HIGHBURY FINANCIAL INC. SEVERANCE AGREEMENT
EXHIBIT 10.2
This
Severance Agreement (“Agreement”)
is entered into, as of December12, 2009, among Highbury Financial Inc. (“Company”),
and Xxxxxxx X. Xxxxx (“Employee”).
Recitals
Company
acknowledges that Employee possesses skills and knowledge instrumental to the
successful conduct of the Company’s business. Company is willing to
enter into this Agreement with Employee in order to better ensure itself of
access to the continued services of Employee both before and after a Change in
Control.
NOW,
THEREFORE, for and in consideration of the mutual covenants and agreements set
forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties to this Agreement
hereby agree as follows:
1. Term. The
term of this Agreement shall commence on the date indicated above (the “Effective
Date”) and end on December 31, 2010.
2. Operation of
Agreement. On the Effective Date, this Agreement shall
supercede any other agreement between the Company and Employee that would
provide Employee the right to receive severance and other benefits in connection
with the termination of Employee’s employment.
3. Certain
Definitions. As used in this Agreement, the following terms
shall have the meanings set forth below:
(a) “Accrued
Obligations” shall mean any vested amounts or benefits owing to Employee
under the Company’s otherwise applicable employee benefit plans and programs,
including any compensation previously deferred by Employee (together with any
accrued earnings thereon) and not yet paid.
(b) “Base
Salary” shall
mean Employee’s annualized base salary as in effect from time to time as
reflected in the Company’s regular
payroll records.
(c) “Change in
Control” shall mean the occurrence of any event that would constitute a
change in ownership in a corporation or a change in the ownership of a
substantial portion of a corporation’s assets within the meaning of Treas. Reg.
§1.409A-3(i)(5), including, without limitation, the transactions contemplated by
the Agreement and Plan or Merger, dated as of December 12, 2009, by and between
Affiliated Managers Group, Inc., Manor LLC and Highbury Financial
Inc.
(d) ”Change in Control
Date” means the
date on which a Change in Control occurs.
(e) “Date of
Termination” shall mean
(1) In
the case of a termination for which a Notice of Termination is required, the
date of receipt of such Notice of Termination or, if later, the date specified
therein, and
(2) In
all other cases, the actual date on which Employee’s employment
terminates.
(f) “Earned
Salary” shall mean Employee’s Base Salary earned, but unpaid, through
Employee’s Date of Termination.
(g) “Notice of
Termination” shall mean a written notice given, in the case of a
Termination for Cause, within 45 days of the Company’s having actual knowledge
of the events giving rise to such termination, and in the case of a Termination
for Good Reason, within 90 days of the later to occur of (x) the Change in
Control Date or (y) Employee’s having
actual knowledge of the events giving rise to such termination. Any
such Notice of Termination shall
(1) Indicate
the specific termination provision in this Agreement relied upon,
(2) Set
forth in reasonable detail the facts and circumstances claimed to provide a
basis for termination of Employee’s employment under the provision so indicated,
and
(3) If
the Date of Termination is other than the date of receipt of such notice,
specify the Date of Termination (which date shall be not more than 30 days after
the giving of such notice).
The
failure by Employee to set forth in the Notice of Termination any fact or
circumstance which contributes to a showing of Termination for Good Reason shall
not waive any right of Employee hereunder or preclude Employee from asserting
such fact or circumstance in enforcing Employee’s rights hereunder.
(h) “Special Window Period” shall
mean the period beginning on the later to occur of (i) the Closing
Measurement Date (as such term is defined in the Agreement and Plan or Merger,
dated as of December 12, 2009, by and between Affiliated Managers Group, Inc.,
Manor LLC and Highbury Financial Inc. and (ii) January 1, 2010, and ending
immediately prior to the occurrence of a Change in Control.
(i) “Termination for
Cause” shall mean a termination of Employee’s employment by the Company
due to the occurrence of any of the following
(1) Employee’s
continued failure to substantially perform Employee’s duties and
responsibilities (other than any such failure resulting from Employee’s physical
or mental impairment or incapacity) after written demand for substantial
performance is delivered by the Company specifically identifying the manner in
which the Company believes Employee has not substantially performed Employee’s
duties and responsibilities;
(2) Employee’s
engaging in an act or acts of gross misconduct which result in, or are intended
to result in, material damage to the Company’s business or
reputation;
(3) Employee’s
material violation of, or failure to comply with, any material written policy of
the Company which specifically provides that Employee may be dismissed (or
Employee’s employment terminated) as a consequence of any such violation or
failure to comply, or
(4) Employee’s
conviction of (or plea of guilty or nolo contendere to a charge
of) any felony, or any crime or misdemeanor involving moral turpitude or
financial misconduct.
For
purposes of subparagraph (2) above, an act, or failure to act, on Employee's
part shall only be considered "misconduct" if done, or omitted, by Employee not
in good faith and without reasonable belief that such act, or failure to act,
was in the best interest of the Company.
(j) “Termination for
Good Reason” shall mean a termination of Employee’s employment by
Employee due to the occurrence of any of the following, without the express
written consent of Employee, after the date of a Change in Control:
(1) (A) The assignment to
Employee of any duties inconsistent in any material adverse respect with
Employee’s position, authority or responsibilities as in effect immediately
prior to a Change in Control, or (B) any other material
adverse change in such position, including titles, authority or
responsibilities;
(2) Any
failure by the Company, other than an insubstantial or inadvertent failure
remedied by the Company promptly after receipt of notice thereof given by
Employee, to provide Employee with an annual Base Salary which is at least equal
to the Base Salary payable to Employee immediately prior to the
Change in Control Date;
(3) The
Company’s requiring Employee to be based at any office or location more than 50
miles from that location at which Employee principally performed services for
the Company immediately prior to the Change in Control Date, except for travel
reasonably required in the performance of Employee’s responsibilities;
or
(4) If,
not later than the Change in Control Date, any successor in interest to the
Company shall have failed to agree in writing to assume and perform this
Agreement as required by paragraph 8(h) hereof.
Notwithstanding
any in this Agreement to the contrary, the Employee’s termination of employment
due to his written resignation for any reason delivered during the Special
Window Period, but effective at the effective time of a Change in Control, shall
be deemed a termination for Good Reason for all purposes under this
Agreement. In the event of such a resignation, no Notice of
Termination shall be required to be submitted by the Employee.
4. Termination of
Employment.
(a) Right to
Terminate. Nothing in this Agreement shall be construed in any
way to limit the right of the Company to terminate Employee’s employment, with
or without cause, or for Employee to terminate Employee’s employment with the
Company, with or without reason; provided, however, that the
Company and Employee must nonetheless comply with any duty or obligation such
party has at law or under any other agreement between the parties.
(b) Termination due
to Death. Employee’s employment with the Company shall be
terminated upon Employee’s death.
5. Amounts Payable
Upon Termination of Employment.
(a) Cause and
Voluntary Termination. If Employee’s employment is
terminated by the Company in a Termination for Cause or voluntarily by Employee
(other than in a Termination for Good Reason), the Company shall pay
Employee:
(1) The
Earned Salary as soon as practicable, but in no event more than 10 days,
following Employee’s Date of Termination; and
(2) The
Accrued Obligations in accordance with the terms of the applicable plan,
program, policy or arrangement.
(b) Death,
Termination for Good Reason or Not for Cause. If Employee
terminates Employee’s employment in a Termination for Good Reason, or the
Company terminates Employee’s employment for any reason other than those
described in paragraph 5(a) above, or Employee dies during the term of this
Agreement, the Company shall pay or shall provide to Employee the following
benefits and compensation:
(1) The
Earned Salary, as soon as practicable (but not
more than 10 days) following Employee’s Date of Termination;
(2) The
Accrued Obligations, in accordance with applicable
law and the provisions of any applicable plan, program, policy or practice; and
(3) A Separation Payment in the amount of $584,000,
which shall be payable in all cases other than the
death of Employee as soon a practicable (but no later than 10 days) following
the expiration of the revocation period stated in the General Release Agreement
described in paragraph 5(c) below, and in the case of death, within 30
days after Employee’s death.
(c) Payments
Contingent on Release. The Separation Payment payable under paragraph
5(b) shall be subject to, and contingent upon, Employee’s execution of a General
Release Agreement in favor of the Company within 60 days of Employee’s Date of
Termination in substantially the form and substance as the one attached hereto
as Schedule A.
(d) Payment
Adjustment. If it is established pursuant to a final
determination of a court, an Internal Revenue Service proceeding or
otherwise by agreement of the parties hereto (a “Final
Determination”) that any amount or benefit to be paid or distributed to,
or on behalf of, the Employee pursuant to this Agreement, taken together with
any amounts or benefits otherwise paid or distributed to, or on behalf of, the
Employee by the Company, its Affiliates and their successors, including any
acquiror of the Company or its Affiliates (or any person or entity required to
be aggregated with the Company or its Affiliates for purposes of section 280G of
the Internal Revenue Code of 1986, as amended (the “Code”) )
under any other plan, agreement, or arrangement (collectively, the “Covered
Payments”), would be an “excess parachute payment” as defined
in Code section 280G, and would thereby subject the Employee to the
tax (the “Excise
Tax”) imposed under Code section 4999 (or any similar tax that may
hereafter be imposed),the aggregate “parachute payments” within the meaning of
Section 280G of the Code paid to the Employee or for his benefit are
in an amount that would result in the Employee being subject an Excise Tax, then
the amount equal to the excess parachute payments scheduled to be made to the
Employee shall be forfeited by the Employee or, if already made to the Employee,
shall be deemed for all purposes to be a loan to the Employee made on the date
of receipt of such excess payments, which the Employee shall have an obligation
to repay to the entity making such payment on demand, together with interest on
such amount at the applicable Federal rate (as defined in section 1274(d) of the
Code) from the date of the payment hereunder to the date of repayment by the
Employee.
(e) Security for
Separation Payment. To provide Employee with certainty that
the amounts that may become payable in respect of the Separation Payment will be
available at the time, if any, required to be paid under paragraph 5(b), as soon
as practicable, but in no event later than 10 business days after execution of
this Agreement, the Company shall establish a trust to which it will contribute
cash in amount equal to the Separation Payment that would be expected to be paid
to Employee in the event that Employee experienced a termination
described in paragraph 5(b) during 2010. Any such trust shall be
irrevocable as to amounts related to Employee’s potential Separation Payment
without the consent of Employee, and shall not be subject to the claims of the
creditors of the Company or any of its affiliates. Employee agrees
that he shall timely make an election under Section 83(b) of the Code to
recognize income equal to the value of his contingent interest in the trust
described in this paragraph 5(e) in accordance with the applicable requirements
of that Section and the regulations promulgated thereunder.
(f) Transfer. For
purposes of this Agreement, a transfer of employment from the Company to
substantially equivalent employment with an affiliate of the Company shall not
constitute a termination of employment.
6. Special Retention
Payment. In the event that Employee is continuously employed
by the Company from the date hereof through December 31, 2010 and employee is
not entitled to a payment under paragraph 5(b) hereof, then as soon as
practicable (but not later than 10 business days) after December 31, 2010, the
Company shall cause the trust referenced in paragraph 5(e) to pay Employee an
amount equal to the amount of taxes realized by Employee in respect of his
making the election under Section 83(b) of the Code referred to in such
paragraph 5(e).
7. Nonpublic
Information.
(a) Acknowledgement
of Access. Employee hereby acknowledges that, in connection
with Employee’s employment with the Company, Employee has received, and will
continue to receive, various information regarding the Company and its business,
operations and affairs. All such information, to the extent not
publicly available other than as a result of a disclosure by Employee in
violation of this Agreement, is referred to herein as the “Nonpublic
Information.”
(b) Agreement to Keep
Confidential. Employee hereby agrees that, from and after the
Effective Date and continuing until three (3) years following Employee’s Date of
Termination, Employee will keep all Nonpublic Information confidential and will
not, without the prior written consent of the Board or the President of the
Company, disclose any Nonpublic Information in any manner whatsoever or use any
Nonpublic Information other than in connection with the performance of
Employee’s services to the Company; provided, however, that the
provisions of this paragraph 7(b) shall not prevent Employee from
(1) Disclosing
any Nonpublic Information to any other employee of the Company or to any
representative or agent of the Company (such as an independent accountant,
engineer, attorney or financial advisor) when such disclosure is reasonably
necessary or appropriate (in Employee’s judgment) in connection with the
performance by Employee of Employee’s
duties and responsibilities,
(2) Disclosing
any Nonpublic Information as required by applicable law, rule, regulation or
legal process (but only after compliance with the provisions of subparagraph (c) of this paragraph),
(3) Disclosing
any information about this Agreement and Employee’s other compensation
arrangement to Employee’s spouse, financial advisors or attorneys, or to enforce
any of Employee’s rights under this Agreement.
(c) Commitment to
Seek Protective Order. If Employee is requested pursuant to,
or required by, applicable law, rule, regulation or legal process to disclose
any Nonpublic Information, Employee will notify Company promptly so that the
Company may seek a protective order or other appropriate remedy or, in the
Company’s sole discretion, waive compliance with the terms of this subparagraph,
and Employee will fully cooperate in any attempt by the Company to obtain any
such protective order or other remedy. If no such protective order or
other remedy is obtained, or the Company waives compliance with the terms of
this paragraph, Employee will furnish or disclose only that portion of the
Nonpublic Information as is legally required and will exercise all reasonable
efforts to obtain reliable assurance that confidential treatment will be
accorded the Nonpublic Information that is so disclosed.
8. 409A Compliance
(a) It
is expected that the amounts payable to Employee under this Agreement shall not
be treated as deferred compensation subject to the provisions of Section 409A of
the Code, by reason of qualifying for an exemption or exclusion therefrom,
taking into account any related regulations or other guidance promulgated by the
U.S. Department of the Treasury or the Internal Revenue
Service. Notwithstanding the foregoing, in the event that the parties
determine that any such amount is deferred compensation subject to the
provisions of such Section 409A of the Code, this Agreement, to the extent
applicable, and any payment, distribution or other benefit hereunder determined
to be so subject shall comply with the applicable requirements of Section 409A
of the Internal Revenue Code of 1986, as amended (the "Code"),including, without
limitation, the requirement that any such deferred compensation payable to a
specified employee on account of separation from service must be subject to a
delay on payment until the six month anniversary of the date of such
separation from service.
(b) All
reimbursements and in-kind benefits provided under this Agreement shall be made
or provided in accordance with the requirements of Section 409A, including,
where applicable, the requirement that (i) any reimbursement shall be for
expenses incurred during the time period specified in this Agreement, (ii) the
amount of expenses eligible for reimbursement, or in-kind benefits provided,
during a calendar year may not affect the expenses eligible for reimbursement,
or in-kind benefits to be provided, in any other calendar year, (iii) the
reimbursement of an eligible expense will be made not later than the last day of
Employee's taxable year following the taxable year in which such expense was
incurred, and (iv) the right to reimbursement or in-kind benefits is not subject
to liquidation or exchange for another benefit.
9. Miscellaneous
Provisions.
(a) No Mitigation, No
Offset. Employee shall not be required to mitigate the amount
of any payment provided for in this Agreement by seeking other employment or
otherwise, and the amount of any payment provided for in this Agreement shall
not be reduced by any compensation earned by Employee as the result of
employment by another employer after the Date of Termination. The Company’s
obligation to make the payments provided for in this Agreement and otherwise to
perform its obligations hereunder shall not be affected by any circumstances,
including, without limitation, any set-off, counterclaim, recoupment, defense or
other right which the Company may have
against Employee or others whether by reason of the subsequent employment of
Employee or otherwise.
(b) Arbitration. Except
to the extent provided in paragraph 9(c), any dispute or controversy arising
under or in connection with this Agreement shall be resolved by binding
arbitration. The arbitration shall be held in New York, New York and
except to the extent inconsistent with this Agreement, shall be conducted in
accordance with the Expedited Employment Arbitration Rules of the American
Arbitration Association then in effect at the time of the arbitration, and
otherwise in accordance with principles which would be applied by a court of law
or equity. The arbitrator shall be acceptable to both the Company and
Employee. If the parties cannot agree on an acceptable arbitrator,
the dispute shall be heard by a panel of three arbitrators, one appointed by
each of the parties and the third appointed by the other two
arbitrators.
(c) Equitable Relief
Available. Employee acknowledges that remedies at law may be
inadequate to protect the Company against any actual or threatened breach of the
provisions of paragraph 7 by Employee. Accordingly, without prejudice
to any other rights or remedies otherwise available to the Company, Employee
agrees that the Company shall have the right to equitable and injunctive relief
to prevent any breach of the provisions of paragraph 7, as well as to such
damages or other relief as may be available to the Company by reason of any such
breach as does occur.
(d) Indemnification. During
and after Employee’s employment, the Company shall indemnify Employee and hold
Employee harmless from and against any claim, loss or cause of action arising
from or out of Employee’s performance as an officer, director or employee of
Company, the Company or any of their respective Subsidiaries or in any other
capacity, including any fiduciary capacity, in which Employee serves at the
request of the Company to the maximum extent permitted by applicable law and the
Company’s Certificate of Incorporation and By-Laws (the “Governing Documents”),
provided that
in no event shall the protection afforded to the Employee hereunder be less than
that afforded under the Governing Documents as in effect immediately prior to
the Change in Control Date.
(e) Breach Not a
Defense. The representations and covenants on the part of
Employee contained in paragraph 7 shall be construed as ancillary to and
independent of any other provision of this Agreement, and the existence of any
claim or cause of action of Employee against the Company or any officer,
director, stockholder or representative of the Company, whether predicated on
this Agreement or otherwise, shall not constitute a defense to the enforcement
by the Company of the covenants on the part of Employee contained in paragraph
7.
(f) Notices. Any
Notice of Termination or other communication called for by the terms of this
Agreement shall be in writing and either delivered personally or by registered
or certified mail (postage prepaid and return receipt requested) and shall be
deemed given when received at the following addresses (or at such other address
for a party as shall be specified by like notice):
(1) If
to the Company, at 000 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx,
XX 00000;
(2) If
to Employee, the address of Employee set forth below Employee’s signature on the
signature page of this Agreement.
(g) Assignment. Except
pursuant to an assumption by a successor described in paragraph 8(h), the rights
and obligations of the Company pursuant to this Agreement may not be
assigned,
in whole or in part, by the Company to any other person or entity without the
express written consent of Employee. The rights and obligations of
Employee pursuant to this Agreement may not be assigned, in whole or in part, by
Employee to any other person or entity without the express written consent of
the Board.
(h) Successors. This
Agreement shall be binding on, and shall inure to the benefit of, the Company,
Employee and their respective successors, permitted assigns, personal and legal
representatives, executors, administrators, heirs, distributees, devisees and
legatees, as applicable. Company shall require any successor (whether direct or
indirect) to all or substantially all of the business or assets of Company
(whether by purchase of securities, merger, consolidation, sale of assets or
otherwise), to expressly assume and agree to perform the obligations to be
performed by the Company under this Agreement in the same manner and to the same
extent that the Company would be required to perform if no such succession had
taken place.
(i) Amendments and
Waivers. No provision of this Agreement may be amended or
otherwise modified, and no right of any party to this Agreement may be waived,
unless such amendment, modification or waiver is agreed to in a written
instrument signed by Employee, Company and Company. No waiver by
either party hereto of, or compliance with, any condition or provision of this
Agreement to be performed by the other party hereto shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at any prior or
subsequent time.
(j) Complete
Agreement. This Agreement replaces and supersedes all prior
agreements, if any, among the parties with respect to the payments to be made to
Employee upon termination of employment following a Change in Control, and the
provisions of this Agreement constitute the complete understanding and agreement
among the parties with respect to the subject matter hereof.
(k) Governing
Law. THIS
AGREEMENT IS BEING MADE AND EXECUTED IN, AND IS INTENDED TO BE PERFORMED IN, THE
STATE OF NEW YORK AND SHALL BE GOVERNED, CONSTRUED, INTERPRETED AND ENFORCED IN
ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE STATE OF NEW
YORK.
(l) Attorney
Fees. All legal fees and other costs incurred by Employee in
connection with the resolution of any dispute or controversy under or in
connection with this Agreement shall be reimbursed by the Company to Employee,
on a quarterly basis, upon presentation of proof of such expenses, provided that if
Employee asserts any claim in any contest and Employee shall not prevail, in
whole or in part, as to at least one material issue as to the validity,
enforceability or interpretation of any provision of this Agreement, Employee
shall reimburse the Company for such amounts, plus simple interest thereon at
the 90-day United States Treasury Xxxx rate as in effect from time to time,
compounded annually. The Company shall be responsible for, and
shall pay, all legal fees and other costs incurred by the Company in connection
with the resolution of any dispute or controversy under or in connection with
this Agreement, regardless of whether such dispute or controversy is resolved in
favor of the Company or Employee.
(m) Counterparts. This
Agreement may be executed in several counterparts, each of which shall be deemed
to be an original, but all of which together will constitute one and the same
agreement.
(n) Construction. The
captions of the paragraphs, subparagraphs and sections of this Agreement have
been inserted as a matter of convenience of reference only and shall not affect
the meaning
or construction of any of the terms or provisions of this
Agreement. Unless otherwise specified, references in this Agreement
to a “paragraph,” “subparagraph”, “section,” “subsection,” or
“schedule” shall be considered to be references to the appropriate paragraph,
subparagraph, section, subsection, or schedule, respectively, of this
Agreement. As used in this Agreement, the term “including” shall mean
“including, but not limited to.”
(o) Validity and
Severability. If any term or provision of this Agreement is
held to be illegal, invalid or unenforceable under the present or future laws
effective during the term of this Agreement, (1) such term or provision shall be
fully severable, (2) this Agreement shall be construed and enforced as if such
term or provision had never comprised a part of this Agreement and (3) the
remaining terms and provisions of this Agreement shall remain in full force and
effect and shall not be affected by the illegal, invalid or unenforceable term
or provision or by its severance from this Agreement. Furthermore, in
lieu of such illegal, invalid or unenforceable term or provision, there shall be
added automatically as a part of this Agreement, a term or provision as similar
to such illegal, invalid or unenforceable term or provision as may be possible
and be legal, valid and enforceable.
(p) Survival. Notwithstanding
anything else in this Agreement to the contrary, paragraphs 7 and 9, and, to the
extent that any of the Company’s obligations thereunder have not theretofore
been satisfied, paragraph 5 of this Agreement shall survive the termination
hereof.
By:
/s/ Xxxxxxx X. Xxxxx
Name:
Xxxxxxx X. Xxxxx
Title:
President and Chief Executive Officer
XXXXXXX
X. XXXXX:
/s/
Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
Address:
Berkshire Capital Securities LLC.
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Schedule
A
GENERAL RELEASE
AGREEMENT*
NOTICE: Various
state and federal laws and regulations prohibit employment discrimination based
on age, race, color, religion, sex, national origin, disability, citizenship,
and membership or application for membership in a uniformed
service. These laws are enforced through the Equal Employment
Opportunity Commission, U.S. Department of Labor and other federal and state
agencies. You should thoroughly review and understand the effect of this General
Release Agreement ("Release") before signing it, and you are advised to discuss
this document with your attorney. Therefore, please carefully
consider this Release for at least five (5) days before signing
it. In accordance with the requirements of the Older Workers Benefit
Protection Act ("OWBPA"), you are allowed at least twenty-one (21) days from the
date of your receipt of this document to consider the offer made to you and to
return an executed copy of this form to _____________________. Additionally,
after you have executed this form, you have seven (7) days to reconsider and
revoke your agreement.
GENERAL
RELEASE: In consideration of my acceptance of the payments and
benefits offered to me under the Highbury Financial Inc. Severance Agreement
previously executed by me (the "Agreement"), I hereby release and discharge
Highbury Financial Inc. (the "Company") and its subsidiaries and affiliates, and
the officers, directors, employees, agents, predecessors, successors, and
assigns of such entities (collectively the "Released Parties") from any and all
claims, liabilities, demands, and causes of action, known or unknown, fixed or
contingent, which I have or claim against them as a result of the termination of
my employment, including but not limited to claims arising under federal, state,
or local laws prohibiting employment discrimination, including the Age
Discrimination in Employment Act ("ADEA"), or claims growing out of any legal
restrictions, contractual or otherwise, on the Company's right to terminate the
employment of its employees, and I do hereby agree not to file a lawsuit to
assert such claims. I further acknowledge and agree that by accepting the
benefits stated in the Agreement, I have given up my right to file any
complaint, lawsuit, or other legal action against any of the Released Parties
growing out of, connected with, or relating in any way to my employment or the
termination of my employment with any of the Released Parties, except my right
under the OWBPA to challenge the validity of this Release with respect to claims
of age discrimination. Further in consideration of the payments and
benefits offered to me in the Agreement, I acknowledge and agree that the
Released Parties may recover from me any loss, including attorney's fees and
costs of defending against any such claim, that they may suffer arising out of
my breach of this Release. I acknowledge that if I do file
suit to challenge the validity of this Release under the OWBPA and I am
unsuccessful, I will not be able to pursue an age discrimination claim and a
court may allow the Released Parties to recover from me any loss, including
attorney's fees and costs, that they may suffer in defending against my claim
that this Release is invalid for age discrimination claims. I further
acknowledge and agree that if I am successful in invalidating this Release for
age discrimination claims, then any damages I may recover for those claims will
be offset by any payments made to me under the Agreement.
I
understand that this Release is final and binding, and I agree not to challenge
its enforceability other than as permitted under the OWBPA. If I do challenge
the enforceability of this Release for claims other than claims of age
discrimination, I agree initially to tender to the Company all money received
pursuant to the Agreement, and invite the Company to retain such money and agree
with me to cancel this Release. In the event the Company accepts this
offer, the Company shall retain such money and this Release will be
void. In the event the Company does not accept such offer, the
Company shall so notify me, and shall place such money in an interest-bearing
escrow account pending the resolution of any dispute as to whether this Release
shall be set aside and/or otherwise be rendered unenforceable.
I
acknowledge and agree that the Company has no legal obligation to provide the
payments and/or benefits offered to me in the Agreement, and my acceptance of
the obligations and attendant additional compensation as described herein and in
the Agreement constitutes my agreement to all terms and conditions set forth in
this Release, and is in consideration of the promises and undertakings of the
Company and/or the Released Parties pursuant to the Agreement.
I
acknowledge and agree that, except to the extent otherwise provided in the
Agreement or prohibited by law (for example by the OWBPA with respect to claims
of age discrimination), this Release constitutes a waiver of all claims, known
or unknown, present or future, that I have or may have against the Released
Parties arising out of the termination of my employment.
I have
carefully read and fully understand all of the provisions of this
Release. I further acknowledge that entering into this General
Release Agreement is knowing and voluntary on my part, that I have had a
reasonable time to deliberate regarding its terms, and that I have had the right
to consult with an attorney if I so desired.
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Date
signed:
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Date
signed:
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Witness
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*Note: As
stated in your Agreement, this document is intended to be a representation only
of the form and substance of the Release you will be required to
execute in return for the payments and benefits described in your
Agreement. Federal and state laws may require modifications to the
terms of your Release depending on the specific circumstances surrounding your
termination from employment.
