EX-10.18 4 dex1018.htm SEVERANCE AGREEMENT - TOM BUEHLMANN SEVERANCE AGREEMENT
Exhibit 10.18
This SEVERANCE AGREEMENT (“Agreement”) is made as of October 1, 2006 (the “Effective Date”), between Catalina Marketing Corporation (“Catalina”) and Xxx Xxxxxxxxx (“you”). When this Agreement refers to your obligations to Catalina, that reference means not only Catalina but also its subsidiaries, affiliates, predecessors and successors (the “Group”).
WHEREAS, you are Catalina’s Executive Vice President ;
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IF YOU RESIGN OR IF CATALINA TERMINATES YOU FOR CAUSE | Catalina will pay or provide you, when due, (1) any unpaid base salary, expense reimbursements, and vacation days earned before termination of employment, (2) any earned and unpaid balance of any bonus for the fiscal year before the one in which the termination occurred, and (3) other unpaid vested amounts or benefits under Catalina compensation, incentive and benefit plans. Except as described in Section 16, those payments will be made in accordance with Catalina’s customary payment practices. | |
IF CATALINA TERMINATES YOU OTHER THAN FOR CAUSE, DISABILITY OR DEATH | Catalina will pay you all the benefits in the top box above AND, in exchange for and when you sign the General Release Agreement, Catalina will pay an amount equal to a prorated bonus at the “cut in” level (that is, currently, 50% of the target bonus) for the portion of the fiscal year prior to the effective date of your termination (the “Prorated Cut-In Bonus”) and Catalina will continue to pay you your base salary for 52 weeks after the effective date of your termination (the “Severance Period”). Also, in the event that Catalina achieves or exceeds the targets established for the purposes of the payment of target bonus for the bonus program relating to the fiscal year during which the termination of your employment becomes effective, Catalina will pay you an additional amount equal to the difference between a prorated amount of 100% of your target bonus for such year (for the portion of the fiscal year prior to the effective date of your termination) and your Cut-In Bonus. Such additional amount will be paid within 15 business days following determination by the Compensation Committee of the Board (defined below) to the effect that Catalina has achieved or exceeded such targets. In addition, Catalina will pay the premiums for you to continue your group health insurance coverage (as provided to employees generally from time to time) under COBRA, at active employee contribution rates, during the Severance Period (or until you earlier obtain comparable coverage under another plan). You agree that Catalina has given you a copy of its current policy. Catalina will also provide senior executive level career transition assistance at its expense for a period of 12 months, beginning on any date that you select within 3 months following the effective date of your termination, by an outplacement firm of your choice and acceptable to Catalina. If you accept new employment before such 12 months are up, Catalina will no longer pay for any outplacement services. | |
IF YOU DIE OR BECOME DISABLED | Catalina will pay you all the benefits in the top box above AND, in addition, Catalina will pay a prorated bonus at target for the fiscal year during which termination occurred. |
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You can be terminated for “Cause” if you:
(i) | engage in willful, intentional, reckless, or grossly negligent misconduct the purpose or effect of which is to materially and adversely affect any member of the Group; |
(ii) | falsify any work, personnel or company records; |
(iii) | knowingly and without authorization take company funds or property or make unauthorized charges against any of the Group’s accounts; |
(iv) | repeatedly refuse to perform your duties; |
(v) | materially breach any of your obligations under this Agreement, the Change of Control Agreement or Catalina’s Code of Business Conduct & Ethics or the Service Agreement dated October 1, 2006 between you and Catalina Marketing UK Limited except because of a physical or mental illness, injury or condition; |
(vi) | are convicted of, or you enter a plea of guilty or no contest to, a felony involving moral turpitude or materially violate any federal or state securities law; |
(vii) | repeatedly and excessively use of alcohol or illegal drugs after Catalina’s Board of Directors (the “Board”) has warned you that your employment would be terminated if you continued such use; or |
(viii) | engage in any other willful, intentional, reckless or grossly negligent misconduct or gross insubordination which impacts your ability to effectively perform your duties or xxxxx the Group in a material way. |
In considering whether to terminate you for Cause, the Board, or a person or committee designated by the Board, may exercise its discretion to conduct factual investigations and to interview you or other individuals that it determines to be appropriate under the circumstances.
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(d) Discharge Other Than for Cause or Disability. As explained in Section 2, Catalina may terminate your employment at any time for any reason, and without advance notice. If Catalina terminates you without Cause, you will receive the special benefits provided for in “If Catalina Terminates You Other Than For Cause, Disability or Death” only when you sign a General Release Agreement (Exhibit A) and the release becomes effective.
(f) Disputes Under this Section. The Board’s determination that Catalina had “Cause” for your termination is final and binding. Except as expressly provided elsewhere in this Agreement, all other disputes under the Agreement, including disputes relating to this Section 3, will be resolved by arbitration under Section 6.
(g) No Reduction in Base Compensation. Catalina will not reduce your base salary without your approval. If Catalina breaks this promise, you may resign with good reason and will receive the same severance benefits as if you were discharged other than for Cause.
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Information does not include any information which Catalina has deliberately and publicly disclosed without restriction, or which third parties have developed independently without breaching any obligations to Catalina.
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competition with Catalina or any member of the Group. For the purposes hereof, competition shall be determined by referring to the nature of the Group’s business or prospective business as specified in Catalina’s most current SEC filings and employee distributed press releases (collectively, “Competing Businesses”). The parties agree that, based on the foregoing but subject to the balance of this paragraph, Competing Businesses are limited to those described in Schedule 1 hereto as amended from time to time as herein provided. The Board of Directors of Catalina, no more frequently than every 24 months, may make a good faith determination that additional entities constitute Competing Businesses. Catalina promptly shall notify you of any such determination and the identity of such additional entities. Thirty (30) days thereafter, unless you notify Catalina of your objection, such entities shall be added to Schedule 1. If you object to the addition of any entity to Schedule 1, this Agreement and the Change of Control Agreement shall terminate upon the date of your notice to Catalina except that your covenants under this Section 4 shall survive (as they existed prior to the addition of such entity), together with any other provisions of this Agreement necessary to interpret or enforce this Section 4. Because Catalina’s services and customer base are nationwide in scope, this paragraph’s restrictions apply to any state of the United States, or has active plans to do, business on the date of termination. To assure compliance with this provision during the Restricted Period, you agree to inform the Chief Executive Officer of Catalina at least two weeks before you begin any business affiliation, employment or consulting engagement with any entity listed or described on Schedule 1 as amended from time to time.
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interests of Catalina, if you do breach Section 4 you agree to give up any future payments or benefits you otherwise may have under this Agreement and also to reimburse Catalina for all payments or benefits provided to you under this Agreement (other than those constituting earned wages under applicable law).
To Catalina: | Catalina Marketing Corporation | |
000 Xxxxxxxx Xxxxxxx | ||
Xx. Xxxxxxxxxx, Xxxxxxx 00000 | ||
Attn: Chief Executive Officer |
To you: | Your address in Catalina’s payroll records or another address as may be stated in a notice given to Catalina with reference to this Section 7. |
9. Interpretation; Exclusive Forum. The laws of the state of Florida govern the validity, interpretation, construction and performance of this Agreement (except for any laws that require the use of another jurisdiction’s laws). Any litigation, arbitration or similar proceeding with respect to this Agreement may be brought only within Florida. Both parties to this Agreement consent to Florida’s jurisdiction and agree that venue anywhere in Florida is proper.
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defined in the Change of Control Agreement) to expressly assume and agree to perform this Agreement in the same way and to the same extent that Catalina was required to perform.
16. Tax Liabilities and Code Section 409A. You are solely responsible for the payment of any tax liability (including any taxes and penalties that may arise under Section 409A (“Section 409A”) of the Internal Revenue Code of 1986, as amended (the “Code”)) that may result from any payments or benefits that you receive under this Agreement. These payments or benefits may be reduced by any applicable employment or withholding taxes. In addition, Catalina will suspend payment of any cash amounts you are entitled to receive under Section 3 during the six-months following termination of your employment (the “409A Suspension Period”), unless Catalina reasonably determines that paying the amounts in accordance with Section 3 will not result in your liability for additional tax under Section 409A. As soon as reasonably practical after the end of the 409A Suspension Period, you will receive a lump sum payment in cash for an amount equal to any cash payments that Catalina doesn’t make during the 409A Suspension Period. After that, you will receive any remaining payments under Section 3 in accordance with its terms (as if there had not been any suspension of payments).
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the Effective Date.
CATALINA MARKETING CORPORATION |
/s/ XXXXXXXXX X. XXXXXXXX |
XXXXXXXXX X. XXXXXXXX |
Chairman of the Board |
/s/ XXX XXXXXXXXX |
XXX XXXXXXXXX |
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SCHEDULE 1
LIST OF SECTION 4(E) COMPANIES
October 1, 2006
[****]
**** Material omitted pursuant to a request for confidential treatment under Rule 24b-2 of the Exchange Act of 1934. Material filed separately with the Securities and Exchange Commission.
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EXHIBIT A
SEPARATION AGREEMENT AND GENERAL RELEASE
This SEPARATION AGREEMENT AND GENERAL RELEASE (“Release”) is made on , , 2006 between Catalina Marketing Corporation (“Catalina”) and Xxx Xxxxxxxxx (“you”):
WHEREAS, You and Catalina signed a Severance Agreement dated October 1, 2006 (the “Severance Agreement”);
1. Employment Termination
You agree that your employment with Catalina has ended or will end on [date].
2. Claims Released by you
In consideration for the benefits in this Agreement, you irrevocably and unconditionally releases and discharge Catalina and its current and former parent companies, affiliates, subsidiaries, divisions, successors and assigns, and all of their current and former employees, officers, directors, owners, stockholders, representatives, administrators, fiduciaries, agents, insurers, employee benefit programs (and the trustees, administrators, fiduciaries and insurers of the programs) (collectively, the “Released Parties”) from any and all claims or demands you may have against the Released Parties. This includes claims arising out of your employment with, and separation from, Catalina other than claims (i) for your rights to indemnification under the Company’s bylaws or indemnification agreements in effect on the date hereof, (ii) for coverage under Catalina’s insurance provisions or policies providing for directors’ and officers’ liability coverage, (iii) for unpaid amounts you are due under the Severance Agreement, (iv) seeking enforcement of this Release, and (v) vested awards or benefits under the Company’s employee benefit plans and programs.
You agree to release any rights or claims you may have based on federal, state or local law, rule, statute or regulation, or the common law, and specifically includes, but isn’t limited to, claims under the following laws: Title VII of the Civil Rights Act of 1964; the Americans with Disabilities Act; the Employee Retirement Income Security Act of 1974; the Family and Medical Leave Act of 1996; the Florida Civil Rights Act; and any other federal, state or local law, rule, statute or regulation. This release covers both claims that you know about and those you may not know about at this time.
You agree that you will never file any lawsuit or complaint based on the claims purportedly released in this Release. You promise never to seek any damages, remedies, or other relief for you personally (any right to which you hereby waive) by filing or prosecuting a charge with any administrative agency with respect to any claim purportedly released by this Release.
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3. Release of ADEA Claims.
In exchange for the benefits provided to you under this Release, you agree that the release of claims under Section 2, above includes a release of claims under the Age Discrimination in Employment Act of 1967 (the “ADEA”). You irrevocably and unconditionally forever release and discharge Catalina and the Released Parties from any and all actual or potential, known or unknown claims that you presently may have under the ADEA.
4. Claims released by Catalina
In consideration for your commitments set forth in the Severance Agreement and in this Release, Catalina irrevocably and unconditionally releases and discharges you and your heirs, executors, personal representatives and successors and assigns, from any and all claims, including attorneys’ fees, complaints, liabilities, obligations, damages, actions of any nature, known or unknown, suspected or unsuspected, that it ever had or now has relating in any way to your employment relationship or the termination of your employment relationship with Catalina other than claims arising from any act or omission by you which constitutes gross negligence, willful misconduct or fraud. For purposes of this Section 4, “willful” means that your act or failure to act was taken or omitted not in good faith and without reasonable belief that his action or omission was in the best interests of Catalina.
5. Non-admission of Liability
This Release is not an admission of guilt or wrongdoing by you or any of the Released Parties.
6. Confidentiality
You agree to keep the fact and terms of this Release in strict confidence. You agree not to disclose this document, its contents or subject matter to any person other than your immediate family, attorney, accountant or income tax preparer, or otherwise as required by law. Catalina and the Released Parties agree to keep the fact the terms of this Release in strict confidence except to the extent required by law or to enforce its terms.
7. Consideration of Release
You acknowledge that, before signing this Release, you were given at least 21 calendar days to consider it. You waive any right you might have to additional time beyond this 21 day period within which to consider this Release. You acknowledge that: (a) you used that time to consider this Release before signing it; (b) you carefully read this Release; (c) you fully understand what this Release means; (d) you are entering into it voluntarily; (e) you are receiving valuable consideration in exchange for signing this Release that you would not otherwise be entitled to receive; and (f) Catalina, in writing, encouraged you to discuss this Release with your attorney (at your own expense) before signing it, and that you did so to the extent you thought appropriate.
You may revoke your release of ADEA claims within seven (7) days after you signs this Release, in which case, this Agreement will be null and void. As a result, you won’t be entitled to any of the benefits set forth in this agreement and will only
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receive those benefits you would have received if Catalina had discharged you “for cause” under the terms of the Severance Agreement.
8. Miscellaneous
This Release with Sections 3, 4, 5, 6 and 16 of the Severance Agreement, and the Mutual Agreement to Arbitrate Claims attached as Exhibit B to the Severance Agreement, are the entire Agreement between you and Catalina pertaining to the subject matter of this Release. This Release may not be modified or canceled in any manner except by a writing signed by both you and an authorized Catalina official. You acknowledge that Catalina has made no representations or promises to you concerning this subject matter other than those in this Release. If any provision in this Release is found to be unenforceable, all other provisions will remain fully enforceable. It isn’t necessary that Catalina sign this Release for it to become binding on both Executive and Catalina. This Release binds your heirs, administrators, representatives, executors, successors, and assigns, and will serve to the benefit of the Released Parties and their heirs, administrators, representatives, executors, successors, and assigns. This Release is governed by the statutes and common law of the State of Florida (except for any that require the use of another jurisdiction’s laws). Section headings in this Agreement are included for convenience of reference only and are not a part of this Agreement for any other purpose.
CATALINA MARKETING CORPORATION | ||||||
Date: |
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Name: | ||||||
Title: | ||||||
Date: |
| /s/ Xxx Xxxxxxxxx | ||||
Xxx Xxxxxxxxx |
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EXHIBIT B
MUTUAL AGREEMENT TO ARBITRATE CLAIMS
Xxx Xxxxxxxxx (“you”) recognize that Catalina Marketing Corporation (“Catalina”) and you may have differences during or following your employment with Catalina, and relating to your employment. You understand and agree that by signing this Agreement to Arbitrate Claims (“Agreement”), you anticipate gaining the benefits of a confidential, impartial dispute-resolution procedure.
Except as provided in this Agreement, the Federal Arbitration Act governs the interpretation, enforcement and all proceedings pursuant to this Agreement. To the extent that the Federal Arbitration Act either is inapplicable, or held not to require arbitration of a particular claim or claims, Florida law pertaining to agreements to arbitrate applies.
You understand that any reference in this Agreement to Catalina will be a reference also to all of its subsidiary and affiliated entities, all benefit plans, the benefit plans’ sponsors, fiduciaries, administrators, and affiliates, and all successors and assigns of any of them.
1. Claims Covered by the Agreement
You and Catalina mutually consent to the resolution by arbitration of all claims, past, present or future, which arise, directly or indirectly, out of your employment (or its termination) and, the Severance Agreement dated October 1, 2006 and Change of Control Agreement dated October 1, 2006 except as stated in those agreements, and any claim that Catalina may have against you or that you may have against Catalina and its parent companies, affiliates, subsidiaries, divisions, successors and assigns, and each of their current and former employees, officers, directors, owners, stockholders, representatives, administrators, fiduciaries or agents in their capacity as such or otherwise (“claims”). The claims covered by this Agreement include, but aren’t limited to, claims for wages or other compensation due; claims for breach of any contract or covenant (express or implied); tort claims; claims for discrimination (including, but not limited to, race, sex, sexual orientation, religion, national origin, age, marital status, or medical condition, handicap or disability); and claims for violation of any federal, state, or other governmental law, statute, regulation or ordinance, except claims excluded elsewhere in this Agreement.
Except as otherwise provided in this Agreement, both you and Catalina agree that neither of you will initiate or prosecute any lawsuit or administrative action (other than an administrative charge of discrimination to the EEOC or similar fair employment practices agency, or an administrative charge within the jurisdiction of the National Labor Relations Board or U.S. Department of Labor), in any way related to any claim covered by this Agreement. If Catalina or you prevails on a motion to compel arbitration following the initiation of any lawsuit or administrative action concerning any claim covered by this Agreement, that party will be entitled to an award of reasonable attorney’s fees acquired in the action.
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2. Claims Not Covered by the Agreement
This Agreement doesn’t cover claims for workers’ compensation or unemployment compensation benefits; or any claim as to which final and binding arbitration can’t be required as a matter of law.
Claims, either by Catalina or by you, seeking injunctive or other equitable relief for alleged violations of intellectual property rights and non-disclosure, non-competition, and non-solicitation covenants, per Section 4 of the Severance Agreement also aren’t covered by this Agreement (although all other aspects of these claims, including any claims for damages, are covered by this Agreement). Similarly, claims either by Catalina or by you for breach of any post-employment separation agreement, including, but not limited to, the Release Agreement, aren’t covered by this Agreement.
3. Required Notice of All Claims and Statute of Limitations
Catalina and you agree that the aggrieved party must give written notice of any claim to the other party. This notice must be given no later than the applicable statute of limitations as may be prescribed by law.
Written notice to Catalina, or its officers, directors, employees or agents, will be sent to Catalina Marketing Corporation, 000 Xxxxxxxx Xxxxxxx, Xx. Xxxxxxxxxx, Xxxxxxx 00000, Attn: Chief Executive Officer. You will be given written notice at the last address recorded in your personnel file.
The written notice must identify and describe the nature of all claims asserted and the facts upon which the claims are based. The notice must be sent to the other party by certified or registered mail, return receipt requested.
4. Representation
Any party may be represented by an attorney or other representative selected by the party.
5. Discovery
Each party has the right to take the deposition of three (3) individuals and any expert witness designated by another party. Each party also has the right to make requests for production of documents to any party. The subpoena right specified below applies to discovery pursuant to this Section. Additional discovery may be had where the arbitrator selected pursuant to this Agreement so orders, upon an appropriate showing of justification.
6. Designation of Witnesses
At least 30 days before the arbitration, the parties must exchange lists of witnesses, including any expert, and copies of all exhibits intended to be used at the arbitration.
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7. Subpoenas
Each party will have the right to subpoena witnesses and documents for the arbitration.
8. Arbitration Procedures
The arbitration will be held under the auspices of the American Arbitration Association (“AAA”) in the City of St. Petersburg, Florida.
Catalina and you agree that, except as provided in this Agreement, the arbitration will be in accordance with the AAA’s National Rules for Resolution of Employment Disputes (or other then-current employment arbitration procedures). The arbitrator will be either a retired judge, or an attorney licensed to practice law in Florida and will have demonstrated experience and expertise in executive compensation matters (the “Arbitrator”).
The Arbitrator will be selected as follows. The sponsoring organization will give each party a list of 11 arbitrators drawn from its panel of employment dispute arbitrators. Each party may eliminate all names on the list it deems unacceptable. If only one common name remains on the lists of all parties, that individual will be designated as the Arbitrator. If more than one common name remains on the lists of all parties, the parties will eliminate names alternately from the list of common names until only one remains. The party who did not initiate the claim will eliminate first. If no common name exists on the lists of all parties, the sponsoring organization will furnish an additional list and the process will be repeated. If no arbitrator has been selected after two lists have been distributed, then the parties will eliminate alternately from a third list, with the party initiating the claim eliminating first, until only one name remains. That person will be designated as the Arbitrator.
The Arbitrator will apply the substantive law (and the law of remedies, if applicable) of the state in which the claim arose, or federal law, or both, as applicable to the claim(s) asserted. If the parties’ dispute concerns a contract in which the parties have included a choice of law provision, the Arbitrator will apply the law as designated by the parties. The Arbitrator is without jurisdiction to apply any different substantive law, or law of remedies. The Arbitrator, and not any federal, state, or local court or agency, has exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Agreement, including but not limited to any claim that all or any part of this Agreement is void or voidable. The arbitration will be final and binding upon the parties, except as provided in this Agreement.
The Arbitrator has jurisdiction to hear and rule on pre-hearing disputes and is authorized to hold pre-hearing conferences by telephone or in person, as the Arbitrator deems necessary. The Arbitrator has the authority to hear and adjudicate a motion to dismiss and/or a motion for summary judgment by any party and will apply the standards governing the motions under the Federal Rules of Civil Procedure.
Either party may obtain a court reporter to provide a stenographic record of proceedings.
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Either party, upon request at the close of hearing, will be allowed to file a post-hearing brief. The time for filing the brief will be set by the Arbitrator.
The Arbitrator will render a written, reasoned award and opinion in the form setting forth the Arbitrator’s findings and conclusions.
9. Arbitration Fees and Costs
Catalina will be responsible for paying any filing fee and the fees and costs of the Arbitrator and the arbitration; provided, however, that if you are the party initiating the claim, you are responsible for contributing an amount equal to the filing fee to initiate a claim in the court of general jurisdiction in Florida. Each party will pay for its own costs and attorneys’ fees, if any. However, if any party prevails on a statutory claim that affords the prevailing party attorneys’ fees, or if there is a written Agreement providing for fees, the Arbitrator may award reasonable fees to the prevailing party, under the standards for fee shifting provided by law.
10. Judicial Review
Either party may bring an action in any court of competent jurisdiction to compel arbitration under this Agreement or to enforce an arbitration award.
11. Interstate Commerce
You understand and agree that Catalina is engaged in transactions involving interstate commerce and that the Federal Arbitration Act applies to this Agreement.
12. Requirements for Modification or Revocation
This Agreement to arbitrate will survive the termination of your employment. It can only be revoked or modified by a writing signed by the parties that specifically states an intent to revoke or modify this Agreement.
13. Sole and Entire Agreement
This is the complete Agreement of the parties on the subject of arbitration of disputes. This Agreement supersedes any prior or contemporaneous oral or written understandings on the subject. No party is relying on any representations, oral or written, on the subject of the effect, enforceability or meaning of this Agreement, except as specifically set forth in this Agreement.
14. Severability
If any provisions of this Agreement are adjudged to be void or otherwise unenforceable, in whole or in part, this adjudication won’t affect the validity of the remainder of the Agreement, as the parties hereto intend to create a binding Agreement to arbitrate regardless of the unenforceability of any particular term or terms.
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15. Consideration
The promises by Catalina and by you to arbitrate differences, rather than litigate them before courts or other bodies, provide consideration for each other.
16. Voluntary Agreement
YOU ACKNOWLEDGE THAT YOU HAVE CAREFULLY READ THIS AGREEMENT, THAT YOU UNDERSTAND ITS TERMS, THAT ALL UNDERSTANDINGS AND AGREEMENTS BETWEEN CATALINA AND YOU RELATING TO THE SUBJECTS COVERED IN THE AGREEMENT ARE CONTAINED IN IT, AND THAT YOU HAVE ENTERED INTO THE AGREEMENT VOLUNTARILY AND NOT IN RELIANCE ON ANY PROMISES OR REPRESENTATIONS BY CATALINA OTHER THAN THOSE CONTAINED IN THIS AGREEMENT ITSELF.
YOU UNDERSTAND THAT BY SIGNING THIS AGREEMENT YOU ARE GIVING UP YOUR RIGHT TO A JURY TRIAL.
YOU FURTHER ACKNOWLEDGE THAT YOU HAVE BEEN GIVEN THE OPPORTUNITY TO DISCUSS THIS AGREEMENT WITH YOUR PRIVATE LEGAL COUNSEL AND HAVE TAKEN THAT OPPORTUNITY TO THE EXTENT YOU WISH TO DO SO.
CATALINA MARKETING CORPORATION | ||||||
Date: |
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Name: | ||||||
Title: | ||||||
Date: |
| /s/ Xxx Xxxxxxxxx | ||||
Xxx Xxxxxxxxx |
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