Exhibit 10(xxii)
RETIREMENT AGREEMENT
This Retirement Agreement ("Agreement") is entered into between Xxxxx
Xxxxxxx ("EMPLOYEE") and American Greetings Corporation, an Ohio corporation
("AG" or "Company"), on the date set forth at the signature lines below, arising
out of the employment relationship between EMPLOYEE and AG. This Agreement will
not become effective and irrevocably binding until seven (7) days after it is
signed by EMPLOYEE. EMPLOYEE may revoke this Agreement at any time prior to the
expiration of such seven (7) days. A revocation must be in writing and it must
be received by the Company by the close of business on the seventh day.
In consideration of the mutual covenants and agreements hereinafter set
forth, and intending to be legally bound, the parties agree as follows:
1. EMPLOYEE hereby acknowledges termination of employment with the Company
effective as of the close of business on February 28, 2005 ("Retirement Date").
2. Commencing on the Retirement Date and upon EMPLOYEE signing a waiver
prepared by the Company in the form of paragraph 9, and provided that EMPLOYEE
has not resigned prior to the Retirement Date, EMPLOYEE will receive the
following benefits from the Company:
a. Retirement pay of an amount equal to 30 months base salary,
based on EMPLOYEE'S annual salary in effect at the Retirement
Date, payable in monthly installments beginning on March 15,
2005, less applicable deductions, including deductions for
health care coverage. Retirement payments shall be made even
if EMPLOYEE obtains non-competing employment as set forth
herein. Any payments due before the effective date of this
Agreement shall be payable within ten (10) days after the
effective date. In the event EMPLOYEE dies prior to payment of
all Retirement pay, any amounts remaining to be paid shall be
paid to EMPLOYEE's estate. Company reserves the right to pay
any portion of the Retirement pay in a lump sum, if both
Company and EMPLOYEE agree.
b. Continued health care coverage, concurrently with COBRA, in
the plan in which EMPLOYEE is enrolled at the Retirement Date,
at the Senior Vice President active employee payroll deduction
rate, as it may be changed from time-to-time, through August
31, 2007; and from September 1, 2007 through December 31,
2012, EMPLOYEE will continue to be eligible for health care
coverage at the Senior Vice President active employee rate on
a pre-tax basis, as it may be changed from time-to-time; and
thereafter, EMPLOYEE shall be eligible for retiree health care
coverage on the terms then in effect;
c. EMPLOYEE will be eligible to participate in the Key Management
Annual Incentive Plan for Fiscal Year 2005, at no less than a
"Meets Expectations" evaluation level;
d. AG will pay for up to 6 months of outplacement services to
assist EMPLOYEE in seeking employment. The service provider
shall be Xxx Xxxxx Xxxxxxxx and AG will make direct payments
to the service provider;
e. EMPLOYEE will cease to have use of EMPLOYEE's company car.
March 1, 2005, and shall return the car to the Company at that
time. Company shall pay EMPLOYEE the amount of $11,430.
EMPLOYEE will have the option to purchase said car from the
leasing company as and to the extent agreed to by the leasing
company. Such transaction shall be effected solely between
EMPLOYEE and the leasing company with no liability to AG.
f. EMPLOYEE will continue to be covered under the Company's
Executive Life Insurance Plan for 6 months past the Retirement
Date (coverage will continue through August 31, 2005); and
g. Stock options granted to EMPLOYEE prior to the Retirement Date
will continue to vest according to the terms of the stock
option plan(s) through August 31, 2007, as if EMPLOYEE were
actively employed. Vested stock options shall be exercisable
for 90 days after August 31, 2007.
h. EMPLOYEE shall be entitled to an executive physical to be
taken before July 1, 2005.
i. The Company shall pay Employee $10,000 for transition costs.
3. Following the Retirement Date, EMPLOYEE and Company may enter into a
Consulting Agreement pursuant to which EMPLOYEE will consult with Company on
dates and terms that are mutually agreed upon. Company will pay EMPLOYEE $2,000
per day plus expenses for such consulting.
4. If EMPLOYEE is re-employed by Company, in any capacity other than a
temporary, part-time or consulting assignment, prior to receipt of all the
Retirement benefits provided in paragraph 2., EMPLOYEE will forfeit any unpaid
Retirement benefits. In the event EMPLOYEE is paid Retirement in a lump sum,
s/he will pay back to COMPANY that amount EMPLOYEE would not have received had
Retirement been paid out in equal installments over time, pursuant to paragraph
2(a).
5. EMPLOYEE acknowledges that as of the Retirement Date EMPLOYEE will
cease to be an employee of AG and thereafter will not be eligible for or receive
any benefits of employment and that the only benefits EMPLOYEE will receive from
AG are those benefits described herein ; provided, however, that this Agreement
does not waive any benefits EMPLOYEE may be eligible to receive under the
Company's Supplemental Executive Retirement Plan, any stock option plan,
deferred compensation plan, or the Retirement Profit Sharing and Savings Plan.
6. Notwithstanding any other provision of this Agreement, EMPLOYEE
acknowledges that the benefits EMPLOYEE will receive under paragraph 2 above are
greater than those benefits EMPLOYEE would have been entitled to receive upon
termination in the absence of this Agreement.
7. This Agreement is offered as part of an exit incentive or other
employment termination program (the "Program"). Information concerning
eligibility and selection for the Program that is required to be provided under
the federal age discrimination in employment laws is enclosed with this
Agreement. EMPLOYEE acknowledges receipt of the information.
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8. It is agreed by EMPLOYEE that this Agreement, the benefits, including
all benefits set forth in paragraph 2 above, and all other terms of this
Agreement, are each confidential information and shall not be disclosed or
revealed to any person other than EMPLOYEE's attorneys, accountants, tax
advisors, and immediate family members (who must be informed of and agree to be
bound by the terms of this paragraph), and any governmental taxing authority;
provided however that Company may disclose the terms to comply with any
governmental or regulatory disclosure obligation.
9. With respect to any and all events arising out of or related to the
employment relationship between EMPLOYEE and the Company occurring on or before
the Retirement Date, EMPLOYEE hereby releases and forever discharges Company and
its agents, officers, directors, employees, subsidiaries, divisions, affiliates,
successors and assigns, (collectively "AG Releasees") from any and all claims
and/or causes of action, known or unknown, arising (i) from or during EMPLOYEE's
employment with AG or (ii) as a result of the termination of that employment;
and EMPLOYEE hereby covenants and agrees that s/he will not assert any such
claims and/or causes of action against any AG Releasee, including but not
limited to, (i) claims and/or causes of action arising under the Age
Discrimination in Employment Act (29 U.S.C. Sec. 621 et seq.), (ii) claims
and/or causes of action arising under federal, state or local laws, including
but not limited to those prohibiting employment discrimination on the basis of
race, color, national origin, religion, sex, age, disability or otherwise; (iii)
claims and/or causes of action growing out of any legal restrictions on AG's
right to terminate its employees, including breach of contract, discharge in
violation of public policy, or promissory estoppel, or (iv) tort claims and/or
causes of action, including infliction of emotional distress, defamation, libel
or slander.
10. EMPLOYEE represents and warrants that EMPLOYEE has no interest or
obligation that is inconsistent with or in conflict with this Agreement or that
would prevent, limit or impair Employee's performance of any part of this
Agreement.
11. EMPLOYEE agrees that in the event that EMPLOYEE breaches any of the
terms of this agreement, EMPLOYEE will forfeit the benefits described in
paragraph 2, plus EMPLOYEE will pay any expenses or damages incurred by the AG
Releasees as a result of the breach, including reasonable attorneys' fees.
12. EMPLOYEE acknowledges that EMPLOYEE has an obligation of confidence
and non-disclosure with respect to any and all confidential information and
trade secrets that EMPLOYEE acquired during the course of employment with
Company. Confidential information shall mean information not made public by the
Company. This obligation of confidence and non-disclosure extends to both
Company information and third-party information held by the Company in
confidence, and this obligation continues after the Retirement Date. EMPLOYEE is
prohibited from using or disclosing such information.
13. EMPLOYEE agrees that from the Retirement Date through August 31, 2007,
EMPLOYEE shall not be employed directly or indirectly in any capacity or work as
a consultant or independent contractor for any person, firm or company in the
greeting card wrapping paper, stationery or party goods industry in any capacity
similar to that held by EMPLOYEE while employed with the Company.
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14. Any dispute arising out of or relating to this Agreement or EMPLOYEE's
employment shall be resolved pursuant to the Company's alternative dispute
resolution program known as "Solutions", and the arbitration provided for under
the Solutions program shall be final and binding upon the parties, except for
any appeal permitted by law; provided however, that in the event that the
Company seeks injunctive relief to enforce its rights under Paragraphs 12 or 13
of this Agreement, the parties consent to the jurisdiction of the state or
federal court in Cuyahoga County, Ohio without regard to the mediation and
arbitration provisions of the Solutions program.
15. For 90 days after the Retirement Date, EMPLOYEE agrees to provide and
cooperate promptly with any reasonable request by the Company to provide such
information, signatures, or certifications (as to matters upon which Employee
can truthfully certify) that may be required for, or otherwise relate to, the
Company's compliance with federal, state or local laws or regulatory
requirements. The Company shall reimburse EMPLOYEE for all reasonable expenses
related to compliance with this paragraph.
16. EMPLOYEE agrees that he/she will not make any oral or written
statements that either generally or specifically disparage the Company, its
employment practices, business, products, conduct or policies, or its employees,
directors, or agents. AG agrees that it shall not make any oral or written
statements that either generally or specifically disparage EMPLOYEE or his/her
professional competence or employability.
17. (a) This Agreement constitutes the entire understanding between
EMPLOYEE and the Company relating to the subject matter contained herein and
this Agreement supersedes any previous agreement(s) that may have been made in
connection with EMPLOYEE's employment with AG except insofar as such
agreement(s) concern EMPLOYEE's obligations with regard to competing with AG or
EMPLOYEE's obligations with regard to AG's trade secrets, proprietary or other
confidential information belonging to AG, which obligations are not modified,
amended or terminated by this Agreement and which continue after the Retirement
Date. This Agreement may not be changed, modified, or altered without the
express written consent of EMPLOYEE and an officer of AG.
(b) AG's failure to insist upon strict adherence to any term of this
Agreement on any occasion shall not be considered a waiver of, or deprive AG of
its right thereafter to insist upon strict adherence to that term or any other
term of this Agreement. To be effective, any waiver must be in writing and
signed by an officer of AG.
(c) This Agreement shall be construed in accordance with the laws of
the State of Ohio. If any part or section of this Agreement is found to be
contrary to law or unenforceable, the remainder shall remain in force and
effect.
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18. EMPLOYEE is hereby advised and encouraged to consult an attorney prior
to executing this Agreement. EMPLOYEE acknowledges that if EMPLOYEE has executed
this Agreement without consulting an attorney EMPLOYEE has done so knowingly,
voluntarily and contrary to the express advice herein.
19. EMPLOYEE acknowledges that EMPLOYEE has been given at least forty-five
(45) days from the date EMPLOYEE first received this Agreement, which date was
on or before December 10, 2004, during which to consider this Agreement.
EMPLOYEE understands that the offer made to EMPLOYEE by this Agreement remains
open for at least forty-five (45) days, and that EMPLOYEE may accept the offer
at any time through February 15, 2005. If EMPLOYEE does not accept this
Agreement on or before that date, the offer set forth in this Agreement is
automatically rescinded unless AG expressly notifies EMPLOYEE in writing
otherwise.
AMERICAN GREETINGS CORPORATION
By: /s/ Xxxxxx Xxxxxx Date: 25 February 05
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Xxxxxx Xxxxxx
Title: Sr. Vice President
Human Resources
/s/ Xxxxx X. Xxxxxxx Date: 2/15/05
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Xxxxx Xxxxxxx
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