EXHIBIT 10.5
AGREEMENT AND RELEASE OF ALL CLAIMS
This Agreement, entered into as of the date written by Employee's
signature below, is by and between Veritas DGC Inc. ("Veritas"), a Delaware
corporation, and Xxxxxxx Xxxxxxx ("Employee"). (As used in this Agreement, the
term "Veritas" includes Veritas DGC Inc., and all of its subsidiary and
affiliated companies).
Veritas and Employee agree as follows:
Section 1. Within 5 business days after the Separation Date, as defined
in Section 3 below, and whether or not Employee executes and returns this
Agreement, Veritas will pay Employee the following amounts:
- Employee's regular base salary prorated through the Separation
Date;
- Employee's vacation pay accrued as of the Separation Date; and
- any expense reimbursement owed to Employee under Veritas
policy.
All of the above amounts will be REDUCED by applicable taxes and withholding.
Section 2. Within 30 calendar days after the Effective Date, as defined
in Section 15 below, Veritas will pay to Employee a lump sum equal to $496,240,
which amount represents payment of the following:
- two years' salary of $240,000 per year [Veritas elects to pay
this amount to Employee in a lump sum in accordance with to
Section 6(d)(3) of the Amended and Restated Employment
Agreement by and between Veritas and Employee effective
October 22, 2001, as amended by Amendment No. 1 to Amended and
Restated Employment Agreement effective November 14, 2001
(collectively, the "Employment Agreement")]; plus
- a lump sum payment of $16,240 in lieu of providing Employee's
medical, dental, health, and hospital coverage [Veritas elects
to pay this amount in a lump sum in accordance with Section
6(d)(4)(ii) of the Employment Agreement)].
The lump sum amount paid in accordance with this Section 2 will be REDUCED by
applicable taxes and withholding.
Section 3. Employee's termination from employment will be effective at
the close of business on the Separation Date. The SEPARATION DATE as used in
this Agreement means April 30, 2003.
Section 4. Employee agrees to release Veritas from any claims he has or
may have against Veritas as of the date he signs this Agreement. The claims he
is releasing include all of the following:
- any claims under any bonus or incentive plans;
- any claims for tortious action or inaction of any sort
("tortious action or inaction" means, among other things,
claims for such things as negligence, fraud, libel, or
slander);
- any claims arising under the Age Discrimination in Employment
Act of 1967 as amended (29 U.S.C. Section 621, et seq.) (the
Age Discrimination in Employment Act of 1967 prohibits, in
general, discrimination against employees on the basis of
age);
- any claims arising under Title VII of the Civil Rights Act of
1964 as amended (42 U.S.C. Section 2000e, et seq.), or the
Texas Commission on Human Rights Act (Texas Labor Code Section
21.001, et seq.) (both of these statutes, in general, prohibit
discrimination in employment on the basis of race, religion,
national origin or
gender);
- any claims arising under the Americans with Disabilities Act
of 1990, as amended (42 U.S.C. Section 12101, et seq.) (the
Americans with Disabilities Act of 1990 prohibits, in general,
discrimination in employment on the basis of an employee's or
applicant's disability);
- any claims arising under Texas Labor Code Sections 451.001, et
seq. for retaliation or discrimination in connection with a
claim for workers' compensation benefits; and,
- any claims for breach of contract, wrongful discharge,
constructive discharge, retaliation, or conspiracy.
The release contained in this Section 4 WILL NOT affect any of the
following:
- Any claim by Employee under this Agreement;
- Employee's rights or benefits under Veritas' 401(k) retirement
savings plan, Veritas' Employee Stock Purchase Plan, or any
pension or retirement plan in which Employee is a participant
on the Separation Date (Employee's rights and benefits will be
determined by the applicable plan documents);
- Employee's right to elect continued health and/or dental
benefits under the Consolidated Omnibus Budget Reconciliation
Act of 1985 ("COBRA");
- Employee's right to exercise any options to purchase Veritas
DGC Inc. common stock in accordance with the terms of the
applicable stock option grant, including any terms of the
grant modified by Section 6(e)(5) of the Employment Agreement;
- Employee's rights under any restricted stock agreement between
Employee and
Veritas DGC Inc. under the terms of which Employee has been
granted Veritas DGC Inc. restricted stock, including any terms
of the grant modified by Section 6(e)(5) of the Employment
Agreement;
- Employee's right to claim and receive reimbursement for or
indemnity from excise taxes in accordance with Section 7 of
the Employment Agreement;
- Employee's rights to indemnity under that one certain
Indemnity Agreement effective March 7, 2000, by and between
Employer and Employee;
- Any other benefit to which Employee may be entitled under any
other health or benefit plan in accordance with the applicable
plan documents; or
- Employee's rights under any workers' compensation statue; the
Xxxxx Act, 46 U.S.C. Appx. Section 688, as amended; general
maritime law or similar laws; and any other right Employee may
have with respect to bodily injury.
Section 5. Veritas and Employee agree that this Agreement is a binding
contract. The purpose of the Agreement is to compromise doubtful or disputed
claims, avoid litigation, and buy peace. Employee agrees that although Veritas
is making payment to Employee in exchange for a release of claims, Veritas does
not admit any wrongdoing of any kind.
Section 6. Employee agrees to assist Veritas in defending any legal
proceedings against Veritas arising out of matters that occurred on or prior to
the Separation Date. Veritas agrees to reimburse Employee for his time and
expense or costs he may incur in that regard.
Section 7. Employee confirms that after the Effective Date he remains
subject to and agrees to comply with:
- those obligations of confidentiality contained in Section 3(b)
and 3(c) of the Employment Agreement;
- the provisions relating to competition with Employer contained
in Section 12 of the Employment Agreement;
- the provisions relating to solicitation or hiring of
Employer's employees contained in Section 12 of the Employment
Agreement; and
- the terms of the Employee Confidentiality and Intellectual
Property Agreement with Employer which Employee signed
effective October 22, 2001.
Section 8. This Agreement has been delivered to Employee on April 21,
2003.
- Employee will have 21 calendar days from April 21, 2003 or
until the close of business on May 12, 2003 to decide whether
to sign and return this Agreement and be bound by its terms.
In the event Employee has not signed and returned this
Agreement to Veritas on or before May 12, 2003, this Agreement
will become null and void.
- Veritas and Employee agree that if they agree to change the
terms of this Agreement in any manner after it is delivered to
Employee, even if the changes are material, the 21-day period
specified in the previous paragraph will not restart or be
extended.
- After signing this Agreement, Employee will have the right to
revoke the Agreement for a period of 7 calendar days after
signing it by (a) notifying Veritas in writing that Employee
revokes the Agreement and (b) returning to Veritas any
consideration paid Employee under Section 2 above. In the
event Employee revokes the Agreement, it will become null and
void.
Section 9. Employee acknowledges that he has read this Agreement. He
understands that, except for the exceptions set out in Section 4 above, this
Agreement will have the effect of
waiving any claim he may pursue against Veritas.
Section 10. Employee acknowledges that he makes this Agreement
knowingly and voluntarily.
Section 11. This Agreement constitutes the entire understanding between
Veritas and Employee with respect to the subject matter hereof.
Section 12. This Agreement will benefit and be binding upon Veritas and
its successors and assigns and Employee and his successors and legal
representatives. Employee will not assign or attempt to assign any of his rights
under this Agreement.
Section 13. If a court determines that any provision of this Agreement
is invalid, the other provisions will remain in effect.
Section 14. This Agreement will be governed by, construed under, and
enforced in accordance with the laws of the State of Texas, not including,
however, its conflicts of law rules that might otherwise refer to the law of
another forum or jurisdiction.
Section 15. This Agreement will become effective and enforceable only
after a period of 7 days has expired following Employee's execution and delivery
of this Agreement to Veritas (this date is referred to in this Agreement as the
"EFFECTIVE DATE").
THIS AGREEMENT IS SUBJECT TO ARBITRATION IN
ACCORDANCE WITH THE FOLLOWING SECTION
Section 16. Employer and Employee agree to submit to final and binding
arbitration any and all disputes or disagreements concerning the interpretation
or application of this Agreement. Any such dispute or disagreement will be
resolved by arbitration in accordance with the National Rules for the Resolution
of Employment Disputes of the American Arbitration Association (the "AAA
Rules"). Arbitration will take place in Houston, Texas, unless the parties
mutually agree to a different location. Within 30 calendar days of the
initiation of arbitration hereunder, each party will designate an arbitrator.
The appointed arbitrators will then appoint a third arbitrator. Employee and
Employer agree that the decision of the arbitrators will be final and binding on
both parties. Any court having jurisdiction may enter a judgment upon the award
rendered by the arbitrators. In the event the arbitration is decided in whole or
in part in favor of Employee, Employer will reimburse Employee for his
reasonable costs and expenses of the arbitration (including reasonable
attorneys' fees). Regardless of the outcome of any arbitration, Employer will
pay all fees and expenses of the arbitrators and all of Employer's costs of such
arbitration.
Notwithstanding the provisions of the previous paragraph, Employer may,
if it so chooses, bring an action in any court of competent jurisdiction for
injunctive relief to enforce those obligations of Employee referred to in
Section 7 of this Agreement.
[SIGNATURES ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the parties have executed this Agreement effective
as of the Effective Date.
VERITAS:
VERITAS DGC INC.
and subsidiary and affiliated companies
By: /s/ T. Xxxxx Xxxxx
--------------------------------------
T. Xxxxx Xxxxx
Vice President of Human Resources
NOTICE TO EMPLOYEE
BY SIGNING THIS DOCUMENT, YOU MAY BE GIVING UP IMPORTANT LEGAL RIGHTS. YOU ARE
ADVISED TO CONSULT WITH AN ATTORNEY PRIOR TO SIGNING AND RETURNING THIS DOCUMENT
TO VERITAS.
EMPLOYEE:
/s/ Xxxxxxx Xxxxxxx
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Xxxxxxx Xxxxxxx
Date: April 23, 2003
