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EXHIBIT 10(g)
SEVERANCE AGREEMENT
AGREEMENT, made this ___ day of _______, 1997 by and between
________________ (the "Executive") and HECHINGER COMPANY, a Delaware
corporation (the "Company").
WHEREAS the parties hereto intend that the Executive's rights
to severance compensation be governed by the terms of this Agreement rather
than the terms of the Severance Agreement between the Executive and the Company
dated April, 1996 and the Company's Severance Policy outlined in the Company's
1996 Employee Handbook, any supplements or successors thereto or any severance
policy substituted for such policy (together, the "Severance Arrangements");
WHEREAS the Executive is aware of the existence of the
Severance Arrangements and the value of the benefits provided for in the
Severance Arrangements;
WHEREAS in consideration for the arrangements provided for in
this Agreement, the Executive knowingly and voluntarily waives his rights,
including his rights to any benefits, under the Severance Arrangements; and
WHEREAS the parties hereto also intend that, in addition to
the severance compensation provided for in this Agreement, the Executive shall
be entitled to receive any other compensation or benefits payable to the
Executive under the terms of any other compensation or benefit programs or
arrangements maintained by the Company other than the Severance Arrangements;
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NOW, THEREFORE, in consideration of the foregoing and the
respective agreements hereinafter set forth, the parties hereto, intending to
be legally bound hereby, agree as follows:
1. Termination. Subject to the provisions of Paragraph
3 hereof, upon the termination of the employment of the Executive, the
Executive shall be entitled to the benefits provided in Paragraph 2(c) hereof
unless such termination is (i) due to his death, retirement or Disability (as
defined herein), (ii) by the Company for Cause, or (iii) by the Executive.
(a) Death. The Executive's employment with the
Company shall terminate upon the Executive's death.
(b) Disability. The Executive's employment may be
terminated for "Disability," which term shall mean permanent and total
disability within the meaning of Section 22(e)(3) of the Internal Revenue Code
of 1986, as amended (the "Code") (without regard to the furnishing of proof to
the Secretary of the Treasury).
(c) Cause. Termination by the Company of the
employment of the Executive for "Cause" shall mean (i) nonfeasance, which shall
mean only the willful and continued failure by the Executive to substantially
perform the Executive's duties with the Company (other than either any such
failure resulting from the Executive's incapacity due to physical or mental
illness), after a written demand for substantial performance is delivered to
the Executive by the Board, which demand specifically identifies the manner in
which the Board believes that the Executive has not substantially performed the
Executive's duties, or (ii) malfeasance, which shall mean only the willful
engaging by the Executive in
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conduct that is demonstrably and materially injurious to the Company,
monetarily or otherwise. For purposes of this Paragraph, no act, or failure to
act, on the Executive's part shall be deemed "willful" unless done, or omitted
to be done, by the Executive not in good faith and without reasonable belief
that the Executive's act or failure to act, was in the best interest of the
Company.
(d) Notice of Termination. Any purported
termination of the Executive's employment by the Company shall be communicated
by written Notice of Termination to the Executive in accordance with Paragraph
11 hereof. For purposes of the Agreement, a "Notice of Termination" shall mean
a notice that shall indicate the specific termination provision in the
Agreement relied upon, if any, and shall set forth in reasonable detail the
facts and circumstances claimed to provide a basis for termination of the
Executive's employment under the provision so indicated.
(e) Date of Termination. Except as otherwise
determined pursuant to Paragraph 2(a), the "Date of Termination" for purposes
of determining the Executive's right to compensation hereunder shall mean the
date set forth in the Notice of Termination which date, in the event the
Executive's employment is terminated by the Company other than for Cause, shall
be no less than fifteen (15) days after Notice of Termination is given, unless
such Notice of Termination provides for a different period that is mutually
agreed to, in writing, by the Company and the Executive. Nothing in this
Paragraph shall be deemed to diminish the Company's right to cause the
Executive to cease performing his duties and responsibilities as an executive
and employee of the Company at any time.
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2. Compensation Upon Termination. Upon termination of
the Executive's employment, and in lieu of any other severance benefit
otherwise payable to the Executive under the terms of the Severance
Arrangements, the Executive shall be entitled to the following benefits:
(a) If the Executive's employment is terminated by
his death or Disability, or if the Executive retires in accordance with the
Company's retirement policies, the Date of Termination shall be deemed to be
the date of such death or termination for Disability, pursuant to Paragraph 1
hereof, or date of retirement. In such event, the Company shall pay the
Executive his base salary, through the Date of Termination or retirement (and
any bonus which otherwise would have been paid prior to the Date of
Termination or retirement, as the case may be). Thereafter, the Executive or,
in the event of his death, his estate shall receive those benefits to which he
or his estate may be entitled under the relevant Company benefit and retirement
plans or arrangements.
(b) If the Executive's employment shall be
terminated by the Company for Cause or by the Executive, and is not due to the
Executive's death or Disability, the Company shall pay him his full base salary
through the Date of Termination at the rate in effect at the time Notice of
Termination is or properly should have been given, and the Company shall have
no further obligations to the Executive under this Agreement.
(c) If the Executive's employment shall be
terminated by the Company, other than for any of those reasons specified in
clauses (i), (ii) and (iii) of paragraph 1 of this letter, then he shall be
entitled, in addition to his full base salary through the Date of Termination
at the rate in effect at the time the Notice
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of Termination is or properly should have been given (and any bonus which
otherwise would have been paid prior to the Date of Termination), to the
benefits provided below:
(i) The Company shall pay the Executive his full
base salary at the rate in effect at the time Notice of Termination is given or
properly should have been given, for a period (the "Payment Period") of twelve
months from the Date of Termination (such payment, the "Basic Severance
Benefit"); provided, however, that in the event that the Executive executes a
general release substantially in the form attached hereto as Exhibit A, then in
consideration of the execution of such general release, the Company shall
extend the Payment Period for an additional [twelve][six] months (such
additional [twelve][six]-month period, the "Additional Severance Benefit").
Such payments shall be made on the same schedule as the Executive's base salary
was paid. During the Payment Period the Executive will not accrue vacation
time. The Executive will be paid for any unused, accrued vacation time
existing at the Date of Termination at the time of the first payment of
benefits under this Agreement.
(ii) The Company also shall pay to the Executive a
sum equal to the average of the last three annual bonuses (or such lesser
number if the Executive has received a lesser number of bonuses) paid by the
Company to the Executive. Such payment may be made as a lump sum or on a pro
rata basis over the Payment Period, at the Company's discretion.
(iii) During the Payment Period, the Company shall
arrange to provide the Executive with coverage under the medical, dental and
life insurance programs in which the Executive was enrolled immediately prior
to the Date of Termination (or substantially simi-
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lar programs), so long as the Executive continues to pay any employee premiums
due under such programs. At the end of the Payment Period, the Executive will
have the right to extend his medical and dental coverage under the provisions
of COBRA. Benefits under the Company's Profit Sharing Plan, 401(k) Plan and
Stock Incentive Plans will be governed by the terms of those Plans.
(iv) The Executive shall be entitled to a
merchandise discount through the Payment Period in accordance with Company
policy for employee merchandise discounts as may be in effect from time to time
during that Period. The Executive also shall receive, through the Payment
Period, a monthly automobile allowance in an amount equal to the allowance such
Executive received immediately prior to the Date of Termination. The Company
shall make available to the Executive during the Payment Period those
outplacement services that the Company is then providing to terminated
employees generally.
(v) The Company also shall pay to the Executive
all reasonable legal fees and expenses incurred by him in seeking to obtain or
enforce any right or benefit to which the Executive is entitled under the
Agreement, provided that the Executive prevails in any legal proceeding
connected therewith. Such payments shall be made, following the conclusion of
such legal proceeding, within five (5) days after the Executive delivers to the
Company a written request for payment accompanied by such evidence of fees and
expenses incurred as the Company reasonably may require.
3. Compensation Upon Termination Following a Change in
Control. In the event of the termination of the Executive's employment by the
Company within two years following a Change in Control (as defined herein),
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in lieu of any other severance benefit otherwise payable to the Executive under
the terms of the Severance Arrangements and in lieu of any payments pursuant to
Paragraph 2 hereof, the Executive shall be entitled to the benefits set forth
below unless such termination is (i) due to his death, retirement or
Disability, (ii) by the Company for Cause, or (iii) by the Executive without
Good Reason (as defined herein).
(a) The Company shall pay to the Executive a lump sum payment
within fifteen days of the Date of Termination equal to [3.0][1.5] multiplied
by the sum of (i) the Executive's annual full base salary at the rate in effect
at the time Notice of Termination is given or properly should have been given,
and (ii) the average of the last three annual bonuses (or such lesser number if
the Executive has received a lesser number of bonuses) paid by the Company to
the Executive.
(b) For a period of [thirty six][eighteen] months from the
Date of Termination (the "Coverage Period"), the Company shall arrange to
provide the Executive with coverage under the medical, dental and life
insurance programs in which the Executive was enrolled immediately prior to the
Date of Termination (or substantially similar programs), so long as the
Executive continues to pay any employee premiums due under such programs (which
premiums shall not be at a rate or in an amount greater than the rate or amount
of employee premiums due immediately prior to the Date of Termination). At the
end of the Coverage Period, the Executive will have the right to extend his
medical and dental coverage under the provisions of COBRA. Benefits under the
Company's Profit Sharing Plan, 401(k) Plan and Stock Incentive Plans will be
governed by the terms of those Plans.
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(c) The Executive shall be entitled to a merchandise discount
through the Coverage Period in accordance with Company policy for employee
merchandise discounts as may be in effect from time to time during that
Coverage Period. The Executive also shall receive, through the Coverage
Period, a monthly automobile allowance in an amount equal to the allowance such
Executive received immediately prior to the Date of Termination. The Company
shall make available to the Executive during the Coverage Period those
outplacement services that the Company is then providing to terminated
employees generally.
(d) The Company also shall pay to the Executive all
reasonable legal fees and expenses incurred by him in seeking to obtain or
enforce any right or benefit to which the Executive is entitled under the
Agreement, provided that the Executive prevails in any legal proceeding
connected therewith. Such payments shall be made, following the conclusion of
such legal proceeding, within five (5) days after the Executive delivers to the
Company a written request for payment accompanied by such evidence of fees and
expenses incurred as the Company reasonably may require.
(e) In the event that all or any portion of the payments and
benefits pursuant to the Agreement become subject to the Excise Tax (as defined
below) (such payments and benefits that are subject to the Excise Tax are for
purposes of this Paragraph 3(e) referred to as the "Parachute Severance
Payments"), the Company shall pay to the Executive an additional amount (the
"Gross-Up Payment") such that the net benefit provided to the Executive with
respect to the Parachute Severance Payments, after deduction of the Excise Tax
imposed with respect to the Parachute Severance Payments (but not any federal,
state or local income taxes) and any Excise Tax
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(but not any federal, state, or local income taxes) imposed on the payment
provided for by this Paragraph 3(e), shall be equal to the Parachute Severance
Payments.
For purposes of determining whether any part of the benefits
provided under the Agreement will be subject to the Excise Tax and the amount
of such Excise Tax, (i) no portion of the Total Benefits (as defined below) the
receipt or enjoyment of which the Executive shall have effectively waived in
writing shall be taken into account, (ii) any other payments or benefits
received or to be received by the Executive in connection with a Change in
Control or the Executive's termination of employment (pursuant to the terms of
any plan, arrangement or agreement with the Company, any Person whose actions
result in a Change in Control or any Person affiliated with the Company or such
Person) shall be treated as "parachute payments" within the meaning of section
28OG(b)(2) of the Code, and all "excess parachute payments" within the meaning
of section 28OG(b)(1) of the Code shall be treated as subject to the Excise
Tax, unless in the opinion of tax counsel reasonably selected by the Company's
independent auditors (which were, immediately prior to the Change in Control,
the Company's independent auditors), such other payments or benefits (in whole
or in part) do not constitute parachute payments, including by reason of
section 28OG(b)(4)(A) of the Code, or such excess parachute payments (in whole
or in part) represent reasonable compensation for services actually rendered,
within the meaning of section 28OG(b)(4)(B) of the Code, in excess of the Base
Amount allocable to such reasonable compensation, or are otherwise not subject
to the Excise Tax, (iii) the amount of benefits under this Agreement that shall
be treated as subject to the Excise Tax (and therefore as Parachute Severance
Payments) shall be equal to the lesser of (A) the portion of the benefits under
the Agreement treated as a parachute payment within the
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meaning of section 28OG(b)(2) of the Code or (B) the amount of excess parachute
payments within the meaning of section 28OG(b)(1) of the Code (after applying
clause (i) above), and (iv) the value of any noncash benefits or any deferred
payment or benefit shall be determined by the Company's independent auditors in
accordance with the principles of sections 28OG(d)(3) and (4) of the Code.
In the event that the Excise Tax is subsequently determined to
be less than the amount taken into account hereunder at the time of termination
of the Executive's employment, the Executive shall repay to the Company, at the
time that the amount of such reduction in Excise Tax is finally determined, the
portion (if any) of the Gross-Up Payment attributable to such reduction
(determined in accordance with the foregoing provisions of this Paragraph 3(e))
plus interest on the amount of such repayment at the rate provided in section
1274(b)(2)(B) of the Code.
In the event that the Excise Tax attributable to the benefits
under the Agreement is determined to exceed the amount taken into account
hereunder at the time of the termination of the Executive's employment
(including by reason of any payment the existence or amount of which cannot be
determined at the time of the Gross-Up Payment), the Company shall make an
additional Gross-Up Payment in respect of such excess (plus any interest,
penalties or additions, but not any federal, state, or local income taxes,
payable by the Executive with respect to such excess) at the time that the
amount of such excess is finally determined. The Company shall provide the
Executive with its calculation of the amounts referred to in this Paragraph
3(e), and such supporting materials as are reasonably necessary for the
Executive to evaluate the Company's calculations. The Executive
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and the Company shall each reasonably cooperate with the other in connection
with any administrative or judicial proceedings concerning the existence or
amount of liability for Excise Tax with respect to the payments and benefits
pursuant to the Agreement.
Notwithstanding the foregoing provisions of this Paragraph
3(e), in the event that any payment or benefit received or to be received by
the Executive in connection with a Change in Control or the termination of the
Executive's employment (whether pursuant to the terms of the Agreement or any
other plan, arrangement or agreement with the Company, any Person whose actions
result in a Change in Control or any Person affiliated with the Company or such
Person) (all such payments and benefits, including payments and benefits
pursuant to the Agreement, being hereinafter called "Total Benefits") would be
subject (in whole or part), to the Excise Tax, then the amount of benefits
payable pursuant to the Agreement and the corresponding Gross-Up Payment shall
be reduced to the extent necessary so that no portion of such benefits is
subject to the Excise Tax if (A) the net amount of the Total Benefits, as so
reduced, (and after deduction of the net amount of federal, state and local
income tax on such reduced Total Benefits) is greater than (B) the excess of
(i) the net amount of such Total Benefits, without reduction (but after
deduction of federal, state and local income tax on such Total Benefits), over
(ii) the amount of Excise Tax to which the Executive would be subject in
respect of such Total Benefits.
(f) For purposes of this Paragraph 3, the following terms
shall have the meanings set forth below:
(i) "Base Amount" shall have the meaning prescribed
by Section 280G(b)(3) of the Code.
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(ii) "Beneficial Owner" shall have the meaning
prescribed by Rule 13d-3 under the Exchange Act.
(iii) "Change in Control" shall mean a change in
control of the Company, which shall be deemed to have occurred only if (A) any
Person (as hereinafter defined) is or becomes the Beneficial Owner, directly or
indirectly, of securities of the Company representing twenty percent (20%) or
more of the combined voting power of the Company's then outstanding securities
at a time at which the members of the H Group (as hereinafter defined) are
collectively the Beneficial Owners of Company securities representing a
percentage of the combined voting power of the Company's then outstanding
securities which is less than the percentage of such voting power owned by such
Person or (B) during any period of two consecutive years (not including any
period prior to the execution of this Agreement), individuals who at the
beginning of such period constitute the Board and any new director (other than
a director designated by a Person who has entered into an agreement with the
Company to effect a transaction described in clause (A) of this paragraph)
whose election by the Board or nomination for election by the Company's
stockholders was approved by a vote of at least two-thirds (2/3) of the
directors then still in office who either were directors at the beginning of
the period or whose election or nomination for election was previously so
approved, cease for any reason to constitute a majority thereof. The term
"Person," as used in this Paragraph 3, shall not include (i) a trustee or other
fiduciary holding securities under an employee benefit plan of the Company,
(ii) the H Group or (iii) a corporation owned, directly or indirectly, by the
stockholders of the Company in Substantially the same proportions as their
ownership of stock of the Company.
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(iv) "Exchange Act" shall mean the Securities
Exchange Act of 1934, as amended.
(v) "Excise Tax" means any excise tax imposed under
Section 4999 of the Code.
(vi) "Good Reason" for termination by the Executive
of the Executive's employment with the Company shall mean the occurrence
(without the Executive's express written consent) of any one of the following
acts by the Company, or failures by the Company to act, unless, in the case of
any act or failure to act described in paragraphs (A), (B), (C), (D) or (E)
below, such act or failure to act is corrected within ten (10) days after the
Executive has notified the Board of the occurrence of any such act or failure
to act:
(A) the assignment to the Executive of any duties
substantially inconsistent with the Executive's status in the position
and title the Executive held immediately prior to the Change in
Control or a substantial adverse alteration in the nature or status of
the Executive's responsibilities from those in effect immediately
prior to the Change in Control;
(B) a reduction by the Company in the Executive's
annual base salary or a material reduction in the amount of bonus that
the Executive has the opportunity to earn, as in effect on the date
hereof or as the same may be increased from time to time;
(C) the failure of the Company to obtain a
satisfactory agreement from any successor to assume and agree to
perform this Agreement;
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(D) any adverse change in the moral or ethical
standards under which the business is conducted; or
(E) the relocation without the Executive's
consent of the Executive or the Company's executive offices to a
location that is more than 15 miles from the location as of the date
hereof.
The Executive's right to terminate his employment for Good
Reason shall not be affected by the Executive's incapacity due to physical or
mental illness. The Executive's continued employment shall not constitute
consent to, or a waiver of rights with respect to, any act or failure to act
constituting Good Reason hereunder.
(vii) "Gross-Up Payment" shall have the meaning set
forth in Paragraph 3(e) hereof.
(viii) "H Group" shall mean Xxxx X. Xxxxxxxxx, Xx.
Xxxxxxx Xxxxxxx, their respective heirs and members of their respective
families, and Persons controlled by Xxxx X. Xxxxxxxxx, Xx., Xxxxxxx Xxxxxxx,
their respective heirs and members of their respective families.
(ix) "Person" shall have the same meaning as it does
in Section 13(d) and 14(d) of the Exchange Act.
(x) "Total Payments" shall mean those payments so
described in Paragraph 3(e) hereof.
4. Withholding. Any payments provided for under this
Agreement shall be paid net of any applicable withholding required under
federal, state or local law
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and any additional withholding to which the Executive has agreed.
5. Confidential Information. The Executive acknowledges
that as an executive of the Company, he has had, and may continue to have,
access to confidential information which relates to the business of the
Company. The Executive accordingly agrees that he will not, without the prior
written consent of the Chief Executive Officer of the Company or any other
executive officer that the Board may, in its discretion, designate (a) use for
his benefit or disclose to any person any information obtained or developed by
him while in the employ of the Company with respect to any aspect of the
Company's business including, without limitation, information with respect to
any trade secrets, customers, credit relationships, suppliers, sources of
supply, employees (including information relating to their compensation and
career paths) financial affairs, computer systems (including software programs
and data), marketing strategies and/or plans, the volume of business generated,
gross and net profits or advertising and promotion plans or methods of design,
distribution, procurement or production, of the Company, or any of its
subsidiaries or affiliates or any other confidential matter ("Confidential
Information"), except information that at the time is available to others in
the business or generally known to the public other than as a result of
disclosure by him not permitted hereunder, or lawfully acquired from a third
party who is not obligated to the Company or any of its subsidiaries to
maintain such information in confidence or (b) take with him upon leaving the
Company's employ, any document or paper relating to any Confidential
Information or any property of the Company (or any of its subsidiaries or
affiliates).
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6. Specific Performance. The Executive acknowledges
that a violation on his part of any of the covenants contained in Paragraph 5
hereof would cause immeasurable and irreparable damage to the Company. The
Executive accordingly agrees and hereby grants his consent that, without
limiting the remedies available to the Company, any actual or threatened
violation of such covenants may be enforced by injunctive relief or by other
equitable remedies issued or ordered by any court of competent jurisdiction.
7. Employment. Nothing in this Agreement shall be
construed as conferring upon the Executive any right to continued employment
with the Company nor shall it interfere in any way with the right of the
Company to terminate the Executive's employment at any time.
8. Successors; Binding Agreement. This Agreement and all
rights of the Executive hereunder shall inure to the benefit of, and shall be
enforceable by, the Executive's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees. If the
Executive should die while any amounts remain payable to him hereunder, all
such amounts shall be paid to the Executive's designee or, if there be no such
designee, to the Executive's estate.
The Company shall require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to assume
expressly and agree to perform the Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession
had taken place.
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9. Term. This Agreement shall commence on the date
hereof and shall continue in effect through December 31, 1999; provided,
however, that commencing on January 1, 1998 and each January 1 thereafter, the
term of this Agreement shall automatically be extended for one additional year
unless, not later than September 30 of the preceding year, the Company or the
Executive shall have given notice not to extend this Agreement.
10. Mitigation. The Executive shall be under no
obligation to mitigate the amount of any payment provided for herein by seeking
other employment or otherwise nor shall such amount be offset by any
compensation which the Executive may receive from future employment or
otherwise.
11. Notice. All notices of termination and other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when delivered by hand or mailed by United
States registered mail, return receipt requested, addressed as follows:
If to the Executive:
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If to the Company:
Hechinger Company
0000 XxXxxxxxx Xxxxx
Xxxxx, Xxxxxxxx 00000
Attention: Senior Vice President,
Treasurer and Secretary
or to such other address as any party may have furnished to the other party in
writing in accordance herewith.
12. Miscellaneous. No provision of the Agreement may be
waived, modified or discharged unless such waiver, modification or discharge is
agreed to in writing and signed by (a) the Executive and (b) the Chief
Executive Officer of the Company or such officer as may be specifically
designated by the Board. No waiver by any party hereto at any time of any
breach by the other party hereto of, or compliance with, any condition or
provision of the 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. The validity, interpretation, construction and
performance of the Agreement shall be governed by the laws of the State of
Delaware, without giving effect to its conflict of law rules.
13. Validity. The invalidity or unenforceability of any
provision of the Agreement shall not affect the validity or enforceability of
any other provision of the Agreement, which shall otherwise remain in full
force and effect.
14. Counterparts. The Agreement may be executed in one or
more counterparts, each of which shall be
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deemed to be an original but all of which together shall constitute one and the
same instrument.
15. Entire Agreement. The Agreement and Exhibit A hereto, if
executed, set forth the entire agreement and understanding of the parties
hereto in respect of the subject matter contained herein, and supersedes all
prior agreements (including, without limitation, the Severance Agreement
between the Executive and the Company dated April, 1996), promises, covenants,
arrangements, communications, representations or warranties, whether oral or
written, by any officer, employee or representative of either party in respect
of said subject matter; provided, however, that nothing in this Agreement shall
replace or reduce any compensation or benefits payable to the Executive under
the terms of any compensation or benefit program or arrangement maintained by
the Company other than the Severance Arrangements.
IN WITNESS WHEREOF, the parties hereto have executed the
Agreement as of the day and year first above written.
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HECHINGER COMPANY
By:
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EXHIBIT A
FORMS OF GENERAL RELEASE
[Letterhead of Hechinger]
, 199
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Dear Mr./Ms. ______:
As you have been advised, your employment by [Hechinger](the
"Company") terminated effective [DATE]. In order to assist you in your
transition, the Company is willing to provide you with an additional severance
payment, which the Company is offering to make in its sole discretion. This
additional severance payment will be provided subject to the terms contained in
this letter, and the terms of the Severance Agreement (the "Severance
Agreement") to which this General Release is an Exhibit. If you wish to
receive the additional severance payment, please sign the last page of this
letter and return the signed letter to the Company.
1. Upon execution of this letter in accordance with the
terms hereof, the Company agrees to pay you, after payment of the Basic
Severance Benefit, as defined in Paragraph 2(c)(i) of the Severance Agreement,
the Additional Severance Benefit, as defined in Paragraph 2(c)(i) of the
Severance Agreement and in accordance with the terms of that Agreement and this
letter
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2. In consideration of the payment of the Additional
Severance Benefit, you voluntarily, knowingly and willingly release and forever
discharge the Company, its parents, subsidiaries and affiliates, together with
their respective officers, directors, partners, shareholders, employees and
agents, and each of their predecessors, successors and assigns, from any and
all charges, complaints, claims, promises, agreements, controversies, causes of
action and demands of any nature whatsoever which against them you or your
executors, administrators, successors or assigns ever had, now have or
hereafter can, shall or may have by reason of any matter, cause or thing
whatsoever arising to the time you sign this agreement. This release includes,
but is not limited to, any rights or claims relating in any way to your
employment relationship with the Company, or the termination thereof, or under
any statute, including the federal Age Discrimination in Employment Act, Title
VII of the Civil Rights Act, the Americans with Disabilities Act, or any other
federal, state or local law. In addition, you agree that (i) you will not, in
any context, make disparaging remarks about the Company, its affiliates and
subsidiaries, its officers, directors, employees and owners and agents, or the
Company's products, services and facilities, and (ii) absent a binding court
order or similar decree, you will not voluntarily cooperate with, or
facilitate, litigation or other legal actions against the Company, its
affiliates and subsidiaries, its officers, directors, employees, owners and
agents.
3. The Company advises you to consult with an attorney of
your choosing prior to signing this agreement. You understand and agree that
you have the right and have been given the opportunity to review this agreement
and, specifically, the release in paragraph 2, with an attorney of your choice
should you so desire. You
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also understand and agree that the Company is under no obligation to offer you
the Additional Severance Benefit, and that you are under no obligation to
consent to the release set forth in paragraph 2 and that you have entered into
this agreement freely and voluntarily.
4. You have at least twenty-one days to consider the terms of
this agreement, although you may sign and return it sooner if you wish.
Furthermore, once you have signed this agreement, you have seven additional
days from the date you sign it to revoke your consent. The agreement will not
become effective until seven days after the date you have signed it.
5. The Company's offer to you of this agreement and the
payment set forth herein is not intended to, and shall not be construed as, any
admission of liability by the Company to you or of any improper conduct on the
Company's part, all of which the Company specifically denies.
6. The terms described in this letter and the Severance
Agreement constitute the entire agreement between us and may not be altered or
modified other than in a writing signed by you and the Company. The agreement
will be governed by the law of Delaware, without reference to its choice of law
rules.
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If the above sets forth our agreement as you understand it and
consent to it, please so signify by executing the enclosed copy of this letter
and return it to the undersigned.
Very truly yours,
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Agreed to and Accepted:
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Dated: , 199
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