Separation Agreement - American Greetings Corp. and Dale A. Cable
SEPARATION AGREEMENT
This Separation Agreement ("Agreement") is entered into between Dale A.
Cable ("EMPLOYEE") and American Greetings Corporation, an Ohio corporation ("AG"
or "Company"), on the date set forth at the signature lines below, arising out
of the employment relationship between EMPLOYEE and AG. This Agreement will not
become effective and irrevocably binding until seven (7) days after it is signed
by EMPLOYEE. EMPLOYEE may revoke this Agreement at any time prior to the
expiration of such seven (7) days. A revocation must be in writing and it must
be received by the Company by the close of business on the seventh day.
In consideration of the mutual covenants and agreements hereinafter set
forth, and intending to be legally bound, the parties agree as follows:
1. EMPLOYEE and the Company hereby acknowledge Employee's voluntary
separation from employment with Ethe Company effective February 28, 2003
("Separation Date"), and Employee agrees to work as set forth in Paragraph 2.c.
below through the close of business that day.
2. Upon the signing of a waiver prepared by the Company and in the form
of Paragraph 7 of this Agreement, and on the condition that EMPLOYEE has not
voluntarily resigned prior to February 28, 2003, EMPLOYEE will receive the
following benefits from the Company;
a. Commencing on the Separation Date, separation pay of
an amount equal to 10 months base salary, based on
EMPLOYEE'S current annual base salary, payable in
monthly installments, less applicable deductions. Any
payments due before the effective date of this
Agreement shall be payable within fourteen (14) days
after the effective date. Company reserves the right
to pay any portion of this separation pay in an
undiscounted lump sum, at Company's discretion;
b. EMPLOYEE will continue to participate in the Key
Management Incentive Plan for Fiscal Year 2003 as
Vice President, Treasurer in the Enterprise
Management business unit with his individual
performance component ranked at not less than Tier 3
(which will result in the individual performance
component being not less than 100%);
c. EMPLOYEE will be an active employee with the Company
through February 28, 2003; EMPLOYEE agrees to
continue working in his current role full time up
until a date mutually agreed upon by Employee and
Company, but no later than the Separation Date;
thereafter, EMPLOYEE agrees to make himself available
to the Company on an as needed basis up until the
Separation Date.
d. For the purposes of vesting of stock options
previously granted to EMPLOYEE by Company, and for
the purposes of exercising any such stock options,
December 31, 2003 shall be considered to be
EMPLOYEE's separation date.
e. EMPLOYEE will have continued use of the AG company
car for 30 days after the Separation Date, at which
time EMPLOYEE will return the car to AG unless
EMPLOYEE exercises the option to purchase the car at
a $500 discount below the fair market value.
f. AG will pay for outplacement services for 6 months to
assist EMPLOYEE in seeking employment. AG will select
the service provider and will make direct payments to
the service provider. At the discretion of Employee,
outplacement services may begin upon the execution of
this Separation Agreement or any date thereafter, but
not later than June 1, 2003.
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g. After the. Separation Date, Company agrees to pay
Employee for any services rendered to the Company in
connection with any legal or similar proceedings
involving the Company where the Company requests
Employee's services. The rate for such services shall
be the competitive market rate for such consulting
services at the time, as mutually agreed by the
Employee and the Company. The Company also agrees to
pay the reasonable out-of-pocket expenses incurred by
Employee, including travel, lodging and meals, in
accordance with the Company's normal procedures for
reimbursing expenses incurred by employees. Employee
agrees to make himself available upon reasonable
notice and to cooperate with the Company in the
development and presentation of any prosecution or
defense of the proceedings.
3. If EMPLOYEE is re-employed by Company, in any capacity other than a
temporary or parttime assignment, prior to receipt of all the Separation
benefits provided in paragraph 2., EMPLOYEE will forfeit any unpaid Separation
benefits. In the event EMPLOYEE is paid Separation in a lump sum, s/he will pay
back to COMPANY that amount EMPLOYEE would not have received had Separation been
paid out in equal installments over time, pursuant to paragraph 2(a).
4. EMPLOYEE acknowledges that as of the close of business on the
Separation Date EMPLOYEE will cease to be an employee of AG and thereafter will
not be eligible for or receive any benefits of employment and that the only
benefits EMPLOYEE will receive from AG are those benefits described in paragraph
2 above; provided, however, that this Agreement does not waive any benefits or
Company contribution that EMPLOYEE may be eligible or become eligible to receive
as of the Separation Date under any Stock Option Plan, the Retirement Profit
Sharing and Savings Plan, the Supplemental Executive Retirement Plan, or
Restoration Benefits.
5. Notwithstanding any other provision of this Agreement, EMPLOYEE
acknowledges that the benefits EMPLOYEE will receive under paragraph 2 above are
greater than those benefits EMPLOYEE would have been entitled to receive upon
termination in the absence of this Agreement.
6. It is agreed by EMPLOYEE that this Agreement, the benefits,
including all benefits set forth in paragraph 2 above, and all other terms of
this Agreement, are each confidential information and shall not be disclosed or
revealed to any person other than EMPLOYEE's attorneys, accountants, tax
advisors, and immediate family members (who must be informed of and agree to be
bound by the terms of this paragraph), and any governmental taxing authority.
7. With respect to any and all events arising out of or related to the
employment relationship between EMPLOYEE and the Company occurring on or before
the Separation Date, EMPLOYEE hereby releases and forever discharges AG, and
each of its agents, officers, directors, employees, subsidiaries, divisions,
affiliates, successors and assigns, (collectively "AG Releasees") from any and
all claims and/or causes of action, known or unknown, arising (i) from or during
EMPLOYEE's employment with AG or (ii) as a result of the termination of that
employment; and EMPLOYEE hereby covenants and agrees that he will not assert any
such claims and/or causes of action against any AG Releasee, including but not
limited to, (i) claims and/or causes of action arising under the Age
Discrimination in Employment Act (29 U.S.C. Sec. 621 et seq.), (ii) claims
and/or causes of action arising under federal, state or local laws, including
but not limited to those prohibiting employment discrimination on the basis of
race, color, national origin, religion, sex, age, disability or otherwise; (iii)
claims and/or causes of action growing out of any legal restrictions on AG's
right to terminate its employees, including breach of contract, discharge in
violation of public policy, or promissory estoppel, or (iv)tort claims and/or
causes of action, including infliction of emotional distress, defamation, libel
or slander. This release does not apply to any of the following: (i) coverage of
the Employee as an insured under any insurance of the Company with respect to
third party claims; (ii) rights to defense or indemnification with respect to
third party claims relating to the acts of Employee within the scope of his
employment or as an officer; (iii) right to reimbursement for business expenses
incurred prior to the
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Separation Date; (iv) rights to unemployment compensation or workers'
compensation benefits; and (v) the payments and benefits specifically set forth
and agreed to by the Company under this Separation Agreement.
8. The Company hereby releases and forever discharges EMPLOYEE from any
and all causes of action, claims, demands, rights and/or actions, whether in law
or in equity, known or unknown, arising from EMPLOYEE's conduct within the scope
of his employment with the Company. The Company shall indemnify and save
harmless Employee from and against all loss, costs, expenses and damages
(including reasonable attorneys' fees) resulting from claims brought against
Employee that arise out of Employee's conduct within the scope of his
employment; provided, however, (i) that prompt written notice is given to the
Company of any claim or suit, (ii) that the Company shall have the option to
undertake and conduct the defense and/or settlement of any such claim or suit,
(iii) that Employee shall cooperate with the Company in the defense of any such
claim or suit, (iv) that Employee acts to mitigate any damages, (v) that no
settlement of any claim or suit may be made without the Company's prior written
consent, and (vi) that if the Company undertakes the defense of a claim brought
against Employee, the Company shall not be responsible for attorney's fees,
costs and expenses incurred by Employee after the Company undertakes the defense
of the claim.
9. EMPLOYEE represents and warrants that EMPLOYEE has no interest or
obligation that is inconsistent with or in conflict with this Agreement or that
would prevent, limit or impair Employee's performance of any part of this
Agreement.
10. EMPLOYEE agrees that in the event that EMPLOYEE breaches any of the
terms of this Agreement, EMPLOYEE will forfeit the benefits described in
paragraph 2, plus EMPLOYEE will pay any expenses or damages incurred by the AG
Releasees as a result of the breach, including reasonable attorneys' fees.
11. EMPLOYEE acknowledges that EMPLOYEE has an obligation of confidence
and nondisclosure with respect to any and all confidential information and trade
secrets that EMPLOYEE acquired during the course of employment with Company.
This obligation of confidence and non-disclosure extends to both Company
information and third-party information held by the Company in confidence, and
this obligation continues after the Separation Date. EMPLOYEE is prohibited from
using or disclosing such information.
12. EMPLOYEE acknowledges that EMPLOYEE is bound by the non-compete
provisions in the Employment Agreement entered into between EMPLOYEE and
Company, which provide:
[EMPLOYEE] shall not for a period of twelve months after leaving
the employ of the Corporation or a subsidiary, regardless of the
reason for such leaving, enter into the employment, directly or
indirectly or in a consulting or free lance capacity, of any
person, firm or corporation in the United States or Canada, which
at such date of leaving the employ of the Corporation or a
subsidiary shall be manufacturing or selling products that are
substantially similar in nature to the products being then
manufactured or sold by the Corporation or the subsidiary.
13. (a) This Agreement constitutes the entire understanding between
EMPLOYEE and the Company relating to the subject matter contained herein and
this Agreement supersedes any previous agreement(s) that may have been made in
connection with EMPLOYEE's employment with AG except insofar as such
agreement(s) concern EMPLOYEE's obligations with regard to competing with AG or
EMPLOYEE's obligations with regard to AG's trade secrets, proprietary or other
confidential information belonging to AG, which obligations are not modified,
amended or terminated by this Agreement and which continue after the Separation
Date. This Agreement may not be changed, modified, or altered with out the
express written consent of EMPLOYEE and an officer of AG.
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(b) AG's failure to insist upon strict adherence to any term
of this Agreement on any occasion shall not be considered a waiver of. or
deprive AG of its right thereafter to insist upon strict adherence to that term
or any other term of this Agreement. To be effective, any waiver must be in
writing and signed by an officer of AG.
(c) This Agreement shall be construed in accordance with the
laws of the State of Ohio. If any part or section of this Agreement is found to
be contrary to law or unenforceable, the remainder shall remain in force and
effect.
14. EMPLOYEE is hereby advised and encouraged to consult an attorney
prior to executing this Agreement. EMPLOYEE acknowledges that if EMPLOYEE has
executed this Agreement without consulting an attorney EMPLOYEE has done so
knowingly, voluntarily and contrary to the express advice herein.
15. EMPLOYEE acknowledges that EMPLOYEE has been given at least
twenty-one (21) days from the date EMPLOYEE first received this Agreement, which
date was on or before September 17, 2002, during which to consider this
Agreement. EMPLOYEE understands that the offer made to EMPLOYEE by this
Agreement remains open for at twenty-one (21) days, and that EMPLOYEE may accept
the offer at any time from September 17, 2002 through October 15, 2002. If
EMPLOYEE does not accept this Agreement on or before that date, the offer set
forth in this Agreement is automatically rescinded unless AG expressly notifies
EMPLOYEE in writing otherwise.
AMERICAN GREETINGS CORPORATION
By: /s/ Pamela L. Linton Date 10-23-02
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Pamela L. Linton
Senior Vice President
Human Resources
By: /s/ Dale A. Cable Date 10-23-02
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Dale A. Cable
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