EXHIBIT 10.2
FINANCIAL SECURITY ASSURANCE HOLDINGS LTD.
SEVERANCE POLICY FOR SENIOR MANAGEMENT
(AS AMENDED AND RESTATED EFFECTIVE MARCH 13, 2000)
TABLE OF CONTENTS
PAGE
SECTION 1. ESTABLISHMENT AND PURPOSE OF THE PLAN.........................1
SECTION 2. ELIGIBLE EMPLOYEES............................................1
SECTION 3. SEVERANCE PAY AND SEVERANCE BENEFITS..........................2
SECTION 4. OFFSET........................................................5
SECTION 5. PAYMENT OF SEVERANCE PAY......................................6
SECTION 6. REINSTATEMENT.................................................6
SECTION 7. WAIVER AND RELEASE AGREEMENT..................................6
SECTION 8. PLAN ADMINISTRATION...........................................7
SECTION 9. AMENDMENT/TERMINATION/VESTING.................................7
SECTION 10. PAY AND OTHER BENEFITS........................................7
SECTION 11. NO ASSIGNMENT.................................................8
SECTION 12. RECOVERY OF PAYMENTS MADE BY MISTAKE..........................8
SECTION 13. REPRESENTATIONS CONTRARY TO THE PLAN..........................9
SECTION 14. NO EMPLOYMENT RIGHTS..........................................9
SECTION 15. COMPANY INFORMATION...........................................9
SECTION 16. CONFIDENTIALITY...............................................9
SECTION 17. PLAN FUNDING.................................................10
SECTION 18. APPLICABLE LAW...............................................10
SECTION 19. SEVERABILITY.................................................10
SECTION 20. PLAN YEAR....................................................10
SECTION 21. RETURN OF COMPANY PROPERTY...................................10
FINANCIAL SECURITY ASSURANCE HOLDINGS LTD.
SEVERANCE POLICY FOR SENIOR MANAGEMENT
SECTION 1 ESTABLISHMENT AND PURPOSE OF THE PLAN
FINANCIAL SECURITY ASSURANCE HOLDINGS LTD. (hereinafter "FSA") has adopted the
FINANCIAL SECURITY ASSURANCE HOLDINGS LTD. SEVERANCE POLICY FOR SENIOR
MANAGEMENT (hereinafter the "PLAN"), for the benefit of the Senior Management
(as hereinafter defined) of FSA and its current direct and indirect wholly-owned
subsidiaries (collectively referred to herein as the "COMPANY"), as described
herein. The Plan was adopted effective as of February 8, 1995. The Plan is
hereby amended and restated, as set forth in this Plan document, effective as of
March 13, 2000, to (i) provide reimbursement on a grossed-up basis for excise
taxes that might be payable by eligible employees due in respect of any payment
after giving effect to a "Change in Control" (as defined herein) of the Company,
and (ii) restrict adverse amendments to the Plan for eligible employees through
December 31, 2004. The Plan is an unfunded welfare benefit plan for purposes of
the Employee Retirement Income Security Act of 1974, as amended (hereinafter
"ERISA") and a severance pay plan within the meaning of the United States
Department of Labor regulations section 2510.3-2(b). The purpose of the Plan is
to provide an eligible employee whose employment terminates as described in
Section 2 with Severance Pay and Severance Benefits for a specified period of
time.
SECTION 2 ELIGIBLE EMPLOYEES
Members of Senior Management who have been employed with the Company for at
least one (1) year and whose employment is (i) terminated by the Company for any
reason other than for cause or (ii) constructively terminated, are eligible to
participate in the Plan and shall be considered "ELIGIBLE EMPLOYEES" under the
Plan. "SENIOR MANAGEMENT" means, and shall be limited to, the permanent members
of the Management Committee of the Company on the effective date of the Plan and
any person who shall hereafter be designated as eligible to participate in the
Plan by written notice thereof, signed by the President of the Company and
expressly stating that such person is a member of "Senior Management" for
purposes of the Plan. The permanent members of the Management Committee of the
Company on the effective date of the Plan are (a) the Chief Executive Officer of
the Company, (b) the Chief Operating Officer of the Company, (c) the General
Counsel of the Company, (d) the Chief Financial Officer of the Company, (e) the
Managing Director in charge of the Financial Guaranty Department of Financial
Security Assurance Inc., (f) the Chief Underwriting Officer of Financial
Security Assurance Inc. and (g) the Managing Director in charge of the Insured
Portfolio Management Department of Financial Security Assurance Inc. Termination
"FOR CAUSE" means termination for unethical practices, illegal conduct or gross
insubordination, but specifically excludes termination as a result of
substandard performance. "CONSTRUCTIVE TERMINATION" of employment occurs if an
eligible employee's compensation opportunity is significantly reduced out of
line with Company results, or if there is a material reduction in
responsibilities. The determination as to whether an employee has been (i)
terminated for cause, or (ii) constructively terminated, will be made by the
Plan Administrator, in its sole discretion.
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An otherwise eligible employee shall NOT be eligible for Severance Pay and
Severance Benefits under the Plan if:
(a) the eligible employee's employment with the Company terminates by
reason of death or disability;
(b) the eligible employee's employment with the Company terminates
through retirement, voluntary resignation, job abandonment or
failure to report for work;
(c) the eligible employee's employment with the Company is involuntarily
terminated after the eligible employee refuses a transfer to a new
position at the same geographical location of the Company, and such
transfer does not constitute a constructive termination;
(d) the eligible employee is employed in a Company operation or facility
substantially all of the assets of which are sold and the eligible
employee is offered a comparable position, as determined by the Plan
Administrator, with the purchaser;
(e) the eligible employee fails or refuses to continue in the employment
of the Company until the end of the notice period provided for in
the notice of termination described in Section 3 below (absent
constructive termination during such notice period); or
(f) the Plan is terminated.
SECTION 3 SEVERANCE PAY AND SEVERANCE BENEFITS
In exchange for providing the Plan Administrator a valid Waiver and Release
Agreement in a form acceptable to the Company, an eligible employee shall be
eligible to receive Severance Pay and Severance Benefits in accordance with the
paragraphs set forth below. The consideration for the voluntary Waiver and
Release Agreement shall be the Severance Pay and the Severance Benefits that the
eligible employee would not otherwise be eligible to receive.
(a) SEVERANCE PAY. An eligible employee shall be eligible to receive
Severance Pay in accordance with the following:
(1) CHIEF EXECUTIVE OFFICER AND CHIEF OPERATING OFFICER: Each
eligible employee who served as the Chief Executive Officer or
the Chief Operating Officer of the Company shall be eligible
to receive eighteen (18) months of pay.
(2) PERMANENT MEMBERS OF MANAGEMENT COMMITTEE: Each eligible
employee who served as a permanent member of the Management
Committee of the Company (and who did not serve as the Chief
Executive
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Office or the Chief Operating Officer of the Company) shall be
eligible to receive twelve (12) months of pay.
For purposes of determining the amount of Severance Pay to
which an eligible employee is entitled, "MONTHS OF PAY" (a) shall be
determined on the basis of (a) the eligible employee's monthly
salary on his or her separation date and (b) shall include the
eligible employee's most recent bonus (or three year average, if
higher), with one-twelfth (1/12th) of such bonus amount being
allocated to each month of pay. An eligible employee's base salary
and bonus shall include amounts deferred under the Financial
Security Assurance Holdings Ltd. Deferred Compensation Plan and the
Financial Security Assurance Inc. Cash or Deferred Plan, and amounts
allocated to the Financial Security Assurance Flex Plan. For this
purpose, "BONUS" shall also include any amounts converted into an
equity bonus under the Financial Security Assurance Holdings Ltd.
1993 Equity Participation Plan. For all purposes of the Plan, the
term "SEPARATION DATE" shall mean the last day the eligible employee
is actively employed by the Company. In the event an eligible
employee receives formal written notice of a future termination of
employment and employment is not terminated until the date provided
in such notice, then the Plan Administrator may, in its discretion,
reduce the period of Severance Pay by the length of the notice
period, in an amount of up to one-third (1/3) of the severance
period. For purposes of the Plan, "SEVERANCE PERIOD" shall mean the
period of time over which an eligible employee is to receive
Severance Pay pursuant to this Section 3.
(b) SEVERANCE BENEFITS.
(1) CONTINUATION OF HOSPITAL, MEDICAL, DENTAL, PRESCRIPTION DRUG
AND VISION COVERAGES. An eligible employee may elect
continuation of his or her Company sponsored hospital,
medical, dental, prescription drug and vision benefits
("HEALTH BENEFITS") under COBRA, as defined in Section
4980B(f)(2) of the Internal Revenue Code of 1986, as amended
("COBRA COVERAGE") for a period of up to eighteen (18) months
following the separation date. The eligible employee shall pay
the same premium paid by active employees for their Company
sponsored health benefits and the Company shall pay the
remaining portion of the premium during the severance period.
The COBRA coverage provided at this reduced cost shall
continue until the end of the month for which the eligible
employee is permitted to pay the same premium paid by
similarly situated active employees for their Company
sponsored health benefits. After the end of the severance
period, the eligible employee may elect to continue his or her
health benefits under COBRA for up to the remainder of the
eighteen (18) months; however, the eligible employee must pay
the full premium for such coverage plus a two percent (2%)
administrative charge, or 102% of the total premium cost. If
the eligible employee dies prior to the end of
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the period of time that he or she would have received his or
her Severance Benefits, and if the eligible employee's spouse
and/or dependents are entitled to continued COBRA coverage,
the Company shall pay the entire cost of such coverage for the
remainder of the severance period. Thereafter, the spouse
and/or dependents may elect to continue COBRA coverage;
however they must pay the full premium cost for such coverage
plus a two percent (2%) administrative charge.
(2) LIFE INSURANCE BENEFITS. Coverage under the Financial Security
Assurance Inc. Life and AD & D Insurance Plan shall continue
on the same basis as for similarly situated active employees
during the severance period to the extent, if any, that the
insurance carrier will so allow.
(3) DISABILITY INSURANCE COVERAGE. Coverage under Company
sponsored disability insurance shall continue on the same
basis as for similarly situated active employees during the
severance period to the extent, if any, that the insurance
carrier will so allow.
(c) CERTAIN ADDITIONAL PAYMENTS BY THE COMPANY.
(1) GROSS-UP PAYMENTS. Anything in the Plan to the contrary
notwithstanding, in the event that it shall be determined that
any payment or distribution by the Company to or for the
benefit of an eligible employee (whether paid or payable or
distributed or distributable pursuant to the terms of the Plan
or otherwise) (a " PAYMENT") would be subject to the excise
tax imposed by Sections 280G and 4999 of the Internal Revenue
Code of 1986, as amended (the "CODE"), or that any interest or
penalties are incurred by an eligible employee with respect to
such excise tax (such excise tax, together with any such
interest and penalties, being hereinafter collectively
referred to as the "EXCISE TAX"), then the eligible employee
shall be entitled to receive an additional payment (the
"GROSS-UP PAYMENT") in an amount such that after payment by
the eligible employee of all taxes (including any interest or
penalties imposed with respect to such taxes and Excise Tax)
imposed upon the Gross-Up Payment, the eligible employee
retains an amount of the Gross-Up Payment equal to the Excise
Tax imposed upon the Payments.
(2) DETERMINATION OF GROSS-UP PAYMENTS. Notwithstanding the
provisions of Section 8, all determinations required to be
made under this Section 3(c), including whether and when the
Gross-Up Payment is required and the amount of such Gross-Up
Payment including any determination of the parachute payments
under Code Section 280G(b)(2), and the assumptions to be
utilized in arriving at such determinations shall be made by a
nationally recognized certified public accounting firm that is
mutually selected by the eligible employee and the Company
(the
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"ACCOUNTING FIRM") which shall provide detailed supporting
calculations both to the Company and the eligible employee
within 15 business days of the receipt of notice from the
eligible employee that there has been a Payment, or such
earlier time as is requested by the Company. All fees and
expenses of the Accounting Firm shall be borne solely by the
Company. Any Gross-Up Payment shall be paid by the Company to
the eligible employee within five days of the receipt of the
Accounting Firm's determination. Any determination by the
Accounting Firm shall be binding upon the Company and the
eligible employee. As a result of uncertainty in the
application of Section 4999 of the Code at the time of the
initial determination by the Accounting Firm hereunder, it is
possible that the Gross-Up Payment made will have been an
amount less than the Company should have paid pursuant to this
Section 3(c) (the "Underpayment"). In the event that the
eligible employee thereafter is required to make a payment of
any Excise Tax, the Accounting Firm shall determine the amount
of the Underpayment and any such Underpayment shall be
promptly paid by the Company to or for the benefit of the
eligible employee.
The Plan Administrator, acting in its sole discretion may, in writing, enhance
the amount of Severance Pay and/or Severance Benefits that an eligible employee
is eligible to receive over the amount of Severance Pay and Severance Benefits
described above and/or make available to the eligible employee other forms of
Severance Benefits.
SECTION 4 OFFSET
Severance Pay and Severance Benefits provided under the Plan shall be offset by
any severance pay or severance benefits provided to an eligible employee under
an authorized written employment agreement containing a severance provision, an
authorized written severance agreement, or any other group
reorganization/restructuring benefit plan or program sponsored by the Company.
By accepting Severance Pay and Severance Benefits under the Plan, an eligible
participant waives all rights to receive benefits under the Financial Security
Assurance Holdings Ltd. Severance Policy. In the event an eligible employee who
is receiving Severance Pay and Severance Benefits under the Plan is employed
with any other employer during the severance period, due and unpaid Severance
Pay shall be offset by an amount equal to fifty percent (50%) of the
compensation received by the eligible employee from the new employment during
the severance period, and Severance Benefits shall cease. The eligible employee
shall be obligated to refund any amounts paid by the Company as Severance Pay
that exceed the amount of Severance Pay payable to the eligible employee
hereunder giving effect to the offset referred to in the preceding sentence. An
eligible employee shall, as a condition of receiving Severance Pay and Severance
Benefits under the Plan, undertake to provide to the Company prompt notice of
the commencement of any new employment of such eligible employee during the
severance period.
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SECTION 5 PAYMENT OF SEVERANCE PAY
Severance Pay that becomes payable shall be paid in installments in accordance
with the Company's regular payroll payment schedule commencing with the first
regular payroll payment date occurring after expiration of the seven (7) day
period during which an eligible employee may revoke his or her Waiver and
Release Agreement (as explained more fully below under the Section entitled
"WAIVER AND RELEASE AGREEMENT"); however, the Plan Administrator reserves the
right in its sole discretion to pay Severance Pay in a lump sum. All legally
required taxes and any sums owing to the Company shall be deducted from
Severance Pay payments.
SECTION 6 REINSTATEMENT
If an eligible employee returns to a temporary assignment with the Company while
receiving Severance Pay and Severance Benefits, payments of Severance Pay and
availability of Severance Benefits shall cease during the period of temporary
employment and shall resume at the conclusion of the temporary assignment. In
the event that an eligible employee who is receiving Severance Pay or Severance
Benefits is permanently reemployed by the Company, the payment of Severance Pay
and the availability of Severance Benefits under the Plan shall cease as of the
date his or her reemployment begins.
SECTION 7 WAIVER AND RELEASE AGREEMENT
In order to receive Severance Pay and Severance Benefits, an eligible employee
must submit a signed Waiver and Release Agreement form to the Plan Administrator
no later than twenty-one (21) days after his or her separation date. If the
termination of the eligible employee is part of a group termination, the signed
Waiver and Release Agreement must be submitted to the Plan Administrator no
later than forty-five (45) days after his or her separation date. Attached to
the Waiver and Release Agreement, if required by law, as Attachment I will be a
list of job titles and ages of employees of the Company who are eligible for the
Plan, and as Attachment II will be a list of the ages of employees of the
Company who are not eligible for the Plan. An eligible employee may revoke his
or her signed Waiver and Release Agreement within seven (7) days of his or her
signing the Waiver and Release Agreement. A revocation by an eligible employee
must be made in writing and must be received by the Plan Administrator within
such seven (7) day period. An eligible employee who timely revokes his or her
Waiver and Release Agreement shall not be eligible to receive any Severance Pay
and Severance Benefits under the Plan. An eligible employee who timely submits a
signed Waiver and Release Agreement form and who does not exercise his or her
right of revocation shall be eligible to receive Severance Pay and Severance
Benefits. Eligible employees shall be encouraged to contact their personal
attorney to review the Waiver and Release Agreement form if they so desire.
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SECTION 8 PLAN ADMINISTRATION
FSA shall serve as the "Plan Administrator" of the Plan and a "named fiduciary"
within the meaning of such terms as defined in ERISA. The Plan Administrator
shall have the discretionary authority to determine eligibility for Plan
benefits and to construe the terms of the Plan, including the making of factual
determinations. The decisions of the Plan Administrator shall be final and
conclusive with respect to all questions concerning the administration of the
Plan. The Plan Administrator may delegate to other persons responsibilities for
performing certain of the duties of the Plan Administrator under the terms of
the Plan and may seek such expert advice as the Plan Administrator deems
reasonably necessary with respect to the Plan. The Plan Administrator shall be
entitled to rely upon the information and advice furnished by such delegatees
and experts, unless actually knowing such information and advice to be
inaccurate or unlawful. The Plan Administrator shall establish and maintain a
reasonable claims procedure, including a procedure for appeal of denied claims.
In no event shall an eligible employee or any other person be entitled to
challenge a decision of the Plan Administrator in court or in any other
administrative proceeding unless and until the claim and appeals procedures
established under the Plan have been complied with and exhausted.
SECTION 9 AMENDMENT/TERMINATION/VESTING
The Company may terminate or amend the Plan at any time and from time to time,
for any reason or no reason; PROVIDED, HOWEVER, that any such termination or
amendment of the Plan that is adverse to the interest of any eligible employee
under the Plan shall be effective only (i) as to any eligible employee first
becoming an Employee after the date of such amendment or termination or (ii) as
to any other employee, on or after December 31, 2004. Any amendment or
termination of the Plan shall be adopted by the Board of Directors of FSA and
executed by an authorized officer of FSA. In no event will the termination of
the Plan reduce Severance Pay and Severance Benefits previously granted to an
eligible employee under the Plan.
SECTION 10 PAY AND OTHER BENEFITS
An eligible employee's participation in all of the Company's employee pension
benefit plans and employee welfare plans in which he or she is enrolled as of
his or her separation date shall cease as of his or her separation date, except
as provided above with respect to COBRA coverage and life insurance benefits.
All pay and other benefits, including unreimbursed valid business expenses and
accrued but unpaid salary (but excluding Plan benefits), payable to an eligible
employee upon his or her separation date shall be paid in accordance with the
terms of those established policies, plans and procedures. An eligible employee
who is participating in the Plan shall not be eligible for any other type of
severance benefits under any other severance pay plan, program or policy of the
Company. Eligible employees shall receive payment for unused vacation days on
the first payroll date following the eligible employee's termination of
employment. Such payment shall be equal to one twentieth (1/20th) of one month
of Severance Pay for every vacation day and shall be paid in a single lump sum
payment. Such payment shall
page 8
not reduce the amount of Severance Pay otherwise payable to the eligible
employee under the Plan. For purposes of the foregoing,
(a) total vacation days for any eligible employee in respect of any
calendar year shall equal the sum of:
(1) carryover vacation days to which the eligible employee is
entitled in accordance with Company policy from the year prior
to the year in which the eligible employee's separation date
occurred; and
(2) the product (rounded up to the nearest whole number) of:
(A) the annual number of vacation days to which the eligible
employee is entitled in accordance with Company policy;
and
(B) a fraction,
(i) the numerator of which is the number of days of
the year which have elapsed from the January 1 of
the year in which the eligible employee's
separation date occurs through and including the
eligible employee's separation date, and
(ii) the denominator of which is three hundred and
sixty-five (365); and
(b) unused vacation days for any eligible employee in respect of any
calendar year will equal total vacation days in respect of such year
determined in accordance with subsection (a) above, less vacation
days used in such year.
SECTION 11 NO ASSIGNMENT
Severance Pay or Severance Benefits payable under the Plan shall not be subject
to anticipation, alienation, pledge, sale, transfer, assignment, garnishment,
attachment, execution, encumbrance, levy, lien, or charge, and any attempt to
cause such Severance Pay or Severance Benefits to be so subjected shall not be
recognized, except to the extent required by law.
SECTION 12 RECOVERY OF PAYMENTS MADE BY MISTAKE
An eligible employee shall be required to return to the Company any Severance
Pay or Severance Benefits, or portion thereof, made by a mistake of fact or law.
page 9
SECTION 13 REPRESENTATIONS CONTRARY TO THE PLAN
No employee, officer, or director of the Company has the authority to alter,
vary or modify the terms of the Plan except by means of an authorized written
amendment to the Plan. No verbal or written representations contrary to the
terms of the Plan and its written amendments shall be binding upon the Plan, the
Plan Administrator or the Company.
SECTION 14 NO EMPLOYMENT RIGHTS
The Plan shall not confer employment rights upon any person. No person shall be
entitled, by virtue of the Plan, to remain in the employ of the Company and
nothing in the Plan shall restrict the right of the Company to terminate the
employment of any eligible employee at any time.
SECTION 15 COMPANY INFORMATION
Eligible employees may have access to Company Information. Recognizing that the
disclosure or improper use of such Company Information will cause serious and
irreparable injury to the Company, as a condition of receiving Severance Pay and
Severance Benefits eligible employees with such access acknowledge that (i) they
will not at any time, directly or indirectly, disclose Company Information to
any third party or otherwise retain or use such Company Information for their
own benefit or the benefit of others, (ii) if they disclose or improperly use
any Company Information, the Company shall be entitled to apply for and receive
an injunction to restrain any violation of this paragraph, and (iii) eligible
employees shall be liable for any damages the Company incurs, including
litigation costs and reasonable attorneys' fees.
"COMPANY INFORMATION" shall mean any confidential, financial, marketing,
business, technical or other information, including, without limitation,
information that the eligible employee prepared, caused to be prepared, received
in connection with and/or contemporaneous with his or her employment with the
Company, such as information provided by customers that is not generally known
in the industry, objective and subjective evaluations of management,
transactions or proposed transactions, trade secrets, personnel information and
marketing methods and techniques. The term "COMPANY INFORMATION" specifically
excludes information that is generally known in the industry (except when known
based upon the eligible employee's actions in contravention of this provision)
or that is otherwise publicly available.
SECTION 16 CONFIDENTIALITY
Eligible employees are prohibited from disclosing the existence of this Plan and
its terms and conditions, to any other past, present or future employees of the
Company, or to any other person, except (and in such cases, only to the extent
necessary) to the eligible employee's immediate family, attorneys, accountants,
financial advisors, lending institutions, federal, state or local taxing
authorities, or as otherwise required by law, or for the enforcement of the Plan
terms.
page 10
SECTION 17 PLAN FUNDING
No eligible employee shall acquire by reason of the Plan any right in or title
to any assets, funds, or property of the Company. Any Severance Pay or Severance
Benefits that become payable under the Plan are unfunded obligations of the
Company and shall be paid from the general assets of the Company. No employee,
officer, director or agent of the Company guarantees in any manner the payment
of Severance Pay or Severance Benefits.
SECTION 18 APPLICABLE LAW
The Plan shall be governed and construed in accordance with ERISA and in the
event that any reference shall be made to State law, the internal laws of the
State of New York shall apply.
SECTION 19 SEVERABILITY
If any provision of the Plan is found, held or deemed by a court of competent
jurisdiction to be void, unlawful or unenforceable under any applicable statute
or other controlling law, the remainder of the Plan shall continue in full force
and effect.
SECTION 20 PLAN YEAR
The ERISA plan year of the Plan shall be the calendar year.
SECTION 21 RETURN OF COMPANY PROPERTY
All Company property (including keys, credit cards, identification cards, office
equipment, portable computers and cellular telephones) and Company Information
(including all copies, duplicates, reproductions or excerpts thereof) must be
returned by the eligible employee as of his or her separation date in order for
such eligible employee to commence receiving Severance Pay and Severance
Benefits under the Plan.
FINANCIAL SECURITY ASSURANCE HOLDINGS LTD.
By: /s/ Robert P. Cochran
----------------------------------------
Its: Chairman and Chief Executive Officer
----------------------------------------
ATTACHMENT I TO
FINANCIAL SECURITY ASSURANCE HOLDINGS LTD. SEVERANCE POLICY FOR SENIOR
MANAGEMENT
WAIVER AND RELEASE AGREEMENT
(1) WAIVER AND RELEASE, ETC. In consideration for the Severance Pay and
Severance Benefits to be provided to me under the terms of the FINANCIAL
SECURITY ASSURANCE HOLDINGS LTD. SEVERANCE POLICY FOR SENIOR MANAGEMENT
(hereinafter, the "Plan"), I, on behalf of myself and my heirs, executors,
administrators, attorneys and assigns, hereby waive, release and forever
discharge FINANCIAL SECURITY ASSURANCE HOLDINGS LTD. (hereinafter, the
"Company") and the Company's parent, subsidiaries, divisions and affiliates,
whether direct or indirect, its and their joint ventures and joint venturers
(including its and their respective directors, officers, associates,
employees, shareholders, partners and agents, past, present and future), and
each of its and their respective successors and assigns (hereinafter
collectively referred to as "Releasees"), from any and all known or unknown
actions, causes of action, claims or liabilities of any kind which have or
could be asserted against the Releasees arising out of or related to my
employment with and/or separation from employment with the Company and/or any
of the other Releasees and/or any other occurrence up to and including the
later of the date of this Agreement and the date of termination of employment
with the Company and/or any of the other Releasees, including but not limited
to:
(a) claims, actions, causes of action or liabilities arising under
Title VII of the Civil Rights Act, as amended, the Age
Discrimination in Employment Act, as amended, the Employee
Retirement Income Security Act, as amended, the Rehabilitation
Act, as amended, the Americans with Disabilities Act, as amended,
the Family and Medical Leave Act, as amended, and/or any other
federal, state, municipal, or local employment discrimination
statutes (including, but not limited to, claims based on age,
sex, attainment of benefit plan rights, race, religion, national
origin, marital status, sexual orientation, ancestry, harassment,
parental status, handicap, disability, retaliation, and veteran
status); and/or
(b) claims, actions, causes of action or liabilities arising under any
other federal, state, municipal, or local statute, law, ordinance or
regulation; and/or
(c) any other claim whatsoever including, but not limited to, claims
for severance pay, claims based upon breach of contract, wrongful
termination, defamation, intentional infliction of emotional
distress, tort, personal injury, invasion of privacy, violation
of public policy, negligence and/or any other common law,
statutory or other claim whatsoever arising out of or relating to
my employment with and/or separation from employment with the
Company and/or any of the other Releasees,
but excluding the right to file an administrative charge or participate in an
investigation conducted by the Equal Employment Opportunity Commission (the
"EEOC"), any claims which I may make under state workers' compensation or
unemployment laws, and/or any claims which by law I cannot waive. I am waiving,
however, any right to monetary recovery should the EEOC or any other agency
pursue any claim on my behalf. I further waive, release, and discharge the
page 2
Company and/or any of the other Releasees from any reinstatement rights that I
have or could have and I acknowledge that I have not suffered any on-the-job
injury for which I have not already filed a claim. I also agree, without any
reservation whatsoever, never to sue the Company and/or any of the Releasees on
the basis of any and all claims of any type to date arising out of any aspect of
my employment with and/or separation from employment with the Company and/or any
of the Releasees. I understand that this Agreement includes a release of all
known and unknown claims arising up to and including the date of this Agreement.
(2) COMPANY INFORMATION. I acknowledge that I may have access to certain
confidential and other information of the Company, referred to in the Plan as
"Company Information". Recognizing that the disclosure or improper use of
Company Information may cause serious and irreparable injury to the Company, I
agree that I will not at any time, directly or indirectly, disclose Company
Information or use Company Information for my own benefit or the benefit of any
other party except as permitted under the Plan.
(3) COOPERATION; RETURN OF COMPANY PROPERTY. I agree to cooperate with the
Company with respect to providing information with respect to matters with which
I was involved at the time of my termination of employment. I agree to return to
the Company all Company property in my possession as promptly as practicable,
including, without limitation, any keys, credit cards, documents and records,
identification cards, office equipment, portable computers, mobile telephones
and parking permits.
(4) CONSEQUENCES OF BREACH. In the event that I breach this Agreement by
violating any of the provisions of paragraph (1), (2) or (3), I acknowledge that
(q) the Company shall be entitled to apply for and receive an injunction to
restrain any violation of such paragraphs, (b) I shall be required to pay the
Company's and/or any of the Releasees' litigation costs and expenses, including
reasonable attorneys' fees, associated with defending against my lawsuit and (c)
I shall be obligated to repay to the Company eighty percent (80%) of the
Severance Pay already paid to me and to forfeit eighty percent (80%) of the
Severance Pay not yet paid to me. Such repayment and/or forfeiture shall not
affect the validity of this Agreement.
(5) OFFSET. I understand that, in the event I become employed with any
other employer during the severance period, due and unpaid Severance Pay will be
offset by an amount equal to fifty percent (50%) of the compensation received by
me from the new employment during the severance period, and Severance Benefits
shall cease. I agree to refund any amounts paid by the Company as Severance Pay
that exceed the amount of Severance Pay payable to me under the Plan giving
effect to the offset referred to in the preceding sentence. I further agree to
provide to the Company prompt notice of the commencement of any such new
employment.
(6) OTHER PLANS. I understand that this Agreement will not limit any of my
rights or obligations in respect of any Company sponsored plans, each of which
has its own provisions governing the rights of employees thereunder in respect
of which I agree to remain bound, except that I hereby waive, release and shall
not assert in any forum any claim or right arising out of or in connection with
my termination of employment on the basis that such termination interfered
page 3
with attainment of any rights under such a plan or was otherwise discriminatory
or illegal. The foregoing plans include the Company's pension plans (Money
Purchase Plan and Supplemental Executive Retirement Plan), Cash or Deferred Plan
(401(k) plan), home computer program, cafeteria plan ("flex plan"), medical
plans, Supplemental Restricted Stock Plan, 1993 Equity Participation Plan and
Deferred Compensation Plan. I understand that, for purposes of determining my
rights under the foregoing plans, my employment with the Company will be deemed
to have been terminated by the Company without cause.
(7) REVIEW AND REVOCATION PERIODS. I acknowledge that I have been given at
least twenty-one (21) days to consider this Agreement thoroughly and I was
encouraged to consult with my personal attorney, if desired, before signing
below. I understand that I may revoke this Agreement within seven (7) days after
its signing and that any revocation must be made in writing and submitted within
such seven (7) day period to the Plan Administrator. I further understand that
if I revoke this Agreement, I shall not receive Severance Pay and Severance
Benefits under the Plan.
(8) SEVERABILITY. I agree that if any provision of this Agreement is
found, held or deemed by a court of competent jurisdiction to be void, unlawful
or unenforceable under any applicable statute or controlling law, the remainder
of this Agreement shall continue in full force and effect.
(9) GOVERNING LAW. This Agreement is deemed made and entered into in the
State of New York, and in all respects shall be interpreted, enforced and
governed under the internal laws of the State of New York, to the extent not
governed by federal law. Any dispute under this Agreement shall be adjudicated
by a court of competent jurisdiction in the State of New York.
THE UNDERSIGNED HEREBY ACKNOWLEDGES AND AGREES THAT HE OR SHE HAS
CAREFULLY READ AND FULLY UNDERSTANDS ALL THE PROVISIONS OF THIS AGREEMENT AND
HAS VOLUNTARILY ENTERED INTO THIS AGREEMENT BY SIGNING BELOW AS OF THE DATE SET
FORTH BELOW.
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(Print name)
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(Signature) (Date)