Exhibit 10.69
PanAmSat Corporation
Executive Change in Control Severance Agreement
This Executive Change in Control Severance Agreement (the "Agreement") is
entered into this 31st day of January, 2001 by and between PanAmSat Corporation,
a Delaware corporation (together with its successors and assigns, the
"Company"), and Xxxxxx X. Xxxxx (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 for 3 years.
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 (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 (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: ______________________
______________________
______________________
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. The
Company and the Executive executed a Retention Agreement dated July 10,
1998 (the "Retention Agreement"). Notwithstanding the penultimate sentence,
this Agreement shall not affect the Company's obligation to pay the
Retention Award, as defined in the Retention Agreement. Upon any Change in
Control, the Company shall pay any unpaid portion of the Retention Award,
such Retention Award shall immediately vest and all restrictions thereon
shall immediately lapse, and the Retention Agreement shall thereupon
terminate. For avoidance of doubt, this Agreement shall supersede the
Retention Agreement with respect to all payments to be made to the
Executive upon termination of employment other than the Retention Award,
which shall be paid as provided in the Retention Agreement. 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"
_____________________________________
Xxxxxx X. Xxxxx
"Company"
PANAMSAT CORPORATION
By: ____________________________
Name: ____________________________
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
January 31, 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").
_______________________
(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.
_______________________
(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:
_______________________________
Xxxxxx X. Xxxxx
Dated:_________________________
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