Exhibit 10.1
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement") is made as of this
1st day of September, 2004 between XxXxxx Corporation, a Delaware corporation
(the "Company"), and Xxxxxxx Xxxxxxxxxx of 0000 Xxxxxx Xxxxx, Xxx Xxxx,
Xxxxxxxxxx (hereinafter, the "Executive").
WHEREAS, this Agreement is being entered into in connection
with the merger (the "Merger") of a wholly owned subsidiary of the Company into
Computer Access Technology Corporation, a Delaware corporation ("CATC") and is
effective upon the consummation of such Merger.
WHEREAS, the Executive has accepted employment with the
Company and is willing to serve in the capacity of its Vice President of the
Company and President of the Company's subsidiary, CATC, and the Company desires
to retain the Executive in that capacity on the terms and conditions herein set
forth;
WHEREAS, the Company and the Executive acknowledge that the
compensation and benefits payable hereunder are reasonable with regard to all of
the circumstances of the Executive's employment with the Company and the
Executive's ongoing employment with the Company;
NOW, THEREFORE, in consideration of the covenants and
agreements hereinafter set forth and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereby
agree as follows:
ARTICLE 1
EMPLOYMENT
1.1. Employment and Position. Effective as of the beginning of
the Term (as defined in section 3.1 herein) and continuing for the Term, the
Company hereby agrees to employ the Executive in the capacity set forth above,
and the Executive hereby accepts such employment, all on and pursuant to the
terms and conditions set forth herein.
1.2. Duties and Responsibilities. The Executive shall have and
perform such duties and responsibilities as are associated with the office set
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forth above and as may be conferred upon him from time to time by the Board of
Directors of the Company (the "Board") or its designee.
1.3. Full Time and Attention. The Executive shall well and
faithfully serve the Company and its subsidiaries and shall devote his full time
and attention to the business and affairs of the Company and its subsidiaries
and the performance of his duties and responsibilities hereunder; however,
notwithstanding the foregoing, the Executive may participate in other secondary
and non-competitive business ventures and activities from time to time which do
not interfere with his duties and responsibilities hereunder.
1.4. Prohibited Interests. During the Term, neither the Executive
nor any member of his immediate family shall purchase or hold an interest in any
company doing business with the Company (other than as a customer of the
Company) or competing with the Company. Notwithstanding this prohibition,
Executive and/or his family may hold a 1% or lesser interest in publicly traded
stock, and may hold such other interests as the Company may, in its discretion,
consent to in advance and in writing.
ARTICLE 2
REMUNERATION AND BENEFITS
2.1. Annual Base Salary. From the commencement of the Term until
the end of the current fiscal year, the Company shall pay to the Executive a
Base Salary at the rate of $250,000 per year. Executive's Base Salary shall be
re-evaluated annually and may be increased, but not decreased, as determined by
the Board or its designee (the Base Salary, as it may be in effect from time to
time, shall be the "Base Salary"). The Base Salary shall be payable in such
regular installments as the Company may pay its senior employees from time to
time. All compensation payable to Executive by Company shall be reduced by such
amounts as are required by law.
2.2. Bonus.
(a) From the commencement of the Term until the end of
the current fiscal year, Executive shall be eligible for a target bonus
in the amount of $150,000. Executive's target bonus amount shall be
re-evaluated from time to time by the Board or its designee coincident
with the review of the target bonus amounts of other members of senior
management pursuant to the Company's bonus plan for senior employees
("Bonus Plan").
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(b) The Bonus shall be payable pursuant to the terms of
the Bonus Plan.
2.3. Benefits.
(a) Effective on the date the Executive's employment with the
Company commences, the Company shall grant Executive a restricted stock
grant to purchase 50,000 shares of Company stock at the fair market
value on the date of grant. The option shall be subject to the terms
and conditions of the Company's 2003 Stock Incentive Plan. The option
shall vest 100% on the fourth anniversary of the date Executive
commenced employment. Notwithstanding any provision of this Agreement
or of any stock option plan to the contrary, the unvested portion of
all stock options and restricted stock awards held by Executive on the
date of an Acquisition, a Change in Control or a Hostile Takeover, as
those terms are defined in Company's 2003 Stock Incentive Plan, shall
vest and be immediately exercisable on the date of such event.
(b) Company shall provide to the Executive benefits that are
consistent with the benefits provided under the benefit plans,
practices, programs and policies of the Company (including without
limitation any existing compensation, stock option, profit sharing,
bonus, vacation, life insurance, health insurance, dental insurance,
accidental death or dismemberment, management incentive bonus and
disability plans, practices, programs or policies) in effect for its
most senior employees from time to time during the Term. Company shall
provide to the Executive a leased automobile that has a purchase price
of no more than $65,000.
ARTICLE 3
TERM AND TERMINATION
3.1. Term. The term (the "Term") of this Agreement shall be for a
period commencing on the consummation of the Merger and ending upon the
termination of this Agreement.
3.2. Termination for Just Cause.
(a) The Company may terminate the employment of the
Executive hereunder at any time for Just Cause, such termination to be
communicated by the Company to the Executive by written notice. For the
purposes hereof, "Just Cause" means a determination by the Board, in
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the exercise of its reasonable judgment and after permitting the
Executive a reasonable opportunity to be heard by the Board, that any
of the following has occurred:
(i) the willful and continued failure by the
Executive, if not cured within thirty (30) days after receipt
by the Executive of written notice from the Company reasonably
detailing the matters to be cured, to substantially perform
his material duties and responsibilities with the Company
under this Agreement (other than any such failure resulting
from his incapacity due to physical or mental illness);
(ii) the engaging by the Executive in any act
that is intentionally and materially injurious to the Company,
financial or otherwise, if not cured (if curable) within
thirty (30) days after receipt by the Executive of written
notice from the Company reasonably detailing the matters to be
cured;
(iii) the conviction of the Executive of a
criminal offense involving fraud, dishonesty or other felony;
and
(iv) the engaging by the Executive in any
intentional act of dishonesty resulting or intended to result,
directly or indirectly, in personal gain to the Executive at
the Company's expense, if not cured (if curable) within thirty
(30) days after receipt by the Executive of notice from the
Company.
(b) Upon the termination of the Executive's employment
for Just Cause, the Executive shall not be entitled to any severance,
termination or other compensation payment other than such portion of
the Base Salary and Bonus as remains earned but unpaid on the date of
termination, together with any amount to which the Executive may be
entitled under the provisions of applicable employment legislation in
force at the date of termination of the Executive's employment.
3.3. Termination without Just Cause or for Good Reason.
(a) The Company may terminate the employment of the
Executive hereunder at any time without Just Cause, such termination to
be communicated by the Company to the Executive by sixty (60) days
prior written notice. In addition, the Executive may terminate his
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employment for Good Reason, such termination to be communicated by the
Executive to the Company by sixty (60) days prior written notice. For
purposes of this Agreement, "Good Reason" shall mean any one or more of
the following:
(i) a substantial adverse alteration in the nature or
status of the Executive's duties or responsibilities with the
Company which is not cured (if curable) to the Executive's
satisfaction within thirty (30) days after written notice of
such breach is provided to the Company by the Executive,
(ii) any purported termination of the Executive's
employment which is not effected in accordance with this
Agreement (which purported termination shall not be
effective),
(iii) any material breach of this Agreement
(including without limitation any breach of any section of
Article 2 herein) by the Company which is not cured (if
curable) to the Executive's satisfaction within thirty (30)
days after written notice of such breach is provided to the
Company by the Executive,
(iv) the Executive is required to relocate to or
regularly perform duties at any location other than within a
00-xxxx xxxxxx xx Xxxxx Xxxxx, Xxxxxxxxxx, except for periodic
travel in the ordinary course of the Company's business as it
is conducted in the ordinary course,
(v) there has been an Acquisition, a Change in
Control or a Hostile Takeover (as defined in the Company's
2003 Stock Incentive Plan as in existence on September 1,
2004, the "Stock Incentive Plan") and within two (2) years
thereafter the Company either terminates the Executive's
employment or provides notice thereof to the Executive, or
(vi) the Company is liquidated or the Board takes
formal action to commence the process of liquidation.
The Executive's right to terminate his employment for Good
Reason shall not be affected by his incapacity due to physical or
mental illness. The Executive's continued employment shall not
constitute consent to, or a waiver of rights with respect to, any
circumstance constituting Good Reason hereunder.
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(b) Upon the termination of the Executive's employment
without Just Cause or for Good Reason, the Company shall pay to or to
the order of the Executive immediately after the date of termination of
the Executive's employment such portion of the Base Salary and Bonus as
remains earned but unpaid on the date of termination. The unpaid Bonus
amount shall be based on the greater of the current year's target Bonus
(whether achieved or not) or the most recent Bonus paid to Executive.
In exchange for the Executive providing the Company with a
full and complete release of all claims of every name and nature
(substantially in the form of Exhibit A hereto), the Company shall have
the following obligations:
(i) the Company shall pay as salary
continuation to or to the order of the Executive, as
compensation for the Executive's loss of employment, one (1)
year of the Executive's Base Salary (at the rate in effect on
the date of termination) and one year's Bonus. The Bonus
amount shall be calculated at the greater of the maximum
target Bonus payable in the current year (whether achieved or
not) or the actual bonus paid with respect to the prior fiscal
year;
(ii) to the extent permissible under the
relevant plans, the Company shall provide Executive with
medical, dental and life insurance identical or substantially
similar to those which Executive is receiving pursuant to
Section 2.3 immediately prior to the written notice of
termination, either under the then-relevant plans of the
Company, or if not permissible under the then-relevant plans
of the Company, the Company shall either pay Executive's COBRA
premiums for continuation of the medical, dental and life
insurance Executive was receiving immediately prior to the
Term Date, or otherwise provide Executive with identical
medical, dental and life insurance or such benefits that are
substantially similar to those Executive was receiving prior
to the his termination, in any case, provided, that Executive
shall be required to continue to pay the then-current employee
premiums, if any, that Executive was required to pay for the
medical, dental and life insurance Executive was receiving
immediately prior to the written notice of termination
referenced in Section 3.3(a) above;
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(iii) the Company shall provide the Executive
with outplacement counseling services by a provider of the
Executive's choosing, up to an aggregate maximum not to exceed
10% of his Base Salary; and
(iv) (A) other than Stock Options and
Restricted Stock Awards that are subject to the Company's
standard four-year annual vesting schedule, that portion of
Stock Options and Restricted Stock Awards granted or issued to
Executive by the Company upon or after consummation of the
Merger that would have become vested assuming monthly vesting
from the date of grant or issuance, shall automatically become
vested and immediately exercisable and (B) all Stock Options
initially granted to Executive by CATC and assumed or
converted in the Merger by the Company shall automatically
become vested and immediately exercisable.
(c) In addition to the provisions of (b) above, upon
the termination of the Executive's employment for any reason other than
for Just Cause within 90 days prior to or at any time within two (2)
years after an Acquisition (as defined in the Company's Stock Incentive
Plan), in exchange for the Executive providing the Company with the
release described above:
(i) to the extent not already done, all Stock Options
and Restricted Stock Awards held by Executive shall
automatically become vested and immediately exercisable with
respect to the total number of shares subject thereto and such
Stock Options and Restricted Stock Awards may be exercised for
all or any portion of such shares within the time period
permitted under the stock option plan, and
(ii) in lieu of the Company payment of one (1) year
of the Executive's then-current Base Salary and Bonus, as
provided in (b)(ii) above, the Company shall pay as salary
continuation to or to the order of the Executive one and one
half (1 1/2) years of the Executive's then-current Base Salary
and Bonus (calculated at the greater of the maximum target
Bonus payable to Executive in the current fiscal year (whether
achieved or not) or the actual Bonus paid to Executive with
respect to the prior fiscal year).
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(d) (i) In the event that any of the payments provided for
herein, together with any other payments or benefits received or to be
received by the Executive in connection with the termination of
employment of the Executive or otherwise (the "Severance Payments"),
will be subject to the tax (the "Excise Tax") imposed by section 4999
of the Internal Revenue Code of 1986, as amended (the "Code"), the
Company shall immediately pay to or to the order of the Executive an
additional amount (the "Gross-up Payment") such that the net amount
retained by the Executive, after deduction of any Excise Tax on the
Severance Payments and any federal, state and local income tax and
Excise Tax on the payment provided for by this section 3.3(d), shall be
equal to the Severance Payments, placing the Executive in the same
after-tax financial position in which he would have been if he had not
incurred any tax liability under section 4999 of the Code. For purposes
of determining the amount of the Gross-up Payment, the Executive shall
be deemed to pay federal income taxes at the highest marginal rate of
federal income taxation in the calendar year in which the Gross-up
Payment is to be made and state and local income taxes at the highest
marginal rate of taxation in the state and locality of the Executive's
residence on the date of termination, net of the maximum reduction in
federal income taxes which could be obtained from deduction of such
state and local taxes.
(ii) In the event that the Excise Tax is
subsequently determined to be less than the amount taken into
account hereunder at the time of termination of the
Executive's employment, the Executive shall repay to the
Company at the time that the amount of such reduction in
Excise Tax is finally determined the portion of the Gross-up
Payment attributable to such reduction (plus the portion of
the Gross-up Payment attributable to the Excise Tax and
federal, state and local income tax imposed on the Gross-up
Payment being repaid by the Executive, if such repayment
results in a reduction in Excise Tax or in federal, state and
local income tax deductions) plus interest on the amount of
such repayment at the rate provided in section 1274(d) of the
Code.
(iii) In the event that the Excise Tax is
determined to exceed the amount taken into account hereunder
at the time of the termination of the Executive's employment
(including by reason of any payment the existence or amount of
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which cannot be determined at the time the Gross-up Payment is
made), the Company shall make an additional Gross-up Payment
in respect to such excess (plus any interest payable with
respect to such excess) at the time that the amount of such
excess is finally determined.
3.4. Voluntary Termination by Executive for Other Than Good Reason.
(a) The Executive may, upon sixty (60) days' prior
written notice to the Company, voluntarily terminate his employment
hereunder for other than Good Reason.
(b) Upon the voluntary termination by the Executive of
his employment hereunder (other than for Good Reason) at any time
during the Term, if not theretofore paid, the Company shall pay to or
to the order of the Executive within 10 days after the date of
voluntary termination of the Executive's employment such portion of the
Base Salary and Bonus as remains earned but unpaid on the date of
termination.
(c) The several payments and other obligations of the
Company described in this section 3.4, together with the Company's
obligations and the Executive's rights under the provisions of the
Company's stock option agreements with the Executive, are the only
severance, compensation or termination payments or benefits that the
Executive will receive in the event of the voluntary termination of his
employment (other than for Good Reason) as contemplated by this section
3.4.
3.5. Termination upon Death or Disability.
(a) The Executive's employment shall be terminated upon
his death. The Company may terminate the employment of the Executive
hereunder at any time forthwith upon the permanent disability of the
Executive, such termination to be communicated by written notice given
by the Company to the Executive. The Executive shall be considered to
have become permanently disabled upon the earlier of: (i) his
eligibility for long-term disability insurance benefits, or (ii) if in
any period of 12 consecutive months during the Term, because of ill
health, physical or mental disability, or for other causes beyond the
control of the Executive, the Executive has been continuously unable or
unwilling or has failed to perform his duties and responsibilities
hereunder for 180 consecutive days, or if, during any period of 12
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consecutive months during the Term, the Executive has been unable or
unwilling or has failed to perform his duties and responsibilities
hereunder for a total of 180 days, consecutive or not.
(b) On termination of the Executive's employment as a
result of the Executive's death or as a result of the Executive having
become permanently disabled, if not theretofore paid, the Company shall
pay to or to the order of the Executive within 10 days after the date
of termination of the Executive's employment such portion of the Base
Salary and Bonus as remains earned but unpaid on the date of
termination.
3.6. Return of Property. Upon the termination of the employment
of the Executive hereunder, regardless of the reason therefor, the Executive
will immediately deliver or cause to be delivered to the Company all books,
documents, effects, money, securities or other property (including manuals,
computer disks and software products) belonging to the Company, or for which the
Company is liable to others, which are in the possession, charge or custody of
the Executive.
ARTICLE 4
Intentionally omitted
4.1.
ARTICLE 5
GENERAL
5.1. Confidential Information. The Executive shall hold in a
fiduciary capacity for the benefit of the Company all secret or confidential
information, knowledge or data relating to the Company and its Subsidiaries and
their respective businesses which shall have been obtained by the Executive
during the Executive's employment by the Company and which shall not be or
become public knowledge (other than by acts of the Executive or representatives
of the Executive in violation of this Agreement). If the employment of the
Executive hereunder is terminated for any reason, the Executive shall not,
without the prior written consent of the Company or as may otherwise be required
by law or legal process, communicate or divulge any such information, knowledge
or data to any person other than the Company and those persons designated by it.
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5.2. No Solicitation. The Executive agrees that, during the Term
and for a period of one (1) year following the date of termination of the
Executive's employment, to the extent permitted by law, he shall not, directly
or indirectly, solicit, employ or cause to be solicited or employed in any
capacity, or solicit, retain or cause to be retained as a consultant, any person
who was employed by the Company at any time during the six (6) month period
ending on the date of termination of Executive's employment.
5.3. Fees. Except as set forth in section 5.13 herein, the
Company shall pay directly to the Executive's counsel and tax accountants all
reasonable, documented legal, tax accounting and other professional fees and
expenses incurred by the Executive in seeking and to obtain or enforce any
rights provided for under this Agreement or in connection with enforcing any of
his rights hereunder (provided he is successful in such enforcement) and in
connection with any tax audit or proceeding to the extent attributable to the
application of section 4999 of the Code to any payment or benefit provided
hereunder within 60 days of billing by such counsel. Any such notification shall
set forth in reasonable detail the rights to which the Executive believe he is
entitled and the provision of this Agreement under which he believes afforded
such rights.
5.4. Resignations. If the employment of the Executive hereunder
is terminated in accordance with the terms of this Agreement, the Executive
shall tender his resignation from all positions he may hold as an officer or
director of the Company or any of its subsidiaries.
5.5. Mitigation. The Executive shall have no duty to mitigate the
amount of any payment provided for in Article 3 herein by seeking, other
employment.
5.6. Notices. Any notice required or permitted to be given under
this Agreement shall be in writing and shall be properly given if delivered
personally or mailed by prepaid registered mail addressed as follows:
(a) in the case of the Company, to:
XxXxxx Corporation
000 Xxxxxxxx Xxxxx Xxxx
Xxxxxxxx Xxxxx, XX 00000
Attention: Vice President, Human Resources
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with a copy to:
Fish & Xxxxxxxxxx P.C.
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
(b) in the case of the Executive, to:
0000 Xxxxxx Xxxxx
Xxx Xxxx, XX 00000
with a copy to:
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or to such other address as the parties may from time to time specify by notice
given in accordance herewith, which for Executive shall be the most recent
address on file with the Company for benefits and payroll. Any notice so given
shall be conclusively deemed to have been given or made on the day of delivery,
if delivered, or, if mailed by registered mail, upon the date shown on the
postal return receipt as the date upon which the envelope containing such notice
was actually received by the addressee.
5.7. Full Satisfaction. The terms set out in this Agreement,
provided that such terms are satisfied by the Company, are in lieu of (and not
in addition to) and in full satisfaction of any and all other claims or
entitlement which the Executive has or may have against the Company relating to
the Executive's employment by the Company and as a result of the termination of
his employment by the Company in the circumstances contemplated in this
Agreement.
5.8. Amendments. No provisions of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing and signed by the Executive and such officer of the Company as may be
specifically designated by the Board of Directors. No waiver by either party
hereto at any time of any breach by the other party hereto of, or compliance
with, any condition or provision of this Agreement to be performed by such other
party shall be deemed a waiver of similar or dissimilar provisions or conditions
at the same or at any prior or subsequent time.
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5.9. Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the employment relationship
contemplated hereby and cancels and supersedes all prior understandings and
agreements between the parties with respect thereto and no agreements or
representations, oral or otherwise, express or implied, with respect to the
subject matter hereof have been made by either party which are not expressly set
forth in this Agreement.
5.10. Successors and Assigns. Neither the Executive nor the
Company may assign its rights hereunder to another person without the consent of
the other; provided, however that the Company may assign its rights hereunder to
a successor corporation which acquires (whether directly or indirectly, by
purchase, arrangement, merger, consolidation, dissolution or otherwise) all or
substantially all of the business and/or assets of the Company and expressly
assumes and agrees to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession
had taken place and provided that such successor shall reasonably be able to
perform all of its obligations under this Agreement.
5.11. Enurement. This Agreement shall enure to the benefit of and
be binding upon the Executive and his personal representatives and upon the
Company and its successors and permitted assigns.
5.12. Further Assurances. Each of the Company and the Executive
agrees to execute all such documents and to do all such acts and things as the
other party may reasonably request and as may be lawful and within its power to
do or to cause to be done in order to carry out and/or implement in full the
provisions and intent of this Agreement.
5.13. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of California and the federal
laws of the United States of America applicable therein.
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IN WITNESS WHEREOF the parties hereto have executed this Agreement.
/s/ Xxxxxxx Xxxxxxxxxx
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Executive
XXXXXX CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: President and CEO
Exhibit A
NOTE: This is a sample severance agreement, substantially similar to one that
may be given to you. Please note that the agreement's provisions may be revised,
added or omitted as appropriate and as required by law.
SEVERANCE AGREEMENT
XxXxxx Corporation
Date
CONFIDENTIAL
Name
Address
Dear __________:
This will confirm that your employment with XxXxxx Corporation (the "Company")
will cease as of ______________________.
The Company will pay you your compensation in accordance with your Employment
Agreement through the last day of covered employment. Information concerning
your group insurance programs is enclosed with this letter.
Should you be enrolled in the 401-K plan, you will receive information under
separate cover within the next ____ weeks.
[Deal with other benefit plans here, as appropriate]
All Company property such as equipment, all copies of Company data (whether hard
copy or electronically stored), keys, credit card, etc., must be returned to
__________________ before 4:00 p.m., on ________________.
In accordance with your Employment Agreement, in order to receive the severance
pay and benefits outlined therein (collectively, the "Program") you are required
to execute and deliver a release of all claims against the Company, whether or
not you actually have any such claims:
It is a condition of this offer of the Program that you:
1. comply with the terms of your Employment Agreement;
2. not make any statement or otherwise take any other action
that would or might reasonably be interpreted as harmful to the Company;
3. agree to keep the terms and conditions of this Agreement in
strict confidence, except as required by law;
4. agree and recognize that your employment relationship with
[Company] will be permanently and irrevocably severed as of [date], and that you
will not apply for or otherwise seek reemployment with [Company] and that
[Company] and its affiliates have no obligation to reemploy, recall, or
otherwise hire you in the future;
[5. for a period of ___ months after you leave the employment of
the Company you will not either directly or indirectly cause or assist to cause,
directly or indirectly, any employee of the Company to become employed by any
person, firm, or corporation with which you are affiliated in any capacity.]
This offer is made without prejudice and without any admission of liability.
This is an important legal document, and you may wish to consult with counsel of
your own choice in deciding whether to accept this offer.
[You may take up to 21 days from receipt of this letter to consider whether to
accept this offer of the Program. You should confirm your acceptance of the
Program by signing below and returning one signed copy to _______________ by
________________, ________________, 20__. This Agreement shall not be effective
until 8 days after you sign it, and you may revoke it at any time during the
intervening 7-day period by either delivering a signed revocation notice to
___________________ or mailing such notice to ___________________ so that it is
postmarked no later than 7 days after you sign this Agreement. You will not be
entitled to receive any of the Program until the 7-day revocation period has
expired without revocation. Should you revoke your acceptance, no severance or
benefits under the Program will be provided.]1
On the effective date of this Agreement, Company shall pay you the
severance pay and provide you with the other severance benefits pursuant to the
Employment Agreement dated __, 2001 by and between XxXxxx Corporation and
_______________, which severance pay and benefits include the following: [list
specific items here according to the circumstances of termination]
By accepting the terms of this offer and signing in the space provided below,
you hereby release and forever discharge and hold the Company, its successors,
insurers, employers, employees, officers, directors, shareholders and affiliates
harmless of all claims or suits, of any nature whatsoever, present or future,
including those arising from the law, being directly or indirectly related to
your employment or the termination of such employment with the Company and
specifically but without limitation including any claims for notice, pay in lieu
of notice, wrongful dismissal, severance pay, bonus, overtime pay, incentive
compensation, interest or vacation pay. Nothing in this Agreement shall be
construed to affect the Equal Employment Opportunity Commission's independent
right and responsibility to enforce the law. You should recognize, however, that
while this Agreement does not affect your right to file charge or participate in
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1/ May not be required by law.
an investigation or proceeding conducted by the Commission, it does bar any
claim you might have to receive monetary damages in connection with any
Commission proceeding concerning matters covered by this Agreement. You also
agree not to file a lawsuit asserting any such claims. This Release and
Agreement-Not-To-Xxx includes, but is not limited to, contract and tort claims,
claims growing out of any legal restriction on the Company's right to terminate
its employees and claims or rights under federal, state, and local laws
prohibiting employment discrimination (including but not limited to, claims or
rights under the federal Age Discrimination in Employment Act of 1967, as
amended by the Older Workers Benefit Protection Act of 1990), which arose before
the date this Agreement is signed. You agree that these terms represent a full
and final settlement of any and all claims you may have arising out of your
employment with the Company, except that this Agreement shall not release or
affect any vested rights you may have (1) under Company's _____________ plan,
(2) under the terms of this Agreement, (3) to continue health insurance coverage
under COBRA, and (4) which by law cannot be released in this manner (e.g.,
Worker's Compensation claims).
Both you and the Company agree that should any court of competent jurisdiction
rule that any part of this Agreement is unenforceable, that part of the
Agreement shall be considered severed from the rest of the Agreement, and the
rest of the Agreement shall remain in full force and effect.
***
Yours very truly,
XXXXXX CORPORATION
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NAME AND TITLE
I the undersigned, having had the time to reflect, freely accept the
above settlement. I acknowledge and agree that no Company representative has
made any representation to or agreement with me relating to this Agreement which
is not contained in the express terms of this Agreement. I acknowledge and agree
that my execution and delivery of this Agreement is based upon my independent
review of this Agreement, and I hereby expressly waive any and all claims or
defenses by me against the enforcement of this Agreement which are based upon
allegations or representations, projections, estimates, understandings or
agreements by the Company or any of its representatives that are not contained
in the express terms of this Agreement.
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[NAME OF EMPLOYEE] DATE