CONFIDENTIAL
SEVERANCE AGREEMENT AND FULL AND GENERAL RELEASE
The purpose of this Confidential
Severance Agreement and Full and General Release (this
“Agreement”) is to set forth the terms and conditions
of Employee’s separation from employment with The Kansas City
Southern Railway Company, a Missouri Corporation (the
“Company”).
The Company and Scott Arvidson (“Employee”) agree as
follows:
1. Separation :
Employee’s separation from employment with the Company is
effective August 7, 2009 (the “Separation Date”).
Employee’s separation will be characterized by the Company as
a voluntary resignation. All documents maintained in
Employee’s official personnel file will reflect voluntary
resignation. All documents regarding the investigation which led to
Employee’s separation will be maintained separate from
Employee’s official personnel file. The Company will not
protest or object to any claim for unemployment compensation or
other unemployment benefits made by Employee with the Railroad
Retirement Board, to the extent any such claim is made outside
the period of severance pay . This provision, however, in no
way limits the Company’s ability to properly and truthfully
respond to any request for information or other inquiry made by the
Railroad Retirement Board or any other government entity. The
Company (or the Company’s third party employment verification
vendor) will respond to any employment verification request by
providing Employee’s dates of employment, positions held, and
nature of separation as voluntary resignation.
2. Benefits Payable
: In addition to Employee’s regular compensation and earned
but unused vacation pay through the Separation, the Company will
provide Employee with severance equal to (a) $336,385.92, less
applicable taxes and withholdings and (b) continuing group
health coverage for Employee and/or his or her eligible dependents
for the 12 month period of separation pay, provided Employee
timely elects to continue such coverage for himself or herself
and/or his or her eligible dependents pursuant to the Consolidated
Omnibus Budget Reconciliation Act of 1985 (“COBRA”) and
continues to timely pay the cost of such coverage at the rate that
would be charged to an active employee with similar coverage,
(collectively referred to as the “Severance”). Payment
of the Severance will commence after the expiration of the
Revocation Period as set out in Section 14(f) and will be made in
12 substantially equal installments, on the regular payroll cycle,
through Employee’s usual payroll method. Employee shall
receive, under separate cover, information concerning rights to
continue Employee’s participation in any Company-sponsored
group health insurance plan, in accordance with COBRA.
Employee’s benefits in all other Company-sponsored benefit
plans shall terminate in accordance with the terms and conditions
of such plans. Employee acknowledges that the Severance is good and
valuable consideration in exchange for this Agreement, and further
acknowledges and agrees that: (i) other than the Severance,
the Company has paid Employee all compensation due and owing to
Employee related to any employment relationship between Employee
and the Company, including, without limitation, all salary, pay,
commissions, bonuses, vacation pay, paid time off, and
(ii) that, as of the Separation Date, Employee is no longer an
employee of the Company and may under no circumstance represent
him/herself to be in any way connected with or a representative of
such company.
3. Release : In
consideration of the Severance set forth above and other valuable
consideration set forth in this Agreement, and as a material
inducement to the Company to enter into this Agreement, Employee
agrees, for him/herself, Employee’s heirs, executors,
administrators, representatives, successors and assigns and anyone
claiming by, through or for Employee, or anyone making a claim on
Employee’s behalf (for purposes of this Section,
“Employee”), to irrevocably and unconditionally waive,
release and forever discharge the Company, and its respective
present, past, and future parents, subsidiaries, and affiliated
corporations, divisions, affiliates, predecessors, principals,
partners, joint venturers, representatives, successors, and
assigns, and its past and present owners, directors, officers,
employees, stockholders, attorneys, agents, and insurers, and all
persons acting by, through, under or in concert with any of them
and all other persons, firms and corporations whomsoever
(collectively “Released Parties”) from any and all
liability, actions, causes of actions, common law claims, statutory
claims under local, state or federal law including but not limited
to any rights and claims under any state’s human rights act,
civil rights laws, or similar law, any state’s wage payment
act or similar law, any wage payment act or similar law, any law
governing any aspect of employment, Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 1981, the Employment Retirement
Income Security Act, the Consolidated Omnibus Budget Reconciliation
Act, the Americans with Disabilities Act of 1990, the Fair Labor
Standards Act of 1938, the Family & Medical Leave Act of 1993,
the Age Discrimination in Employment Act of 1967, the Age
Discrimination in Employment Act Amendments of 1990 (sometimes
known as the “Older Workers Benefit Protection Act”),
the Equal Pay Act of 1963, the Worker Adjustment Retraining
Notification Act of 1988, and any amendment thereto, the
Federal Employer’s Liability Act; all claims arising from
labor protective conditions imposed by the Interstate Commerce
Commission or the Surface Transportation Board; all oral or written
contract rights, including any rights under an employment
agreement, any Company incentive or benefit plan or program,
including unvested stock options, and ANY RIGHTS UNDER ANY
COLLECTIVE BARGAINING AGREEMENT, INCLUDING ANY SENIORITY RIGHTS,
BUMPING RIGHTS AND REINSTATEMENT RIGHTS, RIGHTS TO FILE OR ASSERT A
GRIEVANCE OR OTHER COMPLAINT, RIGHTS TO A HEARING (whether before
any company official, any system, group, regional or special
adjustment board, the National Railroad Adjustment Board, or any
other entity), OR RIGHTS TO ARBITRATION UNDER SUCH AGREEMENT;
and any claim under any local, state
or federal statute, regulation, rule, ordinance or common law,
breach of contract claims, breach of any collective bargaining
agreement claims, and all demands, damages, expenses, fees
(including attorney’s fees, court costs, expert witness fees,
etc.), which Employee may now have against the Released Parties
and/or have on account of, arising out of, or in connection with
all interactions, transactions or contracts, express or implied,
between Employee and the Released Parties, including, but not
limited to Employee’s employment and the termination thereof,
through the date of this Agreement.
Nothing in this Agreement shall
limit or impede Employee’s right to file or pursue an
administrative charge with, or participate in, any investigation
before the Equal Employment Opportunity Commission
(“EEOC”), any Federal, State, or Local Agency, or to
file a claim for unemployment benefits, and/or any causes of action
which by law Employee may not legally waive. Employee agrees,
however, that if Employee or anyone on Employee’s behalf,
brings any action concerning or related to any cause of action or
liability released in this agreement, Employee waives
Employee’s right to, and will not accept, any payments,
monies, damages, or other relief, awarded in connection
therewith.
THIS MEANS THAT BY SIGNING
THIS AGREEMENT EMPLOYEE WILL HAVE WAIVED ANY RIGHT EMPLOYEE MAY
HAVE TO RECOVER IN A LAWSUIT OR OTHER ACTION AGAINST RELEASED
PARTIES, INCLUDING BUT NOT LIMITED TO THE COMPANY, BASED ON ANY
ACTIONS OR OMISSIONS MADE BY THE RELEASED PARTIES, INCLUDING BUT
NOT LIMITED TO CLAIMS WHICH IN ANY WAY ARISE FROM OR RELATE TO
EMPLOYEE’S EMPLOYMENT RELATIONSHIP AND THE SEPARATION OF
EMPLOYEE’S EMPLOYMENT WITH THE COMPANY, UP TO THE DATE OF THE
SIGNING OF THIS AGREEMENT.
4. Covenant Not to
Sue : Employee agrees and covenants, except as allowed by law
with regard to this Agreement, not to sue or file any claims
against the Released Parties with regard to any matters arising
prior to the execution of this Agreement. Employee represents and
warrants that no such claim has been filed to date.
5. Mutual
Non-Disparagement : Employee agrees not to in any way or to any
extent slander, libel, disparage, or otherwise impair the
reputation, goodwill, or commercial interest of the Company and the
Released Parties, including but not limited to their, officers,
directors, management, shareholders, and/or the Company’s or
the Released Parties’ performance, work product or
method
