Exhibit (viii)
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SEPARATION AGREEMENT
AGREEMENT dated as of October 27, 2000 between Pitney Bowes Inc., a
Delaware corporation (the "Company"), and Marc C. Breslawsky ("the Executive").
WHEREAS, Marc C. Breslawsky is a valued executive of the Company;
WHEREAS, the Company considers it essential to the best interests of its
shareholders to provide the Company and the Executive with the protections of
this Agreement; and
WHEREAS, the parties desire to enter into this Agreement;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein and for other good and valuable consideration, the parties agree as
follows:
SECTION 1 Definitions
For purposes of this Agreement, the following terms shall have the meanings
indicated.
"Board" means the Board of Directors of the Company.
"Cause" means (i) the Executive's conviction or plea of guilty or nolo
contendere to a felony or crime involving moral turpitude, dishonesty, breach of
trust or unethical business conduct or any crime involving the business of the
Company; (ii) the Executive, in the performance of his duties for the Company,
to the material and demonstrable detriment of the Company, engaging in (A)
willful misconduct, (B) willful or gross neglect, (C) fraud, (D)
misappropriation, (E) embezzlement or (F) theft; (iii) the Executive's willfully
disobeying the directions of the Board to adhere to the policies and practices
of the Company or to devote substantially all of his business time and effort to
the Company; (iv) the breach of this Agreement in any material respect, if such
breach remains uncured (if curable) for a period of thirty (30) days following
written notice by the Company of such breach; or (v) the Executive's
acknowledgment in writing in any agreement or stipulation to, or the
adjudication in, any civil suit, of the commission of any theft, embezzlement,
fraud, or other intentional act of dishonesty involving any other person. No act
or failure to act on the Executive's part shall be deemed willful unless done or
omitted to be done by the Executive not in good faith and without reasonable
belief that the Executive's action or omission was in the best interest of the
Company.
"Resignation Date" means the date that the Executive terminates employment
with the Company at the Company's request in its sole discretion and resigns
from all positions and directorships within the Company, including, but not
limited to, a termination of employment with the Company as a result of
employment with a division or subsidiary that
has been divested, spun-off, split-off, or sold by the Company ("the Divested
Entity").
SECTION 2 Term of Agreement
This Agreement shall be in effect from the date hereof.
SECTION 3 Severance
(a) If the Executive's employment with the Company is terminated by the
Company at its request in its sole discretion without Cause (other than by
reason of disability or death), the Company shall pay the Executive cash
compensation in the amount of $2,805,000, which is equal to the sum of two (2)
times his current base salary plus 140% of his base salary. If the Executive's
employment is terminated hereunder prior to April 1, 2002, the payment shall be
made in equal monthly installments over the period from the Resignation Date
through March 31, 2004. If the Executive's employment is terminated hereunder on
or after April 1, 2002, the payment shall be made in equal monthly installments
over a two year period beginning on the Resignation Date. The period during
which the payment hereunder is made shall be referred to in this Agreement as
the (the "Severance Period").
(b) The severance payments to be made under this Section 3 shall be in
lieu of any severance pay to which the Executive may otherwise be entitled under
the Company's severance plans and practices; provided, however, that in the
event of a change of control of the Company the Executive may be entitled to
certain rights that exist under the Company's Senior Executive Severance Policy,
which rights would be offset by the severance payments made to the Executive
under Section 3 hereof.
SECTION 4 Other Incentives
(a) The Executive shall be eligible for a pro-rated PBC incentive award
pursuant to the Company's Key Employee Incentive Plan ("the KEIP") based on the
number of whole months of service completed with the Company by the Executive
during the year in which the Resignation Date occurs. The payment shall be made
at the time such incentive awards are paid to actively employed senior
executives in accordance with the terms of the KEIP. It is understood that the
Executive has no entitlement to the PBC incentive award described hereunder and
that the determination to pay the Executive such PBC incentive award is made at
the sole discretion of the Board with the Executive's individual performance
rating being based on the Company's overall performance rating.
(b) The Company shall pay the Executive a payout of outstanding Cash
Incentive Units ("CIUs") pursuant to the KEIP at the close of each respective
cycle in accordance with the terms of the KEIP; provided, however, that such
payout of CIUs shall be based on the Executive's total number of completed
months of active service with the Company during each 36 month CIU cycle and on
the achievement of performance-based targets associated with the CIUs. For
purposes of this prorated calculation, the targeted payout shall be
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multiplied by a fraction, the numerator of which is the Executive's total number
of completed months of active service with the Company during the particular CIU
cycle and the denominator of which is 36.
(c) Any payments made under this Section 4 shall be in lieu of any
incentive pay to which the Executive may otherwise be entitled under the KEIP
and any practice or policy of the Company for the year in which occurs the
Resignation Date with respect to short and long term incentives.
SECTION 5 Medical and Dental
(a) As of the Resignation Date, the Executive and his eligible dependents
may at his option elect to continue to participate in the Company's group
medical and dental plans (or any successor medical or dental plans adopted by
the Company) (collectively, "Medical Plans") during the period commencing on the
Resignation Date and ending on the last day of the Severance Period on the same
terms applicable from time to time to active employees. The Executive may at his
option elect to terminate participation in the active employee plans and
commence participation in the retiree medical and dental plans following the
Resignation Date. The Executive understands that although he and his eligible
dependents may continue to participate in the Company's Medical Plans, the
Company reserves the right to change carriers, modify plan designs and pricing
and make such other changes to the Medical Plans and policies as may be
appropriate from a business standpoint or as otherwise be required by law.
(b) Upon the Executive's retirement, the Executive and his eligible
dependents shall be eligible for coverage under the Company's retiree group
medical and dental plans, in accordance with the terms of such plans as of that
date. The Company reserves the right to amend future plan design and active
employee contribution rates, as warranted under the circumstances.
(c) As of the Resignation Date, the Executive's coverage under the
Company's disability plans, including long and short-term disability insurance
and Accidental Death & Dismemberment insurance, shall cease.
SECTION 6 Perquisites
(a) As of the Resignation Date, the Executive shall be entitled to retain
the automobile he leases pursuant to his Lease Agreement. Upon the termination
of the Lease Agreement, the Executive may exercise the option to purchase the
automobile.
(b) The Executive shall be provided at the Company's sole expense with
professional financial counseling services for a period of 12 months following
the Resignation Date, subject to reasonable limitations as to dollar amounts
established by the Company on a uniform basis for similarly situated executives.
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(c) Any payments made under this Section 6 shall be in lieu of any other
perquisites to which the Executive may otherwise be entitled under the programs,
plans, practices or policies of the Company following the Resignation Date with
respect to automobile leasing and financial counseling services.
SECTION 7 Covenants
(a) Confidentiality. The Executive will at all times (whether during or
after his employment with the Company) hold all Confidential Information in
strictest confidence and not use or disclose directly or indirectly any
Confidential Information to any individual, partnership, corporation, limited
liability company, trust or other entity (each, a "Person"), without prior
written authorization of the Board. "Confidential Information" means any
Company proprietary information, technical data, trade secrets and know-how,
including but not limited to research, product plans, products, services,
customer lists and customers (including but not limited to customers of the
Company on whom the Executive called or with whom the Executive became
acquainted during his employment), markets, software, developments, inventions,
processes, formulas, technology, designs, drawings, engineering, hardware
configuration information, marketing, finances and other business information
disclosed to the Executive by the Company either directly or indirectly in
writing, orally or by drawings or observation or generated by the Executive
during his employment with the Company. The Executive further understands that
Confidential Information does not include any of the foregoing items which has
become publicly known and made generally available through no wrongful act of
his or of others who were under confidentiality obligations as to the item or
items involved.
The definition of Confidential Information will be modified at the sole
discretion of the Company in the event of any decision by the Company to exit a
business by divestiture or otherwise or to enter or expand into a new area of
business between the effective date of this Agreement and the Resignation Date,
and shall be subject to any transition agreements executed by the Company
pursuant to the divestiture or other transaction.
(b) Non-Competition. At all times during his employment and for two years
following the termination of such employment either pursuant to Section 3 hereof
or for Cause, the Executive will not, without the prior approval of the Company:
(i) become engaged or become interested, directly or indirectly, as a
director, officer, employee or 10% or more stockholder of, partner in, or
consultant to, any business which is engaged in the development,
manufacture, or distribution of copier equipment, facsimile equipment,
desktop or network printers, mail finishing or sorting equipment, including
production mail or postage meters, shipping and logistics equipment, or
software and services or supplies which are used in mailing and shipping
functions and which are competitive with categories of equipment, firmware,
software, or supplies manufactured or distributed by the Company or any of
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its subsidiaries for the functions described above, or identified for
introduction into the marketplace up through the strategy most recently
approved by senior management which incorporates Mailing Systems,
PitneyWorks (including internet postage and personal computer based
applications and the other products and services offered within
PitneyWorks' suite of products and services), Small Office Division,
Office Systems or Production Mail capabilities. For Mailing Systems and
Production Mail purposes, these systems include both in-bound and out-bound
mail and physical and hybrid mail; or
(ii) become engaged in or become interested directly or indirectly, own or
control more than 10% ownership, interest in, manage, operate, be employed
by or participate in the ownership, management, operation or control of or
be connected in any manner as a consultant or otherwise with any business
which provides sales-aid leasing for any competitor of the Company; or
(iii) become engaged in or become interested directly or indirectly, own or
control more than 10% ownership, interest in, manage, operate, be employed
by or participate in the ownership, management, operation or control of or
be connected in any manner as a consultant or otherwise with any business
which provides facilities management services, document services, incoming
mail services, EDP to mail service, mail management services, copying or
reprographic services, or any combination of the same, which are in
competition with Pitney Bowes Business Services, or any type of services
the Company is currently providing or identified for introduction through
any of its latest strategic plans.
The definition of what is competitive with the Company's businesses will be
modified at the sole discretion of the Company in the event of any decision by
the Company to exit a business by divestiture or otherwise or to enter or expand
into a new area of business between the effective date of this Agreement and the
Resignation Date, and shall be subject to any transition agreements executed by
the Company pursuant to the divestiture or other transaction. Further, the
Executive may request the Company's approval to become engaged in or become
interested in a competitor that is deemed insignificant by the Company and the
decision to deny or approve such request shall be made by the Company in its
sole discretion.
Notwithstanding anything to the contrary in this Section 7(b), the
definition of what is competitive with the Company's business shall not include
any business in which Office Systems is engaged, specifically the development,
manufacture, or distribution of copier equipment (but excluding copying or
reprographic services other than those services necessary to support the
distribution, installation and servicing of copy machines), facsimile equipment
or desktop or network printers, if the Company spins off or otherwise divests
such businesses. For purposes of the preceding sentence, distribution shall
include sales, leasing and rental of such machines. This definition shall be
subject to
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any transition agreements executed in connection with the divestiture. In any
event, the definition and exclusion of what is competitive shall exclude Capital
Services.
If the Executive is an officer or director or 10% or more stockholder of a
Divested Entity and if the Divested Entity continues to receive products or
services marketed by the Company for an agreed-upon period of time pursuant to
transition agreements executed pursuant to the divestiture, the Executive may
obtain comparable products and services from one or more competitors of the
Company after the termination of any agreements with the Company relating to
said products and services, provided that the agreements have not been
terminated by the Company as a result of a breach of said agreements by the
Divested Entity. However, if during the term of any transition agreements with
the Company, the Executive is unable to obtain such products and services from
the Company because the Company is unwilling pursuant to the transition
agreements to provide such products and services, the Executive may procure
such products and services from sources other than the Company prior to
termination of the transition agreements.
(c) Non-Solicitation of Key Employees. At all times during his employment
and for two years following the termination of such employment for any reason,
whether with or without Cause, the Executive shall not directly or indirectly
solicit, entice, or encourage any Key Employee, as identified or described in
Exhibit A to this Agreement, to terminate his or her relationship with the
Company, and work for an organization as an employee, partner, or consultant or
10% or more shareholder with which the Executive is affiliated as a director,
employee, consultant, partner or 10% shareholder. Nothing contained in the
foregoing shall preclude the Executive during the Severance Period from hiring
any Key Employee as an employee, partner, or consultant or 10% or more
shareholder not earlier than 180 days after the termination of the Key
Employee's employment with the Company, provided such person terminated his or
her employment without any solicitation, enticement or encouragement directly or
indirectly from the Executive to terminate any employment with the Company and
without violation by the Executive of his obligations contained in the preceding
sentence. Notwithstanding the above, the Executive may solicit Key Employees
with the Company's written consent.
(d) Non-Solicitation of Customers. At all times during his employment and
for two years following the termination of such employment for any reason,
whether with or without Cause, the Executive will not directly or indirectly
solicit, divert or take away, or attempt to divert or to take away, the business
or patronage of any of the customers or accounts, or prospective customers or
accounts, of the Company. The definition of "customers" or "prospective
customers" herein will be modified at the sole discretion of the Company in the
event of any decision by the Company to exit a business by divestiture or
otherwise or to enter or expand into a new area of business between the
effective date
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of this Agreement and the Resignation Date, and shall be subject to any
transition agreements executed by the Company pursuant to the divestiture or
other transaction.
(e) Non-Disparagement. At all times during his employment with the
Company and thereafter, the Executive and, to the extent set forth in the next
sentence, the Company agree that each party will not knowingly make any
statement, written or oral, which disparages or is derogatory to the other party
in any communications with any customer or client or in any communications made
in a public manner. The Company's obligations under the preceding sentence
shall be limited to communications by its senior corporate executives.
(f) Cooperation. At any time on or after the Resignation Date, the
Executive agrees to cooperate fully with the Company and to provide such
information as the Company may reasonably request with respect to any Company-
related transaction, investment or other matter in which the Executive was
involved in any way while employed by the Company.
SECTION 8 Remedies
(a) The Executive acknowledges and agrees that the Company's remedies at
law for a breach or threatened breach of any of the provisions of Section 7
hereof would be inadequate and, in recognition of this fact, the Executive
agrees that, in the event of such a breach or threatened breach, in addition to
any remedies at law, the Company, without posting any bond, shall be entitled to
seek equitable relief in the form of specific performance, temporary
restraining order, temporary or permanent injunction or any other equitable
remedy which may then be available.
(b) Notwithstanding any provision of this Agreement to the contrary, from
and after any breach by the Executive of the provisions of Section 7 hereof, the
Company shall provide written notice to the Executive of such breach. If the
Executive fails to correct his violation within 90 days, the Company shall cease
to have any obligations to make payments or provide benefits to the Executive
under this Agreement. The Executive also agrees to return to the Company the
full value of any compensation and benefits provided to the Executive while he
was in violation of any of the provisions in Section 7 hereof, and to compensate
the Company for any actual economic damages suffered by the Company as a result
of a breach of any of the provisions of Section 7 hereof.
(c) It is expressly understood and agreed that the Executive and the
Company consider the restrictions contained in Section 7 hereof to be
reasonable. If a final judicial determination is made by a court of competent
jurisdiction that the time or territory or any other restriction contained in
this Agreement is an unenforceable restriction against the Executive, the
provisions of this Agreement shall not be rendered void but shall be deemed
amended to apply as to such maximum time and territory and to such maximum
extent as such court may judicially determine or indicate to be enforceable.
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Alternatively, if the final decision of any tribunal of competent jurisdiction
determines that a particular restriction contained herein is unenforceable, and
such restriction cannot be amended so as to make it enforceable, such finding
shall not affect the enforceability of any of the other restrictions contained
herein.
SECTION 9 Release and Waiver of Claims
(a) It is understood and agreed that as a condition to the Executive's
becoming entitled to any payments or benefits under this Agreement, the
Executive agrees to execute on his Resignation Date a written release and waiver
of claims in which he releases and discharges the Company from
(i) any and all charges, claims and causes of action arising, directly or
indirectly, out of his employment or the termination or his employment with the
Company, including but not limited to any claims involving tortious course of
conduct, breach of contract, defamation and public policy, claims for wages and
benefits, monetary and equitable release, punitive or compensatory damages,
outrage, outrageous conduct, fraud, promissory estoppel, negligence, intentional
or negligent infliction of mental or emotional distress, breach of promise, and
breach of the covenant of good faith and fair dealing; and
(ii) any and all charges, claims and causes or action he may have under
Title VII of the Civil Rights Act of 1964, as amended; the Age Discrimination in
Employment Act of 1967, as amended; the National Labor Relations Act, as
amended; the Civil Rights Act of 1991, as amended; 42 U. S. C. 1981, as amended;
the Americans with Disability Act of 1990; the Family and Medical Leave Act; the
Connecticut Fair Employment Practices Act, as amended; the Employee Retirement
Income Security Act of 1974, as amended; and various state and local human
rights laws of contract and tort, otherwise relating to his employment at the
Company
(b) The release and waiver referred to herein shall not apply to the
Executive's rights under the Company's benefit plans and Workers' Compensation
laws, rights under the provisions of this Agreement and the rights more fully
described in the attached letter agreement between the Company and the Executive
setting forth the mutual understanding of how the Company will administer
certain employee benefit and incentive plans and programs as to the Executive.
The release and waiver shall be effective with respect to the Company, its
subsidiaries, affiliates and divisions and their respective successors and
assigns ("Affiliates"), the directors, officers, representatives, shareholders,
agents, employees of the Company and the Affiliates, and their respective heirs
and personal representatives. It is agreed and understood that following the
Executive's termination of employment pursuant to Section 3 hereof, the payments
and benefits described under this Agreement shall not be required to be paid
until the Executive has delivered an executed release and waiver of claims to
the Company as set forth above.
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(c) It is understood and agreed that the Company shall provide to the
Executive on the Resignation Date a written release and waiver of claims in
which the Company releases and discharges the Executive from any and all
charges, claims and causes of action arising, directly or indirectly, out of the
Executive's employment with the Company prior to the Resignation Date; provided,
however, that the Company shall not release the Executive or waive any charges,
claims and causes of action based on events and activities of the Executive
arising from or in consequence of events or activities of the Executive which
would constitute Cause, as defined in Section 2 hereof. The Executive shall
represent and warrant to the Company that he knows of no such charges, claims or
causes of action as of the Resignation Date.
SECTION 10 Death of Executive after Entitlement to Payment
If the Executive dies at any time after having become entitled to payments
under Sections 3 and 4 of this Agreement and prior to having received all
amounts owed thereunder, any of the amounts otherwise payable under Sections 3
and 4 of this Agreement remaining unpaid at his death shall be paid to the
Executive's designated beneficiary or, if none is designated, to his estate.
SECTION 11 Miscellaneous
(a) Governing Law/Jurisdiction. This Agreement shall be governed by and
construed in accordance with the laws of Connecticut, without reference to
principles of conflict of laws.
(b) Arbitration. With respect to any dispute between the parties hereto
arising from or relating to the terms of this Agreement, the parties agree to
submit such dispute to arbitration in Connecticut under the auspices of and the
employment rules of the American Arbitration Association. The determination of
the arbitrator(s) shall be conclusive and binding on the Company and the
Executive and judgment upon the award rendered by the arbitrator(s) may be
entered in any court having jurisdiction thereof. The Company and the Executive
will each pay one-half of the costs and expenses of such arbitration, and each
party will separately pay for their counsel fees and expenses.
(c) Entire Agreement/Amendments. This Agreement contains the entire
understanding of the parties with respect to the severance payable to the
Executive in the event of a termination of employment during the term of this
Agreement. There are no restrictions, agreements, promises, warranties,
covenants or undertakings between the parties with respect to the subject matter
herein other than those expressly set forth herein, except rights more fully
described in the attached letter agreement between the Company and the Executive
setting forth the mutual understanding of how the Company will administer
certain employee benefit and incentive plans and programs as to the Executive.
This Agreement may not be altered, modified, or amended except by written
instrument signed by the parties hereto.
(d) No Waiver. The failure of a party to insist upon strict adherence to
any term of this Agreement on any occasion shall not be considered a waiver of
such party's rights
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or deprive such party of the right thereafter to insist upon strict adherence to
that term or any other term of this Agreement.
(e) Severability. In the event that any one or more of the provisions of
this Agreement shall be or become invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
of this Agreement shall not be affected thereby. It is understood that this
Agreement does not constitute an admission by the Company of violation of any
statute, law or regulation.
(f) Assignment. This Agreement shall not be assignable by the Executive
and shall be assignable by the Company only with the consent of the Executive,
which shall not be unreasonably withheld; provided, however, that the Company
shall require any successor to substantially all of the stock, assets or
business of the Company to assume this Agreement.
(g) Successors; Binding Agreement. This Agreement shall inure to the
benefit of and be binding upon the personal or legal representatives, executors,
administrators, successors, including successors to all or substantially all of
the stock, business and/or assets of the Company, heirs, distributees, devisees
and legatees of the parties.
(h) Notice. For the purpose of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
registered mail, return receipt requested, postage prepaid, addressed to the
respective addresses set forth on the execution page of this Agreement, provided
that all notices to the Company shall be directed to the attention of the Board
with a copy to the Secretary of the Company, or to such other address as either
party may have furnished to the other in writing in accordance herewith, except
that notice of change of address shall be effective only upon receipt.
(i) Withholding Taxes. The Company may withhold from any amounts payable
under this Agreement such U.S. federal, state and local taxes as may be required
to be withheld pursuant to any applicable law or regulation.
(j) Counterparts. This Agreement may be signed in counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
(k) Integration of Other Plans and Programs. The Executive shall continue
to have such rights and privileges under the Company's executive and employee
plans and programs as the terms and conditions of such plans and programs may
provide taking into account the commitments of the Company under this Agreement;
provided, however, that any severance pay benefit to which the Executive may be
entitled from the Company other than any severance benefits under the Company's
Senior Executive Severance Policy, as set forth in Section 3 hereof, shall be
determined solely under this Agreement.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the day and year first above written.
PITNEY BOWES INC.
By:_________________________________
Michael J. Critelli
Chief Executive Officer
World Headquarters
One Elmcroft Road
Stamford, CT 06926-0700
By:_________________________________
Marc C. Breslawsky
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EXHIBIT A
(1) All LTI and PBC level employees of Pitney Bowes Inc. and related companies
(2) All sales and service management level employees of each business unit of
Pitney Bowes Inc.
(3) All salespersons of Pitney Bowes Inc. and related companies who are in the
top 25% of all salespersons as measured by gross sales revenue and who are
high performers as measured by participation in Sales Leadership
Conferences, as determined by the Company, and any other salesperson as
identified in writing to the Executive
A written list of all individuals referred to in item (3) above shall be
provided to the Executive within 30 days of the effective date of this Agreement
and shall be supplemented as of the Executive's termination of employment with
the Company.
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