EXHIBIT 10.13
[Form of Agreement]
SEVERANCE AGREEMENT
THIS SEVERANCE AGREEMENT ("Agreement") is made and entered into as of the
___ day of ________, 199_ by and between Sterling Commerce, Inc., a Delaware
corporation ("Sterling Commerce"), and ____________________, an individual
("Executive").
RECITALS:
WHEREAS, Sterling Commerce acquires, develops, markets and supports a broad
range of products and services; and
WHEREAS, Sterling Commerce desires to retain Executive as its
____________________; and
WHEREAS, Executive is willing to accept such responsibilities;
NOW, THEREFORE, in consideration of the premises and covenants contained
herein and other good and valuable consideration, the sufficiency of which is
hereby acknowledged, the parties hereto agree as follows:
AGREEMENTS:
1. Employment. Executive agrees to render such managerial services as
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are customarily required of the ____________________, and Sterling
Commerce agrees to utilize such services on the terms and conditions
contained herein.
2. Term. This Agreement shall commence on the date first set forth above
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and shall continue in effect for _____ (__) months after the "Notice
Date" as defined in Section 3 hereof.
3. Termination of Employment. The parties acknowledge that Executive is
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employed "at will" and may be terminated by Sterling Commerce at any
time with or without cause. The Executive shall be entitled to
termination pay calculated in accordance with Section 4 hereof upon
termination of Executive's employment by Sterling Commerce, with or
without cause.
The date on which a notice of termination is given to Executive by
Sterling Commerce shall be deemed the "Notice Date" with the
termination to be effective _____ (__) months following the Notice
Date. On the Notice Date, Executive shall be deemed to have been
assigned "no duties," shall vacate his or her office
and shall resign as an officer of Sterling Commerce and its
subsidiaries. Since Executive will be assigned "no duties" with
Sterling Commerce, Executive shall be free to pursue other employment
or consulting opportunities during the _____ month period in which
Executive receives termination pay.
4. Termination Pay. For purposes of this Agreement, if Executive's
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employment is terminated (or deemed to be terminated) pursuant to
Section 3, upon receipt from Executive (or Executive's estate or
personal representative) of a fully executed release in form
reasonably acceptable to counsel for Sterling Commerce, Sterling
Commerce shall pay, or cause one of its subsidiaries to pay, to
Executive as termination pay:
(a) an amount equal to _____ hundred percent of Executive's aggregate
monthly salary for the twelve (12) months immediately preceding
the Notice Date (or, if Executive shall not have been employed
for such twelve month period, an amount equal to _______ hundred
percent of Executive's annual salary rate in effect immediately
prior to the Notice Date); and
(b) an amount equivalent to the product of _____ times:
(i) if Executive shall have completed at least twelve months
employment with Sterling Commerce prior to the Notice Date,
the amount of Executive's aggregate bonuses during the
twelve months immediately prior to the Notice Date (the
"Last Bonus"), after deducting from such product one hundred
percent (100%) of the accrued but unpaid bonus amount
Executive is entitled to receive on the Notice Date,
pursuant to any bonus or incentive compensation plan of
Sterling Commerce, for periods of service after the period
for which Executive received or was entitled to receive the
Last Bonus or
(ii) if Executive shall not have completed at least twelve months
employment with Sterling Commerce prior to the Notice Date,
an amount equal to the greater of
(x) the amount of the Last Bonus, if any or
(y) 100% of the aggregate of the budgeted annual bonus,
incentive or other budgeted payments of cash
compensation, in addition to the Executive's annual
base salary, at plan for such Executive in effect
immediately prior to the Notice Date,
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after deducting from such product under this clause
(ii) one hundred percent (100%) of the accrued but
unpaid bonus amount Executive is entitled to receive on
the Notice Date, pursuant to any bonus or incentive
plan of Sterling Commerce, for periods of service after
the period for which Executive received or was entitled
to receive the Last Bonus, if any.
In the event of Executive's death or disability following the Notice
Date, Executive, Executive's estate or Executive's personal
representative, as the case may be, shall continue to receive the
termination payments provided for in this Section 4.
5. Disbursement of Termination Pay. The aggregate amount of all
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termination payments that are payable to Executive as provided in
Section 4 hereof shall be determined in good faith by Sterling
Commerce within 15 days following the Notice Date, and such
termination payments shall be distributed by Sterling Commerce to
Executive in _____ (__) equal bi-monthly installments beginning thirty
(30) days following the Notice Date and continuing bi-monthly
thereafter.
6. Continuation of Medical and Health Benefits. For a period of _____
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(__) months following the Notice Date, Sterling Commerce shall arrange
to provide Executive, at no additional charge to Executive, with life,
medical, dental, health, accident and disability insurance benefits
substantially similar to those that Executive is receiving or is
entitled to receive immediately prior to the Notice Date, which
benefits shall in no event be less than those benefits in effect
immediately prior to the Notice Date.
7. Continued Participation in Employee Plans. For a period of _____ (__)
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months following the Notice Date, Executive shall continue to
participate in Sterling Commerce's Employee Stock Ownership Plan
and/or 401(k) Plan and any other such plans as may be adopted in the
future for the benefit and retention of Sterling Commerce's executive
officers. In no event will Sterling Commerce be required to make any
new grants of options to such Executive under Sterling Commerce's
Stock Option Plans after the Notice Date.
8. Change-in-Control. Sterling Commerce and the Executive are parties to
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a Change-in-Control Severance Agreement, dated as of _________ __,
199_ (as such agreement may be amended from time to time, the "Change-
in-Control Agreement"). Notwithstanding anything contained in this
Agreement to the contrary, in the event the Notice Date occurs under
circumstances in which the Executive would otherwise be entitled to
receive payments and benefits under both this Agreement and the
Change-in-Control Agreement, the Executive shall have the right to
elect to receive payments and benefits under either this Agreement or
the Change-in-Control Agreement, but not both. Within five
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business days following the Notice Date under circumstances in which
this Section 8 would apply, Sterling Commerce shall provide the
Executive, in writing, a reasonably detailed determination of the
payments and other benefits under each of this Agreement and the
Change-in-Control Agreement. The Executive shall make the election
provided for in this Section 8 within thirty calendar days after
Executive's receipt of the written determination referred to in the
preceding sentence; provided, however, that if such election is not so
made within such 30-day period, the Executive shall be irrevocably
deemed to have elected to receive payments and benefits under the
Change-in-Control Agreement. Prior to the date on which Executive
makes or is deemed to have made the election referred to above, he
shall receive all benefits under Sections 4, 5, 6 and 7 of this
Agreement as if the Executive had made the election to receive
benefits and payments under this Agreement.
9. Miscellaneous.
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(i) Notices, demands, payments, reports and correspondence shall be
addressed to the parties hereto at the address for such party
set forth below or such other places as may from time to time
be designated in writing to the other party. Notices hereunder
shall be deemed to be given on the date such notices are
actually received.
If to Sterling Commerce, to: 0000 X. Xxxxxxx Xxxxxxxxxx, Xxxxx
0000
Xxxxxx, Xxxxx 00000
Attention: President
If to Executive, to:
(ii) This Agreement shall be binding upon Sterling Commerce and
Executive and their respective successors, assigns, heirs and
personal representatives.
(iii) The substantive laws of the State of Texas shall govern the
validity, construction, enforcement and interpretation of the
provisions of this Agreement.
(iv) No provision of this Agreement may be modified, waived or
discharged unless such waiver, modification or discharge is
agreed to in writing signed by the Executive and Sterling
Commerce. No waiver by either party hereto at any time of any
breach by the other party hereto or compliance with any
condition or provision of this Agreement to be
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performed by such other party will be deemed a waiver of
similar or dissimilar provisions or conditions at the same or
at any prior or subsequent time. No agreements or
representations, oral or otherwise, expressed or implied with
respect to the subject matter hereof have been made by either
party which are not set forth expressly in this Agreement.
References to Sections are to references to Sections of this
Agreement.
10. Termination of Prior Agreements. The [Title of Agreement] between
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Executive and Sterling Commerce, dated _______________, as amended to
the date hereof (the "Prior Agreement"), shall terminate automatically
and shall thereafter be of no further force or effect; provided,
however, that if this Agreement is held wholly invalid, unenforceable
or otherwise illegal, the preceding clause shall have no effect and
the Prior Agreement shall be deemed to have continued at all times in
force and effect. Subject to the foregoing proviso, this Agreement
supersedes all prior agreements, arrangements and understandings with
respect to the subject matter hereof.
Executed by the parties hereto as of the date first set forth above.
EXECUTIVE
________________________________________
Name:___________________________________
STERLING COMMERCE, INC.
By: ____________________________________
Xxxxxxxx X. Xxxxxxxx
Chairman of the Board and Chief
Executive Officer
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