ALBERTSON’S LLC SEVERANCE PLAN
FOR HOURLY AND SALARIED STORE
AND DISTRIBUTION CENTER ASSOCIATES
Effective July 30, 2008
TABLE OF CONTENTS
The purpose of the Albertson’s LLC Severance Plan for Hourly and Salaried Store and Distribution Center Associates (“Plan”) is to provide Severance Pay and benefits to certain hourly and salaried store and distribution center Eligible Associates of the Company whose employment is involuntarily terminated, where such employment termination is due to certain job restructurings, reductions in force, sale of facilities, or job eliminations, and not due to any other reason, including but not limited to unsatisfactory job performance, misconduct, or voluntary termination by the Associate. When the employment of such Associates is so terminated, the employment relationship shall be completely severed and affected Associates shall have no current or future right to employment on a full-time, part-time, per diem, consulting or other basis.
The Plan is intended to be an “employee welfare benefit plan” as that term is defined in Section 3(1) of the Employee Retirement Income Security Act of 1974, as amended. Severance benefits for eligible associates shall be determined exclusively under this Plan unless a separate agreement has been or is reached. All of the corporate policies and practices regarding severance, or similar payments upon employment termination, with respect to associates eligible to participate herein, are hereby superseded by this Plan. Benefits under this Plan are in no way contingent upon retirement under any Company retirement plan.
DEFINITIONS AND PLAN COVERAGE LIMITATIONS
Capitalized terms shall have the meanings set forth in this Section 2 unless the context clearly indicates otherwise:
1. Administrator means Albertson’s LLC, unless another person, committee, firm or corporation is appointed by the Company, which shall perform the duties assigned herein to the Administrator. The Administrator is the “named fiduciary” of the Plan for purposes of ERISA.
2. Company means Albertson’s LLC and its subsidiaries and any business entity which assumes the obligations of the Plan.
3. Covered Reason means an involuntary termination of employment with the Company due to certain job restructurings, reduction in forces, sale of facilities, or job eliminations (and not due to any other reason including, but not limited to, termination for misconduct or unsatisfactory job performance, as determined within the Company’s sole discretion, or voluntary termination by the Associate).
4. Effective Date of the Plan means July 30, 2008.
5. Eligible Associate(s) means any active regular salaried or hourly store or distribution center associate of the Company who has been employed by the Company for at least one year, and meets the eligibility requirements of Sections 2 and 3 hereof. For purposes of this Plan, “Eligible Associate” excludes (a) any individual who has an individual employment or severance agreement with the Company, (b) any individual who is or may become entitled to severance benefits under another severance plan sponsored by the Company, (c) any individual whose terms and conditions of employment are subject to union negotiation or to a collective bargaining agreement, unless such agreement provides for benefits under this Plan, (d) any individual who is an officer, or (e) except as may be otherwise provided by law any individual who is on an approved General Leave of Absence, FMLA leave, worker’s compensation or other medical or disability related leave at the time of the otherwise Covered Reason is not eligible for severance because severance is intended to provide benefits to associates to bridge a gap in active employment following separation from the Company for a Covered Reason, prior to obtaining replacement employment with another employer. If an individual is on an approved leave of absence and his or her employment extends beyond the date of the otherwise Covered Reason, the Company will determine eligibility for severance when the period of approved leave ends.
In addition, to be eligible for benefits under the Plan, an Eligible Associate must sign, timely return and not revoke a personalized Severance and Release Agreement, which includes a complete release of all legally releasable claims he or she may have against the Company, whether these claims currently exist or are based in whole or in part on any events occurring prior to the Effective Date of the Severance and Release Agreement.
6. ERISA means the Employee Retirement Income Security Act of 1974, as amended.
7. Participant means an Associate who is notified by the Company that his or her employment is to be involuntarily terminated for a Covered Reason by the Company, with a termination date on or after July 30, 2008, and that the Company has determined to be an Eligible Associate for Severance Pay herein.
8. Pay or Base Pay means the Associate’s regular base salary or wages on the Associate’s Severance Date, excluding all extra pay such as overtime, premiums, bonuses, commissions, living or other allowance. Regular base salary or wages will be determined based on an average of the base salary (for salaried associates) and average hours worked (for hourly associates) during the 10 week period prior to the announcement to the associate of the Covered Reason (not to exceed 40 hours per week). As a separate component of Severance Pay encompassed by the Plan, Store Associates may be entitled to receive a pro-rated bonus, pursuant to the Company’s Store Bonus Plan, subject to the provisions of the Bonus Plan and this Plan. If a special incentive program applies, a pro rated bonus may not be paid out as part of severance, instead the terms of the Bonus Plan regarding special incentives would apply. Distribution Center Participants may be paid a bonus, separate from Severance Pay, based on the terms of the Bonus Plan applicable to such associates.
9. Plan means the Albertson’s LLC Severance Plan for Hourly and Salaried Store and Distribution Center Associates.
10. Plan Year means the period from June 1 through May 31.
11. Severance and Release Agreement means the Severance and Release Agreement provided by the Company to and returned by the Participant to the Company and other matters stated therein. The Severance and Release Agreement shall bind the Participant and the Company.
12. Severance Date means the date established by the Company in its sole discretion as a Participant’s last day of employment.
2.13 Severance Pay means amounts calculated as follows:
If an Eligible Associate has… He or she will receive an amount equal to…
1+ full year(s) of service One week of base pay for each full year of service with a minimum of 2 weeks and a maximum of 12 weeks of base pay for Eligible Hourly Associates. Base pay will be calculated based on Eligible Hourly Associate’s average hours worked (up to 40 hours per week) during the 10 weeks prior to the date he or she is notified of the Covered Reason, multiplied by his or her hourly wage rate. Eligible salaried non-bonus eligible associates may receive a minimum of 3 weeks of base pay and a maximum of 18 weeks of base pay. Eligible salaried bonus eligible associates may receive a minimum of 4, and up to 26, weeks of base pay, calculated over the same 10-week period.
Bonus Eligible Store Associates (who are bonus-eligible at the time of termination) will receive their “Base Bonus,” prorated for the number of weeks in the quarter that the associate actively worked, unless a special incentive applies as described above. Payment will be made at the time of severance payment.
An Eligible Associate’s full Years of Service are calculated from his or her most recent hire or rehire date (not any combined or adjusted hire date), i.e., Years of Service will not be “bridged” or added together. Except as otherwise provided by law, an Associate whose approved leave of absence and employment extend beyond the otherwise Covered Reason will not continue to accrue Years of Service for severance calculation and eligibility purposes beyond the effective date of the covered restructuring, job elimination, facility sale or closure.
14. Successor means any employer (whether or not the employer is affiliated with the Company) which acquires (through merger, consolidation, reorganization, transfer, sublease, assignment, or otherwise) (i) all or substantially all of the business or assets of the Company, of a division of the Company, or of a single facility or business unit of the Company, or (ii) the facility or operation where the Associate usually works. This includes any employer who acquires from the Company any facility, department, or business unit within a 50 mile radius of the facility, department, or business unit where the Associate usually works, whether or not the employer acquires the Associate’s facility. A Successor also includes any employer who acquires the right to lease, staff lease or provide temporary services to the Company for a department, division, facility, operation, or function of the business.
15. Years of Service shall mean the completed 12-month periods during which an Associate has been employed by the Company, including completed 12-month periods at predecessor Albertson’s, Inc., on a continuous basis measured from the Associate’s most recent hire or rehire date (not an adjusted or reinstated hire date). Except as otherwise provided by law, an Associate whose approved leave of absence and employment extend beyond the otherwise Covered Reason will not continue to accrue Years of Service for severance calculation and eligibility purposes beyond the effective date of the covered restructuring, job elimination, facility sale or closure.
ELIGIBILITY AND PAYMENT
1. Eligibility. Subject to all provisions of this Plan, an Associate shall become a Participant if on or after the Effective Date, the Associate is notified by the Company that his or her employment with the Company is to be involuntarily terminated by the Company for a Covered Reason, unless such termination is the result of actions by the Associate which, as determined by the Company in its sole discretion, would normally result in a termination or discharge
The foregoing, to the contrary notwithstanding, the Company reserves the right to determine the applicability or non-applicability of the Plan in its sole and absolute discretion based on the facts and circumstances of each situation and administered in a fair and non-discriminatory manner.
3.2 Payment. A Participant shall be entitled to the Severance Pay set forth in Sections 2 and 4 hereof, if he or she is not and does not become disqualified from receiving Severance Pay pursuant to Section 3.3 hereof.
3.3 Disqualifying Events. A Participant shall not be entitled to the Severance Pay set forth in Sections 2 and 4 hereof, if:
1. He or she fails to return to the Company a properly signed Severance and Release Agreement within the time period specified therein or he or she revokes his or her Severance and Release Agreement within the time period permitted in the Severance and Release Agreement;
2. He or she is notified of a subsequent termination date for his or her employment, and prior to such date, he or she (1) terminates employment voluntarily, (2) fails to properly attend work prior to his or her final day of active work designated by the Company, (3) terminates employment involuntarily for misconduct, as determined solely by the Company, or (4) fails to perform adequately his or her employment duties and responsibilities, all within the sole discretion of the Company;
3. He or she rejects an offer or fails to accept an offer of another position with the Company, a Successor, or any affiliate of the Company on or before his or her termination date. However, he or she may still be eligible for benefits despite rejecting the offer if either (1) His or her new hourly wage rate will be less than 80% of his or her current hourly wage rate, or (2) the new job will require him or her to work in a facility located more than a 50 mile radius from his or her current workplace; or
4. He or she accepts an offer of another position from the Company, a Successor, or any affiliate of the Company regardless of whether the new position has a base hourly wage rate of less than 80% of his or her current hourly wage rate or the new job will require him or her to work in a location more than a 50 mile radius from his or her current workplace; or
5. He or she refuses or fails to cooperate fully in seeking continued employment with the Company or any affiliate, or with a Successor, for example, by not applying for a position, by not cooperating fully and completely in the application or interview process, or in any other way impedes the possibility of him or her obtaining an offer from the Company, its affiliates, or a Successor. He or she must at all times in good faith pursue all alternative employment options defined above to remain eligible for Severance Pay herein.
In addition, should a Participant file any legal claim or suit against the Company, which is validly released or intended to be released under the Severance and Release Agreement, based in whole or in part on events occurring prior to the Effective Date of the Severance and Release Agreement required to receive severance, or if a Participant breaches the Severance and Release Agreement in any way, the Company shall have the legal right to recover repayment from the Participant of all pay and benefits provided to him or her under this Plan, and/or to offset such amounts from any financial liability imposed because of such claim or suit.
It is also a condition of receipt of Severance Payments that a Participant agrees not to directly or indirectly solicit any current (as of the time of the solicitation) Company associate for employment with any other entity for two years from the Effective Date of the Severance and Release Agreement, as allowed by law.
4. Release. Prior to the date the Participant’s employment with the Company will terminate, such Participant will receive a Severance and Release Agreement in a form satisfactory to the Company, substantially in the form attached to this Plan as Exhibit A. If the Participant accepts and agrees to receipt of his or her Severance Pay and benefits as determined, he or she shall execute a personalized version of the Severance and Release Agreement and return it to the Company within the time period specified by the Company following his or her Severance Date. Such Severance and Release Agreement must be timely and appropriately executed by its terms and not revoked for the Participant to qualify for payments and benefits under this Plan.
3.5 Reemployment. By accepting a Severance Payment under the Plan, the Participant agrees not to reapply for employment with the Company or a Successor within six months (or such other period as provided in the Severance and Release Agreement) of the Participant’s Severance Date.
AMOUNT AND PAYMENT OF SEVERANCE PAY
4.1 Amount and Timing. A Participant’s Severance Pay under Sections 2 and 4 hereof shall be the number of weeks of Pay set forth in the Section 2 above, based on such Participant’s status and his or her number of Years of Service. Such Severance Pay shall be paid in one lump sum as soon as administratively practicable after the Participant’s Severance Date, after the Company’s receipt of the Participant’s timely submitted and signed Severance and Release Agreement, and after the seven day period for revoking the Participant’s signature has expired without revocation by the Participant, but in no event later than by the fifteenth day of the third month following the calendar year in which the Participant's Severance Date occurs.
Employment taxes shall be withheld from all severance payments but voluntary deductions shall not be allowed. In addition, any amount payable under Sections 2 and 4 hereof shall be reduced (but not below zero) by any overpayment of wages or payment made as required by government-mandated programs or by any law that requires payment of wages and fringe benefits in lieu of appropriate notice of closing, layoffs or termination of employment.
2. Additional Benefits. The Company will also offer the following additional benefits.
1. Participants shall have the right to continue medical and dental benefits under the continuation health coverage provisions of Title X of the Consolidated Omnibus Budget Reconciliation Act of 1986 (“COBRA”) after his or her Severance Date, if otherwise eligible and/or, if eligible, may enroll in a Company retiree health plan. To the extent that the Participant is eligible for and elects COBRA coverage, the Company shall cover the premiums or cost of such coverage (excluding IRC section 125 flexible spending accounts and fully-insured medical or dental coverage paid solely by the Participant) on a monthly basis for the lesser of (1) (A) the first 6 months of coverage for Participants who are salaried, or (B) the first 4 months of coverage for Participants who are hourly, or (2) until Participant no longer qualifies to participate, whichever comes first. At the end of the Associate’s Company-paid COBRA coverage, the Associate may continue COBRA coverage at the Associate’s expense or to the extent eligible under the terms of such Plan may elect to participate in the Company’s self-pay retiree health care plan.
2. Store Participants shall have the right to receive, as part of their Severance Pay, a pro-rated bonus for partial bonus periods completed, subject to the terms of the Store Level Bonus Plan and this Plan, unless a special incentive program applies. If a special incentive program applies, a pro rated bonus may not be paid out as part of severance, instead the terms of the Bonus Plan regarding special incentives would apply. Distribution Center Participants may be paid a bonus, separate from Severance Pay, based on the terms of the Bonus Plan applicable to such associates.
4.3 Vacation Pay. Participants shall be paid for normal termination vacation pay and any other earned pay (if any) pursuant to existing Company policy and applicable state law.
4.4 Other Benefit Plans. Benefits under any other benefit plans including, but not limited to, tax-qualified retirement plans, retiree health care plans, medical or dependent care expense accounts, fringe benefit plans, policies, programs, incentives, bonuses, and nonqualified deferred compensation plans sponsored by the Company are governed solely by the terms of those plans, programs or policies. This Plan does not change the eligibility, termination or other provisions for those benefits.
4.5 Offset. The Company further reserves the right to offset the benefits payable under Sections 2 and 4, by any advance, loan or other monies the Participant owes the Company.
5.1 Death. If a Participant dies before receiving all of his or her Severance Pay due under this Plan, such pay will be distributed in one lump sum cash payment to the Participant’s estate.
5.2 Payment after Death. The Administrator may require that any individual or entity purporting to represent a Participant’s estate provide such proof of such status as the Administrator may deem appropriate including, but not limited to, letters testamentary or letters of administration. The Administrator may also require that such individual, as a condition to receiving Severance Pay, agree in a provision to be incorporated in the Severance and Release Agreement, to indemnify and hold harmless the Administrator and such other persons deemed appropriate by the Administrator for any financial responsibility, liability or expense arising out of a claim by another party or parties asserting entitlement to all or part of the benefit payable hereunder. In addition, the Company reserves the right to offset the benefits payable as provided under this Plan.
6.1 Interpretation. The Company shall have sole discretionary authority to interpret, construe, apply and administer the terms of the Plan and to determine eligibility for and the amounts of benefits under the Plan, including interpretation of ambiguous Plan provisions, determination of disputed facts or application of Plan provisions to unanticipated circumstances. The Company’s decision on any such matter shall be final and binding.
6.2 Reporting and Disclosure. The Company shall be the administrator of the Plan for purposes of Section 3(16) of ERISA and shall have responsibility for complying with any ERISA reporting and disclosure rules applicable to the Plan for any Plan Year. The Administrator may at any time delegate to any other named person or body, or reassume therefrom, any of its fiduciary responsibilities (other than trustee responsibilities as defined in Section 405(c)(3) of ERISA) or administrative duties with respect to this Plan.
6.3 Service Providers. The Administrator may contract with one or more persons to render advice or services with regard to any responsibility it has under this Plan.
6.4 Rules. Subject to the limitations of this Plan, the Administrator shall from time to time establish such rules for the administration of this Plan as the Administrator may deem desirable.
7.1 If a Participant believes he or she has not been provided with Severance Pay benefits due under the Plan, then the Participant may file a request for benefits under this procedure with the Senior Vice President, Human Resources for Albertson’s LLC, or his or her delegate, within ninety (90) days after the date the Participant believes he or she should have received such benefits. If a Participant makes such a request for benefits under the Plan and that claim is denied, in whole or in part, the Administrator shall notify the Participant of the adverse determination within ninety (90) calendar days unless the Administrator determines that special circumstances require an extension of time for processing. If the Administrator determines that an extension of time is necessary, written notice shall be furnished to the claimant prior to the end of the initial ninety (90) day period and the extension shall not exceed ninety (90) days from the original ninety (90) day period. The extension notice shall indicate the special circumstances requiring an extension and the date by which the Administrator expects to render a determination.
The Administrator shall notify the Participant of the specific reasons for the denial with specific references to pertinent Plan provisions on which the denial is based and shall notify the Participant of any additional material or information that is needed to perfect the claim and explanation of why such material or information is necessary. At that time the Participant will be advised of his or her right to appeal that determination, and given an explanation of the Plan’s review and appeal procedure including time limits, and a statement regarding the Participant’s right to bring a civil action under ERISA section 502(a) following an adverse determination or appeal.
7.2 A Participant may appeal the determination or denial by submitting a letter to the Administrator within sixty (60) calendar days after receiving a denial notice:
(a) requesting a review by the Administrator of the claim;
(b) setting forth all of the grounds upon which the request for review is based and any facts in support thereof; and
(c) setting forth any issues or comments which the Participant deems relevant to the claim.
The Participant may submit written comments, documents, records and other information relating to his claim. Upon request, the Participant may obtain free of charge, copies of all documents and records relevant to his claim.
7.3 The Administrator shall act upon the appeal taking into account all comments, documents, records and other information submitted by the Participant without regard to whether such information was submitted or considered in the initial benefit determination and shall render a decision within sixty (60) days or one hundred twenty (120) days in special circumstances after its receipt of the appeal. If the Administrator determines that an extension of time is necessary, written notice of the extension shall be furnished to the Participant prior to the end of the initial sixty (60) day period. The extension notice shall indicate the special circumstances requiring an extension of time and the date by which the Administrator expects to render a determination.
The Administrator shall review the claim and all written materials submitted by the Participant, and may require him or her to submit, within ten (10) days of its written notice, such additional facts, documents, or other evidence as the Administrator in its sole discretion deems necessary or advisable in making such a review. On the basis of its review, the Administrator shall make an independent determination of the Participant’s eligibility for benefits and the amount of such benefits under the Plan. The decision of the Administrator on any claim shall be final and conclusive upon all persons if supported by substantial evidence.
If the Administrator denies a claim on review in whole or in part, it shall give the Participant written notice of its decision setting forth the following: (a) the specific reasons for the denial and specific references to the pertinent Plan provisions on which its decision was based; (b) notice that the Participant may obtain free of charge, copies of all documents, records and other information relevant to the Participant’s claim; and (c) a statement of the Participant’s right to bring a civil action under section 502(a) of ERISA.
7.4 A Participant or his or her legal representative may challenge any final appeal decision by filing an action in a federal court of competent jurisdiction, provided that such action is filed no later than ninety (90) days after receipt of a final decision by the Participant or his or her legal representative.
7.5 A Participant is responsible for ensuring that the Company and the Plan Administrator have on file his or her current address for purposes of receipt of written communication regarding the plan.
8.1 Funding. The benefits and costs of this Plan shall be paid by the Company out of its general assets.
8.2 ERISA Status. This Plan is intended to be an “employee welfare benefit plan,” as defined in Section 3(1), Subtitle A of Title 1 of ERISA. The Plan will be interpreted to effectuate this intent. Notwithstanding any other provision of this Plan, no Associate shall receive hereunder any payment exceeding twice that Associate’s annual compensation during the year immediately preceding the termination of his service, within the meaning of 29 C.F.R. Section 2510.3-2, as the same was in effect on the Effective Date of this Plan.
AMENDMENT AND TERMINATION
The Company reserves the right to amend this Plan, in whole or in part, or discontinue or terminate the Plan; provided, however, that any such amendment, discontinuance or termination shall not affect any right of any Participant to claim benefits under the Plan or as in effect prior to such amendment, discontinuance or termination, for events occurring prior to the date of such amendment, discontinuance or termination. An amendment to this Plan, and/or resolution of discontinuance or termination, may be made by the Administrator, to the extent permitted by resolution of the Board of Directors.
IN WITNESS WHEREOF, the Company has caused its officer, duly authorized by its Board of Directors, to execute the Plan effective as of the 30th day of July, 2008.
SEVERANCE AND RELEASE AGREEMENT
In consideration for the payment to me of [insert amount spelled out] And 00/100 Dollars ($___________) (which reflects the gross amount of severance pay reduced by applicable taxes, offsets and appropriate withholdings) (“Severance Pay”), I, _______________, hereby voluntarily make the following promises and agree to the terms of this Severance and Release Agreement (“Agreement”), intending to be legally bound by them.
1. I hereby release Albertson’s LLC and New Albertson’s, Inc. (“Company”) and its parent companies, subsidiaries, affiliates, and their respective Successors, assigns, officers, directors, employees, agents, insurers, attorneys, associates, trusts, and anyone else who may be claimed to be liable through them (collectively “the Released Parties”) from any and all claims, actions, and causes of action, including but not limited to claims arising out of my employment with and/or termination from the Company and claims based on express or implied contract, covenants of fair dealing and good faith, wrongful discharge, Title VII of the Civil Rights Act of 1964, as amended, the Americans with Disabilities Act, the Family and Medical Leave Act, the Worker Adjustment and Retraining Notification Act of 1988, the Age Discrimination in Employment Act, as amended (“ADEA”), the Employee Retirement Income Security Act of 1974, as amended, the Older Workers Benefit Protection Act, the Uniformed Services Employment and Reemployment Rights Act (“USERRA”), and any other applicable federal, state, or local laws, ordinances, and regulations relating in any way to my employment. However, I understand that I retain the legal right to challenge the validity of my agreement to release age discrimination claims under this Agreement, despite any language in this Agreement which may be read to the contrary.
I specifically intend this release of legal claims to be as broad and as comprehensive with respect to current and existing, or future claims which may arise after my signature hereon, as state and federal or other law will allow. This Agreement also covers all legal claims of the sort referenced above which may arise or mature in the future, if any legal or factual element of such claim(s) arose prior to the effective date of this release, or if any such claim in any way relates to my employment with the Company, regardless of whether or not such claim is known or unknown, or has matured or is accruing, at the time this Agreement becomes effective.
I specifically promise and covenant, in consideration of this Agreement, not to sue the Company with respect to any legal claim covered and validly released by this Agreement. I agree that if I file a released legal claim of any sort against the Company, based in whole or in any part on events occurring prior to my signature on this Agreement, the Company, at its option, may:
a. File a claim or suit against me for full payment of all amounts paid under this Agreement, or
b. Offset any financial damages or settlement because of such claim or suit by the amounts paid under this Agreement, and/or
c. Be entitled to an award of attorneys’ fees and costs if such claim or suit is determined by the applicable tribunal to be validly released or unmeritorious.
With respect to any legal claim or suit that may not be subject to a legal and binding release under this Agreement, I specifically waive any monetary damages with respect to such claim or suit.
This Agreement is intended to waive any and all claims of age discrimination under federal, state, or local law.
The terms of this Agreement will not be effective until the seven (7) day revocation period (outlined in Paragraph 9 below) expires.
2. Nothing in this Agreement shall be construed as an admission of liability by the Company; rather, I am voluntarily resolving any and all matters regarding my employment and separation from the Company.
3. Without the express prior written consent of the Company, I agree that I shall never disclose, communicate, divulge, furnish, make accessible to any person, firm, partnership, corporation or other entity, or use for my own benefit or purposes, any information of a confidential or proprietary nature obtained from or pertaining to the Company, its assets or business, including but not limited to information concerning the Company’s current or future proposed business plans, processes, operational methods, consumer lists, trade secrets, suppliers, employees’ personnel files and compensation, financial affairs or marketing strategies (“Confidential Information”). I further agree that I have delivered, or will deliver simultaneously with the signing of this Agreement, to my location manager, human resources representative, or loss prevention manager all Confidential Information in my possession, as well as Company property provided to me or in my possession, including but not limited to keys, badges, laptops, Company credit cards, cell phones and other electronic devices.
4. I shall cooperate with and assist the Company (including making myself available at reasonable times and places), without further compensation, so as to aid the Company in connection with any matters related to my employment by the Company or about which I am knowledgeable; provided, however, my cooperation with such matters shall not interfere unreasonably with my subsequent employment or personal obligation, if any.
5. I agree not to directly or indirectly solicit any current (as of the time of the solicitation) Company associate for employment with any other entity for two years from the effective date of this Agreement, as allowed by law. I acknowledge that the payment in Paragraph 1 hereof is specific consideration for this non-solicitation agreement and is in addition to anything to which I am otherwise entitled. If this non-solicitation agreement is in violation of any applicable law, I alternatively agree to not solicit such associates to the full extent allowed by any applicable law. I also agree not to (i) apply for re-employment with the Company or any affiliate of the Company for a period of six months from the date of my termination; or (ii) if the location was purchased by another entity, apply for employment with the locations that were purchased from the Company by this entity for a period of six months from the date of my termination.
6. I further agree that I will not directly or indirectly, in my own name or anonymously, in public or in private, in any form of communication, including but not limited to oral, written, or electronic, deprecate, impugn, disparage, or make any remarks that would tend to or be construed to tend to defame the Company or any of its employees, members of its board of directors or agents, nor shall I assist any other person, firm or company in so doing.
7. I acknowledge that the offer of consideration contained in this Agreement is contingent upon my compliance with the terms described herein. I understand and agree that if the Company believes that I am in violation of the terms of this Agreement, either before or after signing below, the Company retains the right to cease providing payments or otherwise carrying out the terms of the Agreement. Further, I acknowledge and agree that if I violate the terms of this Agreement, the Company shall have the right to recover any amounts paid under this Agreement, including the value of any benefits provided, attorneys fees and costs, in addition to any other rights the Company may have at law or in equity.
8. I acknowledge that I am hereby advised in writing by the Company to consult with an attorney of my choice prior to executing this Agreement.
9. I acknowledge that I have been provided the notice attached hereto as Exhibit A, which contains information regarding the class, unit or group of individuals eligible to participate in the Company’s severance plans, including any eligibility factors for participation in such plan, any time limits applicable to such plans, the job titles and ages of all individuals eligible or selected for participation in such plans and the ages of all individuals in the same job classification or organizational unit who are not eligible or selected to participate in such plans. I also acknowledge that I am hereby advised in writing by the Company that I have been given forty-five (45) calendar days in which to consider the terms of this Agreement before signing it. I understand that I waive the remainder of the 45-day consideration period if I sign and return this Agreement before the end of the 45-day consideration period. I also understand that I may revoke this Agreement anytime within seven (7) days of signing it. I must contact, in writing, the Company’s Benefits Department at 250 Parkcenter Blvd., Boise, ID 83726 or at fax number 208-395-4879 to revoke this Agreement.
10. Effective Date. The terms of this Agreement will not be effective until the seven (7) day revocation period in Paragraph 9 hereof expires.
11. I acknowledge that the Severance Pay is consideration in addition to anything of value to which I am already entitled, and is not unconditionally required to be paid as a term and condition of my employment with the Company, but rather is paid solely and exclusively in consideration of my commitments under this Agreement, including specifically the full release of claims in Paragraph 1 hereof.
This Agreement will be governed by the laws of Idaho without regard to conflict-of-laws principles and to the extent not preempted by federal law. Any action contesting the application, enforcement, or interpretation of this Agreement must be litigated in the federal district courts of the state of my employment with the Company.
I have signed this Agreement freely and voluntarily and not because of any deception or coercion. I understand the terms of this Agreement and agree that they are fair and equitable.
12. I agree to keep the terms of this Agreement confidential and to not disclose them except to my attorney and/or personal advisors who have a need to know or if required by law or a court of competent jurisdiction, who will likewise be bound by this confidentiality requirement.
13. Subject to Paragraph 1 hereof, if any provision of this Agreement or the application of any provision hereof to any person or circumstance shall be determined under applicable law to be invalid, unenforceable, or otherwise illegal, the remainder of this Agreement and the application of such provision to any other person or circumstance will not be affected, and the provision so held to be invalid, unenforceable, or otherwise illegal will be reformed to the extent (and only to the extent) necessary to make it valid, enforceable or legal.
14. This Agreement is a fully-integrated agreement and constitutes the entire agreement between the parties as to the subject matter thereof.
15. I agree that if I breach this Agreement in any way, I am obligated to repay the Company all amounts previously paid to me under Paragraph 1 above, plus the Company’s attorneys’ fees and costs.
I HAVE READ AND I UNDERSTAND THIS AGREEMENT, AND I AM SIGNING IT VOLUNTARILY AND WITHOUT DURESS TO RECEIVE THE SEVERANCE BENEFITS OUTLINED HEREIN.
Signature of Associate Date of Associate’s Signature
Name of Associate Last Day of Employment
Social Security Number
If Associate is a Minor or is otherwise incapable of making a knowing waiver of claims, please note the name of the Associate’s Parent/Guardian and sign on the Minor’s behalf, approving the Severance and Release Agreement.
I AM THE PARENT/GUARDIAN OF THE MINOR/ASSOCIATE NOTED ABOVE, AND HAVE LEGAL AUTHORITY TO SIGN ON HIS/HER BEHALF BECAUSE HE OR SHE CANNOT LEGALLY DO SO. I HAVE READ AND I UNDERSTAND THIS AGREEMENT, AND I AM SIGNING IT VOLUNTARILY AND WITHOUT DURESS ON THE MINOR/ASSOCIATE’S BEHALF SO THAT HE/SHE MAY RECEIVE THE SEVERANCE BENEFITS OUTLINED HEREIN.
Name of Parent/Guardian Signature of Parent/Guardian
Date of Parent/Guardian’s Signature
SEVERANCE AND RELEASE AGREEMENT