1
EXHIBIT 10.19
[TIMES MIRROR LETTERHEAD]
April 5, 1999
PERSONAL AND CONFIDENTIAL
Xx. Xxxx X. Xxxxx
0000 Xx. Xxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
Dear Xxxx:
This letter will confirm our previous discussions and shall constitute the
agreement ("Agreement") reached with you concerning the terms and conditions
under which you resign your employment with The Times Mirror Company ("Times
Mirror") and its wholly owned subsidiary, The Baltimore Sun, Inc. ("The
Baltimore Sun"), (both of which are collectively referred to in this Agreement
as the "Companies") and the benefits and payments which you will receive from
the Companies in consideration of the termination of your employment. This
Agreement and the benefits and payments described in it are conditioned upon
your execution of and complying with the terms and conditions set forth in this
Agreement.
1. Employment Status: (a) By the execution of this Agreement, as of April 9,
1999, you will relinquish the title and duties of Executive Vice
President, as well as any other positions you may hold within the
Companies and any of their respective subsidiaries and affiliates.
(b) Effective the close of business on June 30, 1999, (the "Effective
Date") regardless of whether you become disabled prior to such date, your
active employment with the Companies will terminate and you will be
placed on a leave of absence ("Leave of Absence"). Regardless of whether
you accept employment with another employer, your employment with the
Companies, as well as the Leave of Absence, will terminate on the earlier
of (i) the date you elect to terminate employment by providing written
notice to either the Senior Vice President of Human Resources or the
Secretary of Times Mirror or (ii) July 1, 2001 ("Termination Date"). In
the event that you accept employment with another employer not within the
Times Mirror group of companies before your Termination Date, your
employment status under this Agreement and the terms of this Agreement
will not change other than as specified herein. (Notwithstanding the
foregoing, if you do not execute this Agreement, your employment will
terminate as of June 30, 1999.)
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2. Paid Leave of Absence/Special Payment: (a) From April 9, 1999 through the
Effective Date, you will be paid $8,653.85 per week, less required
withholdings, on regular payroll intervals. Thereafter, during the Leave
of Absence, subject to the terms and conditions of this Agreement and
regardless of your death or disability, you will receive a special
payment equal to $100,000, which represents one-half of your annual
target bonus incentive award in effect on the date of this Agreement,
payable as set forth below. Such special payment is in lieu of any bonus
award otherwise payable for 1999 and constitutes severance payments to
you during the Leave of Absence.
(b) During the Leave of Absence through your Termination Date, this
special payment will be paid to you, less appropriate withholdings, in
equivalent quarterly installments of $12,500, the first payroll period of
each calendar quarter, commencing with the third calendar quarter of 1999
(i.e., on or about July 1, 1999). In the event your Termination Date is
prior to July 1, 2001 (as provided for in paragraph 1(b) of this
Agreement), then upon such earlier Termination Date, you or your heirs or
assigns will receive the remaining special payments (if any) in a single
special payment equal to the difference of (i) $100,000, less (ii) the
special payments received during the Leave of Absence. The single sum
special payment, if any, less appropriate withholdings, will be payable
within 30 days after your earlier Termination Date.
(c) For purposes of Regulation S-K of the Securities Exchange Act of 1934
("Regulation S-K"), all payments made to you under this Agreement shall
be deemed to be severance payments and not salary or bonus.
3. Annual Bonus Incentive Award/Matching Bonus Restricted Stock: On the
Effective Date you will cease participation in the Times Mirror bonus
incentive plan with respect to 1999 and thereafter. Since you will not be
receiving a 1999 bonus incentive award, your election to place on deposit
shares of Times Mirror stock equal in value to 25% of your 1999 bonus
will be canceled.
4. Group Benefits: (a) While you are still actively employed, all group
health care and group insurance benefits offered to active full-time
employees to which you are currently entitled and/or enrolled will
continue in accordance with your enrollment elections and the terms of
the plans. While on your Leave of Absence, for a maximum period of one
year, you will remain eligible for The Baltimore Sun's group insurance
programs offered to active employees, except as noted below. Your
contributions for these coverages will be at the same rate paid by active
employees and will, be deducted from the periodic severance payments
being made to you under this Agreement.
(b) As of the Effective Date, which is the date that your active
employment terminates, your coverage under business travel and the short
and long term disability programs, if enrolled, will cease. You have the
option to convert all or part of your business travel
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insurance to an individual policy, subject to established rules and plan
limitations. Further, if you are enrolled in the long-term disability
plan ("LTD") and you have been covered under the plan for 12 months or
more, you may, subject to plan terms, convert your LTD coverage to an
individual policy. If you wish to take advantage of either or both of
these conversion options, your application(s) must be received by the
respective insurance carrier(s) within 31 days from the date your
coverage terminates; otherwise, you will waive your right to convert.
(c) Upon the earlier of the end of the first year of your Leave of
Absence or your Termination Date, all other employee benefit plan
coverages will cease. You have the option, subject to established rules
and plan limitations, to convert all or part of your basic life and, if
enrolled, voluntary accidental death and dismemberment coverages to
individual policies. If you wish to take advantage of this option, your
application(s) must be received by the insurance carrier(s) within 31
days from the date your coverages terminate, otherwise you will waive
your right to convert. If you are enrolled in the Group Universal Life
Insurance Program, you will hear from Prudential directly concerning the
portability and conversion options available under that Plan. In
addition, if you or any of your qualified family members currently have
coverage under the long-term care plan, the coverage may be continued.
The Xxxx Xxxxxxx Company will contact the covered individuals directly
concerning the continuation of coverage.
(d) If you are covered under one of the Baltimore Sun-sponsored health
care plans, upon termination of your health care coverage (at the earlier
of the end of the first year of your Leave of Absence or your Termination
Date), you may elect to continue the coverage currently in effect for you
and your covered dependents under the Consolidated Omnibus Budget
Reconciliation Act (COBRA) as specified by that statute. COBRA coverage
may be continued for up to 18 months (up to 29 months for any eligible
individual who is disabled as determined by the Social Security
Administration during the first 60 days of COBRA coverage) or until the
individual is covered, after COBRA is elected, under another group health
plan with no pre-existing condition limitation affecting his or her
coverage or is entitled to Medicare, whichever occurs first. The COBRA
election notice and form will be mailed to you upon the termination of
coverage. If you and/or your eligible dependents wish to elect COBRA
continuation coverage, the completed election form must be returned to
The Baltimore Sun within 60 days from the date the notice is sent or the
date your coverage terminated, whichever is later. You are not
automatically enrolled in COBRA coverage. If you do not wish to extend
health coverage under COBRA, you may, subject to established rules,
convert your group medical coverage to an individual policy without proof
of good health. The converted policy may not provide the same coverage as
the group plan. The levels of coverage may be less and an overall
lifetime maximum benefit may apply. If you are interested in converting
your group coverage to an individual policy, you must apply and pay your
first premiums to the health care carrier within 31 days from the date
coverage ceased. Application may be
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obtained directly from the carriers by contacting Member Services or, if
you are covered under the Aetna plan, from Employee Benefits at (213)
237-5732. If COBRA continuation coverage is elected for the medical
coverage, and coverage ends because the maximum coverage period expires,
you have another opportunity to convert to an individual medical policy
during the 180-day period that ends on the expiration date.
5. Retirement Benefits: (a) Prior to and during your Leave of Absence, you
will continue to be eligible to participate in the Times Mirror and The
Baltimore Sun's retirement plans in accordance with the respective terms
and limitations of each plan. You will accrue benefits as described under
the retirement plans, and you may continue to participate in the Savings
Plus Plan at your selected savings rate (subject to any election you wish
to make) as a result of the amounts paid to you prior to and during your
Leave of Absence, subject to plan maximums and provisions. (The
retirement plans provide for a maximum of one year of benefit accrual
service or salary credit for the combination of your salary
continuation/periodic severance payments during the Leave of Absence and
any lump sum severance payments, subject to statutory limits in the
Internal Revenue Code.)
(b) You are currently vested in your benefits earned under the retirement
plans and Savings Plus Plan. In addition, you are also vested in your
benefits earned under the Time Mirror Supplemental Executive Retirement
Plan ("SERP"). As of your Termination Date, you will be entitled to
receive any vested accrued benefits under retirement plans, Savings Plus
Plan and SERP in accordance with the terms of the plans and any elections
you make under the plans. Distributions under each plan shall be made in
accordance with the terms and procedures of each respective plan based on
your participation and vesting under the plans.
6. Stock Options: (a) You presently hold options to purchase shares of stock
under the Times Mirror Company stock option plans (the "Plans"). Prior
to and during your Leave of Absence, options will continue to vest in
accordance with the grants and the terms of the Plans, and to the extent
that options are vested and exercisable during your Leave of Absence,
they may be exercised in accordance with the terms of the Plans. You will
not be eligible for any future stock option grants.
(b) To the extent that options are vested and exercisable as of your
Termination Date, they may be exercised in accordance with the terms of
the Plans for a period of up to 30 days following your Termination Date.
Options not exercisable will be canceled on your Termination Date.
(c) Subject to the provisions of paragraph 17, your acceptance of
employment with another employer not within the Times Mirror group of
companies before your Termination Date will not affect your rights with
respect to the Plans. Options will continue to vest in accordance with
the grants and the terms of the Plans, and to the extent
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that options are vested and exercisable prior to July 1, 2001, they may
be exercised in accordance with the terms of the Plans.
(d) The Companies acknowledge that as of April 9, 1999, you will no
longer be an "officer as that term is defined in Rule 16a-1(f) of the
rules and regulations promulgated under the Securities and Exchange Act
of 1934, as amended.
(e) Specific details on your personal vesting, exercise rights, and
procedures may be obtained from the Executive Compensation and Stock
Benefits group of Human Resources at Times Mirror (000) 000-0000.
7. Restricted Stock: During your Leave of Absence, restrictions will lapse
on your shares of restricted stock in accordance with the provisions of
the restricted stock program. Upon your Termination Date, any shares of
restricted stock still subject to restriction will be canceled.
8. Matching Bonus Restricted Stock: During your Leave of Absence, you will
continue to vest in your matching bonus restricted stock provided you
leave your personal shares on deposit with Times Mirror. Upon your
Termination Date, in accordance with the terms of the matching bonus
restricted stock program, any shares of matching bonus restricted stock
still subject to restrictions will be canceled and their corresponding
personal shares on deposit with Times Mirror will be returned to you.
9. Club Dues: Within 10 days of the Effective Date, Times Mirror will pay
you a single lump sum amount for your actual 1998 and 1999 club
membership dues. No further payments for membership fees, club dues or
any other special purposes will be payable after the Effective Date.
10. Other Perquisites and Benefits: All other perquisites and employee
benefits and your participation in all other employee benefit programs
not described herein will terminate on your Effective Date. You will
continue to participate in the Times Mirror Matching Gifts Program which
will cease as of your Termination Date. In addition, you will continue to
be eligible for one annual physical exam provided at Times Mirror expense
during the first year of your Leave of Absence, and the Companies will
reimburse you up to $5,000 for financial counseling expenses incurred
during the first year of your Leave of Absence. If applicable, you will
cease to accrue vacation and personal days after the Effective Date, when
your active employment ceases. Any accumulated but unused vacation and
personal days will be paid to you as of your Termination Date.
11. Withholding and Taxes: All payments required to be made by the Companies
hereunder shall be subject to any and all applicable withholdings,
including any withholdings for any related federal, state or local taxes.
You shall be responsible for any and all income
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taxes or other taxes incurred by you as a result of your receipt of any
payments from the Companies.
12. Company Property: (a) Your privileges under all of the Companies' credit
cards will cease on the Effective Date. On that date, you will return all
such credit cards. The Companies will prepare an accounting of your
expense account and credit card balances as of that date. All business
expenses through the Effective Date are to be submitted within 30 days of
the Effective Date. The net amount due between you and the Companies may
be added to or subtracted from the payments described above if no other
reimbursement method is used.
(b) In addition, you will return to the Companies all property of the
Companies, including, without limitation, all equipment, tangible
proprietary information documents, books, records, reports, contracts,
lists, computer disks (or other computer-generated files or data), or
copies thereof, created on any medium, prepared or obtained by you or the
Companies in the course of or incident to your employment with the
Companies.
13. Confidentiality: You agree to keep the terms of this Agreement strictly
confidential and you agree that you will not disclose its terms to anyone
other than your legal or financial advisor(s), relevant taxing
authorities, and appropriate family members, and except as required by
law. Further, to the extent to which information contained in this
Agreement is disclosed to any other person, you agree to obtain from them
the promise not to disclose this information unless required to do so by
law, a court or governmental authority. The Companies agrees to keep the
terms of this Agreement confidential except to the extent that disclosure
of the terms is required in the ordinary course of business operations
necessary or advisable to effect the terms of this Agreement or as
required by relevant taxing authorities or as required by law.
14. No Claims: You represent and warrant to the Companies that you have not
instituted any complaints, charges or other proceedings against the
Companies, or any of its subsidiaries with any governmental agency, any
court, or any arbitration agency or tribunal, and that, as a condition of
this Agreement, you hereby waive any right to recovery in any such action
or proceeding if you should file at any time hereafter; provided,
however, that this shall not limit you from instituting such proceedings
as may be necessary for the sole purpose of enforcing your rights under
this Agreement or your rights to payment of benefits under any benefit
plan sponsored by the Companies in which you participated on the date of
this Agreement.
15. Company Information: (a) You acknowledge that in the course of your
employment with the Companies, certain confidential factual and
strategic information specifically related to the Companies, and its
subsidiaries has been disclosed to you in confidence which was for the
use of the Companies, or any or all of their respective subsidiaries
("Company
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Information"). You understand and agree that you (i) will keep such
Company Information confidential at all times during and after your
employment with the Companies, (ii) will not disclose or communicate
Company Information to any third party, and (iii) will not make use of
Company Information on your own behalf, or on behalf of any third party;
provided that this Agreement does not apply to information that becomes
publicly available.
(b) In view of the nature of your employment and the nature of Company
Information which you received during the course of your employment, you
agree that any unauthorized disclosure to third parties of Company
Information or other violation, or threatened violation, of this
Agreement would cause irreparable damage to the confidential status of
Company Information and to the Companies, or any and all of their
respective subsidiaries, and that therefore, the Companies shall be
entitled to an injunction prohibiting you from any such disclosure,
attempted disclosure, violation, or threatened violation. When specific
Company Information becomes generally available to the public other than
by your acts or omissions, it is no longer subject to restrictions in
this paragraph. However, Company Information shall not be deemed to come
under this exception merely because it is embraced by more general
information which is or becomes generally available to the public.
(c) The undertaking set forth in this paragraph 15 shall survive the
termination of this Agreement.
16. Director and Officer Liability Coverage: During your period of employment
as an officer of the Companies, under the bylaws of Times Mirror, you
were covered under The Times Mirror Company's directors' and officers'
liability coverage. This coverage will continue in effect with respect to
the period of time during which you served as an officer of the Companies
and with respect to your actions related to your employment as an officer
of the Companies. In any event, Times Mirror will indemnify you, in the
manner and to the extent permitted by law, from any claims, demands,
lawsuits, judgments and related expenses arising from your good faith
performance as an officer of the Companies during the period of your
active employment with the Companies.
17. Restrictive Covenant: (a) During your employment with the Companies you
have held high executive positions and responsibilities. Major operating
units of Times Mirror have been under your control. As a result, you have
had access to and direct responsibility for the means by which such
operating units conduct their businesses, including, but not limited to,
trade secrets, confidential information and future plans. The interests
of the Companies require that certain reasonable limitations be imposed
upon the extent to which you may become employed by competitors of the
Companies. Accordingly, from the date of this Agreement through July 1,
2001, the period during which you will receive consideration from the
Companies, and subject to the provisions of subparagraph (b)
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below, you agree that you shall not, without the express prior written
consent of the Chief Executive Officer of Times Mirror, directly or
indirectly, and whether as a principal, partner, officer, director,
employee, consultant, venturer, agent or otherwise, alone or in
association with any person, carry on, be engaged or take part in or
render services to any newspaper publishing entity or business engaged in
competition with (i) The Baltimore Sun, The Times Mirror Company or any
of its subsidiaries in the Baltimore Metropolitan Area which is defined
as Baltimore City and the counties of Baltimore, Harford, Xxxxxx, Xxxx
Xxxxxxx, and Xxxxxx, Maryland, or (ii) Times Mirror or any division or
subsidiary of Times Mirror in the Southern California region (consisting
of the counties of Los Angeles, Orange, Ventura, San Bernardino, San
Diego or Riverside, California (referred to below as the "Six Counties").
Included within the meaning of an indirect interest would be, by way of
example only, an interest in a trust, corporation, venture, or
partnership which in turn owns an interest in any such competitive
business, or an interest in any such competitive business held through a
nominee, agent, option or other device. The foregoing provisions do not
apply to an investment in stock of any publicly held corporation if the
market value of such investment when acquired does not exceed $500,000 or
to any investment in a mutual fund.
(b) Provided further however, that you shall not be in violation of the
provisions of subparagraph (a), above, by taking a position with or
becoming employed by any of the following businesses: (i) television or
radio; (ii) cable television; (iii) a national newspaper group so long as
your responsibilities do not include being solely responsible for the
performance of a newspaper owned by such group which is distributed in
the Six Counties or the Baltimore Metropolitan Area; (iv) magazine
publishing; (v) an online service which does not directly compete with
the content of any online service offered by the Companies or any
division, subsidiary or affiliate of the Companies; (vi) weekly
newspapers or shoppers; or (vii) direct mail or marketing so long as none
of the businesses referred to in subparagraph (vi) above or this
subparagraph (vii), distribute or circulate any publication or product in
the Baltimore Metropolitan Area or in the Six Counties.
(c) You further agree that you will not, until July 1, 2001, without the
express prior written consent of the Chief Executive Officer of Times
Mirror, whether for your own account or for the account of any other
person, directly or through an agent, initiate contact for the purpose of
enticing away from the Companies, or any of its subsidiaries any person
who is an officer, employee, customer, vendor or supplier of, or an
author, who is currently under contract with, the Companies, or any of
their respective subsidiaries.
(d) It is understood by and between us that the covenants and
restrictions set forth in this paragraph are essential elements of our
Agreement and that, but for your agreement to comply with such covenants,
the Companies would not have entered into this Agreement.
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(e) Notwithstanding any election which you may make resulting in the
receipt by you of any portion of any remaining severance payments in a
single payment under the provisions of paragraph 2, the covenants and
restrictions set forth in this paragraph 17 shall remain in full force
and effect to the same extent as though such severance payments had been
made to you over the 24 month period set forth in paragraph 2.
(f) Further, you may at any time request the express prior written
consent of the Chief Executive Officer of Times Mirror regarding any
actions you intend to take in order to avoid inadvertently breaching such
provisions.
18. Termination of Benefits: You agree that the benefits to be provided to
you by the Companies under this Agreement are subject to termination,
reduction or cancellation in the event that you take any action or engage
in any conduct in material violation of this Agreement. The Companies
agree to notify you if you are believed to be engaging in conduct in
violation of this Agreement and provide you with a thirty-day grace
period to cure your breach if it consists of an act that can be cured.
Notwithstanding anything in this Agreement to the contrary, if you fail
to cure such breach during such period or if the breach is not one that
is susceptible of being cured, the benefits provided to you under this
Agreement will cease, but only to the extent they are in addition to
those benefits to which you would otherwise be entitled.
19. Public Commentary/Acknowledgement: Each of the parties hereto agrees that
such party shall not respond to or in any way participate in or
contribute to any public discussion, notice, or other publicity
concerning or in any way relating to the execution or the terms of this
Agreement, the other parties hereto, or the business or prospects of the
parties in any way that would defame, hold in a negative light or
otherwise injure any other party hereto. The Companies acknowledge that
your resignation was completely voluntary, that your job performance has
been consistently exemplary, and that you have been an outstanding
executive.
20. Release: (a) In exchange for the additional benefits to be provided to
you from the Companies under this Agreement, you, on behalf of yourself,
your heirs, executors, administrators and assigns, hereby waive, release,
and forever discharge the Companies, their shareholders, directors,
officers, employees, successors and assigns completely from any and all
claims, actions, rights, demands, liabilities and causes of any action of
every kind and character, known or unknown, mature or unmatured, which
you had or now have, arising from or relating to your employment your
termination, or any act of the Companies, or their directors, officers,
and employees occurring up to and including the date of this release,
including, but not limited to, any claim to reinstatement of, or future
employment with, the Companies, any claim for breach of contract or
wrongful termination, any claim for additional salary, severance pay, or
other compensation or
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employee, fringe or retiree benefits, any claim under the Employee
Retirement Income Security Act of 1974, as amended, the Americans with
Disabilities Act, as amended, or the Family and Medical Leave Act, as
amended, and any claim based on tort, contract (expressed or implied), or
any federal, state or local law, rule or regulation prohibiting
employment discrimination, including, but not limited to, any claims of
unlawful discrimination, any rights under the Age Discrimination in
Employment Act of 1967, as amended by the Older Workers Benefit
Protection Act ("Age Discrimination Act"), which prohibits age
discrimination in employment, any rights under Title VII of the Civil
Rights Act of 1964, which prohibits discrimination in employment based on
race, color, national origin, religion, or sex, or any other claim,
action, cause of action, or liability arising under any other federal,
state, municipal, or local statute, law, ordinance, or regulation.
(b) You also agree not to sue the Companies, or any of the other related
parties or participate in a lawsuit or otherwise file or pursue a claim
or initiate a proceeding of any sort on the basis of any claim of any
type whatsoever in any way, directly or indirectly, arising out of or
related to your employment, or the termination of that employment, with
the Companies. You further acknowledge and agree in the event that you
breach the provisions of the preceding sentence (i) the Companies shall
be entitled to apply for and receive an injunction to restrain any
violation of said provision, (ii) the Companies shall not be obliged to
continue payment of enhanced benefits under the Agreement to you, (iii)
you shall be obliged to pay to the Companies or any one of the Companies
its costs and expenses in enforcing this release and defending against
such lawsuit (including court costs, expenses and reasonable legal fees),
and (iv) you shall be obliged upon demand to repay to the Companies all
but $1,000 of the value of the benefits under this Agreement paid or
provided to you and the foregoing shall not affect the validity of this
release.
(c) This release does not release the Companies from any obligation or
claim for any amount payable under this Agreement or any employee benefit
plan nor does it apply to any rights under the Age Discrimination Act
which occur after the date this release is signed.
21. Company Release: (a) In exchange for the consideration contained in this
Agreement, the Companies, their respective directors, officers,
employees, successors and assigns (collectively referred to in this
paragraph 21 as the "Companies") hereby completely releases you, your
successors, affiliates, agents, attorneys, heirs, representatives and
assigns (collectively referred to in this paragraph 21 as "you" or
"your") from any claims actions or causes of action the Companies had,
now has or in the future may have, arising from or relating to your
employment, your termination of employment or any act of yours prior to
your Termination Date, expressly including, but not limited to, any claim
arising under any Federal, State or local statute, rule or regulation,
unless your actions represented gross negligence or were criminal in
nature.
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(b) The Companies agree that the Companies will not participate in a
lawsuit or otherwise file or pursue a claim or initiate a proceeding of
any sort on the basis of any claim which has been released by the
Companies under the provisions of subparagraph (a), above. The Companies
further acknowledge and agree in the event that the Companies or any one
of the Companies breach the provisions of the preceding sentence (i) you
shall be entitled to apply for an injunction to restrain any violation of
said provision, and (ii) the Companies shall be obliged to pay the costs
and expenses which you incur in enforcing his release and defending
against such lawsuit (including court costs, expenses and reasonable
legal fees).
(c) This release by the Companies does not release you from any
obligation you may have under this Agreement nor does it apply to any
acts which occur after the date this release is signed,
22. Revocation Period: (a) You acknowledge that you have been given a period
of at least twenty-one (21) days to review and consider this Agreement
before signing it. You further understand that you may use as much of the
21-day period as you wish before signing it. If you do not execute and
deliver this Agreement to the Companies within the time provided, none of
the payments or benefits under this Agreement will be made by the
Companies to you.
(b) You also understand that you may revoke this Agreement within seven
(7) days after signing this Agreement. Revocation may be made by
delivering a written notice of revocation to me. For this revocation to
be effective, I must receive written notice no later than the close of
business on the seventh day after you have signed this Agreement.
However, if you elect to revoke this Agreement, the rights and
obligations of both you and the Companies under this Agreement shall in
all respects terminate, it will not be effective or enforceable, you will
not receive the benefits and payment described in this Agreement and your
employment with the Companies will terminate on June 30, 1999.
(c) Provided that you have complied with all of the terms and conditions
of this Agreement, and provided further that you have not exercised your
revocation rights, it shall become effective on the day which immediately
follows the expiration of the above seven day revocation period described
in the preceding paragraph.
(d) You acknowledge that in the event that you do not execute and deliver
all the documents required by this Agreement or in the event that you
revoke the required releases, you will be obligated to return, and you
expressly agree that you will return upon demand of the Companies, all
payments made to you by the Companies pursuant to this Agreement, and
this obligation to return all such payments shall survive any such
actions by you.
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23. Advice of Counsel: You represent and agree that you fully understand your
right to discuss, and that the Companies have advised you to discuss, all
aspects of this Agreement with your private attorney, that you have
carefully read and fully understand all of the provisions of this
Agreement, and that you are voluntarily entering into this Agreement.
24. Entire Agreement: Except for other documents referred to herein, this
Agreement contains the entire agreement and understanding between you and
the Companies regarding your employment with and termination of
employment from the Companies, and totally replaces any and all prior
agreements, arrangements, representations, and understandings, written or
oral, express or implied. Neither you nor the Companies shall be bound or
liable for any representation, promise or inducement not contained herein
or therein. This Agreement cannot be amended, modified, supplemented or
altered in a manner that would change the economic value of the
Agreement, except by written amendment or supplement signed by you and
the Companies.
25. Binding on Successors and Assigns: This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of the
Companies and shall inure to the benefit of and be binding upon your
heirs, executors, administrators, successors and assigns. Should the
Companies merge or consolidate with another company or sell substantially
all of their respective assets to another company or entity, this
Agreement shall become an obligation of the surviving or acquiring
company or entity.
26. Severability: Should any provision of this Agreement be found, held,
declared, determined, or deemed by any court of competent jurisdiction to
be void, illegal, invalid or unenforceable under any applicable statute
or controlling law, the legality, validity, and enforceability of the
remaining provisions will not be affected and the illegal, invalid, or
unenforceable provision will be deemed not to be a part of the Agreement.
27. Arbitration: In exchange for the additional benefits to be provided to
you under this Agreement and the mutual promises contained herein, the
parties hereto agree that any dispute, controversy or claim arising out
of or relating to this Agreement or any payment required to be made
hereunder or arising out of or in connection with your employment
relationship with the Companies shall be resolved through final and
binding arbitration as set forth below, and such arbitration shall be the
sole and exclusive remedy for resolving any such claims or disputes. The
parties understand that by agreeing to arbitration as an exclusive
remedy, they are waiving any rights they may have to litigate their
rights under this Agreement in a court of law, including but not limited
to, any right to a jury trial; provided, however, the parties are not
waiving the right to bring suit to enforce the provisions of this
paragraph. This binding arbitration provided for under this Agreement
with respect to this Agreement shall take place in Maryland and be in
compliance with
13
Xx. Xxxx X. Xxxxx
April 5, 1999
Page 13
and governed by the provisions of the National Rules for the Resolution
of Employment Disputes of the American Arbitration Association.
28. Governing Law: This Agreement shall be construed and interpreted in
accordance with Maryland law.
29. Acknowledgment: You acknowledge and agree the release in this Agreement
is an essential and material term of this Agreement and that if you do
not agree to this release, you will not receive any of the benefits under
this Agreement. Further, you recognize and agree that you are
voluntarily signing this Agreement with the full knowledge and consent
that, as a consequence thereof, arbitration is the sole and exclusive
remedy for resolving any dispute, controversy or claim arising out of
this Agreement or your employment relationship with the Companies.
Please sign below and return this letter to me within 21 days to indicate your
agreement to these terms.
Sincerely,
/s/ XXXXX X. XXXXXXX
Xxxxx X. Xxxxxxx
Senior Vice President,
Human Resources
I have read the terms of this Agreement, including the waiver and release, and I
understand and agree to its provisions. I have been provided with a fully
executed copy of same. I understand that it contains a release of all known and
unknown claims and I voluntarily sign this Agreement.
/s/ XXXX X. XXXXX Date: 4-29-99
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Xxxx X. Xxxxx
