Annual Report — Form 10-K — Sect. 13 / 15(d) – SEA’34 Filing Table of Contents
Document/ExhibitDescriptionPagesSize
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2: EX-2.3 Plan of Acquisition, Reorganization, Arrangement, HTML 518K
Liquidation or Succession
3: EX-10.36 Material Contract HTML 47K
4: EX-10.37 Material Contract HTML 88K
5: EX-21.1 Subsidiaries List HTML 128K
6: EX-23.1 Consent of Experts or Counsel HTML 41K
7: EX-23.2 Consent of Experts or Counsel HTML 42K
12: EX-99.1 Miscellaneous Exhibit HTML 208K
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11: EX-32.2 Certification -- §906 - SOA'02 HTML 42K
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Parenthetical
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28: R10 Basis of Presentation and Significant Accounting HTML 160K
Policies
29: R11 Discontinued Operations HTML 194K
30: R12 Proceedings Under Chapter 11 HTML 153K
31: R13 Acquisitions HTML 169K
32: R14 Changes in Operations and Non-operating Items HTML 83K
33: R15 Real Estate Sales and Assets Held For Sale (Notes) HTML 59K
34: R16 Goodwill, Other Intangible Assets and Intangible HTML 179K
Liabilities
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36: R18 Debt HTML 111K
37: R19 Fair Value Measurements HTML 76K
38: R20 Contracts Payable for Broadcast Rights HTML 49K
39: R21 Commitments and Contingencies HTML 76K
40: R22 Income Taxes HTML 162K
41: R23 Pension and Other Retirement Plans HTML 339K
42: R24 Capital Stock HTML 99K
43: R25 Stock-Based Compensation HTML 242K
44: R26 Earnings Per Share HTML 116K
45: R27 Accumulated Other Comprehensive (Loss) Income HTML 68K
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47: R29 Business Segments HTML 118K
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Policies (Policies)
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Policies (Tables)
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54: R36 Acquisitions (Tables) HTML 150K
55: R37 Changes in Operations and Non-operating Items HTML 76K
(Tables)
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Liabilities (Tables)
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58: R40 Debt (Tables) HTML 69K
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60: R42 Contracts Payable for Broadcast Rights (Tables) HTML 48K
61: R43 Commitments and Contingencies (Tables) HTML 51K
62: R44 Income Taxes (Tables) HTML 141K
63: R45 Pension and Other Retirement Plans (Tables) HTML 327K
64: R46 Capital Stock Dividends (Tables) HTML 61K
65: R47 Stock-Based Compensation (Tables) HTML 228K
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67: R49 Accumulated Other Comprehensive (Loss) Income HTML 64K
(Tables)
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69: R51 Quarterly Financial Information (Unaudited) HTML 251K
(Tables)
70: R52 Condensed Consolidated Financial Statements HTML 1.04M
(Tables)
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Policies Narrative (Details)
72: R54 Basis of Presentation and Significant Accounting HTML 65K
Policies Principles of Consolidation and VIEs
(Details)
73: R55 Basis of Presentation and Significant Accounting HTML 66K
Policies Dreamcatcher (Details)
74: R56 Basis of Presentation and Significant Accounting HTML 75K
Policies Dreamcatcher Table (Details)
75: R57 Basis of Presentation and Significant Accounting HTML 52K
Policies Accounts Receivable Allowance
Reconciliation (Details)
76: R58 Discontinued Operations Narrative (Details) HTML 119K
77: R59 Discontinued Operations Gracenote Companies HTML 94K
Statement of Operations (Details)
78: R60 Discontinued Operations Gracenote Companies HTML 53K
Statement of Operations Footnotes (Details)
79: R61 Discontinued Operations Gracenote Companies HTML 126K
Balance Sheet (Details)
80: R62 Discontinued Operations Gracenote Companies HTML 43K
Balance Sheet Footnote (Details)
81: R63 Discontinued Operations Gracenote Companies Cash HTML 62K
Flows (Details)
82: R64 Discontinued Operations - Publishing Spin-off HTML 83K
Adjustments (Details)
83: R65 Discontinued Operations Publishing Spin-off HTML 65K
Adjustment Footnote (Details)
84: R66 Proceedings Under Chapter 11 - Narrative (Details) HTML 167K
85: R67 Proceedings Under Chapter 11 - Terms of HTML 150K
Reorganization Plan (Details)
86: R68 Proceedings Under Chapter 11 - Leveraged ESOP HTML 129K
Transactions (Details)
87: R69 Acquisitions - Narrative (Details) HTML 168K
88: R70 Acquisitions - 2015 Acquisitions (Details) HTML 115K
89: R71 Acquisitions - HWW (Details) HTML 106K
90: R72 Acquisitions - Baseline (Details) HTML 102K
91: R73 Acquisitions - What's On (Details) HTML 115K
92: R74 Acquisitions - Gracenote (Details) HTML 107K
93: R75 Acquisitions - Landmark (Details) HTML 84K
94: R76 Acquisitions - Other Distributed in Spin-off HTML 58K
(Details)
95: R77 Changes in Operations and Non-operating Items HTML 52K
Severance by Business Segment (Details)
96: R78 Changes in Operations and Non-operating Items HTML 48K
Changes in Accrued Liability for Severance and
Related Expenses (Details)
97: R79 Changes in Operations and Non-operating Items HTML 58K
Non-Operating Items (Details)
98: R80 Changes in Operations and Non-operating Items HTML 87K
Narrative (Details)
99: R81 Real Estate Sales and Assets Held For Sale HTML 122K
(Details)
100: R82 Goodwill, Other Intangible Assets and Intangible HTML 101K
Liabilities - Goodwill, other Intangible Assets
and Intangible Liabilities (Details)
101: R83 Goodwill, Other Intangible Assets and Intangible HTML 85K
Liabilities - Intangible Assets (Details)
102: R84 Goodwill, Other Intangible Assets and Intangible HTML 53K
Liabilities - Intangible Liabilities Subject to
Amortization (Details)
103: R85 Goodwill, Other Intangible Assets and Intangible HTML 94K
Liabilities - Narrative (Details)
104: R86 Goodwill, Other Intangible Assets and Intangible HTML 51K
Liabilities - Intangible Liabilities (Details)
105: R87 Investments - Narrative (Details) HTML 300K
106: R88 Investments Total Investments (Details) HTML 52K
107: R89 Investments Ownership Percentages (Details) HTML 51K
108: R90 Investments Income from Equity Investments HTML 57K
(Details)
109: R91 Investments Cash Distributions from Equity Method HTML 49K
Investments (Details)
110: R92 Investments TV Food Network (Details) HTML 67K
111: R93 Investments Career Builder, Dose Media and CV HTML 80K
Summarized Financial Information (Details)
112: R94 Debt (Details) HTML 262K
113: R95 Debt Long Term Debt (Details) HTML 69K
114: R96 Debt Maturities of Long-term Debt (Details) HTML 67K
115: R97 Fair Value Measurements Narrative (Details) HTML 53K
116: R98 Fair Value Measurements (Details) HTML 61K
117: R99 Contracts Payable for Broadcast Rights (Details) HTML 52K
118: R100 Commitments and Contingencies (Details) HTML 71K
119: R101 Commitments and Contingencies - Operating Leases HTML 61K
(Details)
120: R102 Commitments and Contingencies Operating Leases HTML 62K
Footnotes (Details)
121: R103 Income Taxes - Narrative (Details) HTML 157K
122: R104 Income Taxes - Income Tax Reconciliation from HTML 79K
Continuing Operations (Details)
123: R105 Income Taxes - Components of Income Tax Expense HTML 69K
(Benefit) from Continuing Operations (Details)
124: R106 Income Taxes - Components of Net Deferred Tax HTML 90K
Assets and Liabilities (Details)
125: R107 Income Taxes - Changes in Liability for HTML 59K
Unrecognized Tax Benefits (Details)
126: R108 Pension and Other Retirement Plans - Narrative HTML 99K
(Details)
127: R109 Pension and Other Retirement Plans - Multiemployer HTML 51K
Pension Plans (Details)
128: R110 Pension and Other Retirement Plans - Defined HTML 88K
Benefit Pension Plans and Other Post Retirement
Plans Summarized Info (Details)
129: R111 Pension and Other Retirement Plans - Amounts HTML 62K
Recognized in Consolidated Balance Sheets
(Details)
130: R112 Pension and Other Retirement Plans - Components of HTML 64K
Net Periodic Benefit Cost (Details)
131: R113 Pension and Other Retirement Plans - Amounts of HTML 51K
Net Periodic Benefit Cost for Other Post
Retirement Plans Applicable to Continuing and
Discontinued Operations (Details)
132: R114 Pension and Other Retirement Plans - Amounts HTML 57K
Included in Accumulated Other Comprehensive Income
(Loss) (Details)
133: R115 Pension and Other Retirement Plans - Weighted HTML 59K
Average Assumptions (Details)
134: R116 Pension and Other Retirement Plans - Effect of HTML 53K
One-Percentage Point Change in Assumed Health Care
Cost Trend Rates (Details)
135: R117 Pension and Other Retirement Plans - Actual HTML 57K
Allocations and Target Allocations by Asset Class
(Details)
136: R118 Pension and Other Retirement Plans - Pension Plan HTML 127K
Assets by Asset Category (Details)
137: R119 Pension and Other Retirement Plans - Benefit Plans HTML 60K
Expected to be Paid (Details)
138: R120 Capital Stock (Details) HTML 184K
139: R121 Capital Stock Quarterly Dividend (Details) HTML 51K
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141: R123 Stock-Based Compensation - Weighted-average HTML 52K
Assumptions (Details)
142: R124 Stock-Based Compensation - NSOs (Details) HTML 114K
143: R125 Stock-Based Compensation - RSUs (Details) HTML 97K
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Unrestricted Stock Awards (Details)
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Compensation Cost (Details)
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149: R131 Accumulated Other Comprehensive (Loss) Income HTML 70K
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151: R133 Business Segments (Details) HTML 62K
152: R134 Business Segments - Operating Segments (Details) HTML 97K
153: R135 Quarterly Financial Information (Unaudited) HTML 139K
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Statements of Operations and Comprehensive (Loss)
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Balance Sheets (Details)
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Statement of Cash Flows (Details)
157: R139 Subsequent Events (Details) HTML 205K
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This SEPARATION AGREEMENT (this “Agreement”), by and between Tribune Media Company, a Delaware corporation (the “Company”), and Peter Liguori (the
“Executive”), dated as of January 24, 2017, sets forth the terms and understandings regarding the Executive’s separation from service from the Company.
WHEREAS, the Executive currently serves as President and Chief Executive Officer
and as a member of the Board of Directors of the Company pursuant to the terms and conditions of an Employment Agreement with the Company, dated as of January 1, 2016 (the “Employment Agreement”);
WHEREAS, the Executive and the Company have mutually agreed that it is in the mutual interests of the parties that the Executive shall resign from his positions with the
Company and its affiliates as set forth in this Agreement;
WHEREAS, the Executive and the Company wish to settle their mutual rights and obligations arising under the Employment Agreement and otherwise in connection with the Executive’s service
with the Company and the Executive’s separation from such service; and
WHEREAS, the Executive and the Company agree to the following payments, benefits and other terms and conditions in connection with the
Executive’s separation from service with the Company.
NOW, THEREFORE, in consideration of the mutual covenants and promises herein contained, including the restrictive covenants, the Company and the Executive hereby agree as follows:
1.Separation
from the Company. Effective at 5:00 p.m. New York Time on the later of (i) February 28, 2017 and (ii) the date of the Company’s earnings release and investor conference call for the fourth quarter and year ended December 31, 2016 (the “Separation Date”),
the Executive hereby resigns as President and Chief Executive Officer and as a member of the Board of Directors of the Company,
from employment with the Company and each of its subsidiaries and affiliates by which he is employed and from any position, including as an officer or director, that he holds with any of the Company’s subsidiaries or affiliates. The Executive shall promptly execute any additional documentation the Company
may request to reflect any such resignation.
2. Duties and Compensation Prior to the Separation Date. During the period from the date hereof to the Separation Date, the Executive shall undertake in good faith to effect a smooth and effective transition of his duties and responsibilities to the successor designated by the Board and perform the other duties and responsibilities of his positions and shall continue to be compensated in accordance with the terms and conditions of his Employment Agreement,
including receiving equity grants in February 2017 in accordance with Section 3(c)(i) thereof.
3. Separation Payments and Benefits. The Company agrees that, in connection with his resignation at the Separation Date, the Executive is entitled to the benefits set forth in Section 4(c) of the Employment Agreement. For the avoidance of doubt, the actual benefits payable in accordance with such provisions are set forth below:
(a) Separation Payment. The Company shall pay the Executive an amount equal to two times the sum of (A) the Executive’s current base
salary of $1,600,000, plus (B) the Executive’s target bonus amount of $1,500,000, which equals an aggregate sum of $6,200,000 (the “Separation Payment”). The Company shall pay the Separation Payment to the Executive in substantially equal installments consistent with the Company’s payroll practices during the twenty-four (24) month period immediately following the Separation Date, except that, because the Executive is a “specified employee” within the meaning of Section 409A, any portion of the Separation Payment that would otherwise have been payable to Executive prior to the date that is six (6) months after the Separation Date shall be delayed and paid in a single lump sum on the date that is six months and one day after
the Separation Date.
(b) Continuation of Health Benefits. During the twenty-four (24) months following the Separation Date, the Executive shall be entitled to receive health and dental insurance benefits under the terms of the applicable Company benefit plans, to the extent that the Company continues to provide such insurance benefits for its employees, so long as the Executive pays the amount required for participation in such plans to the same extent that active employees of the Company are required to pay for such benefits from time to time. Notwithstanding
the immediately preceding sentence, (i) the Executive’s right to such continuation coverage shall end upon the Executive’s becoming eligible for comparable coverage under another employer’s benefit plans and (ii) if and to the extent that the provision of such continuation coverage in accordance with the immediately preceding sentence (A) is not permitted under the terms of the Company benefit plans or (B) would result in an adverse tax consequence to the Company under the Patient Protection and Affordable Care Act or other applicable law, in either such case, the Company may alternatively provide the Executive with a cash payment in an amount equal to the applicable COBRA premium that the Executive would otherwise be
required to pay to obtain COBRA continuation coverage for such benefits for such period (minus the cost of such benefits to the same extent that active employees of the Company are required to pay for such benefits from time to time).
(c) 2016 Annual Bonus. To the extent that the annual bonus payable to the Executive for his services in 2016 under, and subject to the terms and conditions specified in, Section 3(b) of the Employment Agreement shall not have been paid at the Separation Date, such annual bonus shall be paid to the Executive promptly following the Separation Date, but in no event later than March 15, 2017.
(d) Outstanding Equity Awards.
(i) Stock Options. Each of the installments of any stock option award granted to the Executive and outstanding at the Separation Date that would have become vested in the ordinary course solely on the basis of the passage of time and the continued performance of services by Executive on or before the second anniversary of the Separation Date shall become vested as of the Separation Date. All of the Executive’s stock options that are outstanding and vested at the Separation Date (including those that vest in accordance with the immediately preceding sentence) shall remain exercisable until the first anniversary of the Separation Date.
(ii) Restricted Stock Units. Each of the installments of any restricted stock unit
award granted to the Executive and outstanding at the Separation Date that would have become vested in the ordinary course solely on the basis of the passage of time and the continued performance of services by Executive on or before the second anniversary of the Separation Date shall become vested as of the Separation Date.
(iii) PSUs. With respect to performance share unit awards granted to the Executive and outstanding at the Separation Date, other than the supplemental performance units award granted pursuant to Section 3(c)(ii) of the Employment Agreement (the “Supplemental PSU Award”), a pro-rated portion of each such performance share unit award (each, a “Pro-Rated
PSU Award”) shall be eligible to become vested to the extent that the performance objectives are attained with respect to the applicable performance period, with such pro-rated portion determined by multiplying (A) the number of PSUs subject to such grant that would have vested based on actual performance of the applicable performance period had the Executive then continued to be employed by the Company by (B) the ratio of the number of days from and including the first day of the fiscal year as of which the corresponding performance period commenced until and including the Separation Date compared to the total number of days in the three fiscal year period constituting the applicable performance period. For the avoidance of doubt, any Pro-Rated PSU Award that is outstanding at the date that a Change in Control of the
Company occurs shall be deemed to vest as of the date of such Change in Control assuming that the applicable performance objectives were achieved at their target level of performance.
(iv) Supplemental PSUs. Because the performance period applicable to the Supplemental PSU Award would end on or prior to the first anniversary of the Separation Date, the Supplemental PSU Award shall remain outstanding following the Separation Date and shall become vested, if at all, on the same terms and conditions as would have applied had the Executive remained employed until the end of such performance period.
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(v) Other
Provisions Relating to Equity Awards. Any equity award granted to the Executive and outstanding at the Separation Date that has not become vested at, or which is not eligible to become vested as provided in this Section 3(d) after, the Separation Date shall be forfeited at the Separation Date. For the avoidance of doubt, Annex A to this Agreement sets forth the effect of the provisions of this Section 3(d) with regard to the Executive’s stock options, restricted stock units and performance unit awards that are outstanding as of the date of this Separation Agreement, including the portions thereof that will become vested, or that will remain eligible to vest, in accordance with this Separation Agreement at the Separation Date and that will be forfeited at the Separation Date. Except as otherwise expressly provided in this Section 3(d) of this Separation Agreement, each of the Executive’s equity awards outstanding at the
Separation Date, including the Supplemental PSU Award and any awards granted in accordance with Section 2 of this Separation Agreement, shall be governed by the terms of the Company’s applicable equity incentive compensation plans and award agreements pursuant to which such awards were issued to the Executive.
(e) Accrued Obligations. The Executive shall also be entitled to payment (i) for any accrued but unpaid Base Salary and any unreimbursed expenses eligible for reimbursement under Section 3(e) of the Employment Agreement, in each case accrued or incurred, through the Separation Date and with regard to expenses timely submitted for reimbursement, as soon
as practicable, and in all events within 30 days, following the Separation Date, (ii) for any benefits explicitly payable to the Executive as a terminated employee under any other benefit plans, programs or arrangements applicable (including vacation pay) in which Executive participates, other than severance plans or policies and (iii) as otherwise expressly required by applicable law.
(f) Indemnification. The Executive shall be entitled to be indemnified and held harmless by the Company in accordance with the terms and conditions set forth in Section 3(f) of the Employment Agreement.
(g) No Mitigation. As provided in Section 4(i) of the Employment Agreement,
(i) the Executive shall not have any duty to mitigate the amounts identified as payable under this Agreement by seeking new employment or self-employment following his separation from service and (ii) except as specifically otherwise provided in Section 3(b) of this Agreement, there shall be no offset against the amounts payable pursuant to the Employment Agreement and described in this Section 3 on account of any remuneration attributable to later employment, consultancy or other remunerative activity of the Executive.
(h) Release of Claims. The rights, payments
and benefits to be provided to the Executive under the Employment Agreement in connection with his separation, as outlined in this Section 3 of this Separation Agreement, are conditioned upon the Executive having provided an irrevocable waiver and release of claims in favor of the Company, its subsidiaries and affiliates, their respective predecessors and successors, and all of the respective current or former directors, officers, employees, shareholders, partners, members, agents or representatives of any of the foregoing
(collectively, the “Released Parties”), in the form attached hereto as Exhibit A, that has become effective in accordance with its terms within 55 days following the Separation Date.
4. Covenants in Favor of the Company. The Executive agrees and acknowledges that the covenants in favor of the Company set forth in Sections 5 through 10 of the Employment Agreement shall continue in full force and effect in accordance with the terms of such provisions following the Separation Date, and shall be enforceable as provided in Section 11 of the Employment Agreement. Notwithstanding the foregoing, effective as of the Separation Date, the definition of Competitive Activities
as set forth starting after the words “engage in” in Section 5(a)(i) of the Employment Agreement shall be revised as follows:
activities or businesses on behalf of any independent non-network local broadcast group (including without limitation by owning any interest in, managing, controlling, participating in, consulting with, advising, rendering services for, or in any manner engaging in the business of owning, operating or managing any such independent non-network local broadcast group), in any geographic location in which the Company engages (or in which the Company has been actively planning to engage) as of the date of termination of Executive’s employment, that competes directly with the
Company and its subsidiaries, and any other Affiliates of the Company (“Competitive Activities”)
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5. Cooperation and Other Provisions. The Executive agrees and acknowledges that his obligations under Section 13 of the Employment Agreement to cooperate with the Company shall continue in full force and effect following the Separation Date. The parties
confirm and acknowledge that Sections 14 through 24 of the Employment Agreement shall continue in full force and effect and shall apply equally to this Separation Agreement as if incorporated herein by reference and made a part hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of January 24, 2017.
TRIBUNE MEDIA COMPANY
By: /s/ Eddie Lazarus Name: Eddie Lazarus Title: Executive Vice President, General Counsel, Chief Strategy Officer & Corporate Secretary
TO ALL TO WHOM THESE PRESENTS SHALL COME OR MAY CONCERN, KNOW that:
1. Peter Liguori (“Executive”), on his own behalf and on behalf of his descendants, dependents, heirs, executors and administrators and permitted assigns, past and present (“Executive Related Parties”), in consideration for the amounts payable and benefits to be provided to him under the Employment Agreement, dated as of January 1, 2016, between Tribune Media Company, a Delaware corporation (the “Company”), and Executive
(the “Employment Agreement”), and as specified identified in the Separation Agreement dated as of January 24, 2017 (the “Separation Agreement”), hereby covenants not to sue or pursue any litigation against, and waives releases and discharges the Company, its Affiliates (as defined in the Employment Agreement), their predecessors, and successors, and all of their respective current or former directors, officers, employees, shareholders, partners, members, agents or representatives, managers, employees, trustees (in their official and individual capacities), employee benefit plans and their administrators and fiduciaries (in their official and individual capacities) of any of the foregoing (collectively, the “Releasees”),
from any and all claims, demands, rights, judgments, defenses, complaints, actions, charges or causes of action whatsoever, of any and every kind and description, whether known or unknown, accrued or not accrued, that Executive ever had, now has or shall or may have or assert as of the date of this General Release and Covenant Not to Sue against the Releasees relating to Executive’s employment with the Company or the termination thereof or Executive’s service as an officer or director of the Company or its Affiliates or the termination of such service, including, without limiting the generality of the foregoing, any claims, demands, rights, judgments, defenses, actions, charges or causes of action related to employment or termination of employment or that arise out of or relate in any way to the Age
Discrimination in Employment Act of 1967 (“ADEA,” a law that prohibits discrimination on the basis of age), the National Labor Relations Act, the Civil Rights Act of 1991, the Americans With Disabilities Act of 1990, Title VII of the Civil Rights Act of 1964, the Employee Retirement Income Security Act of 1974, the Family and Medical Leave Act, the Sarbanes-Oxley Act of 2002, all as amended, and other federal, state and local laws relating to discrimination on the basis of age, sex or other protected class, all claims under federal, state or local laws for express or implied breach of contract, wrongful discharge, defamation, intentional infliction of emotional distress, and any related claims for attorneys’ fees and costs (collectively, “Claims”) (the “Release”);
provided, however, that nothing herein shall release the Company from (i) any of its obligations to Executive under the Employment Agreement (including, without limitation, its obligation to pay the amounts and provide the benefits specified in the Separation Agreement that are conditioned upon the effectiveness of this General Release and Covenant Not to Sue) or the Supplemental PSU Agreement (as defined in the Employment Agreement); (ii) any rights Executive may have in respect of accrued vested benefits under the employee benefit plans of the Company and its subsidiaries, including any rights under any equity-based compensation
plan as identified in the Separation Agreement, or rights in respect of any benefit plans, including the right to continued health benefits coverage specified in the Separation Agreement; (iii) any rights Executive may have to indemnification under the Employment Agreement, the Company’s by-laws, other applicable law, or any insurance coverage or other benefits under any directors and officers insurance or similar policies; or (iv) any rights Executive and the Executive Related Parties may have to obtain contribution as permitted by applicable law in the event of an entry of judgment against Executive and the Company as a result of any act or failure to act for which Executive and the
Company are held jointly liable.
2. Executive further agrees that this General Release and Covenant Not to Sue may be pleaded as a full defense to any action, suit or other proceeding for Claims that is or may be initiated, prosecuted or maintained by Executive or Executive’s heirs or assigns. Executive understands and confirms that he is executing this General Release and Covenant Not to Sue voluntarily and knowingly, but that this General Release and Covenant Not to Sue does not affect Executive’s right to claim otherwise under ADEA. In addition, Executive shall not be precluded by this General Release and Covenant Not to Sue from filing a charge with any relevant federal, state or local administrative agency, but Executive agrees to waive his rights with respect to any monetary or other financial relief arising from any such administrative proceeding.
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3. In
furtherance of the agreements set forth above, Executive hereby expressly waives and relinquishes any and all rights under any applicable statute, doctrine or principle of law restricting the right of any person to release claims that such person does not know or suspect to exist at the time of executing a release, which claims, if known, may have materially affected such person’s decision to give such a release. In connection with such waiver and relinquishment, Executive acknowledges that he is aware that Executive may hereafter discover claims presently unknown or unsuspected, or facts in addition to or different from those that Executive now knows or believes to be true, with respect to the matters released herein. Nevertheless, it is Executive’s intention to fully, finally and forever release all such matters, and all claims relating thereto, that now exist, may exist or theretofore have existed, as specifically provided herein. The parties hereto acknowledge
and agree that this waiver shall be an essential and material term of the release contained above. Nothing in this paragraph is intended to expand the scope of the release as specified herein.
4. The Company’s offer to Executive of this General Release and Covenant Not to Sue and the payments and benefits set forth in the Employment Agreement and identified specifically in the Separation Agreement are not intended as, and shall not be construed as, any admission of liability, wrongdoing or improper conduct by the Company. Executive acknowledges that Executive has not filed or caused to be filed any complaint, charge, claim or proceeding, against any of the Releasees before any local, state, federal or foreign agency, court or other body (each individually
a “Proceeding”). Executive represents that Executive is not aware of any basis on which such a Proceeding could reasonably be instituted. Executive (i) acknowledges that Executive will not initiate or cause to be initiated on his behalf any Proceeding and will not participate in any Proceeding, in each case, except as required by law; and (ii) waives any right Executive may have to benefit in any manner from any relief (whether monetary or otherwise) arising out of any Proceeding, including any Proceeding conducted by the EEOC.
5. Notwithstanding anything else contained in this General Release and Covenant Not to Sue, the Employment Agreement, the Separation Agreement or any other agreement between the Executive and the Company or any of its Affiliates to the contrary, including, without limitation,
Section 1 hereof or Section 6 of the Employment Agreement, nothing in any such agreement limits or shall be construed to limit (i) Employee’s ability to file a charge or complaint with the Equal Employment Opportunity Commission (“EEOC”), the National Labor Relations Board, the Occupational Safety and Health Administration, the Securities and Exchange Commission or any other federal, state or local governmental agency or commission (“Government Agencies”), (ii) Executive’s ability to communicate with any Government Agencies or otherwise participate in any investigation or proceeding that may be conducted by any Government Agency, including providing documents or other information, without notice to the Company or (iii) Executive’s right
to receive an award for information provided to any Government Agencies.
6. Executive acknowledges that he has been offered but declined a period of time of at least 21 days to consider whether to sign this General Release and Covenant Not to Sue, which Executive has waived, and the Company agrees that Executive may cancel this General Release and Covenant Not to Sue at any time during the seven days following the date on which this General Release and Covenant Not to Sue has been signed (the “Revocation Period”). Executive acknowledges and agrees that he has entered into this General Release and Covenant Not to Sue knowingly and willingly and has had ample opportunity to consider the terms and provisions of this General Release and Covenant Not to Sue. Executive further acknowledges that Executive
has read carefully this General Release and Covenant not to sue, has been advised by the Company to, and has in fact, consulted an attorney, and fully understands that by signing this General Release and Covenant Not to Sue Executive is giving up certain rights which he may have to sue or assert a claim against any of the Releasees. In order to cancel or revoke this General Release and Covenant Not to Sue, Executive must deliver to the Board of Directors of the Company written notice stating that he is canceling or revoking this General Release and Covenant Not to Sue during the Revocation Period. If this General Release and Covenant Not to Sue is timely canceled or revoked, none of the provisions of this General Release and Covenant Not to Sue shall be effective or enforceable, and the
Company shall not be obligated to make the payments to Executive or to provide Executive with the benefits identified in the Employment Agreement or in the Separation Agreement, unless and until the requirements with respect thereto are met. Executive acknowledges that, even if this General Release and Covenant Not to Sue is not executed or is canceled or revoked by him, the provisions of the Employment Agreement that otherwise by their terms survive termination of Executive’s employment shall remain in full force and effect.
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7. The invalidity or unenforceability of any provision or provisions of this General Release and Covenant Not to Sue shall not affect the validity or enforceability of any other provision
of this General Release and Covenant Not to Sue, which shall remain in full force and effect. This General Release and Covenant Not to Sue sets forth the entire agreement of Executive and the Company in respect of the subject matter contained herein and supersedes all prior agreements, promises, covenants, arrangements, communications, representations or warranties, whether oral or written, by any officer, employee or representative of any party hereto; and any prior agreement of the parties hereto in respect of the subject matter contained herein is hereby terminated and canceled. No agreements or representations, oral or otherwise, express or implied, with respect to the subject matter hereof have been made by either party that are not set forth expressly in this General Release and Covenant Not to Sue. The validity, interpretation, construction and performance of this General Release
and Covenant Not to Sue shall be governed by the laws of the State of New York without regard to its conflicts of law principles, and the provisions of Sections 16, 17 and 21 of the Employment Agreement shall apply mutatis mutandis.
IN WITNESS WHEREOF, Executive has caused this General Release and Covenant Not to Sue to be executed as of the date shown below.
