EXHIBIT 10.13
EXH 10.13
RETIREMENT AGREEMENT
FOR AND IN CONSIDERATION of the mutual promises and covenants stated
herein, E. Xxxxxxx Xxxxxx (hereinafter referred to as "Xxxxxx") and American
Family Life Assurance Company of Columbus, a Georgia corporation
(hereinafter referred to as "AFLAC"), do hereby enter into this Retirement
Agreement (this "Agreement") on the 16th day of February, 2000.
1. RETIREMENT PAYMENTS.
(a) Cash Benefits. The parties agree that Xxxxxx desires to retire
from his employment with AFLAC, and his last day of active employment will
be June 30, 2000. In consideration of the promises contained herein, and
other good and valuable consideration, the sufficiency of which is hereby
acknowledged, AFLAC agrees to pay Xxxxxx the following:
(i) A benefit amount of $23,713, payable each month for the
period commencing on July 1, 2000 and ending with the
payment due on May 1, 2012 or, if earlier, the first day
of the month during which Xxxxxx dies; and
(ii) If Xxxxxx survives until June 1, 2012, a benefit amount of
$22,099, payable each month for the period commencing on
June 1, 2012 and ending with the payment due on the first
day of the month during which Xxxxxx dies; and
(iii) One-half of the bonus amount Xxxxxx would have received
under the AFLAC 2000 Management Incentive Plan if (A) he had
remained employed through December 31, 2000, and (B) his
bonus was calculated under the terms of said plan using the
same formula as will be used for active participants. Such
bonus amount will be paid in 2001 at the same time as
payment is made to active participants.
(b) Exclusive Retirement Payments. Except for the benefits described
in Paragraph 2 hereof, Xxxxxx shall be entitled to no further compensation
from AFLAC; however, nothing in this Agreement shall expand or limit
Xxxxxx'x rights under the AFLAC Incorporated Pension Plan, the AFLAC
Incorporated Executive Deferred Compensation Plan or the AFLAC Incorporated
401(k) Savings and Profit Sharing Plan. This agreement shall not affect
Xxxxxx'x compensation or benefits as a member of the AFLAC Incorporated
Board of Directors.
2. CONTINUED HEALTH PLAN BENEFITS. Until Xxxxxx becomes eligible for
(i) group health plan coverage under a plan sponsored by another employer or
(ii) Medicare benefits, whichever occurs earlier, he shall remain eligible
to continue his participation (and, to the extent elected, his spouse's and
dependent's participation) in the AFLAC Incorporated Group Health Plan under
terms similar to those available to active employees; provided, if he ceases
making the requisite contributions or terminates his coverage at any time
for any reason, his participation in said plan shall permanently cease. For
other AFLAC policies in which Xxxxxx has coverage and which permit
conversion to an individual policy, he will be given an opportunity to
continue that coverage on a direct, individual basis. For coverage under
the AFLAC Incorporated Employee Dental Plan, Xxxxxx'x regular coverage will
cease as of June 30, 2000, and COBRA provisions will govern future coverage.
Xxxxxx'x coverage under the officers' group life insurance will cease as of
EXH 10.13-1
June 30, 2000. After June 30, 2000, Xxxxxx will not make further
contributions to the AFLAC Incorporated 401(k) Savings and Profit Sharing
Plan or the AFLAC Incorporated Executive Deferred Compensation Plan, nor
will he accrue any additional benefits under the AFLAC Incorporated Pension
Plan or the AFLAC Incorporated Supplemental Executive Retirement Plan.
Xxxxxx will be provided information on his options for payment of any of his
vested accrued benefits under these plans.
3. CONSULTING SERVICES. For the period of time commencing July 1,
2000 and ending on the earliest of May 25, 2002, or the date of Xxxxxx'x
death or disability, Xxxxxx agrees that he will be available to AFLAC on a
consulting basis to render advice or assistance as requested by AFLAC
Incorporated's Chief Executive Officer or other members of AFLAC's executive
management (collectively, "AFLAC's Executive Management"). AFLAC agrees
that all such requests for Xxxxxx'x assistance will be reasonable as to
time, place and manner. AFLAC also agrees that it shall make every effort
to coordinate in advance with Xxxxxx'x schedule any such requests for
services. AFLAC will reimburse Xxxxxx for any necessary out-of-pocket
expenses he incurs as a result of providing those services to AFLAC.
4. NONCOMPETITION. The payment of all future payments of annual
retirement benefits to Xxxxxx under this Agreement shall immediately and
permanently cease and be forfeited if AFLAC's Compensation Committee, in its
sole discretion, determines that, during the 2-year period commencing on
July 1, 2000, Xxxxxx, without the prior written consent of AFLAC's Executive
Management whose consent shall not be unreasonably withheld, is
participating or engaging in any business that the Compensation Committee of
the Board of Directors of ALFAC Incorporated (the "Compensation Committee"),
in its sole discretion, determines is competitive with any of the business
activities of AFLAC (or any subsidiary or affiliate of AFLAC) in any states
or foreign countries in which AFLAC or any of its subsidiaries or affiliates
do business; provided, prior to causing a forfeiture as provided herein, the
Compensation Committee shall give Xxxxxx written notice of its intent to do
so unless Xxxxxx ceases such specifically identified competitive activities
within 15 days of his receipt of such notice. For purposes of this
paragraph, "participating or engaging in" means acting as an agent,
consultant, representative, officer, director, member, independent
contractor or employee; or as an owner, partner, limited partner, joint
venturer, creditor, or shareholder (except as a shareholder holding no more
than 1% interest in a publicly traded entity).
5. CONFIDENTIALITY.
(a) Acknowledgements. Xxxxxx acknowledges that:
(i) During the term of his employment with AFLAC, he has been
privy to (A) certain confidential and propriety information
of AFLAC which constitutes trade secrets as defined in the
Georgia Trade Secret Act of 1990 (the "Act"), and
(B) certain other confidential proprietary information of
AFLAC that may not constitute trade secrets as defined in
the Act;
(ii) AFLAC must protect both kinds of information (described in
subsection (a)(i) hereof) from disclosure or
misappropriation;
EXH 10.13-2
(iii) The processes, machines, technical documentation, computer
programs, customer lists, identity of customers, business
plans, marketing plans and techniques, pricing data,
financial data, marketing programs, customer files,
financial institution files, technical expertise and know
how, and other confidential and proprietary information and
trade secrets, whether as defined in the Act or which may
lie beyond it (collectively, the "Property"), which have
been provided to Xxxxxx by AFLAC are unique, confidential
and proprietary property of AFLAC;
(iv) By the provision of the Property to Xxxxxx, AFLAC has not
conveyed any ownership or other interest to Xxxxxx; and
(v) The Property derives independent, actual and potential
commercial value from not being generally, readily
ascertainable through independent development and is the
subject of efforts by AFLAC that are reasonable under the
circumstances to maintain its secrecy.
(b) Agreement. Xxxxxx agrees to hold in trust and confidence for AFLAC
and to not disclose to any third party, without the prior written consent of
AFLAC's Executive Management, the Property, whether it is tangible or
intangible. Xxxxxx further agrees not to use any of the Property to his
personal benefit or for the benefit of any third party. Xxxxxx also agrees
to return to AFLAC all such Property which is tangible upon the termination
of his employment hereunder. Notwithstanding the foregoing, the Property
protected hereunder will not include any data or information that has been
disclosed to the public (except where such public disclosure has been made
by Xxxxxx without authorization), that has been independently developed and
disclosed by others, or that otherwise enters the public domain through
lawful means.
(c) Timing. Xxxxxx'x obligations under the nondisclosure provision in
this Paragraph 5 as it relates to Property that is confidential information
but that does not constitute trade secrets will apply for a period of 2
years following termination of Xxxxxx'x employment.
(d) Remedies. It is specifically agreed that, if Xxxxxx engages in any
such activity prohibited under this Xxxxxxxxx 0, XXXXX shall, in addition to
any other rights it may have under this Agreement and applicable law, be
entitled to injunctive relief or, if AFLAC shall so elect (due to difficulty
of determining damages), be entitled to liquidated damages in the amount of
$500,000. In addition, the payment of the annual retirement benefit to
Xxxxxx under Paragraph 1 shall immediately cease and be forfeited if Xxxxxx
engages in any such activity prohibited under this Paragraph 5 without the
prior written consent of AFLAC's Executive Management.
6. NON-SOLICITATION OF EMPLOYEES. Xxxxxx agrees that, for 2 years
following the termination of his employment with AFLAC, unless otherwise
authorized by AFLAC's Executive Management, he will not actively recruit,
solicit or induce any person or entity, who within 1 year prior to
termination of his employment hereunder was an employee, agent,
representative or sales person of AFLAC or its affiliates, to leave or cease
his or her employment or other relationship with AFLAC for any reason
whatsoever.
EXH 10.13-3
7. ERISA APPLICATION. It is the desire and intent of the parties that
the provisions of Paragraphs 4, 5 and 6 shall be enforced to the fullest
extent (i) permissible under the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), or (ii) to the extent ERISA is not preemptive,
under the laws and public policies applicable to each jurisdiction in which
enforcement is sought. If any provision or portion of Xxxxxxxxx 0, 0 xx 0
xxxxx xx adjudicated to be invalid or unenforceable, such paragraph shall be
amended to delete therefrom such provision or portion adjudicated to be
invalid or unenforceable and to substitute therefore such lesser provision
or portion thereof as shall then be valid and enforceable; provided, such
deemed amendment shall apply only with respect to the operation of Paragraph
4, 5 or 6 in the particular jurisdiction on which such adjudication is made.
8. RETURN OF PROPERTY. Xxxxxx agrees that he will return to AFLAC any
and all company property in his possession, including but not limited to
credit cards, telephone calling cards, computers, pagers, reports and
materials, and will have any outstanding expenses and travel advances
reconciled by June 30, 2000. Xxxxxx desires to purchase certain office
furnishings from AFLAC (attached hereto on Exhibit A) and may do so at their
fair market value price as determined by AFLAC.
9. RELEASE. As a condition to AFLAC paying the benefit provided
hereunder and as consideration therefor, Xxxxxx shall, upon the termination
of his employment with AFLAC, execute and enter into the Release Agreement
in the form attached hereto as Exhibit B.
10. ARBITRATION. Any controversy or claim arising out of or relating
to this Agreement, or the breach thereof, shall be settled by binding
arbitration in accordance with the Commercial Arbitration Rules of the
American Arbitration Association. The parties shall notify each other of
the existence of an arbitrable controversy by certified mail and shall
attempt in good faith to resolve their differences within 15 days after the
receipt of such notice. If the dispute cannot be resolved within the said
15-day period, either party may file a written demand for arbitration with
the other party. Xxxxxx and AFLAC agree that they will seek to enforce any
arbitration award in the Superior Court of Muscogee County, Georgia. The
decision of the arbitrator shall be final and binding upon the parties, and
judgment upon the award rendered by the arbitrator may be entered by any
court having jurisdiction. Xxxxxx and AFLAC agree to share equally the fees
and expenses associated with the arbitration proceedings.
11. TYPE OF OBLIGATIONS. This Agreement constitutes a nonqualified
deferred compensation plan covering a key management employee and thereby is
a pension plan covered by ERISA. AFLAC's obligations to pay benefits under
this Agreement constitute mere promises to pay such benefits, and Xxxxxx
shall be and remain no more than an unsecured, general creditor of AFLAC.
12. TAXES. If the whole or any part of Xxxxxx'x benefit hereunder
shall become subject to any estate, inheritance, income, employment or other
tax which AFLAC or an affiliate shall be required to pay or withhold, AFLAC
shall have the full power and authority to withhold and pay such tax out of
any monies or other property in its hand for the account of Xxxxxx. Prior
to making any payment, AFLAC may require such releases or other documents
from any lawful taxing authority as they shall deem necessary.
EXH 10.13-4
13. CLAIMS.
(a) Initial Claim. Claims for benefits under this Agreement may be
filed with AFLAC in such written documents as the General Counsel for AFLAC
may prescribe. AFLAC shall furnish to Xxxxxx written notice of the
disposition of a claim within 90 days after the application therefor is
filed, or such longer period as may be reasonably necessary but not to
exceed 180 days. In the event the claim is denied, the notice of the
disposition of the claim shall provide the specific reasons for the denial,
citations of the pertinent provisions of this Agreement, and, where
appropriate, an explanation as to how Xxxxxx can perfect the claim and/or
submit the claim for review.
(b) Appeal. If Xxxxxx'x claim for benefits is denied, he may appeal
the denial of his claim to AFLAC's Compensation Committee. Xxxxxx (or his
duly authorized representative) may review pertinent documents related to
this Agreement (if any) in AFLAC's possession in order to prepare the
appeal. The request for review, together with written statement of Xxxxxx'x
position, must be filed with the Compensation Committee no later than 60
days after receipt of the written notification of denial of a claim provided
for in subparagraph (a). The Compensation Committee's decision shall be
made within 60 days following the filing of the request for review, or such
longer period as may be reasonably necessary but not to exceed 120 days. If
unfavorable, the notice of the decision shall explain the reasons for denial
and indicate the provisions of this Agreement or other documents used to
arrive at the decision.
(c) Satisfaction of Claims. Any payment to Xxxxxx shall, to the extent
thereof, be in full satisfaction of all claims hereunder against AFLAC, and
as a condition to such payment, AFLAC may require Xxxxxx to execute a
receipt and release therefor in such form as shall be determined by AFLAC.
If receipt and release is required but Xxxxxx does not provide such receipt
and release in a timely enough manner to permit a timely payment in
accordance with the general timing of payment under this Agreement, any
affected payment may be delayed until AFLAC receives a proper receipt and
release.
14. MISCELLANEOUS.
(a) No Assignment. The right of Xxxxxx or any other person to receive
payments under this Agreement shall not be assigned, transferred, pledged or
encumbered.
(b) Controlling Law. This Agreement shall be construed, administered
and governed in all respects in accordance with applicable federal law
(including ERISA) and, to the extent not preempted by federal law, in
accordance with the laws of the State of Georgia. If any provisions of this
instrument shall be held by a court of competent jurisdiction to be invalid
or unenforceable, the remaining provisions hereof shall continue to be fully
effective.
(c) Counterparts. This Agreement may be executed in counterparts, each
of which will be deemed an original, but all of which together will
constitute one and the same instrument.
(d) Headings, References. The headings and captions used in this
Agreement are used for convenience only and are not to be considered in
EXH 10.13-5
construing or interpreting this Agreement. All references in this Agreement
to sections will, unless otherwise provided, refer to sections hereof.
(e) Amendments and Waivers. Except as otherwise specified herein, this
Agreement may be amended, and the observance of any term of this Agreement
may be waived (either generally or in a particular instance and either
retroactively or prospectively), only with the written consent of AFLAC and
Xxxxxx.
(f) No Third-Party Beneficiaries. Nothing herein, expressed or
implied, is intended or will be construed to confer upon or give to any
person, firm, corporation or legal entity, other than the parties hereto and
AFLAC's affiliates, any rights, remedies or other benefits under or by
reason of this Agreement.
(g) Notices. All notices, communications and deliveries hereunder must
be made in writing signed by or on behalf of the party making the same and
must be delivered personally or by telecopy transmission or electronic
network transmission or sent by registered or certified mail (return receipt
requested) or by any national overnight courier service (with postage and
other fees prepaid) as follows:
(i) To Xxxxxx, at the address maintained in AFLAC's records from
time-to-time.
(ii) To AFLAC:
AFLAC Incorporated
Worldwide Headquarters
0000 Xxxxxxx Xxxx
Xxxxxxxx, XX 00000-0000
Attn: General Counsel
or to such other representative or at such other address of a party as such
party hereto may furnish to the other parties in writing. Any such notice,
communication or delivery will be deemed given or made (i) on the date of
delivery if delivered in person (by courier service or otherwise), (ii) upon
transmission by facsimile or electronic network transmission if receipt is
confirmed by telephone, provided transmission is made during regular
business hours, or if not, the next business day, or (iii) on the third
business day after it is mailed by registered or certified mail.
(h) Binding Effect. This Agreement will be for the benefit of, and
will be binding upon, AFLAC and Xxxxxx and their respective heirs, personal
representatives, legal representatives, successors and assigns.
(i) Sole Agreement. This Agreement is the sole agreement providing for
the benefits and other matters described herein, and any other additional or
conflicting document of any earlier date is hereby superseded.
EXH 10.13-6
IN WITNESS WHEREOF, the Xxxxxx has executed, and AFLAC has caused its
duly authorized officer to execute this Agreement on the date first written
above, all being done in duplicate originals, with one original being
delivered to each party.
/s/ E. Xxxxxxx Xxxxxx
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E. Xxxxxxx Xxxxxx
AMERICAN FAMILY LIFE ASSURANCE
COMPANY OF COLUMBUS
By: /s/ Xxxx X. Xxxxxxxxxx
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EXH 10.13-7
EXHIBIT A
OFFICE FURNISHINGS
Item Fair Market Value
---------- ---------------------
EXH 10.13-8
EXHIBIT B
RELEASE AGREEMENT
This Release Agreement (this "Release") is entered into on the date(s)
signed below by and between American Family Life Assurance Company of
Columbus, a Georgia corporation (hereinafter referred to as "AFLAC") and E.
Xxxxxxx Xxxxxx (hereafter referred to as "Xxxxxx").
RECITALS
BACKGROUND. Xxxxxx and AFLAC agree, and have entered into a Retirement
Agreement, dated February 16, 2000 (the "Retirement Agreement"), providing
for Xxxxxx'x Retirement from his employment with AFLAC as of June 30, 2000.
As provided in the Retirement Agreement, the benefits described in the
Retirement Agreement will become payable to Xxxxxx only after he executes
this Release and it becomes effective and irrevocable.
NOW, THEREFORE, in exchange for the promise to receive certain benefits
under the Retirement Agreement, and other good and valuable consideration
the sufficiency of which is hereby acknowledged, Xxxxxx and AFLAC agree as
follows:
1. RELEASE. As consideration for the benefits extended to Xxxxxx under the
terms of the Retirement Agreement, benefits to which the Xxxxxx acknowledges
he would not otherwise be entitled, Xxxxxx agrees, for Xxxxxx and his heirs
and assigns, to forever release and discharge AFLAC INCORPORATED and
AMERICAN FAMILY LIFE ASSURANCE COMPANY OF COLUMBUS, and its subsidiaries,
related companies, predecessors, successors and assigns, officers,
directors, agents, employees, and former employees from any and all claims,
debts, promises, agreements, demands, causes of action, losses and expenses
of every nature whatsoever known or unknown, suspected or unsuspected, filed
or unfiled, arising prior to the effective date of this Release, or arising
out of or in connection with Xxxxxx'x employment by and termination from
AFLAC and any affiliate of AFLAC. This total release includes, but is not
limited to, any claims that may arise under the Civil Rights Acts of 1964
and 1991, the Age Discrimination in Employment Act, the Rehabilitation Act
of 1973, the Older Worker's Benefit Protection Act, the Americans with
Disabilities Act of 1990 or any other federal, state or local law relating
to discrimination in employment or otherwise regulating the employment
relationship, or regulating the health or safety of the workplace. This
Release does not extend to unemployment compensation claims or workers'
compensation claims. Xxxxxx does not waive or release any claims that may
arise after the effective date of this Release, which are based upon actions
or omissions of AFLAC that occur after such date.
2. COVENANT NOT TO XXX. Xxxxxx agrees that he will not file any action or
suit contesting the legality of the termination of his employment or the
validity of this Release or attempting to negate, modify or reform this
Release. Xxxxxx warrants and represents that Xxxxxx has not assigned or in
any way conveyed, transferred or encumbered all or any portion of the claims
or rights covered by this Release.
3. EFFECTIVE DATE OF RELEASE. Xxxxxx understands and acknowledges that he
may take up to 21 days to consider whether or not he desires to enter into
this Release. Xxxxxx warrants and represents that he was not coerced,
threatened or otherwise forced to sign this Release. Xxxxxx represents and
EXH 10.13-9
acknowledges that any execution of this Release is done on a voluntary
basis. After signing and delivering this Release to AFLAC, Xxxxxx will have
7 calendar days during which he may choose to revoke this Release. If
Xxxxxx chooses to revoke this Release, it must be done so in writing and
delivered to AFLAC. Xxxxxx and AFLAC acknowledge and agree that this
Release is not effective until and upon the expiration of such 7-day
revocation period. After expiration of the 7-day revocation period, this
Release will be binding upon Xxxxxx and AFLAC and will be irrevocable.
4. ACKNOWLEDGMENT. Xxxxxx warrants and represents to AFLAC as follows:
(a) Xxxxxx has had ample time to review all of the provisions of this
Release and fully understands it.
(b) Xxxxxx has been encouraged by AFLAC to review all provisions of
this Release with independent legal counsel and other advisors and
has had the opportunity to pursue such a review.
EXECUTED by AFLAC and Xxxxxx on the dates set forth below.
AMERICAN FAMILY LIFE ASSURANCE
COMPANY OF COLUMBUS ("AFLAC")
By: /s/ Xxxx X. Xxxxxxxxxx
--------------------------------
Date: 2/16/2000
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E. XXXXXXX XXXXXX
/s/ E. Xxxxxxx Xxxxxx
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Signature
February 16, 2000
-----------------------------------
Date
EXH 10.13-10
