EXHIBIT 10.1
MARTHA STEWART LIVING OMNIMEDIA, INC.
2005 EXECUTIVE SEVERANCE PAY PLAN
The Company previously adopted the Martha Stewart Living Omnimedia, Inc.
2002 Executive Severance Pay Plan, effective as of August 9, 2002 (the
"Prior Plan"). Effective as of December 31, 2004, the Prior Plan expired.
Effective as of January 1, 2005, the Company has adopted the Martha Stewart
Living Omnimedia, Inc. 2005 Executive Severance Pay Plan.
The purpose of the Plan is to better provide for the retention of key
executives through providing them with a higher degree of financial
security, on the terms and conditions hereinafter stated. The Plan is
intended to be a severance pay plan governed by Title I of ERISA primarily
for the purpose of providing benefits for a select group of management or
highly compensated employees. All benefits under the Plan will be paid
solely from the general assets of the Company.
ARTICLE I
Definitions
"Code" means the Internal Revenue Code of 1986, as amended.
"Company" means Martha Stewart Living Omnimedia, Inc.
"Denial Notice" has the meaning given in Section 4.03(2) of the Plan.
"Disability" means a Total Disability under the Company's long-term
disability insurance policy, or such comparable term under any successor
policy which the Company may secure after the date hereof, as interpreted
by the Plan Administrator.
"Effective Date" means January 1, 2005.
"Eligible Participant" has the meaning given in Section 2.02 of the Plan.
"Employment Severance Date" means the date of termination of employment of
a Participant.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Good Reason" shall have the meaning given in Section 3.01 of the Plan.
"Involuntary Termination for Cause" has the meaning given in Section 3.02
of the Plan.
"Involuntary Termination for Disability" means any termination of a
Participant's employment with the Company initiated by the Company as a
result of such Participant's Disability.
"Participant" means any eligible executive who is made a participant in the
Plan by action of the Plan Administrator as specified herein.
"Plan" means The Martha Stewart Living Omnimedia, Inc. 2005 Executive
Severance Pay Plan.
"Plan Administrator" means the Compensation Committee of the Board of
Directors of the Company, or, if the Board of Directors so determines,
another committee of the Board or the Board itself.
"Pro-Rata Bonus" means, with respect to the fiscal year in which an
Eligible Participant's Employment Severance Date occurs, an amount equal to
the Eligible Participant's target annual bonus multiplied by a fraction,
the numerator of which is the number of days that have elapsed in such
fiscal year through and including the Employment Severance Date and the
denominator of which is 365; provided, however, that the Pro-Rata Bonus
shall be reduced, but not below zero, to the extent of any annual cash
bonus the Eligible Participant receives from the Company in respect of the
fiscal year in which the Employment Severance Date occurs.
"Qualifying Involuntary Termination" means any termination of a
Participant's employment with the Company initiated by the Company other
than an Involuntary Termination for Cause or an Involuntary Termination for
Disability.
"Voluntary Termination for Good Reason" has the meaning given in Section
3.01 of the Plan.
"Voluntary Termination without Good Reason" means any termination of
employment initiated by a Participant other than a Voluntary Termination
for Good Reason.
ARTICLE II
Eligibility; Participation; Benefits
Section 2.01. Participation in the Plan. The Plan Administrator may
designate any executive of the Company to be a
Participant, and may vary the terms of a Participant's
participation on a case-by-case basis. Promptly
following such designation, each Participant shall be
notified of his or her participation in a formal
communication from the Plan Administrator or the
Company, provided that any variation in the terms of a
Participant's participation from the default terms of
the Plan shall be clearly explained to the Participant
in such communication. Participation in the Plan shall
be determined in the Plan Administrator's sole
discretion. Once participation in the Plan has
commenced, a Participant shall remain a Participant
until the first to occur of (i) the termination of his
or her employment under circumstances not giving rise
to a right to severance benefits under the Plan, (ii)
the completion of the delivery of all severance
benefits under the Plan following the termination of
his or her employment under circumstances giving rise
to a right to such benefits and (iii) the termination
or expiration of the Plan pursuant to Article V before
termination of the Participant's employment or the
giving of notice by a Participant under Section 3.01
hereof.
Section 2.02. Benefits Eligibility. A Participant shall become
entitled to severance benefits under the Plan in the
event he or she experiences a Voluntary Termination for
Good Reason or a Qualifying Involuntary Termination,
provided that all of the conditions set forth in
Section 2.03 are satisfied and the termination is not
described in Section 2.04. Any Participant who becomes
so entitled shall be deemed an "Eligible Participant."
Section 2.03. Conditions. As a condition to entitlement of each
Participant to severance benefits under the Plan, the
Participant must, following the Employment Severance
Date, execute, and not revoke, a waiver and release of
claims pursuant to Section 6.01 of the Plan, which
shall provide, without limitation, the following: (i)
that the Participant shall have returned to the Company
all property of the Company held by the Participant;
(ii) a reaffirmation of the Participant's agreement to
abide by the confidentiality agreement entered into by
the Participant in connection with the Participant's
employment with the Company or, if no such agreement
exists, a confidentiality agreement in form and
substance comparable to that typically entered into by
comparably situated executives upon commencing
employment with the Company; (iii) that the Participant
shall reasonably cooperate with the Company to complete
the transition of matters with which the Participant is
familiar or responsible to other executives or
employees and to make himself or herself reasonably
available to answer questions or assist in matters
which may require attention after the Participant's
Employment Severance Date; (iv) that the Participant
shall not disparage the Company and those persons and
entities related to the Company; and (v) that, for two
years following the Employment Severance Date, the
Participant shall not interfere with the Company's
businesses, including by solicitation of the Company's
employees.
Section 2.04. Ineligible Terminations of Employment. A Participant
will not be eligible for severance benefits under the
Plan if his or her employment with the Company
terminates for any of the following reasons:
1) death of the Participant;
2) Involuntary Termination for Disability;
3) Voluntary Termination without Good Reason; or
4) Involuntary Termination for Cause.
Section 2.05. Amount of Severance Payment. An Eligible Participant
shall receive each of the following as severance
benefits under the Plan:
(i) a Pro-Rata Bonus;
(ii) continued payment of his or her base salary during
the period from his or her Employment Severance Date
until the first anniversary of his or her Employment
Severance Date, at the rate in effect as of his or her
Employment Severance Date; and
(iii) a one-time bonus payment equal to 100% of such
Eligible Participant's target annual bonus in effect as
of his or her Employment Severance Date.
For purposes of this Section 2.05, no reduction in
salary or target annual bonus of an Eligible
Participant shall be taken into account in determining
his or her severance benefits, if such reduction formed
the basis of a claim for Voluntary Termination for Good
Reason or was instituted just prior to, or after, the
giving of an employment termination notice by the
Company or the Eligible Participant.
Section 2.06. Form and Times of Payment. All severance benefits that
take the form of continuation of base salary shall be
paid according to the Company's regular payroll
procedure. Severance benefits that take the form of
payment of an Eligible Participant's target annual
bonus shall be paid in substantially equal periodic
installments from the Employment Severance Date until
the first anniversary of the Employment Severance Date
at the same time as the salary continuation payments
are made pursuant to the preceding sentence. The
Pro-Rata Bonus shall be paid in a lump sum within
thirty (30) days following the Employment Severance
Date. Notwithstanding this Section 2.06, however, if
payment of the foregoing severance benefits constitutes
deferred compensation subject to Section 409A of the
Code, the commencement of such severance benefits may
be postponed until the earliest date permitted by
Section 409A of the Code.
Section 2.07. Benefit Continuation Provisions. An Eligible
Participant shall also be entitled to the following
severance benefits:
1) Health and Life Insurance. The Eligible
Participant shall continue to be covered by the
Company's health and life insurance plans on the
same terms and conditions as apply to similarly
situated active employees of the Company, until
the earlier of (i) the end of the period during
which the Eligible Participant is entitled to
salary continuation under Section 2.06 above and
(ii) the date on which the Eligible Participant
first becomes eligible for benefits of the same
type under a plan or plans provided by a
subsequent employer.
2) Equity Awards. The Eligible Participant shall
become immediately vested in, and restrictions
shall lapse on, any and all outstanding equity
awards of such Eligible Participant, including
stock options and restricted stock grants.
3) Outplacement Benefits. The Eligible Participant
shall be entitled to reimbursement for
outplacement services of his or her choice if
utilized in good faith of up to a maximum of
$30,000.
Section 2.08. An Eligible Participant shall not be required to
mitigate the amount of any payment or benefit provided
for in the Plan by seeking other employment or
otherwise and, except as provided in Section 2.07(1),
no such payment or benefit shall be offset or reduced
by the amount of any compensation or benefits provided
to the Eligible Participant in any subsequent
employment. The severance payments and benefits under
the Plan to an Eligible Participant are intended to
constitute the exclusive payments and benefits in the
nature of severance or termination pay that shall be
due to an Eligible Participant upon termination of his
or her employment and shall be in lieu of (or offset
by) any other such payments or benefits under any
agreement, plan, practice or policy of the Company or
any of its affiliates. The severance benefits to which
an Eligible Participant is otherwise entitled shall be
further reduced (but not below zero) by any payments or
benefits to which the Eligible Participant may be
entitled under any federal, state or local
plant-closing (or similar or analogous) law (including,
without limitation, the U.S. Worker Adjustment and
Retraining Notification Act).
ARTICLE III
Termination Of Employment
Section 3.01. Voluntary Termination for Good Reason. If a Participant
terminates his or employment with the Company pursuant
to the following terms, such termination shall be
deemed a "Voluntary Termination for Good Reason":
1) Within ninety (90) days after the Participant
first learns of an event that constitutes "Good
Reason" (as defined below), the Participant gives
the Company at least thirty (30) calendar days'
advance written notice of his or her intent to
terminate in a Voluntary Termination for Good
Reason, which notice sets forth in reasonable
detail the facts and circumstances giving rise to
the Good Reason on which such termination shall be
based; and
2) The Company fails to remedy the facts and
circumstances giving rise to such Good Reason in a
prompt and responsive fashion taking into account
such facts and circumstances, but in any event
within such thirty-day period, provided that (i)
if a fact, event or circumstance is by its nature
not subject to remedy, the discontinuance of such
fact, event or circumstance on a prospective basis
shall be deemed a cure thereof and (ii) in the
event the Company takes deliberate actions with
respect to a Participant that repeatedly give rise
to Good Reasons which the Company subsequently
cures, the Company shall forfeit the ability to
cure such Good Reasons with respect to such
Participant.
"Good Reason" shall mean the occurrence, without the
Participant's express prior written consent, of any one
or more of the following:
(a) a material reduction or material adverse
alteration in the Participant's position, title,
duties or responsibilities from those in effect as
of the Effective Date (or as subsequently amended
with the consent of the Participant);
(b) the Company's requiring the Participant to be
based at a location in excess of thirty-five (35)
miles from the location of the Participant's
principal job location or office as of the
Effective Date, except for required travel on the
Company's business to an extent substantially
consistent with the Participant's present business
obligations, provided that any re-assignment from
the Company's Westport, CT facilities to its New
York City facilities, or vice versa, shall not
violate this provision if there is a reasonable
business justification for the re-assignment;
(c) a reduction by the Company of the Participant's
base salary or target annual bonus percentage as
in effect on the Effective Date, or as the same
shall be increased from time to time;
(d) the failure of the Company to provide the
Participant with employee benefits that are at
least as favorable as those provided to other
similarly situated executives of the Company from
time to time; or
(e) the failure of the Company to comply with the
requirements of Section 5.03 below.
The Participant's right to terminate employment in a
Voluntary Termination for Good Reason shall not be
affected by the Participant's incapacity due to
physical or mental illness. Subject to the requirements
set forth above, the Participant's continued employment
shall not constitute a consent to, or a waiver of
rights with respect to, any circumstance constituting
Good Reason herein.
Section 3.02. Involuntary Termination for Cause. If any one or more
of the following has occurred, and the Participant is
terminated accordingly, it shall be deemed an
"Involuntary Termination for Cause":
1) the Participant has materially failed to perform
his or her material duties to the Company after
written notice and a reasonable opportunity to
cure such failure and to be heard by the Plan
Administrator regarding such failure;
2) the Participant has engaged in willful,
intentional misconduct that has resulted in
material damage to the Company's business or
reputation after written notice and a reasonable
opportunity to be heard by the Plan Administrator
regarding such misconduct;
3) the Participant has been convicted of a felony;
4) the Participant has engaged in fraud against the
Company or misappropriated property of the Company
(other than incidental property); or
5) the Participant has materially failed to comply
with the Company's employment policies and rules
after written notice and a reasonable opportunity
to cure such failure and to be heard by the Plan
Administrator regarding such failure, provided
that, pursuant to the standard policies of the
Company in effect at the time, whether or not such
policies are written, and any disciplinary
procedures set forth therein or commonly followed,
such failure to comply with such employment
policies and rules would otherwise give rise to
termination.
ARTICLE IV
Administration of the Plan
Section 4.01. Administrator. The general administration of the Plan
and the responsibility for carrying out the provisions
of the Plan will be placed with the Plan Administrator.
The Plan Administrator may be notified at the following
address:
Martha Stewart Living Omnimedia, Inc.
11 West 42nd Street
New York, New York 10036
Attention: Plan Administrator
c/o General Counsel
Section 4.02. Duties and Powers. The Plan Administrator will have all
powers necessary and or helpful to administering the
Plan in all its details. This authority includes, but
is not limited to, determining eligibility for
participation and, where clearly stated in the
designation of Plan participation and subsequently in
the notice to a Participant of Plan participation,
varying the terms of the Plan with respect to a
particular Participant; making rules and regulations
for the administration of the Plan that are consistent
with the terms and provisions of the Plan; construing
all terms, provisions, conditions and limitations of
the Plan, and resolving ambiguities, correcting
deficiencies and supplying omissions; determining all
questions arising out of, or in connection with, cases
in which the Plan Administrator deems such a
determination advisable. The Plan Administrator shall
have the full discretion to exercise the powers
conferred by the Plan, and all such acts and
determinations will be final, binding and conclusive
upon all interested parties. The Plan Administrator
shall also have the authority to designate other
individuals to exercise the powers of the Plan
Administrator on its behalf.
Section 4.03. Claims Procedures.
1) All claims for benefits shall be in writing and
shall be filed with the Plan Administrator.
2) The Plan Administrator shall determine whether or
not to accept a claim for severance benefits
within ninety (90) days after receiving it. If the
Plan Administrator wholly or partially denies a
Participant's claim for benefits, the Plan
Administrator shall give the claimant written
notice of such denial (a "Denial Notice") within
such ninety-day period, setting forth:
(a) The specific reason(s) for the denial;
(b) Specific reference to pertinent Plan
provisions on which the denial is based;
(c) A description of any additional material or
information which must be submitted to
perfect the claim, and an explanation of why
such material or information is necessary;
and
(d) An explanation of the Plan's review procedure
as set forth in Section 4.03(3) below.
3) If a Participant wishes to appeal the denial or
partial denial of a claim for benefits under the
Plan, he or she shall so notify the Plan
Administrator in writing within sixty (60) days
after receiving the Denial Notice, during which
period the Participant shall have the right to
submit to the Plan Administrator written materials
or information in support of his or her claim
(which shall include any materials or information
requested in the Denial Notice). If the
Participant so requests, the Plan Administrator
shall afford the Participant the opportunity,
before the end of such sixty-day period, to meet
with the Plan Administrator to discuss his or her
claim. In addition, upon request, the Participant
shall be provided, free of charge, reasonable
access to, and copies of, all documents, records,
and other information relevant to the
Participant's claim for benefits. The Plan
Administrator shall make a final determination
with respect to such claim, and shall notify the
Participant of the determination, within sixty
(60) days following the end of the sixty-day
appeal period.
ARTICLE V
Plan Amendment and Termination; Successors
Section 5.01. Amendment and Termination. The Plan, and any part
thereof, is subject to amendment, waiver or individual
adjustment by the Plan Administrator at any time and
from time to time, for any reason, provided that no
such amendment, waiver, adjustment or termination shall
decrease or otherwise adversely affect the rights or
entitlements possessed by a Participant, whether prior
to or after such Participant's Employment Severance
Date, and whether with respect to benefits under the
Plan to which a Participant is then entitled or with
respect to which such Participant may become entitled
upon a Voluntary Termination for Good Reason or a
Qualifying Involuntary Termination, without such
Participant's written consent.
Section 5.02. Plan Expiration. The Plan shall expire on December 31,
2007. No termination of employment of an individual
occurring after such expiration shall give rise to any
rights to severance benefits under the Plan, but such
expiration shall have no effect on the severance
benefits to which any Eligible Participant whose
Employment Severance Date occurs on or prior to such
date is entitled.
Section 5.03. Successors. The Company shall cause the Plan to be
assumed by any successor of the Company, whether such
succession occurs by merger, asset acquisition or
otherwise, unless such assumption would occur by
operation of law.
Section 5.04. Employment Status. The Plan does not constitute a
contract of employment or impose on the Company any
obligation to retain any Participant as an employee or
to change any employment policies of the Company.
Section 5.05. Withholding of Taxes. The Company shall withhold from
any amounts payable under the Plan all federal, state,
local or other taxes that are legally required to be
withheld.
Section 5.06. No Effect on Other Benefits. Severance benefits shall
not be counted as compensation for purposes of
determining benefits under other benefit plans,
programs, policies and agreements, except to the extent
expressly provided therein.
Section 5.07. Validity and Severability. The invalidity or
unenforceability of any provision of the Plan shall not
affect the validity or enforceability of any other
provision of the Plan, which shall remain in full force
and effect, and any prohibition or unenforceability in
any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
Section 5.08. Settlement of Claims. The Company's obligation to make
the payments provided for in the Plan and otherwise to
perform its obligations hereunder shall not be affected
by any circumstances, including, without limitation,
any set-off, counterclaim, defense, recoupment or other
right which the Company may have against a Participant
or others.
Section 5.09. Assignment. The Plan shall inure to the benefit of and
shall be enforceable by a Participant's personal or
legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees.
If a Participant should die while any amount is still
payable to the Participant under the Plan had the
Participant continued to live, all such amounts, unless
otherwise provided herein, shall be paid in accordance
with the terms of the Plan to the Participant's estate.
A Participant's rights under the Plan shall not
otherwise be transferable or subject to lien or
attachment.
Section 5.10. Governing Law. The Plan shall be governed by ERISA and,
to the extent not preempted thereby, the laws of the
State of Delaware. Without limiting the generality of
this Section 5.10, it is intended that the Plan comply
with Section 409A of the Code, and, in the event that
the Plan is determined to be a "deferred compensation
plan" within the meaning of Section 409A(d)(1) of the
Code, the Plan Administrator shall, as necessary, adopt
such conforming amendments as are necessary to comply
with Section 409A of the Code without reducing the
severance benefits due to Participants hereunder.
ARTICLE VI
Waiver and Release of Claims Form
Section 6.01. Signing the Waiver and Release Form. To receive
severance benefits under the Plan, an Eligible
Participant must sign, and not revoke, a waiver and
release of claims in the form attached hereto as
Exhibit A, with such changes thereto as the Company
shall reasonably provide.
Exhibit A
WAIVER AND RELEASE OF CLAIMS
1. General Release. In consideration of the payments and benefits to be
made under the Martha Stewart Living Omnimedia, Inc. Amended and Restated
Executive Severance Pay Plan (the "Plan"), ______________ (the "Employee"),
with the intention of binding the Employee and the Employee's heirs,
executors, administrators and assigns, does hereby release, remise, acquit
and forever discharge Martha Stewart Living Omnimedia, Inc. (the "Company")
and each of its subsidiaries and affiliates (the "Company Affiliated
Group"), their present and former officers, directors, executives, agents,
attorneys, employees and employee benefits plans (and the fiduciaries
thereof), and the successors, predecessors and assigns of each of the
foregoing (collectively, the "Company Released Parties"), of and from any
and all claims, actions, causes of action, complaints, charges, demands,
rights, damages, debts, sums of money, accounts, financial obligations,
suits, expenses, attorneys' fees and liabilities of whatever kind or nature
in law, equity or otherwise, whether accrued, absolute, contingent,
unliquidated or otherwise and whether now known or unknown, suspected or
unsuspected which the Employee, individually or as a member of a class, now
has, owns or holds, or has at any time heretofore had, owned or held,
against any Company Released Party in any capacity (an "Action"),
including, without limitation, any and all Actions (i) arising out of or in
any way connected with the Employee's service to any member of the Company
Affiliated Group (or the predecessors thereof) in any capacity, or the
termination of such service in any such capacity, (ii) for severance or
vacation benefits, unpaid wages, salary or incentive payments, (iii) for
breach of contract, wrongful discharge, impairment of economic opportunity,
defamation, intentional infliction of emotional harm or other tort and (iv)
for any violation of applicable state and local labor and employment laws
(including, without limitation, all laws concerning harassment,
discrimination, retaliation and other unlawful or unfair labor and
employment practices), any and all Actions based on the Employee Retirement
Income Security Act of 1974 ("ERISA"), and any and all Actions arising
under the civil rights laws of any federal, state or local jurisdiction,
including, without limitation, Title VII of the Civil Rights Act of 1964
("Title VII"), the Americans with Disabilities Act ("ADA"), Sections 503
and 504 of the Rehabilitation Act, the Family and Medical Leave Act, the
Age Discrimination in Employment Act ("ADEA"), the New York State
Constitution, the New York Human Rights Law, the New York Labor Law, the
New York Civil Rights Law, the New York City Human Rights Law, the New York
Retaliatory Action by Employers Law, the New York Non-Discrimination for
Legal Actions Law and the New York Wage and Hour Law, excepting only:
(a) rights of the Employee under this Waiver and Release of Claims and
the Plan;
(b) rights of the Employee relating to equity awards held by the
Employee as of his or her Employment Severance Date (as defined in the
Plan);
(c) the right of the Employee to receive COBRA continuation coverage
in accordance with applicable law;
(d) rights to indemnification the Employee may have (i) under
applicable corporate law, (ii) under the by-laws or certificate of
incorporation of any Company Released Party or (iii) as an insured under
any director's and officer's liability insurance policy now or previously
in force;
(e) claims (i) for benefits under any health, disability, retirement,
deferred compensation, life insurance or other, similar employee benefit
plan or arrangement of the Company Affiliated Group and (ii) for earned but
unused vacation pay through the Employment Severance Date in accordance
with applicable Company policy; and
(f) claims for the reimbursement of unreimbursed business expenses
incurred prior to the Employment Severance Date pursuant to applicable
Company policy.
2. No Admissions, Complaints or Other Claims. The Employee acknowledges and
agrees that this Waiver and Release of Claims is not to be construed in any
way as an admission of any liability whatsoever by any Company Released
Party, any such liability being expressly denied. The Employee also
acknowledges and agrees that he or she has not, with respect to any
transaction or state of facts existing prior to the date hereof, filed any
Actions against any Company Released Party with any governmental agency,
court or tribunal.
3. Application to all Forms of Relief. This Waiver and Release of Claims
applies to any relief no matter how called, including, without limitation,
wages, back pay, front pay, compensatory damages, liquidated damages,
punitive damages for pain or suffering, costs and attorney's fees and
expenses.
4. Specific Waiver. The Employee specifically acknowledges that his or her
acceptance of the terms of this Waiver and Release of Claims is, among
other things, a specific waiver of any and all Actions under Title VII,
ADEA, ADA and any state or local law or regulation in respect of
discrimination of any kind; provided, however, that nothing herein shall be
deemed, nor does anything herein purport, to be a waiver of any right or
claim or cause of action which by law the Employee is not permitted to
waive.
5. Additional Covenants.
(a) Confidentiality. The Employee shall not, without the prior written
consent of the Company or as may otherwise be required by law or any legal
process, or as is necessary in connection with any adversarial proceeding
against any member of the Company Affiliated Group (in which case the
Employee shall cooperate with the Company in obtaining a protective order
at the Company's expense against disclosure by a court of competent
jurisdiction), communicate, to anyone other than the Company and those
designated by the Company or on behalf of the Company in the furtherance of
its business, any trade secrets, confidential information, knowledge or
data relating to any member of the Company Affiliated Group, obtained by
the Employee during the Employee's employment by the Company that is not
generally available public knowledge (other than by acts by the Employee in
violation of this Waiver and Release of Claims).
(b) Return of Company Material. The Employee represents that he or she
has returned to the Company all Company Material (as defined below). For
purposes of this Section 5(b), "Company Material" means any documents,
files and other property and information of any kind belonging or relating
to (i) any member of the Company Affiliated Group, (ii) the current and
former suppliers, creditors, directors, officers, employees, agents and
customers of any of them or (iii) the businesses, products, services and
operations (including, without limitation, business, financial and
accounting practices) of any of them, in each case whether tangible or
intangible (including, without limitation, credit cards, building and
office access cards, keys, computer equipment, cellular telephones, pagers,
electronic devices, hardware, manuals, books, files, documents, records,
software, customer data, research, financial data and information,
memoranda, surveys, correspondence, statistics and payroll and other
employee data, and any copies, compilations, extracts, excerpts, summaries
and other notes thereof or relating thereto), excluding only information
(x) that is generally available public knowledge or (y) that relates to the
Employee's compensation or employee benefits.
(c) Cooperation. Following the Employment Severance Date, the Employee
shall reasonably cooperate with the Company upon reasonable request of the
Board and be reasonably available to the Company with respect to matters
arising out of the Employee's services to the Company Affiliated Group.
(d) Nondisparagement. The Employee agrees not to communicate
negatively about or otherwise disparage any Company Released Party or the
products or businesses of any of them in any way whatsoever.
(e) Nonsolicitation. The Employee agrees that, from the Employment
Severance Date through the second anniversary of the Employment Severance
Date, the Employee shall not, directly or indirectly, interfere with the
Company's businesses by, without limitation, (i) soliciting any of the
Company's employees or customers or (ii) requesting or causing any
customers, employees or vendors of the Company to alter, cancel or
terminate any business or employment relationship with the Company.
(f) Injunctive Relief. In the event of a breach or threatened breach
by the Employee of this Section 5, the Employee agrees that the Company
shall be entitled to injunctive relief in a court of appropriate
jurisdiction to remedy any such breach or threatened breach, the Employee
acknowledging that damages would be inadequate or insufficient.
6. Voluntariness. The Employee acknowledges and agrees that he or she is
relying solely upon his or her own judgment; that the Employee is over
eighteen years of age and is legally competent to sign this Waiver and
Release of Claims; that the Employee is signing this Waiver and Release of
Claims of his or her own free will; that the Employee has read and
understood the Waiver and Release of Claims before signing it; and that the
Employee is signing this Waiver and Release of Claims in exchange for
consideration that he or she believes is satisfactory and adequate. The
Employee also acknowledges and agrees that he or she has been informed of
the right to consult with legal counsel and has been encouraged to do so.
7. Complete Agreement/Severability. This Waiver and Release of Claims
constitutes the complete and final agreement between the parties and
supersedes and replaces all prior or contemporaneous agreements,
negotiations, or discussions relating to the subject matter of this Waiver
and Release of Claims. All provisions and portions of this Waiver and
Release of Claims are severable. If any provision or portion of this Waiver
and Release of Claims or the application of any provision or portion of the
Waiver and Release of Claims shall be determined to be invalid or
unenforceable to any extent or for any reason, all other provisions and
portions of this Waiver and Release of Claims shall remain in full force
and shall continue to be enforceable to the fullest and greatest extent
permitted by law.
8. Acceptance and Revocability. The Employee acknowledges that he or she
has been given a period of twenty-one (21) days within which to consider
this Waiver and Release of Claims, unless applicable law requires a longer
period, in which case the Employee shall be advised of such longer period
and such longer period shall apply. The Employee may accept this Waiver and
Release of Claims at any time within this period of time by signing the
Waiver and Release of Claims and returning it to the Company. This Waiver
and Release of Claims shall not become effective or enforceable until seven
(7) calendar days after the Employee signs it. The Employee may revoke his
or her acceptance of this Waiver and Release of Claims at any time within
that seven (7) calendar day period by sending written notice to the
Company. Such notice must be received by the Company within the seven (7)
calendar day period in order to be effective and, if so received, would
void this Waiver and Release of Claims for all purposes.
9. Effect of Unenforceability of Release. In the event that the Employee or
his or her successors or assigns initiates an Action in respect any portion
of the Waiver and Release of Claims set forth herein that is held to be
null and void or otherwise determined not to be enforceable by the Company
for any reason (whether as part of such Action or otherwise), then, in
addition to any other remedy available to the Company hereunder (including,
without limitation, the right to cease the severance benefits), the
Employee shall promptly repay to the Company any portion of the severance
benefits that has previously been paid or provided to him or her.
10. Governing Law. Except for issues or matters as to which federal law is
applicable, this Waiver and Release of Claims shall be governed by and
construed and enforced in accordance with the laws of the State of New York
without giving effect to the conflicts of law principles thereof.
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Employee