EXHIBIT 10.27
SEVERANCE AGREEMENT
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THIS AGREEMENT, dated August, 2003, is made by and between Infinity
Property and Casualty Corporation, an Ohio corporation (the "Company") and Xxxx
X. Xxxxx (the "Executive").
WHEREAS the Company considers it essential to the best interests of its
securityholders to xxxxxx the continued employment of the Executive in his
capacity as Executive Vice President.
WHEREAS in furtherance of this objective, the Company has determined
that it is appropriate to enter into this Agreement, which in intended to
provide the Executive with financial benefits in the event his employment is
terminated without Cause or he resigns for Good Reason in either case subsequent
to a Change in Control (as such terms are defined herein).
NOW, THEREFORE in consideration of the promises and the mutual covenants
herein contained, the Company and the Executive hereby agree as follows:
1. Defined Terms. The definitions of capitalized terms used in this
Agreement are provided in the last Section hereof.
2. Term of Agreement. The Term of this Agreement shall commence on the
date hereof and shall continue in effect through February 18, 2005.
3. Company's Covenants Summarized.
3.1 In order to induce the Executive to remain in the employ of
the Company and in consideration of the Executive's covenants set forth
in Section 4 hereof, the Company agrees, under the conditions described
herein, to pay the Executive the Severance Payments and the other
payments and benefits described herein.
3.2 This Agreement shall not be construed as creating an express
or implied contract of employment and, except as otherwise agreed in
writing between the Executive and the Company, the Executive shall not
have any right to be retained in the employ of the Company.
3.3 If the Executive materially breaches any of the terms of
this Agreement, the Company shall immediately be entitled, in its sole
discretion, to terminate its obligations to the Executive under this
Agreement.
3.4 If Executive is now, or at any time during the term of this
Agreement becomes, employed by a subsidiary of the Company (including
an indirect subsidiary of the Company), (a) all references herein to
his employment, or termination of employment, by or with the Company
shall, except where the context otherwise indicates, be deemed to be
references to his employment, or termination of employment, by or with
such subsidiary and (b) the Company shall have the right to cause such
subsidiary to pay amounts and provide other benefits due to the
Executive under this Agreement on the Company's behalf, provided that
nothing in this clause (b) shall relieve the Company of its obligation
to cause all such amounts to be paid and such benefits to be provided
to the Executive when due. The transfer of the Executive to the employ
of the Company or any subsidiary of the Company shall not constitute a
termination of his employment for purposes of this Agreement.
4. The Executive's Covenants.
4.1 Unless and until required to be disclosed by the Company
pursuant to a filing made under the Federal securities laws, or as
otherwise required by law or to enforce the Executive's rights under
this Agreement, the Executive shall keep the terms of this Agreement
confidential and not discuss them with any person other than the
Executive's immediate family members or personal professional advisors.
4.2 Upon the occurrence of the events set forth in Section 6.1
and as a condition to the Executive receiving the Severance Payments
hereunder provided, the Executive shall execute a release of claims
against the Company substantially in the form set forth in Exhibit A
hereto.
4.3 Following termination of his employment with the Company,
the Executive shall not use or disclose confidential information with
respect to the Company or any of its subsidiaries to any person not
authorized by the Company to receive such information, and the Executive
shall assist the Company, in such manner as may reasonably be requested
by the Company, in any litigation in which the Company or any of its
subsidiaries is or may become involved. The Executive's obligations
under this Section 4.3 shall not be limited by the Term of this
Agreement and shall continue in full force following the expiration of
this Agreement.
5. Compensation Other Than Severance Payments.
5.1 If the Executive's employment shall be terminated for any
reason during the Term, the Company shall pay the Executive's full
salary to the Executive through the Date of Termination at the rate in
effect immediately prior to the Date of Termination, together with all
compensation and benefits (including without limitation, pay for accrued
but unused vacation and a pro-rata target annual bonus determined in
accordance with Section 6.1(D) payable to the Executive through the Date
of Termination under the terms of the Company's compensation and benefit
plans, programs or arrangements as in effect immediately prior to the
Date of Termination.
5.2 If the Executive's employment shall be terminated for any
reason during the Term, the Company shall provide to the Executive the
Executive's normal post-termination compensation and benefits as such
payments and benefits become due; provided, however, that the severance
payments and benefits payable under this Agreement are in lieu of any
other severance payments or benefits that the Executive would otherwise
be entitled to, except as required under law. Such post-termination
compensation and benefits shall be determined under, and paid in
accordance with, the Company's retirement, insurance and other
compensation or benefit plans, programs, policies and arrangements as in
effect immediately prior to the Date of Termination.
6. Severance Payments.
6.1 If the Executive's employment is terminated (other than (A)
by the Company for Cause, (B) by reason of death or Disability, or (C)
by the Executive without Good Reason) subsequent to a Change in Control,
then the Company shall pay the Executive the amounts, and provide the
Executive the benefits, hereinafter described in this Section 6.1
("Severance Payments"), in addition to any payments and benefits to
which the Executive is entitled under Section 5 hereof.
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(A) In lieu of any further salary payments to the
Executive for periods subsequent to the Date of Termination and
in lieu of any severance benefit otherwise payable by the
Company or any of its subsidiaries to the Executive, the Company
shall pay to the Executive a lump sum severance payment, in
cash, equal to the sum of (i) the Executive's base salary as in
effect immediately prior to the Date of Termination (the "Base
Salary"), plus (ii) the target annual bonus established for the
Executive under the bonus plan maintained by the Company in
respect of the fiscal year in which occurs the Date of
Termination. If, notwithstanding the foregoing provision that
the lump sum severance is to be in lieu of any severance benefit
otherwise payable, the Company or any of its subsidiaries is
required by applicable law to pay such a benefit, the Company's
obligation to pay such lump sum severance hereunder shall be
offset and reduced by the amount of the benefit required to be
paid by applicable law.
(B) For the twelve (12) month period immediately
following the Date of Termination, the Company shall arrange to
provide the Executive and his dependents with life, disability,
accident and health insurance benefits substantially similar to
those provided to the Executive and his dependents immediately
prior to the Date of Termination at no greater cost to the
Executive than the cost to the Executive immediately prior to
such date. Benefits otherwise receivable by the Executive
pursuant to this Section 6.1(B) shall be reduced to the extent
benefits of the same type are received by or made available to
the Executive at no greater cost by a subsequent employer during
the applicable period set forth above (and any such benefits
received by or made available to the Executive shall be reported
to the Company by the Executive).
(C) Notwithstanding any provision of any incentive,
stock, retirement, savings or other plan to the contrary, as of
the Date of Termination, (i) the Executive shall be fully vested
in (1) all then outstanding options to acquire stock of the
Company (or if such options have been assumed by, or replaced
with options for shares of, a parent, surviving or acquiring
company, such assumed or replacement options), and all then
outstanding restricted shares of stock of the Company (or the
stock of any parent, surviving or acquiring company into which
such restricted shares have been converted or for which they
have been exchanged) held by the Executive, (2) any accrued
basic match and incremental match employer contributions under
the Company's Retirement and Savings Plan (but not deemed
participation match contributions thereunder), and (3) to the
extent permissible under the Code and the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), all amounts
credited to his account under the Company's Retirement and
Savings Plan which are attributable to employer contributions;
and (ii) all stock options referred to in clause (i) above shall
remain exercisable until the earlier of (x) the first
anniversary of the Date of Termination or (y) the otherwise
applicable expiration date of such option.
(D) The Company shall pay to the Executive a lump sum
amount, in cash, equal to the Executive's target annual bonus
under the bonus plan maintained by the Company in respect of the
fiscal year in which occurs the Date of Termination multiplied
by a fraction, the numerator of which is the number of days in
such fiscal year through and including the Date of Termination,
and the denominator of which is 365.
6.2 The payments provided in subsection (A) and (D) (and to the
extent applicable, subsection (C)) of Section 6.1 hereof shall be made
not later than the thirtieth (30th) day following the Date of
Termination. At the time that payments are made under this Agreement,
the Company shall provide the Executive with a written statement setting
forth the manner in which
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such payments were calculated and the basis for such calculations
including, without limitation, any opinions or other advice the Company
has received from the Auditor or other advisors or consultants (and any
such opinions or advice which are in writing shall be attached to the
statement.)
7. Termination Procedures and Compensation During Dispute.
7.1 Notice of Termination. Any purported termination of the
Executive's employment hereunder (other than reason of death) shall be
communicated by written Notice of Termination from one party hereto to
the other party hereto in accordance with Section 10 hereof. For
purposes of this Agreement, a "Notice of Termination" shall mean a
notice which shall indicate the specific termination provision in this
Agreement relied upon and shall set forth in reasonable detail the facts
and circumstances claimed to provide a basis for termination of the
Executive's employment under the provision so indicated. Notice of
Termination due to a Good Reason must be provided by the Executive to
the Company within six months of the Executive becoming aware that the
basis for such Good Reason exists.
7.2 Date of Termination. "Date of Termination," with respect to
any purported termination of the Executive's employment hereunder, shall
mean the date specified in the Notice of Termination (which, except in
the case of a termination for Cause, shall not be less than fifteen (15)
days nor more than thirty (30) days, respectively, from the date of such
Notice of Termination is given.)
7.3 Dispute Concerning Termination. If, prior to the Date of
Termination (as determined without regard to this Section 7.3), the
party receiving such Notice of Termination notifies the other party that
a dispute exists concerning the termination, the Date of Termination
shall be extended until the earlier of (i) the date on which the Term
ends or (ii) the date on which the dispute is finally resolved, either
by mutual written agreement of the parties or by a final judgment, order
or decree of an arbitrator (which is not appealable or with respect to
which the time for appeal therefrom has expires and no appeal has been
perfected); provided,, however, that the Date of Termination shall be
extended by a notice of dispute given by the Executive only if such
notice is given in good faith and the Executive pursues the resolution
of such dispute with reasonable diligence.
7.4 Compensation During Dispute. If a purported termination
occurs during the Term and the Date of Termination is extended in
accordance with Section 7.3 hereof, the Company shall continue to pay
the Executive the full compensation in effect when the notice giving
rise to the dispute was given (including, but not limited to, salary)
and continue the Executive as a participant in all compensation, benefit
and insurance plans in which the Executive was participating when the
notice giving rise to the dispute was given, until the Date of
Termination, as determined in accordance with Section 7.3 hereof.
Payments of compensation otherwise receivable pursuant to this Section
7.4 shall be reduced to the extent cash compensation is received by the
Executive from a subsequent employer for services rendered during the
period described in this Section 7.4 (and any such compensation received
by a subsequent employer shall be reported by the Executive to the
Company), and benefits otherwise receivable pursuant to this Section 7.4
shall also be reduced in the manner provided in the penultimate sentence
of Section 6.1(B) hereof. Amounts paid under this Section 7.4 are in
addition to all other amounts due under this Agreement (other than those
due under Section 5.1 hereof) and shall not be offset against or reduce
any other amounts due under this Agreement.
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7.5 No Mitigation. The Company agrees that, if the Executive's
employment with the Company terminates during the Term, the Executive is
not required to seek other employment or to attempt in any way to reduce
any amounts payable to the Executive by the Company pursuant to Section
6 hereof or Section 7.4 hereof. Further, the amount of any payment or
benefit provided for in this Agreement (other than as expressly provided
in Section 6.1(A), 6.1(B) or 7.4 hereof) shall not be reduced by any
compensation earned by the Executive as the result of employment by
another employer, by retirement benefits, by offset against any amount
claimed to be owed by the Executive to the Company, or otherwise.
8. Successors; Binding Agreement.
8.1 In addition to any obligations imposed by law upon any
successor to the Company, the Company will require any successor
(whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of
the Company to expressly assume and agree to perform this Agreement in
the same manner and to the same extent that the Company would be
required to perform it if no such succession had taken place. Failure of
the Company to obtain such assumption and agreement within 30 days after
a written demand therefore is delivered to the Board by the Executive
shall be a breach of this Agreement and shall entitle the Executive to
compensation from the Company in the same amount and on the same terms
as the Executive would be entitled to hereunder if the Executive were to
terminate the Executive's employment for Good Reason, except that, for
purposes of implementing the foregoing, the date on which any such
succession becomes effective shall be deemed to the Date of Termination.
8.2 This Agreement shall inure to the benefit of and be
enforceable by the Executive's personal or legal representatives,
executors, administrators, successors, heirs, distributes, devisees and
legatees. If the Executive shall die while any amount would still be
payable to the Executive hereunder (other than amounts which, by their
terms, terminate upon the death of the Executive) if the Executive had
continued to live, all such amounts, unless otherwise provided herein,
shall be paid in accordance with the terms of this Agreement to the
executors, personal representatives or administrators of the Executive's
estate.
9. Notices. 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 if (a) mailed by registered mail, return receipt
requested, postage prepaid, (b) transmitted by hand delivery, (c) sent by
next-day or overnight delivery through Federal Express, UPS or another similar
nationally recognized delivery service, (d) sent by facsimile or telecopy
(provided a copy is contemporaneously mailed by first class mail), addressed in
each case if to the Executive, to the address inserted below to the Executive's
signature on the final page hereof and, if to the Company, to the address set
forth below, 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 actual receipt:
To the Company:
Infinity Property and Casualty Corporation
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: General Counsel
All such notices shall be deemed to have been received (w) if by
certified or registered mail, on the seventh business day after the mailing
thereof, (x) if by personal delivery, on the business day after
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such delivery, (y) if by next-day or overnight delivery, on the business day
after such delivery and (z) if by facsimile or telecopy, on the business day
following the sending of such facsimile or telecopy.
11. Miscellaneous. No provision of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing and signed by the Executive and such officer as may be specifically
designated by the Board. No waiver by either party hereto at any time of any
breach by the other party hereto of, or of any lack of compliance with, any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time. This Agreement supersedes any
other agreements or representations, oral or otherwise, express or implied,
with respect to the subject matter hereof which have been made by either party;
provided, however, that this Agreement shall supersede any agreement setting
forth the terms and conditions of the Executive's employment with the Company
only in the event that the Executive's employment with the Company is
terminated prior to a Change in Control, by the Company other than for Cause or
by the Executive for Good Reason. The validity, interpretation, construction
and performance of this Agreement shall be governed by the laws of the State of
Ohio. All references to sections of the Exchange Act or the Code shall be
deemed also to refer to any successor provisions to such sections. Any payments
provided for hereunder shall be paid net of any applicable withholding required
under federal, state or local law and any additional withholding to which the
Executive has agreed. The obligations of the Company and the Executive under
this Agreement which by their nature may require either partial or total
performance after the expiration of the Term (including, without limitation,
those under Sections 6 and 7 hereof) shall survive such expiration. All
pronouns shall be deemed to refer to the masculine, feminine, neuter, singular
or plural as the identity of the person or persons referred to may require.
12. Validity. The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect.
13. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
14. Settlement of Disputes; Arbitration.
14.1 All claims by the Executive for benefits under this
Agreement shall be directed to and determined by the Compensation
Committee of the Board of Directors of the Company and shall be in
writing. Any denial by the Compensation Committee of a claim for
benefits under this Agreement shall be delivered to the Executive in
writing and shall set forth the specific reasons for the denial and the
specific provisions of this Agreement relied upon. The Compensation
Committee shall afford a reasonable opportunity to the Executive for a
review of the decision denying a claim and shall further allow the
Executive to appeal to the Board a decision of the Compensation
Committee within sixty (60) days after notification by the Compensation
Committee that the Executive's claim has been denied.
14.2 Any further dispute or controversy arising under or in
connection with this Agreement shall be settled exclusively by
arbitration in Cincinnati, Ohio, in accordance with the rules of the
American Arbitration Association then in effect. Judgment may be entered
on the arbitrator's award in any court having jurisdiction.
Notwithstanding any provision of this Agreement to the contrary, the
Executive shall be entitled to seek specific performance of the
Executive's right to be paid until the Date of Termination during the
pendency of any dispute or controversy arising under or in connection
with this Agreement.
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15. Definitions. For purposes of this Agreement, the following terms
shall have the meanings indicated below:
(A) "Affiliate" shall have the meaning set forth in Rule 12b-2
promulgated under Section 12 of the Exchange Act.
(B) "Beneficial Owner" shall have the meaning set forth in Rule
13d-3 under the Exchange Act.
(C) "Board" shall mean the Board of Directors of the Company.
(D) "Cause" for termination by the Company of the Executive's
employment shall mean (i) the Executive's failure or refusal to
materially perform his duties; (ii) the Executive's failure or
refusal to follow material lawful directions of the Board or
Chief Executive Officer or any other act of material
insubordination on the part of Executive; (iii) the engaging by
the Executive in misconduct, including but not limited to any
type of sexual harassment which is materially and demonstrably
injurious to the Company or any of its divisions, subsidiaries
or affiliates, monetarily or otherwise; (iv) any conviction of,
or plea of guilty or nolo contendere to, the Executive with
respect to a felony (other than a traffic violation); or (v) the
commission (or attempted commission) of any act of fraud or
dishonesty by the Executive which is materially detrimental to
the business or reputation of the Company or any of its
divisions, subsidiaries or affiliates.
(E) A "Change in Control" shall be deemed to have occurred if:
(1) After the date hereof, any person or group of
persons becomes both a Beneficial Owner directly or
indirectly of securities (a) representing 40% or more of
the total number of votes that may be cast for the
election of directors of the Company, whether by open
market purchases, by tender offer or exchange offer,
through issuance of new shares by the Company or by
merger or consolidation and (b) such person or group of
persons is the Beneficial Owner directly or indirectly
of a greater percentage of such securities than are
Beneficially Owned by American Financial Group, Inc.
(2) Within one (1) year after a merger, consolidation,
liquidation or sale of assets involving the Company, or
a contested election of a Company director or directors,
or any combination of the foregoing, the individuals who
were directors of the Company immediately prior to the
merger, consolidation, liquidation, sale of assets or
contested election shall cease to constitute a majority
of the Board; or
(3) Within one (1) year after a tender offer or exchange
offer for voting securities of the Company, the
individuals who were directors of the Company
immediately prior to the commencement of the tender
offer or exchange offer shall cease to constitute a
majority of the Board.
(F) "Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time.
(G) "Company" shall mean Infinity Property and Casualty
Corporation, and, except in determining under Section 15(G)
hereof whether or not any Change in Control of the
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Company has occurred, shall include any successor to its
business and/or assets which assumes and agrees to perform this
Agreement by operation of law, or otherwise.
(H) "Date of Termination" shall have the meaning set forth in
Section 7.2 hereof.
(I) "Disability" shall be deemed the reason for the termination
by the Company of the Executive's employment, if, as a result of
the Executive's incapacity due to physical or mental illness,
the Executive shall have been absent from the full-time
performance of the Executive's duties with the Company for a
period of six (6) consecutive months, the Company shall have
given the Executive a Notice of Termination for Disability, and,
within thirty (30) days after such Notice of Termination is
given, the Executive shall not have returned to the full-time
performance of the Executive's duties. If there should be a
dispute between the parties as to the Executive's physical or
mental disability, such dispute shall be settled by the opinion
of an impartial reputable physician agreed upon for such purpose
by the parties or their representatives. The certificate of such
physician as to the matter in dispute shall be final and binding
on the parties.
(J) "Executive" shall mean the individual named in the first
paragraph of this Agreement.
(K) "Good Reason" for termination by the Executive of the
Executive's employment shall mean the occurrence (without the
Executive's express written consent), of any one of the
following acts by the Company, or failures by the Company to
act:
(1) the assignment to the Executive of any duties
inconsistent with the Executive's status as an executive
officer of the Company (including by reason of the
Company becoming a subsidiary of another company) or a
substantial adverse alteration in the nature or status
of the Executive's title or responsibilities from those
in effect as of the date hereof;
(2) a material reduction by the Company in the
Executive's annual base salary or target annual bonus
opportunity as in effect as of the date hereof as the
same may thereafter be increased from time to time, or a
failure to provide the Executive with participation in
any stock option or other equity-based plan in which
other employees of the Company (and any parent,
surviving or acquiring company) participate on a basis
that does not unreasonably discriminate against the
Executive as compared to such other employees who have
similar levels of responsibility and compensation; or
(3) any material breach by the Company of its
obligations under this Agreement.
The Executive's right to terminate the Executive's
employment for Good Reason shall not be affected by the
Executive's incapacity due to physical or mental illness. Except
as provided above, the Executive's continued employment shall
not constitute consent to, or a waiver of rights with respect
to, any act or failure to act constituting Good Reason
hereunder. The Executive may resign for Good Reason only if such
Executive provides Notice of Termination to the Company within
six (6) months of the Executive becoming aware that the basis
for such Good Reason exists.
(L) "Notice of Termination" shall have the meaning set forth in
Section 7.1 hereof.
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(M) "Person" shall have the meaning given in Section 3(a)(9) of
the Exchange Act, as modified and used in Sections 13(d) and
14(d) thereof, except that such term shall not include (i) the
Company or any of its subsidiaries, (ii) a trustee or other
fiduciary holding securities under an employee benefit plan of
the Company or any of its affiliates, (iii) an underwriter
temporarily holding securities pursuant to any offering of such
securities, or (iv) a corporation owned, directly or indirectly,
by the stockholders of the Company in substantially the same
proportions as their ownership of stock of the Company.
(N) "Severance Payments" shall have the meaning set forth in
Section 6.1 hereof.
(O) "Term" shall mean the period of time described in Section 2
hereof (including any extension described therein).
IN WITNESS WHEREOF the parties have executed this Agreement as of the
date first above written.
INFINITY PROPERTY AND CASUALTY
CORPORATION
By: s/Xxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President
EXECUTIVE: s/Xxxx X. Xxxxx
----------------------------
Xxxx X. Xxxxx
Address:
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EXHIBIT A
GENERAL RELEASE AND WAIVER
In exchange for the payments and benefits identified in the Severance
Agreement (the "Agreement") between Infinity Property and Casualty Corporation
(the "Company") and Xxxx X. Xxxxx ("Employee"), which Employee acknowledges are
in addition to anything of value to which he is already entitled, Employee
hereby releases, settles and forever discharges the Company, its parent,
subsidiaries, affiliates, successors and assigns, together with their past and
present directors, officers, employees, agents, insurers, attorneys, and any
other party associated with the Company, to the fullest extent permitted by
applicable law, from any and all claims, causes of action, rights, demands,
debts, liens, liabilities or damages of whatever nature, whether known or
unknown, suspected or unsuspected, which Employee ever had or may now have
against the Company or any of the foregoing. This includes, without limitation,
any claims, liens, demands, or liabilities arising out of or in any way
connected with Employee's employment with the Company and the termination of
that employment pursuant to any federal, state or local laws regulating
employment such as the Civil Rights Act of 1964, the Civil Rights Act of 1991,
the Americans With Disabilities Act of 1990, the Family and Medical Leave Act of
1993, the Civil Rights Act known as 42 USC 1981, the Employee Retirement Income
Security Act of 1974 ("ERISA"), the Worker Adjustment and Retraining
Notification Act ("WARN"), the Fair Labor Standards Act of 1938, as well as all
other federal, state and local laws, except that this release shall not affect
any rights of Employee for benefits payable under any Social Security, Worker's
Compensation or Unemployment laws or rights arising out of any breach of the
Agreement by the Company.
Employee further expressly and specifically waives any and all rights or
claims under the Age Discrimination in Employment Act of 1967 and the Older
Workers Benefit Protection Act (collectively the "Act"). Employee acknowledges
and agrees that this waiver of any right or claim under the Act (the "Waiver")
is knowing and voluntary, and specifically agrees as follows: (a) that the
Agreement and this Waiver are written in a manner which he understands; (b) that
this Waiver specifically relates to rights or claims under the Act; (c) that he
does not waive any rights or claims under the Act that may arise after the date
of execution of this Waiver, (d) that he waives rights or claims under the Act
in exchange for consideration in addition to anything of value to which he is
already entitled; and (e) that he is advised in writing to consult with an
attorney prior to executing this General Release and Waiver.
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