Separation Agreement and Release
This Separation Agreement and Release ("Separation Agreement") is entered into by and between and (the "Company"), and confirms the agreement that has been reached in connection with Executive's separation from the Company.
Termination of Employment.
It is agreed that Executive's separation shall be effective as of (the "Separation Date") and as of such date Executive shall cease to be employed by the Company and each and every subsidiary or affiliate of the Company in any capacity. As of the Separation Date, resignation shall occur as a member of the Board of Directors of the Company (as well as of the Board of Directors of any of the Company's subsidiaries). Executive further agrees to execute promptly upon request by the Company any additional documents necessary to effectuate the provisions of this section 1.
Separation Pay and Benefits.
In consideration of Executive's execution of this Separation Agreement and compliance with its terms and conditions, the Company agrees to pay or provide Executive (subject to the terms and conditions set forth in this Separation Agreement) with the benefits described in this Section 2, which exceed any payment and benefits to which Executive is otherwise entitled.
Within 0 days following the Separation Date, the Company shall pay Executive an aggregate of (the "Separation Amount"), less applicable withholdings, in full satisfaction of the Company's obligations under the (the "Severance Plan").
If timely election of continued group medical and dental coverage is made pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended ("COBRA"), the Company will either pay directly or reimburse Executive for the COBRA premium payments for Executive and eligible dependents under the Company's group medical and dental plans for the period of following the Separation Date.
Each of Executive's outstanding options to acquire Company common stock that is vested and exercisable as of the Separation Date may be exercised during the Company's next open trading window, tentatively scheduled to commence and end , in accordance with the terms thereof and the terms of the . Any such option that is not exercised prior to the close of business on the last day of the Company's next open trading window, tentatively scheduled to be , will expire and be forfeited at such time without consideration. Each of Executive's outstanding options to acquire Company common stock that are unvested as of the Separation Date shall expire and be forfeited on the Separation Date without consideration.
The performance-based restricted stock units granted to Executive on shall become eligible to vest and be settled in shares of Company common stock as described on Exhibit A hereto.
The time-based restricted stock units granted to Executive on shall be settled in shares of Company common stock on with respect to that number of shares of Company common stock having an aggregate value on (determined based on the per share closing trading price for Company common stock on ) equal to the product of multiplied by the lesser of (i) the per share closing trading price of Company common stock on the Separation Date or (ii) the per share closing trading price of Company common stock on , rounded to the nearest whole share of Company common stock, subject to applicable withholdings. Except with respect to those restricted stock units that become eligible to vest and be settled as provided in Section 2(d) and this Section 2(e), each other outstanding restricted stock unit held by Executive as of the Separation Date, whether eligible to vest based on service or the attainment of performance goals, shall expire and be forfeited on the Separation Date without consideration.
Accrued Benefits.
Whether or not Executive chooses to sign this Separation Agreement or exercise the revocation right referenced in Section 10.d hereof, Executive will be entitled to receive (i) unpaid base salary accrued up to the Separation Date, (ii) any accrued but unused vacation days, and (iii) unreimbursed business expenses (in accordance with usual Company policies and practice), to the extent not theretofore paid, and (iv) vested amounts payable under the Company's 401(k) plan and other retirement and deferred compensation plans in accordance with the terms of such plans and applicable law, in each event subject to applicable withholdings. Executive will also be entitled to any rights to contribution, advancement of expenses, defense or indemnification that may be had under the Company's Articles of Incorporation, Bylaws, any separate indemnification agreement, as applicable, or as provided under applicable law. Other than as set forth in this Agreement, after the Separation Date, no base salary, annual bonus, long term incentive award, welfare, retirement, perquisite, fringe benefit, or other benefit plan coverage or coverage under any other practice, policy or program as may be in effect from time to time, applying to senior officers or other employees of the Company shall be received; provided; however, that the foregoing shall not provide for any right to indemnification or advancement for any expenses or liabilities incurred by Executive, including, but not limited to any attorney's fees, amounts paid in settlement and any related costs, arising out of or resulting from any litigation matters settled or otherwise resolved prior to the date hereof without the Company's consent.
No Other Payments or Benefits.
It is acknowledged and agreed that, other than the payments and benefits expressly set forth in this Agreement, all compensation to which Executive is entitled from the Company has been received, and no other payments or benefits from the Company are entitled to be received.
Continuing Obligations.
Executive acknowledges and affirms continuing obligations under the signed on , and , (the "Confidentiality Agreements"); provided, however, that it is hereby agreed that the protective convenants of the Confidentiality Agreement shall apply for the period of commencing on the Separation Date.
Nondisparagement.
It is agreed that no disparagement shall be made, with intent to damage, nor shall others be encouraged or induced to disparage any of the Company, its subsidiaries and affiliates, together with all of their respective past and present directors and officers and each of their successors and assigns (collectively, the "Company Entities and Persons"). Nothing in this Separation Agreement is intended to or shall prevent the providing of, or limiting testimony in response to a valid subpoena, court order, regulatory request or other judicial, administrative or legal process or otherwise as required by law. It is agreed that the Company shall be notified in writing as promptly as practicable after receiving any request for testimony or information in response to a subpoena, court order, regulatory request or other judicial, administrative or legal process or otherwise as required by law, regarding the anticipated testimony or information to be provided and at least 0 days prior to providing such testimony or information (or, if such notice is not possible under the circumstances, with as much prior notice as is possible).
Cooperation.
Prior to and after the Separation Date, it is agreed that reasonable cooperation shall be provided with the Company, its subsidiaries and affiliates, at any level, and any of their officers, directors, shareholders, or employees: (A) concerning requests for information about the business of the Company or its subsidiaries or affiliates or Executive's involvement and participation therein, (B) in connection with any investigation or review by the Company or any federal, state or local regulatory, quasi-regulatory or self-governing authority (including, without limitation, the Securities and Exchange Commission) as any such investigation or review relates to events or occurrences that transpired while Executive was employed by the Company and (C) with respect to transition and succession matters. Executive's cooperation shall include, but not be limited to (taking into account personal and professional obligations, including those to any new employer or entity to which services are provided), being available to meet and speak with officers or employees of the Company and/or the Company's counsel at reasonable times and locations, executing accurate and truthful documents and taking such other actions as may reasonably be requested by the Company and/or the Company's counsel to effectuate the foregoing. Reimbursement shall be entitled to, upon receipt by the Company of suitable documentation, for reasonable and necessary travel and other expenses which may be incurred at the specific request of the Company and as approved by the Company in advance and in accordance with its policies and procedures established from time to time.
Company Property.
On or prior to the Separation Date, all Company property in Executive's possession or use shall be returned to the Company, including, without limitation, all automobiles, fax machines, printers, cell phones, credit cards, building-access cards and keys, other electronic equipment, and any records, software or other data from personal computers or laptops which are not themselves Company property, however stored, relating to the Company's confidential information.
Taxes.
Notwithstanding any provision of this Agreement to the contrary, the Company, its affiliates, subsidiaries, successors, and each of their respective officers, directors, employees and representatives, neither represent nor warrant the tax treatment under any federal, state, local, or foreign laws or regulations thereunder (individually and collectively referred to as the "Tax Laws") of any payment or benefits contemplated by this Separation Agreement including, but not limited to, when and to what extent such payments or benefits may be subject to tax, penalties and interest under the Tax Laws.
Release.
It is agreed that, in consideration of this Separation Agreement, a waiver, release and forever discharge is hereby made of any and all claims and rights which were ever had, now have or may have against the Company and any of its subsidiaries or affiliated companies, and their respective successors and assigns, current and former officers, agents, directors, representatives and employees, various benefits committees, and their respective successors and assigns, heirs, executors and personal and legal representatives, based on any act, event or omission occurring before this Separation Agreement is executed arising out of, during or relating to Executive's employment or services with the Company or the termination of such employment or services, except as provided below. This waiver and release includes, but is not limited to, any claims which could be asserted now or in the future, under: common law, including, but not limited to, breach of express or implied duties, wrongful termination, defamation, or violation of public policy; any policies, practices, or procedures of the Company; any federal or state statutes or regulations.
Notwithstanding the foregoing, nothing contained in this Section 10.a. shall (i) subject to Sections (10.c) and (10.d) , impair any rights or potential claims that may be had under the federal Age Discrimination in Employment Act of 1967 (the "ADEA") or its equivalent; (ii) waive, release or otherwise discharge any claim or cause of action that cannot legally be waived, including, but not limited to, any claim for unpaid wages, workers' compensation benefits, unemployment benefits and any claims the Labor Code; (iii) be construed to prohibit the bringing of appropriate proceedings to enforce this Separation Agreement; (iv) subject to the limitations set forth in Section 3. herein, affect any rights of defense or indemnification, or to be held harmless, or any coverage under directors and officers liability insurance or any other insurance or rights or claims of contribution or advancement of expenses that are had; or (v) affect any rights as a shareholder of the Company that are had.
For the purpose of implementing a full and complete release, it is understood and agreed that this Separation Agreement is intended to waive and release all claims, if any, which may be had and which may not now be known or suspected to exist in Executive's favor against the Company and any of its subsidiaries or affiliated companies, and their respective successors and assigns, current and former officers, agents, directors, representatives and employees, various benefits committees, and their respective successors and assigns, heirs, executors and personal and legal representatives and this Separation Agreement extinguishes those claims. Accordingly, all rights afforded by the Civil Code of the State of and any similar statute or regulation in any other applicable jurisdiction are expressly waived.
By signing this Separation Agreement, it is represented that no action or proceeding has been or will be in the future commenced arising out of the matters released hereby, and that no award of legal or equitable relief shall be sought or entitled to in any such action or proceeding that may be commenced on Executive's behalf. This Separation Agreement shall not prevent the filing of a charge with the Equal Employment Opportunity Commission (or similar state or local agency) or participation in any investigation conducted by the Equal Employment Opportunity Commission (or similar state or local agency); provided, however, it is acknowledged and agreed that any claims for personal relief in connection with such a charge or investigation (such as reinstatement or monetary damages) would be and hereby are barred. Executive has been advised by the Company to consult with an attorney of Executive's choosing prior to signing this Separation Agreement. It is represented that it is understood and agreed that the right has been given and the opportunity has been provided to review this Separation Agreement and the ADEA Release (defined below), with an attorney. It is further represented that it is understood and agreed that the Company is under no obligation to offer this Separation Agreement, and that Executive is under no obligation to consent to this waiver and release of claims.
In accordance with the ADEA release contained in Exhibit B hereto (the "ADEA Release"), a period of 0 days from the date of this Agreement shall be had to consider the ADEA Release and, once the ADEA Release has been signed, 0 days from the date of execution shall be had to revoke consent to the ADEA Release. Any such revocation shall be made in writing so as to be received by the Company prior to the day following execution of the ADEA Release. If no such revocation occurs, the ADEA Release shall become effective on the day following execution, no earlier than the Separation Date, of the ADEA Release (the "Effective Date").
Enforcement.
If any provision of this Separation Agreement is held by a court of competent jurisdiction to be illegal, void or unenforceable, such provision shall have no effect; however, the remaining provisions shall be enforced to the maximum extent possible. Further, if a court should determine that any portion of this Separation Agreement is overbroad or unreasonable, such provision shall be given effect to the maximum extent possible by narrowing or enforcing in part that aspect of the provision found overbroad or unreasonable. In addition, it is agreed that willful and knowing failure to return Company property that relates to the maintenance of security of the Company Entities and Persons shall entitle the Company to injunctive and other equitable relief.
No Admission.
This Separation Agreement is not intended, and shall not be construed, as an admission that either Executive or the Company Entities and Persons have violated any federal, state or local law (statutory or decisional), ordinance or regulation, breached any contract or committed any wrong whatsoever.
Successors.
This Separation Agreement is binding upon, and shall inure to the benefit of, the parties and their respective heirs, executors, administrators, successors and assigns.
Choice of Law.
This Separation Agreement shall be construed and enforced in accordance with the laws of the State of without regard to the principles of conflicts of law.
Entire Agreement.
It is acknowledged that this Separation Agreement constitutes the complete understanding between the Company and Executive regarding its subject matter and supersedes any and all agreements, understandings, and discussions, whether written or oral, between Executive and any of the Company Entities and Persons, including Executive's prior employment agreement dated ; provided, however, that notwithstanding the foregoing, the Confidentiality Agreements shall remain in full force and effect in accordance with their terms as modified by this Separation Agreement. No other promises or agreements shall be binding on the Company unless in writing and signed by both the Company and Executive after the date of this Separation Agreement.
Effective Date.
This Separation Agreement may be accepted by signing it and returning it to the Company's General Counsel at . The effective date of this Separation Agreement shall be the date it is signed by both parties, provided that the provisions of Section 2. shall not become effective until the Effective Date, as defined in Section (10.d). In the event this Separation Agreement (including the ADEA Release) is not accepted as set forth in this Section 16, this Separation Agreement, including but not limited to the obligation of the Company hereunder to provide the payments and other benefits described herein, shall be deemed automatically null and void.
Headings.
The headings used herein are for the convenience of reference only, do not constitute part of this Separation Agreement and shall not be deemed to limit or otherwise affect any of the provisions of this Separation Agreement.
Counterparts.
This Agreement may be executed in one or more counterparts, including emailed or telecopied facsimiles, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Separation Agreement as of the date set forth below.
Name:
Title:
EXHIBIT A
Performance-Based Restricted Stock Units
RSU settlement terms
EXHIBIT B
Waiver of Rights Under The Age Discrimination in Employment Act
("Executive") knowingly and voluntarily, on behalf of Executive and Executive's agents, attorneys, successors, assigns, heirs and executors, releases and forever discharges (the "Company") and all of its subsidiaries and affiliates, together with all of their respective past and present directors, managers, officers, shareholders, partners, employees, agents, attorneys and servants, representatives, administrators and fiduciaries (except that in the case of agents, representatives, administrators, attorneys and fiduciaries, only to the extent in any way related to his or her employment with, or the business affairs of the Company) and each of their predecessors, successors and assigns (collectively, the "Releasees") from any and all claims, charges, complaints, promises, agreements, controversies, liens, demands, causes of action, obligations, suits, disputes, judgments, debts, bonds, bills, covenants, contracts, variances, trespasses, executions, damages and liabilities of any nature whatsoever relating in any way to Executive's rights under the Age Discrimination in Employment Act of 1967, as amended (the "ADEA"), whether known or unknown, suspected or unsuspected, which Executive or Executive's executors, administrators, successors or assigns ever had, now have, or may hereafter claim to have against the Releasees in law or equity, arising on or before the date this ADEA Release is executed by Executive, and whether or not previously asserted before any state or federal court or before any state or federal agency or governmental entity (the "ADEA Release"). This ADEA Release includes, without limitation, any rights or claims relating in any way to Executive's employment relationship with the Company or any of the Releasees, or the termination thereof, arising under the ADEA, including compensatory damages, punitive damages, attorney's fees, costs, expenses, and any other type of damage or relief. Executive represents that Executive has not commenced or joined in any claim, charge, action or proceeding whatsoever against the Company or any of the Releasees arising out of or relating any of the matters set forth in this ADEA Release. Executive further agrees that Executive shall not be entitled to any personal recovery in any claim, charge, action or proceeding whatsoever against the Company or any of the Releasees for any of the matters set forth in this ADEA Release.
The Company has advised Executive to consult with an attorney of Executive's choosing prior to signing this ADEA Release. Executive represents that Executive understands and agrees that Executive has the right and has been given the opportunity to review this ADEA Release with an attorney. Executive further represents that Executive understands and agrees that the Company is under no obligation to offer Executive this ADEA Release, and that Executive is under no obligation to consent to the ADEA Release, and that Executive has entered into this ADEA Release freely and voluntarily.
Executive shall have 0 days days to consider this ADEA Release, and once Executive has signed this ADEA Release, Executive shall have 0 days from the date of execution to revoke Executive's consent to this ADEA Release. Any such revocation shall be made in writing so as to be received by the Company's General Counsel prior to the day following Executive's execution of this ADEA Release. If no such revocation occurs, this ADEA Release shall become effective on the day following Executive's execution of this ADEA Release (the "Effective Date"). In the event that Executive revokes Executive's consent, this ADEA Release shall be null and void.
