EXHIBIT 10-X
AGREEMENT AND GENERAL RELEASE
WHEREAS, Rosemary Cauchon (referred to in this Agreement as "Employee")
has been employed by Advanta Corp. and/or any of its subsidiaries and affiliates
(referred to in this Agreement as "Advanta"); and
WHEREAS, Employee's employment terminated on October 17, 2002
("Termination Date") and Advanta and Employee desire to resolve all aspects of
Employee's separation from employment with Advanta;
Employee and Advanta agree as follows:
1. Employee, in consideration of Advanta's undertakings set forth in
Paragraph 2 and intending to be legally bound, agrees:
(a) to release and forever discharge Advanta and its past, present
and future officers, directors, employees, shareholders and agents, attorneys,
and all of their respective successors and assigns, jointly and severally, from
all claims, actions or causes of action of any kind, known or unknown, which
Employee now has or hereafter may have, arising out of any matter, occurrence,
omission or event occurring prior to the execution of this Agreement, including,
but not limited to: (i) any claims relating to or arising out of Employee's
employment with and/or termination of employment with Advanta; (ii) any claims
for unpaid or withheld wages, vacation, sick and/or personal time pay,
un-reimbursed expenses, severance pay, notice, bonuses, management incentive
programs, and/or other compensation or benefits of any kind; (iii) any and all
claims of discrimination in employment arising before the execution of this
Agreement, including, but not limited to claims for discrimination or harassment
on the basis of age, sex, race, religion, color, creed, handicap, disability,
citizenship, national origin or sexual orientation arising under Title VII of
the Civil Rights Act of 1964, The Americans with Disabilities Act, The Family
and Medical Leave Act of 1993, The Age Discrimination in Employment Act, 29 USCA
ss.621, et seq. ("ADEA") and/or any other similar federal, state and local laws,
and any claims for retaliation thereunder; (iv) any other claims arising out of
or in any way related to Employee's employment or the separation of her
employment with Advanta, including, but not limited to breach of contract,
breach of Employee's letter agreement dated September 26, 2001 ("Employment
Letter"), breach of covenant of good faith and fair dealing, defamation, fraud,
promissory or equitable estoppel, misrepresentation, violation of public policy,
wrongful discharge, unfair dismissal, or any other common law claim now or
hereafter recognized; and (v) all claims for attorneys' fees; and
(b) to resign as of the Termination Date any and all officer and
director positions held with Advanta or any of its affiliates or subsidiaries;
and
(c) effective as of the Termination Date, to vacate the premises
which she leased from Advanta, subject to Employee's access to the premises for
thirty days after the Termination Date to remove her personal property; and
(d) to fully cooperate with and assist the Company and their counsel
in connection with any litigation, corporate transactions, general business
matters, or agency investigations or audits, and to make herself reasonably
available to the Company to do so at times and locations as to not interfere
with her duties and responsibilities to any future employer. Employee will be
reimbursed for reasonable and customary expenses incurred in complying with this
subparagraph (d) according to the Company's then-current reimbursement policies.
2. Advanta, in consideration of the promises of Employee set forth in this
Agreement and intending to be legally bound, agrees to:
(a) release and forever discharge Employee from any claims, actions,
or causes of action in connection with any acts or omissions of Employee arising
out of any matter, occurrence, omission or event occurring prior to the
execution of this Agreement. Notwithstanding the foregoing, Advanta does not
release Employee from claims, actions or causes of action associated with the
disclosure of trade secrets, proprietary information, or confidential
information as set forth in this Agreement and the Business Ethics Agreement
attached as Exhibit A hereto or any claim for breach of this Agreement; and
(b) pay employee $602,386 in 26 equal bi-weekly installments
commencing with the first payroll period of Advanta after this Agreement becomes
effective, less applicable federal, state and local taxes; and
(c) provide for the benefit of Employee that portion of Employee's
COBRA health insurance premium which is equal to the amount which the Company
contributes for employees of the Company, ($606.02 monthly in 2002 and $664.28
monthly in 2003 for medical, dental and vision benefits) provided Employee
elects continued participation in the Company's group medical, dental or vision
plans pursuant to COBRA (subject to COBRA's eligibility requirements and other
terms and conditions), during the period that Employee is receiving payments
pursuant to subparagraph 2(b) above; and
(d) vest Employee as of the effective date of this Agreement in
150,000 options for a total of 200,000 vested options to purchase Advanta stock
issued to her pursuant to the terms of the Employment Letter at an exercise
price of $7.52 per share. Employee shall have one year from the Termination Date
to exercise these 200,000 options; and
(e) reimburse Employee for all previously unreimbursed housing,
furnishing and incremental living expenses incurred prior to the Termination
Date in accordance with
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paragraph 7 of the Employment Letter in the amount of $227,269.80, on the
effective date of this Agreement. Employee hereby acknowledges that she
purchased the furniture for which she is being reimbursed on behalf of Advanta
and that Advanta is the owner of the furniture.
(f) provide Employee with reimbursement of the cost of executive
outplacement services of the employee's choice at a cost not to exceed $10,000.
3. Employee acknowledges and agrees that the money and benefits she will
receive under Paragraph 2 above exceed the money and benefits to which she
otherwise would be entitled, and that such excess is sufficient consideration to
support the grant of the General Release in Paragraph 1 above.
4. Employee agrees that she will not voluntarily cooperate in litigation,
regulatory or administrative proceedings or investigations against the Company
or affiliates, nor will she act in any manner disloyal to the Company or
contrary to its interests as determined by the Company, provided that this
restriction will not prevent Employee from (a) engaging in Competition with the
Company; (b) after notification to the Company, providing factual information to
a federal regulator which would be subject to subpoena; and (c) testifying
truthfully under subpoena in any legal proceeding.
5. Employee represents that she has not instituted or permitted to be
instituted against Advanta any claim or suit. Employee agrees not to institute
any claim or suit against Advanta that is within the scope of her release of
Advanta in subparagraph 1(a) above other than any claim seeking to determine the
validity of her waiver of her rights under the ADEA.
6. Employee agrees that she will not issue any press release or make any
public statement concerning her employment, her departure, or the financial
affairs of the Company without the prior written consent of the Company.
Employee agrees that she will not disclose the existence or the terms of this
Agreement to anyone except her spouse, her tax advisor, her attorney and taxing
authorities. Further, Employee agrees that unless she is given written consent
from the Company, she will not participate in any interview or make any oral
statement, and will not draft, edit or otherwise be involved in any way in the
publication of any written document, audio or visual presentation or other
publication, or the preparation or presentation of any speeches, courses or
consulting which in any manner, directly or indirectly, describes, discusses or
alludes to any matter or experience in which Employee was involved or learned
about while employed by the Company. This paragraph 7 will not prevent Employee
from engaging in competition with the Company or using her general skill,
ability, experience and industry knowledge in any future business activity.
7. Employee agrees that she will continue to comply after the termination
of her employment with the confidentiality provisions of the Advanta Code of
Conduct (attached as
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Exhibit B hereto) and all of the terms of the Business Ethics Agreement signed
by her on September 26, 2001. Employee further agrees that she will immediately
return any and all documents and other property she may have which belongs to
Advanta. Employee further agrees to return to Advanta any other of its documents
and property that she may discover she has at a later time.
8. Advanta will provide plaintiff with W-2 forms for all taxable income
received by Employee as required by law.
9. If any term, covenant, restriction or provision of this Agreement is
determined by any court to be unenforceable, illegal or invalid, the other
terms, covenants, restrictions and provisions shall remain in full force and
effect.
10. This Agreement constitutes the entire agreement between the parties.
Any modifications to this Agreement must be in writing and signed by a duly
authorized representative of Advanta.
11. This Agreement is made in Pennsylvania and is to be governed by
Pennsylvania law to the extent that state law is applicable. Employee expressly
waives any rule or custom requiring construction against the drafter of this
Agreement.
12. Employee agrees and represents that:
(a) she has read carefully the terms of this Agreement, including
the General Release and non-disclosure provision contained in Paragraph 1;
(b) she has been informed by the terms of this document that she may
have this document reviewed by his own attorney;
(c) she understands the meaning and effect of the terms of this
Agreement, including the General Release and non-disclosure provision contained
in Paragraph 1;
(d) she was given at least twenty-one (21) days in which to consider
this Agreement;
(e) she entered into this Agreement voluntarily and without
compulsion of any kind;
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(f) she has not filed any claims, complaints or suits against
Advanta; and
(g) no promise or inducement not expressed in this Agreement has
been made to her.
13. Employee may revoke this Agreement for a period of seven (7) days
following his execution of it. This Agreement shall not be effective or
enforceable until the revocation period has expired. Any revocation must be in
writing signed by Employee and mailed to the office of Elizabeth Mai, Senior
Vice President, Welsh & McKean Roads, Spring House, PA 19477, before the
revocation period has expired. The date the letter is post-marked will be deemed
to be the date of mailing. Any revocation should be sent by certified mail.
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THEREFORE, the parties, intending to be legally bound by this Agreement,
execute this document on the 18th day of December, 2002.
EMPLOYEE: ADVANTA:
/s/ Rosemary Cauchon /s/ William A. Rosoff
-------------------------------- --------------------------------
Rosemary Cauchon William A. Rosoff
/s/________________________________
Witness
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