Form Agreement in Connection with the Executive Severance Plan
Exhibit 10.5.5
Form Agreement in Connection with the
Executive Severance Plan
(As Amended and Restated Effective September 25, 2008 and December 31, 2008)
In accordance with the terms of the Coca-Coca Enterprises Inc. Executive Severance Plan (the “Plan”), (the “Executive”) is eligible for the following payments and benefits from his/her employer, Coca-Cola Enterprises Inc. or one of its affiliates (the “Company”), upon Executive’s termination of employment:
| • | Severance payments totaling $ , paid in substantially equal bi-weekly installments in accordance with the Company’s regular payroll cycles; beginning following Executive’s separation from service date. This amount is comprised of: |
| • | $ , representing months of base salary; |
| • | $ , representing annual bonuses payable at 100% of his/her Management Incentive Plan target award level (the target award level being equal to % of his/her base salary); |
| • | A lump-sum payment of $ to be made on , which amount is comprised of: |
| • | $ for assistance with future medical coverage costs; and |
| • | $ for assistance with obtaining outplacement services. |
| • | Waiver of any remaining service-based vesting requirements on Executive’s outstanding restricted stock or restricted stock unit awards, as described below: |
Because the performance targets have been met on the following awards, the underlying shares will vest as of the later of Executive’s termination date and the date this agreement becomes effective, with the underlying shares distributed as soon as practicable following such date or as otherwise provided under terms of the awards:
| Original Grant Date | Number of Shares to Vest | |
| — | — |
Because the applicable performance targets have not been met on the following awards, vesting of the underlying shares (a pro rata portion of the award) is conditioned on the satisfaction of applicable performance target for each grant and will be paid as provided in accordance with the terms of the award:
| Grant Date | Shares Eligible to Vest | Performance Target ($/Share) | Must be Met By This Date | |||
| — | — | — | — |
| • | In first quarter of the year following separation from service, Executive will receive the 20 Management Incentive Plan award, if any, based on actual performance results and prorated for the number of days of his/her employment during . |
The payments and benefits described above, which Executive acknowledges that he/she would not otherwise be entitled to receive, are in consideration of, and contingent on, Executive executing and not revoking the release of claims and non-competition covenants contained in this Agreement (the “Agreement”), as well as Executive’s compliance with the other terms and obligations under the Plan, including, without limitation, the confidentiality, non-solicitation, non-disparagement, return of Company records and property, and cooperation requirements contained in the Plan.
| 1. | Release of Claims |
Executive agrees, for Executive, Executive’s spouse, heirs, executor or administrator, assigns, insurers, attorneys and other persons or entities acting or purporting to act on Executive’s behalf, to irrevocably and unconditionally release, acquit and forever discharge the Company, its affiliates, subsidiaries, directors, officers, employees, shareholders, partners, agents, representatives, predecessors, successors, assigns, insurers, attorneys, benefit plans sponsored by the Company and said plans’ fiduciaries, agents and trustees (collectively, “Company Parties”), from any and all actions, causes of action, suits, claims, obligations, liabilities, debts, demands, contentions, damages of any nature whatsoever, judgments, levies and executions of any kind, whether in law or in equity, known or unknown, which Executive now has, owns or holds, or claims to have had, own or hold, or which Executive at any time prior to now had, owned or held, or claimed to have, own or hold against any of the Company Parties or in any way connected to Executive’s employment with the Company.
This release specifically includes, without limitation, any tort, contract, fraud or constitutional claim; any claim based on wrongful discharge, breach of contract, violation of public policy, interference with legal rights, or promissory estoppel; any claim for workers’ compensation retaliation; any whistleblower claim; any claim arising under federal, state or local law prohibiting race, sex, age, religion, national origin, handicap, disability or other forms of discrimination or retaliation; any claim arising under federal, state or local law concerning employment practices; and any claim relating to compensation or benefits. This specifically includes, without limitation, any claim which Executive has or has had under Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991; 42 U.S.C. §1981; the Age Discrimination in Employment Act, as amended by the Older Workers Benefit Protection Act; the Americans with Disabilities Act, as amended; the Worker Adjustment and Retraining Notification Act; and the Employee Retirement Income Security Act of 1974, as amended.
Executive agrees that this is a general release and that it is to be broadly construed as a release of all claims; provided that, notwithstanding the foregoing, this Agreement does not include a release of any claims that cannot be released hereunder by law. Executive represents and acknowledges that he/she has carefully read and understands all of the provisions of this Agreement, and that he/she is voluntarily entering into this Agreement. Executive represents and acknowledges that he/she has been advised in writing to, and has been afforded the right and opportunity to, consult with an attorney prior to executing this Agreement.
Executive has days within which to consider this Agreement, and seven (7) days following its execution to revoke this Agreement. All payments and benefits provided under the Plan are contingent on, and will not be paid until Executive executes and does not revoke this Agreement.
| 2. | Non-Competition |
Executive covenants and agrees that, during the period beginning with Executive’s termination of employment and ending with the last installment payment of severance provided under the Plan, Executive will not directly or indirectly, on Executive’s own behalf or on behalf of any person or entity, compete with the Company by performing activities or duties substantially similar to the activities or duties performed by Executive for the Company during the year preceding Executive’s termination of employment for any business entity that is a Direct Competitor of the Company within the continental United States.
A “Direct Competitor” of the Company is any business or operations owned or operated by PepsiCo, Inc. or the Dr Pepper Snapple Group.; or any entity bottling or distributing the products of these businesses or operations. Executive expressly acknowledges and agrees that, because of the nature of the services he/she has provided to the Company, the geographic area to which this non-competition agreement applies is reasonably defined to protect the Company’s legitimate business interests.
| 3. | Mutual Non-Disparagement |
In recognition of Executive’s obligation under the Plan to refrain from disparaging the Company, the Company agrees to make good faith efforts to direct its officers and other members of senior management to refrain from disparaging Executive.
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| 4. | Entire Agreement |
This Agreement and the Coca-Cola Enterprises Inc. Executive Severance Plan set forth the entire agreement between Executive and the Company Parties as to the termination of Executive’s employment with the Company, and fully supersedes any and all prior agreements or understandings between Executive and the Company Parties pertaining to the termination of Executive’s employment with the Company.
THIS AGREEMENT CONTAINS A WAIVER AND GENERAL RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS. EXECUTIVE ACKNOWLEDGES THAT HE OR SHE HAS CAREFULLY READ AND UNDERSTANDS THIS AGREEMENT, AND THAT HE OR SHE HAS BEEN ADVISED TO, AND HAD THE OPPORTUNITY TO, CONSULT WITH AN ATTORNEY BEFORE EXECUTING THIS AGREEMENT.
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