Executive Separation Waiver Agreement - Ford Motor Co. and Donald A. WInkler
Executive Separation Waiver Agreement
1. Employment Termination
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On or about December 14, 2001, I (Donald A. Winkler; sometimes referred to
as "you") voluntarily resigned all positions I held with Ford Motor Credit
Company, Ford Motor Company or any of their subsidiaries or affiliates. I
ratify and affirm that act, and voluntarily resign all positions I ever
held as an officer, director or employee of Ford Motor Credit Company, Ford
Motor Company, or any of their subsidiaries or affiliates. The parties
agree that the effective date of this resignation is, and shall be,
December 31, 2001.
2. Release of Employment Claims
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I waive, abandon and release any and all rights or claims of any kind I may
have, or my heirs, executors, agents or assigns may have, against Ford
Motor Company, Ford Motor Credit Company, their affiliates or subsidiaries,
their respective officers, agents or employees (the "Company"). Except as
provided in Section 3 below, I agree not to start any proceedings of any
kind against the Company relating in any way to my employment or the
termination of my employment and I agree to terminate any proceedings I may
have begun or withdraw from any I may be participating in relating to my
employment. This waiver and release includes, but is not limited to, any
and all rights or claims, whether known or unknown, I may have under the
Age Discrimination in Employment Act ("ADEA") and any other federal, state
or local civil rights laws or regulations, or any common law actions
related in any way to employment or employment discrimination. This
includes any claims for breach of employment contract, either express or
implied, defamation, slander, libel, wrongful discharge, constructive
discharge or tort-based claims, including but not limited to, intentional
or negligent infliction of emotional distress.
The Company waives, abandons and releases you, your heirs, successors and
assigns from any and all rights, liabilities or claims of any kind, whether
known or unknown, it has or may have against you through the date you sign
this agreement. This waiver and release is limited in nature and scope.
Excluded from this waiver and release is any right, claim, liability or
lawsuit that relates to any intentional misconduct by you as a Company
employee or executive that caused harm or damage, or any conduct or
behavior by you as an employee or executive that was inimical to the
interests of the Company and caused harm or damage to it.
3. Rights or Claims That Survive
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I do not waive or release any rights or claims I may have that may arise
out of this Agreement or after this Agreement is signed or if it is not
permitted by law, such as workers' compensation claims in some states. I
also do not waive and release any claims I may have against the Company for
reimbursement of authorized and reasonable expenses if the expense was
incurred prior to my termination date.
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Except as provided in Section 2, rights or claims that the Company may have
against me shall also survive. Nothing in this Agreement shall be construed
to affect the independent right and responsibility of the Equal Employment
Opportunity Commission ("EEOC") or a state or local fair employment
practices agency acting as an EEOC referral agency to enforce ADEA. Signing
this Agreement also will not interfere with my right to file a charge or
participate in an investigation or proceeding conducted by the EEOC or a
state or local fair employment practices agency with respect to an age
discrimination claim or affect my right to challenge the validity of this
Agreement under ADEA. However, I understand that if a court upholds the
validity of this Agreement, I will have no further rights to recover
damages for alleged age discrimination.
4. Confidential Information
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I agree to keep secret and retain in strictest confidence, and shall not,
without the prior written consent of the Chief Operating Officer of the
Company, furnish, make available or disclose to any third party or use for
my benefit or the benefit of any third party, any Confidential Information.
As used in this Agreement Confidential Information means any information
relating to the business or affairs of the Company, including but not
limited to information relating to financial statements, customer
identities, potential customers, employees, suppliers, servicing methods,
equipment, product or service programs, cycle plans, strategies and
information, databases and information systems, and analyses, profit
margins, comparative or futuring studies or other proprietary information
used by the Company, whether or not generated by the Company or purchased
by the Company through business consultants. Confidential Information shall
not include any information in the public domain or that is or becomes
known in the industry through no wrongful act on my part. I am not
prohibited from disclosing information required to be disclosed by law or
by a court, and I may disclose information to my lawyers and financial
advisors, provided that I notify such lawyers and financial advisors of the
existence of this Section 4 and they agree to abide by it. I acknowledge
that the Confidential Information is vital, sensitive, confidential and
proprietary to the Company. I acknowledge and agree that my promise to keep
confidential the Confidential Information is reasonable and necessary for
the protection of the Company's business interests, that irreparable injury
will result to the Company if I break my promise and that the Company may
not have an adequate remedy at law if I break or threaten to break my
promise. Accordingly, I agree that in such event, the Company will be
entitled to immediate temporary injunctive and other equitable relief in a
court of competent jurisdiction, without the necessity of showing actual
monetary damages, subject to a hearing as soon thereafter as possible.
Nothing contained herein shall be construed as prohibiting the Company from
pursuing any other remedies available to it for failing to keep my promise,
including the recovery of any damage which it is able to prove.
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5. Return of Company Materials Upon Termination
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I acknowledge that all written materials or documents containing
Confidential Information prepared by me or coming into my possession
because of my employment with the Company is and shall remain the property
of the Company. I agree to return to the Company all such items in my
possession, together with all copies, no later than seven days after I sign
this agreement. Further, I promise and agree to return all other property
owned by the Company no later than seven days after I sign this agreement.
6. Business Reputation
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Each party to this Agreement acknowledges that the business reputation of
the other is a valuable asset of such other party. Each party agrees that
it shall take no action following the execution of this agreement that can
reasonably be deemed to be inimical to the best interests of the other
party, including but not limited to: publishing material that disparages
the other party, participating in interviews or making "leaks" to the press
disparaging the other party or taking action in any other manner or way
disparaging the other party.
7. Miscellaneous
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a. If any provision of this Agreement is found to be unenforceable, the
other terms will remain fully enforceable. This Agreement shall be
governed by the laws of the State of Michigan, excluding its choice of
law provisions.
b. As a former executive, the Company agrees to indemnify, defend and
hold you harmless from any claim or liability to the maximum extent
authorized by Delaware law for acts that may have occurred while you
were an employee of the Company. This promise is subject to the
requirements of Delaware law and the Company's Certificate of
Incorporation.
c. As consideration for the promises recited throughout this agreement,
the Company promises and agrees to pay you, in a single payment, a sum
equal to fifteen (15) months of your base salary (total $962,500.00),
subject to withholding only for income tax, medicare, social security,
any money you owe the Company for non-reimbursable Company credit card
charges, and as provided in 7.f. below. This sum will be delivered to
you or your designated agent within three days of the vote of the
Company's Compensation and Options Committee approving this Agreement.
d. Also as consideration for the promises made by you throughout this
agreement, the Company will pay you, in a single payment, a sum equal
to the value of your unused 2001 vacation days, subject to withholding
only for income tax, medicare and social security. The parties agree
that you have five unused vacation days remaining. This sum will be
calculated based on your base salary and will be delivered to you or
your designated agent within twenty-nine days of the date you sign and
deliver this Agreement. This subparagraph is not subject to approval
by the Company's Compensation and Options Committee.
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e. The Company promises and agrees to continue your health care insurance
benefits (including prescription drug coverage) for six months
following the date you sign and deliver this agreement on the same
basis as such benefits were provided to you immediately prior to your
termination of employment. If you obtain a new full-time job before
this six month period expires, then this promise shall lapse, as soon
as coverage by your new employer is effective, and become null, void
and unenforceable. At the expiration of the six-month period, you may
elect to participate in Company health care insurance plans as
provided by federal law (COBRA). The terms of this subparagraph are
not subject to vote or approval of the Company's Compensation and
Options Committee and shall become effective immediately upon
execution of this Agreement by you. Unless addressed elsewhere in this
agreement, you may not participate in any other executive or employee
benefit plan, and by signing this agreement you agree to abandon those
right or privileges.
f. The Company promises and agrees to permit you to continue to lease and
use a motor vehicle that you now permit your daughter to operate.
Addendum "A" to this agreement describes the vehicle. Consideration
for the continued possession and use of this vehicle through the
expiration of the lease arrangement (the end of June 2003) shall be a
single payment of the amount due and owing under the lease through its
expiration. By signing this agreement and promising to abide by its
terms, you authorize the Company to take this single payment from the
money due you under subparagraph c. hereof. You also promise and agree
to return this motor vehicle to Ford Motor Company immediately upon
the expiration of the lease in a clean and acceptable condition,
reasonable wear and tear and accidental damage excepted. Through the
end of the lease term, the lease will continue to be an "evaluation"
lease pursuant to which the Company provides the insurance in
accordance with the lease terms, and the other lease terms also remain
in effect. This subparagraph is not subject to approval by the
Company's Compensation and Options Committee, and shall become
effective when you sign this Agreement.
g. As further consideration for the promises made by you in this
agreement the Company promises to transfer title and possession of the
Jaguar motor vehicle last assigned to you while you worked for the
Company (currently in your possession). This vehicle is described in
Addendum "B" to this agreement. The Company will issue an IRS Form
1099 based on the fair market value of the vehicle on the date title
to the vehicle is delivered to you.
h. The Company will use its best efforts to cause to be paid to you or
your designated agent all of the deferred compensation under all of
the Company's deferred compensation plans no later than March 31,
2002, subject to withholding only for income tax, medicare and social
security. This subparagraph is not subject to approval by the
Company's Compensation and Options Committee.
i. Subject to the approval of the Company's Compensation and Options
Committee, which is expected next to meet on or about March 13, 2002,
the Company also promises and agrees to extend that final date by
which you may exercise your rights to purchase its common stock under
its existing stock
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option plans. You may exercise your rights to purchase Company stock
under the stock option plan for a period of eighteen months commencing
the date you sign this Agreement. This extended right to purchase
Company stock under the stock option plans is limited to the number of
shares you had a vested right to purchase under the plans when you
delivered your resignation on December 31, 2001. Any right you have to
purchase Company stock under the stock option plans shall forever
expire eighteen months after you sign this Agreement. This
subparagraph does not extend any right you had under the Company's
long- term incentive stock ownership plans.
j. You also promise and agree to cooperate with the Company in the
defense of any claims or lawsuits now pending against the Company or
any that may be filed or served in the future.
k. The Company promises and agrees promptly to cooperate with you
regarding the return of any personal files (electronic or paper) or
materials that belong to you.
l. You also promise never in the future to seek employment of any kind
with the Company or any of its subsidiaries.
m. You brought certain preexisting Breakthrough Leadership ("Preexisting
Materials") training materials to the Company when you initially were
employed. During your employment, you were involved in development of
additional Breakthrough Leadership ("Additional Materials") training
materials. In order to resolve our respective rights regarding the
Preexisting Materials and the Additional Materials, the parties
covenant and agree as follows:
1. You represent and warrant that you believe that you are the owner
of all right, title and interest, including but not limited to
copyright interests, in the Preexisting Materials you brought to
the Company upon the commencement of your employment; and
2. You acknowledge that as between you and the Company all right,
title and interest, including but not limited to copyright
interests, in the Additional Materials developed by you and
others during your employment is and remains the property of the
Company; and
3. You, your heirs, successors and assigns hereby grant to the
Company and its suppliers and dealers an irrevocable paid-up
non-exclusive license to all rights you have in the Preexisting
Materials for use in the Company's business and activities; and
4. Subject to your compliance with the terms of this Agreement, the
Company assigns and grants to you an irrevocable paid-up
non-exclusive license to all rights it has in the Additional
Materials; and
5. These licenses shall not apply to Breakthrough Leadership
training materials or portions thereof to which the parties have
no right to grant a license and
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6. You agree immediately to remove from the Additional Materials all
references to the Company and its subsidiaries and affiliates.
You also agree to refrain in the future from any direct or
indirect reference to the Company in connection with your
publication or use of these training materials; and
7. There shall be no obligation for either party to transfer any
documents or other tangible items to the other under this
Agreement.
n. The Company promptly will cooperate with you and provide you on a
reasonable basis with any computer media and assistance you need to
move www.cyberwink.com to a new hosting company and server, provided
that this exercise does not involve material expense to the Company,
and provided that you refrain now and in the future from using any
Company trademark or trust mark on this website or elsewhere and agree
to refrain from using this website in any way that is contrary to the
interests of the Company. A truthful, non-confusing, non-disparaging,
non-proprietary use of the names of the Company, for example, in the
text of a speech, in a resume, or in giving an example, is not
considered the use of a trademark or trust mark. The parties will, in
good faith, use their best efforts to reach agreement concerning the
removal of information from the website within a reasonable time after
you sign this Agreement. The Company grants to you an irrevocable
paid-up non-exclusive license to all rights it has in the text or
format of this site. You will keep all LTIP (performance stock rights)
awards granted to you prior to December 31, 2001, which grants will
earn their performance periods and pay out to you accordingly. You
will continue to receive dividend equivalents during performance
periods.
o. All of your restricted stock, to the extent not already vested, will
be deemed vested as of January 1, 2002 and the Company promptly will
transfer it to you in accordance with your instructions, subject to
share withholding, if permissible.
p. SSIP and BEP - You will keep all vested SSIP and BEP in accordance
with the plan terms and have the ability to roll over the SSIP. The
Company promptly will permit you to withdraw these funds after the
effective date of this Agreement.
q. Company has no objection to use or copying by you, NCLD or any other
person or entity of materials concerning learning differences in the
work place prepared for use by Company, provided that any references
to Company are eliminated from such materials.
I acknowledge that:
o I have been advised in writing to consult with an attorney of my own
choice (and not related to the Company) prior to signing this
Agreement and the Company strongly recommends I do so. I have engaged
counsel of my choice, and he has advised me fully about my rights
under this agreement;
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o I have not relied on any statements, promises or agreements of any
kind made to me in connection with my decision to sign this Agreement
except for those terms set forth in the summary and this Agreement;
and
o I have been given at least 21 calendar days to consider this
Agreement. I may revoke this Agreement with seven calendar days of the
date I sign it in which event I will not receive the executive
separation benefit, but my employment will be terminated regardless. I
may sign this Agreement at any time prior to the 21 calendar days
after which the seven calendar day revocation period will commence.
This Agreement shall not become effective or enforceable and the
Company is not obligated to meet any of its promises under this
agreement until after the revocation period has expired.
o Unless otherwise specifically noted in this text, this Agreement is
subject to vote and approval of the Company's Compensation and Option
Committee. The Company's Chief of Staff personally will present this
text to the Committee when it next meets and will urge the Committee
to adopt and approve the terms of the Agreement. If the Committee
fails or refuses to adopt and approve all terms of this Agreement, the
Company agrees to identify the Committee's concerns, disclose them to
you and attempt in good faith to negotiate a new agreement that is
acceptable to the Committee and you. At this time, the Company has no
reason whatsoever to believe that its Compensation and Options
Committee will not approve the Agreement in its entirety.
By signing below, I voluntarily agree to the terms and conditions of this
Agreement.
/s/Donald Winker 2/4/02
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Donald Winkler Date
ACCEPTED and agreed to by:
Ford Motor Company:
By: /s/ John Rintamaki 2/5/02
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Title: SECRETARY Date
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Ford Motor Credit Company:
By: /s/Peter Sherry, Jr. 2/5/02
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Title: ASSISTANT SECRETARY Date
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Addendum A
The following is the vehicle referred to in paragraph 7(f):
001 Focus SE 4-DR Wagon (Twilight Blue/Med. Parchment Cloth)
Vehicle Identification Number: 1FAHP3638 1W352314
Tag No.: 784L151
Plate: CSS2466 (OH) Plate Expiration: 2/20/02
Lease Fee: $278.16/mo. (two-year lease commitment)
In-Service Date: 06/26/01
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Addendum B
The following is the vehicle referred to in paragraph 7(G)
2001 Jaguar VDP Supercharged (Topaz/Ivory Leather)
Vehicle Identification Number: SAJDA25BX 1MF35775
Tag No.: 010E069
Plate: UEL918 (MI)
In-Service Date: 05/21/01