Exhibit 10.58(b)
SEPARATION AGREEMENT, TRANSITION
AGREEMENT AND
GENERAL RELEASE
This Separation Agreement and
General Release (hereinafter “Agreement’) is by and
between Allied Van Lines, Inc., North American Van
Lines, Inc., SIRVA, Inc., its subsidiaries and their
subsidiaries (hereinafter the “Company”) and Joan Ryan
(hereinafter “Employee”). The effective date of
this Agreement shall be the first date on which all parties have
executed it and the seven day revocation period has expired
(“Effective Date”).
WITNESSETH:
WHEREAS, Employee wishes to resign
her employment with the Company;
WHEREAS, Employee and the Company
wish to effectuate a final resolution of all matters relating to
Employee’s employment and the termination thereof.
NOW, THEREFORE, in consideration of
the mutual covenants and promises contained herein, Employee and
the Company agree as follows:
1.
Resignation as Senior Vice
President and Chief Financial Officer of
SIRVA, Inc.
Employee hereby agrees to resign her position as Senior Vice
President and Chief Financial Officer of SIRVA, Inc. and all
other titles and committee positions as of the Effective
Date. On and after such resignation through June 30,
2006, Employee shall have the job title “Financial
Consultant,” and Employee’s employment shall terminate
effective June 30, 2006.
2.
Salary Continuation, Bonus
Eligibility, Severance and PTO . The Company shall continue to pay
Employee at her current regular base salary (less applicable
payroll withholding taxes) through the Effective Date. During
the period beginning on the day after the Effective Date through
June 30, 2006 (the “Salary Continuation Period”),
the Company shall pay Employee $375,000 in bi-weekly installments
(less applicable payroll withholding taxes). Employee agrees that
she will execute the General Release attached hereto as
Exhibit A at the end of her Salary Continuation Period and
acknowledges that her continued employment through June 30,
2006, and the other promises contained herein, are adequate
consideration for that General Release. As soon as practical
after the Effective Date, Employee will be paid her earned but
unused PTO days at her current regular base salary and any
reimbursements for expenses per Company policy. Pursuant to
the terms and conditions of the Management Incentive Plan
maintained by the Company applicable to the year 2005, Employee
acknowledges and agrees that she shall not be eligible for any
payment thereunder and that the consideration set forth in this
Agreement is in lieu of any payments she may otherwise be entitled
to thereunder. Employee further acknowledges that the salary
continuation benefits and severance benefits provided under this
Agreement are in lieu of any severance benefits to which she
otherwise may be or become entitled.
3.
SIRVA Group Benefits
Plan . In further
consideration of her execution of this Agreement the Company
will: (i) through the Effective Date, continue all of
Employee’s benefits previously elected under the SIRVA Group
Benefits Plan; and (ii) during the Salary Continuation Period,
continue Employee’s benefits previously elected under the
SIRVA Group Benefits Plan, excluding Employee’s car allowance
and paid time off. Employee’s COBRA
benefits continuation period shall
begin immediately after the end of the Salary Continuation
Period.
4.
Option Awards
. All options on Company stock
awarded to Employee shall be governed by the current terms of the
applicable plans and award agreements, including the
SIRVA, Inc. Stock Incentive Plan and the SIRVA, Inc.
Omnibus Stock Incentive Plan, as appropriate. Employee
acknowledges that she will not receive any additional stock option
or other equity-based awards during the Salary Continuation Period;
provided that all previously awarded options shall continue to vest
according to the current vesting schedule during the Salary
Continuation Period. Section 5.10 of the
SIRVA, Inc. Omnibus Stock Incentive Plan shall remain
applicable. Notwithstanding any other provision of those
plans and award agreements (and documents relating thereto), or of
this Agreement, all of Employee’s stock options that have or
would have vested on or before June 30, 2006 shall vest
immediately upon termination of Employee’s employment without
Cause, as defined below, prior to June 30, 2006.
5.
No Authority
. Employee acknowledges that
effective as of the Effective Date: (i) she shall have no
authority to bind the Company to any contracts or commitments and
she will not create any obligation for the Company or bind or
attempt to bind the Company in any manner whatsoever, (ii) she
shall have no supervisory or managerial responsibility or
authority, and (iii) she shall be involved in the activities
of the Company only as may be requested by a member of the Board of
Directors, Brian Kelley or his designee as outlined below in
Paragraph 7.
6.
Duty to Cooperate
. Employee agrees to cooperate
fully, subject to reimbursement by the Company of reasonable
out-of-pocket costs and expenses with the Company and its counsel
with respect to any matter (including any litigation,
investigation, independent review or governmental proceeding),
which relates to matters with which Employee was involved during
the term of her employment with the Company. Such cooperation
shall include appearing from time to time at the offices of the
Company or the Company’s counsel, auditors or other agents or
consultants of the Company for conferences and interviews and in
general providing the officers of the Company and its counsel,
auditors or other agents or consultants of the Company with the
full benefit of Employee’s knowledge with respect to any such
matter. Employee agrees to render such cooperation in a
timely fashion and at such times as may be mutually agreeable to
the parties. If and to the extent that such time
exceeds 20 hours after the Salary Continuation Period ends,
Employee shall be compensated for such time at the rate of $190.00
per hour.
7.
Responsibilities during Salary
Continuation Period, Death . Employee will remain employed during the
Salary Continuation Period to provide such assistance and
information in matters of high-level special projects and financial
oversight, and transition, as Brian Kelley or his designee may
reasonably request. Employee agrees to be available to take
on such projects as needed by the Company. Employee will
provide such assistance and information and perform such projects
in a cooperative and prompt manner and use her reasonable best
efforts to assist in these endeavors, but her total hours worked
for Company during the Salary Continuation Period shall not exceed
500 in the aggregate. The expectation is that more assistance
will be requested during an initial transition period than times
thereafter . Employee acknowledges that she will
remain subject to all Company policies during the Salary
2
Continuation Period and, in
particular, those governing the conduct of employees. The
Company reserves the right to terminate Employee’s employment
for Cause (as defined below) prior to June 30, 2006, in which
case the Company’s obligation to provide any further salary
continuation or severance pay and benefits shall cease. In
accordance with the procedures hereinafter set forth, discharge for
Cause shall be communicated by a Notice of Termination to
Employee. For purposes of this Agreement, a “Notice of
Termination” means a written notice which (i) indicates
the specific termination provision in this Agreement relied upon,
(ii) sets forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of
Employee’s employment under the provision so indicated and
(iii) specifies the termination date, which may be as early as
the date of the giving of such notice. No purported
termination of Employee’s employment for Cause shall be
effective without a Notice of Termination. “
Cause ” shall mean (i) the continued failure of
the Employee substantially to perform the duties of his or her
employment for the Company or any Subsidiary (other than any such
failure due to the Employee’s physical or mental illness)
after a demand for substantial performance has been delivered in
writing to the Employee by the executive to whom the Employee
reports or by the Board, which demand identifies the manner in
which such executive or the Board, as the case may be, believes
that the Employee has not substantially performed such duties,
(ii) the Employee has engaged in or is engaging in serious
misconduct that has caused or is reasonably expected to result in
material injury to the Company or any of its Subsidiaries or
Affiliates, or (iii) the Employee’s conviction of, or
entering a plea of guilty or nolo contendere to, a crime that
constitutes a felony. Section 5.10 of the SIRVA, Inc.
Omnibus Stock Incentive Plan shall remain applicable.
Additionally, Employee acknowledges that if she is terminated for
Cause all unvested and unexercised vested options shall be
immediately forfeited and canceled as of the date of such
termination.
8.
Return of the Company’s
Property . All
notes, reports, sketches, plans, books, keys, credit cards,
unpublished memoranda or other documents or property which were
created, developed, generated or held or controlled by Employee and
which concern
