurring during the
term of your employment with the Company arising out of your employment
relationship with or service as an employee or officer of the Company or the
termination of such relationship or service or (ii) any event, condition,
circumstance or obligation that occurred, existed or arose on or prior to the
date you sign this Agreement, including, but not limited to, any claims arising
under Title VII of the Civil Rights Act of 1964, the Rehabilitation Act of 1973,
the Americans with Disabilities Act of 1990, the Civil Rights Act of 1866, the
Civil Rights Act of 1991, the Employee Retirement Income Security Act of 1974,
the Family Medical Leave Act of 1993, the California Fair Employment and Housing
Act, the California Workers' Compensation Act, the California Xxxxx and Xxxxx
Civil Rights Laws, the California Alcohol and Drug rehabilitation Law,(1) or any
other federal or state or local law or any foreign jurisdiction, whether such
claim arises under statute, common law or in equity, and whether or not you are
presently aware of the existence of such claim, damage, action or cause of
action, suit or demand (collectively, including claims, actions and causes of
action set forth in Section 1(b) below, the "Claims"). You also do forever
release, discharge and waive any right you may have to recover in any proceeding
brought by any federal, state or local agency against the Released Parties to
enforce any laws. You agree that the payment received as set forth in Section
2.3 of the Agreement shall be in full satisfaction of any and all claims,
actions or causes of action for payment or other benefits of any kind that you
may have against the Released Parties.
(b) ADEA Release.(2) In further recognition of the above, you hereby
release and forever discharge the Released Parties from any and all claims,
actions and causes of action that you may have as of the date you sign this
Release arising under the federal Age Discrimination in Employment Act of 1967,
as amended, and the applicable rules and regulations promulgated thereunder
("ADEA").
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(1) Titles of similar applicable laws in jurisdiction of Executive's primary
residence to be inserted.
(2) Section 1(b) to be omitted if Executive is under the age of 40 years at the
date of Involuntary Termination.
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(c) No Impact on Obligations Under The Agreement or Company
Indemnification. The releases contained in this Section 1 do not, are not
intended to and shall not be interpreted to serve as a release or waiver by you
with respect to (i) your to rights under the Agreement, and (ii) any
indemnification obligations that the Company may have in connection with your
employment with the Company.
(d) No Pending Litigation. You hereby represent and agree that you have
not filed, and will not file, any action, complaint, charge, grievance or
arbitration against any Released Party.
(e) No Right to Commence any Legal Action. You will not commence or
join any legal action, which term includes, without limitation, any demand for
arbitration proceedings and any complaint to any federal, state or local agency,
court or other tribunal, to assert any Claim released by you under Section 1
against a Released Party. If you commence or join any such legal action against
a Released Party, you will promptly indemnify such Released Party for its
reasonable costs and attorneys' fees incurred in defending such action as well
as any monetary judgment obtained by you against any Released Party in such
action.
(f) To ensure that this Release is fully enforceable in accordance with
its terms, you hereby agree to waive any and all rights of Section 1542 of the
California Civil Code (to the extent applicable) as it exists from time to time
or a successor provision thereto, which provides:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT
KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE
RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS
SETTLEMENT WITH THE DEBTOR.
In addition, to ensure that this Release is fully enforceable in accordance with
its terms, you agree to waive any protection that may exist under any comparable
or similar state and under any principle of common law of the United States or
any and all states.
(g) Acknowledgment.(3) By signing this Release, you hereby acknowledge
and confirm that you are providing the release and discharge set forth in this
Section 1 in exchange for consideration in addition to anything of value to
which you are already entitled. By signing this Release, you hereby acknowledge
and confirm that (i) you are hereby advised in writing by the Company in
connection with the terms of this Release to consult with an attorney of your
choice prior to signing the Release and to have such attorney explain to you the
terms of the Release, including, without limitation, the terms relating to your
release of Claims arising under ADEA; (ii) you have read the Release carefully
and completely and understand each of the terms thereof; and (iii) you were
given not less than twenty-one (21) days to consider the terms of the Release
and to consult with an attorney of your choosing with respect thereto, and that
for a period of seven (7) days following your signing of this Release, you have
the option to revoke this Release.
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(3) Section 1(g) to be omitted if Executive is under the age of 40 years at the
date of Involuntary Termination.
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2. Confidentiality Agreement. You agree that you will not disclose or
divulge either directly or indirectly, the fact of or terms of this Release to
any organization, form of media, person, individual, or employee or ex-employee
of the Released Parties, except that you may disclose the terms of this Release
to your lawyer, accountant and members of your immediate family provided that
they agree to be bound by the terms of this Section 2. You may also disclose
this Release pursuant to legal process; provided that you provide the Company
with written notice at least 5 business days prior to such disclosure. You
understand that any breach of this Section 2 by you or any of the individuals to
whom you are permitted to disclose it will be considered material and you will
be required to return the payments set forth in Section 2.3 of the Agreement to
the Company upon any such breach.
3. Disclaimer. You expressly warrant that in entering into this
Release, you have received the benefit of advice of counsel of your own choosing
and that no promise or representation of any kind or character has been made by
the Released Parties or by anyone acting on their behalf, except as expressly
stated in this Release.
4. Governing Law. This Release will be governed and construed in
accordance with the laws of the State of New York, without regard to conflicts
of law principles.
5. Severability of Clauses. If any term or provision of this Release
will be determined to be invalid or unenforceable to any extent or in any
application, then, at the election of Released Parties in their sole discretion,
the remainder of this Release will not be affected thereby and will be valid and
enforceable
6.Successors and Assigns. The rights and obligations under this Release
shall inure to any and all successors and assigns of the Company.
7.Incorporation by Reference. The terms and conditions of the Agreement
are incorporated herein by reference.
Your signature on the line below constitutes your agreement to the
terms and conditions of this Release.
ACCEPTED AND AGREED:
-----------------------------------
Xxxxx X. Xxxxxxxxxxx
Dated:
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