AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT
AMENDMENT
NO. 1 TO
This
AMENDMENT (this “Amendment”) is made
and entered into as of January 27, 2010, by and between Berliner Communications,
Inc., a Delaware corporation (the “Company”), and
Xxxxxxx X. Xxxxxxxx, Xx. (the “Employee”).
WHEREAS,
the Company and the Employee are parties to that certain Employment Agreement
dated November 15, 2007 (the “Agreement”);
WHEREAS,
the Company has entered into an Agreement and Plan of Merger, dated as of the
date hereof (the “Merger Agreement”),
by and among the Company, BCI East, Inc. (“Merger Sub”), Unitek
Holdings, Inc. (“Unitek”) and the
other parties signatory thereto, pursuant to which Merger Sub will merge with
and into Unitek (the “Merger”);
WHEREAS,
in connection with the Merger, the Company and the Employee desire to enter into
this Amendment and to amend the Agreement as set forth herein; and
WHEREAS,
capitalized terms used herein but not defined herein shall have the meanings
ascribed to them in the Agreement.
NOW,
THEREFORE, in consideration of the mutual covenants hereinafter set forth, the
parties agree as follows:
1.
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Resignation. The
Employee shall resign from all of his positions of employment with the
Company and any of its Affiliates effective as of the close of business on
June 30, 2010 (the “Resignation
Date”). The Employee hereby acknowledges and agrees that
this Amendment shall be deemed to provide the written notice of
non-extension as required by Section 1
of the Agreement and that the Employment Term shall end on June 30, 2010
unless sooner terminated pursuant to Section 5 of
the Agreement.
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2.
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Section 2 of
the Agreement is hereby deleted in its entirety and replaced with the
following paragraph:
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Position and
Duties. During the Employment Term, the Employee shall serve
as the Chief Financial Officer and Treasurer of BCI Communications, Inc. ("BCI") and shall
report to the Chief Financial Officer of the Company. The Employee
shall have such powers and duties as are commensurate with such position and as
may be conferred upon him from time to time by the Chief Financial Officer of
the Company. During the Employment Term, the Employee shall use his
best efforts to faithfully perform his duties hereunder and shall devote all of
his business time, attention, skill and efforts exclusively to the business
affairs of the Company, its subsidiaries and its Affiliates and the Employee
agrees that he shall abide by all applicable policies of the Company of which he
is made aware or reasonably should be aware.
3.
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Section 3(b) of
the Agreement is hereby deleted in its entirety and replaced with the
following paragraphs:
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Retention
Benefits. Subject to the Employee’s continued employment through the
Resignation Date or his Without Cause Termination by the Company or his
termination for Good Reason prior to such date, and his continued compliance
with Section 6
and Section 7
hereof, the Employee shall be entitled to:
i.
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a
payment of $123,000 payable in a lump sum (the “Retention Payment”) on the
thirtieth (30th)
day following the Employee's termination of employment, subject to
execution and delivery of an effective release and waiver (as provided in
Section 5(j) hereof). The Employee agrees and acknowledges that
the Retention Payment is in lieu of any incentive compensation payments to
which the Employee might otherwise be entitled;
and
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ii.
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six
(6) months of comprehensive executive program outplacement services to be
provided by the Company's designated provider, the Xxxxx Group, the cost
of which shall be billed to and fully paid by the Company; provided, that,
the cost shall not exceed $12,000 unless otherwise agreed to by the
Company.
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4.
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Section 3(c) of
the Agreement is hereby deleted in its entirety and replaced with the
following paragraph:
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Premiums/Contributions. During
the Employment Term, the Employee shall be entitled to participate in all single
or family medical and dental health plans and programs offered to similarly
situated employees without any employee contributions; provided, that, to the extent
such plans and programs are self-insured the Employee shall be required to pay
employee contributions and the Company shall reimburse the Employee for the
amount of such contributions.
5.
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Section 3(f) is
hereby amended by adding the following sentence to the end of such
section:
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Notwithstanding
the foregoing or any provision in the Company's Stock Option Award Policy or the
Company's applicable Omnibus Securities Plan to the contrary, all of the
Employee's options which remain outstanding immediately prior to the Resignation
Date (or, if applicable, such earlier termination of Employee's employment),
shall vest, to the extent not already vested, and remain exercisable for a
period of not less than three (3) months following the Resignation
Date.
6.
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The
preamble of Section 5 of
the Agreement is hereby deleted in its entirety and replaced with the
following clause:
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Effect of Termination of
Employment. The Employment Term shall terminate at the earlier
to occur of the applicable date set forth in Section 1 hereof or
any of the following circumstances:
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7.
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Section 5(a) is
hereby amended by adding the words “Section 6 or”
between the words “in violation of” and “Section 7”
where they appear in such Section
5(a). The third sentence of Section 5(a) of
the Agreement is hereby deleted in its entirety and replaced with the
following sentence
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The
Severance Payments will be paid ratably over the Severance Period in accordance
with the Company’s normal payroll practices.
8.
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Section 5(b) of
the Agreement is hereby amended by changing the words “This Agreement” to
“The Employment Term” where the former first appears in such Section 5(b).
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9.
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Section 5(c)
of the Agreement is hereby amended by adding the words “Section 6
and” between the words “set forth in” and “Section 7”
where they appear in such Section 5(c)
and by deleting the words “concerning non-competition and
non-solicitation” at the end of such Section 5(c).
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10.
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Section 5(d)
of the Agreement is hereby amended by adding the words “Section 6
or” between the words “in violation of” and “Section 7”
where they appear in such Section 5(d). Section 5(d)
is hereby further amended by adding the following clause to the end of the
first sentence of such Section 5(d):
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and such
notice is delivered within ninety (90) days of the occurrence of such event,
failure or breach constituting Good Reason and, notwithstanding anything to the
contrary in this Section 5, the
Company shall be given thirty (30) days to cure said Good Reason.
11.
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Section
5(f)(ii) of the Agreement is hereby amended by adding the words “or
a termination due to death, disability or resignation” at the end of such
Section
5(f)(ii).
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12.
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Section 5(f)(iii)(i)
of the Agreement is hereby amended by adding the words “of BCI
Communications, Inc.” directly following the term “Chief Financial
Officer” where the latter appears in such Section 5(f)(iii)(i).
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13.
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Section
5(f)(iii)(iii) of the Agreement is hereby deleted in its entirety
and replaced with the following
clause:
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a
requirement by the Company that the Employee be based in an office that is
located more then sixty-five (65) miles from the Employee’s principal place of
employment at BCI's headquarters in Fair Lawn, New Jersey;
14.
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Section 5 of
the Agreement is hereby amended by adding new Sections 5(h),
5(i) and
5(j) as
follows:
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(h)
Notwithstanding anything in this Agreement to the contrary, if the Employment
Term expires or is terminated for any reason (including due to death,
Disability, termination with or without Good Reason, Termination for Cause or
Without Cause Termination) the Employee shall be entitled to receive the
Severance Payments, which shall be payable beginning on the thirtieth (30th) day
following the later of the date of the (i) last payment of Salary Continuation
(if applicable) or (ii) Employee's termination of employment, subject, in all
circumstances, to Employee’s continued compliance with Section 6 and Section 7 hereof
and the delivery of an effective release and waiver (as provided in Section 5(j)
hereof).
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(i) In
the event the Employment Term terminates prior to June 30, 2010 due to a Without
Cause Termination or a termination for Good Reason, the Company shall continue
to pay Employee’s Base Salary for the period beginning on the date of Employee’s
termination of employment and continuing until June 30, 2010 in accordance with
the Company’s standard payroll practices (“Salary Continuation”) subject to
Employee’s continued compliance with Section 6 and Section 7 hereof and
the delivery of an effective release and waiver (as provided in Section 5(j)
hereof).
(j) The
Retention Payment, Severance Payments and Salary Continuation shall each be
subject to the Employee's execution and delivery of an effective release and
waiver substantially in the form attached hereto as Exhibit A, such release and
waiver must be delivered to the Company within thirty (30) days following the
date of the Employee’s termination of employment and the first installment
payment shall be made on the thirtieth (30th) day
after the date of the termination of employment and shall include payment of any
amounts that would otherwise be due prior thereto (unless an earlier payment is
permitted pursuant to Section 409A of the Code).
15.
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Section 7(b)(i)
of the Agreement is hereby deleted in its entirety and replaced with the
following paragraph:
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(i) For
the purposes of this Agreement, “Competition” shall mean: participating,
directly or indirectly, as an individual proprietor, partner, stockholder,
officer, employee, director, joint venturer, investor, lender or consultant
(within the United States of America, or in any country where BCI does business
immediately prior to the effective time of the Merger) in a Competing Business
(as defined below); provided, however, that such participation shall not include
(i) the mere ownership of not more than three percent (3%) of the total
outstanding stock of a publicly held company; or (ii) any activity engaged in
with the prior written approval of the Board of Directors of the Company (the
“Board”). For purposes of this Section 3(b), “Merger” shall have the
meaning set forth in the recitals of the Amendment No. 1 to this Agreement,
dated as of January 27, 2010.
16.
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Section
7(b)(ii) of the Agreement is hereby deleted in its entirety and
replaced with the following
paragraph:
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(ii) For
the purposes of this Agreement, “Competing Business” shall mean any principal
line of business engaged in by BCI immediately prior to the effective time of
the Merger that is also a principal line of business engaged in by the entity
for which the Employee is then acting in any of the capacities referenced in
Section 7(b)
above, but only to the extent that the Employee has knowledge of the Competing
Business of BCI prior to his termination of employment with BCI which is
reasonably likely to cause material economic harm to BCI.
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17.
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Section 7(e) of
the Agreement is hereby deleted in its entirety and replaced with the
following paragraph:
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(e)
During the Employment Term and for the Restricted Period (as hereafter defined)
following a termination of Employee’s employment, Employee will not enter into
Competition with the Company. The “Restricted Period” shall mean twelve (12)
months following the date of Employee's termination of employment with BCI for
any reason. The Employee expressly agrees and acknowledges that his
promises, obligations, and covenants under Section 6 above, and
this Section 7,
survive the Employment Term identified in Section 1
hereof.
18.
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Section 11 of
the Agreement is hereby amended by adding the following sentence at the
end of such section:
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Notwithstanding
the foregoing, the Employee shall be indemnified under this Agreement on a basis
no less favorable than as provided to any other directors or officers of the
Company or its subsidiaries, subject to applicable law.
19.
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The
following paragraph is hereby added as a new Section 22 of
the Agreement:
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Section 409A
Compliance. If any payment or other benefit provided to the
Employee in connection with his termination of employment is determined, in
whole or in part, to constitute “nonqualified deferred compensation” within the
meaning of Section 409A of the Code (“Section 409A”)
and the Company determines that the Employee is a “specified employee” as
defined in Section 409A, no part of such payments or benefits shall be paid
before the day that is six (6) months plus one (1) day after the Employee’s
termination date (the “New Payment
Date”). The aggregate of any payments that otherwise would
have been paid to the Employee during the period between the date of termination
and the New Payment Date shall be paid to the Employee in a lump sum on such New
Payment Date. Thereafter, any payments that remain outstanding as of
the day immediately following the New Payment Date shall be paid without delay
over the time period originally scheduled, in accordance with the terms of this
Agreement. Notwithstanding the foregoing, to the extent that the
foregoing applies to the provision of any ongoing welfare benefits to the
Employee that would not be required to be delayed if the premiums therefore were
paid by the Employee, the Employee shall pay the full cost of premiums for such
welfare benefits during the six (6) month period and the Company shall pay the
Employee an amount equal to the amount of such premiums paid by the Employee
during such six-month period promptly after its conclusion. In the
event that the Employee becomes subject to the penalty tax under Section 409A
with respect to the Severance Payments (as determined by the Internal Revenue
Service or an accounting firm reasonably selected by the Company), the Company
shall make a payment to the Employee to cover any penalty taxes due by the
Employee under Section 409A and any additional taxes owing on such payment so
that, after payment of all such additional taxes, the Employee retains a net
after-tax amount equal to the penalty tax paid by the Employee.
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20.
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The
following paragraph is hereby added as a new Section 23 of
the Agreement:
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Separation from
Service. A termination of service shall not be deemed to have
occurred for purposes of any provision of this Agreement providing for the
payment of any amounts or benefits that are considered nonqualified deferred
compensation under Section 409A upon or following a termination of service,
unless such termination is also a “separation from service” within the meaning
of Section 409A and the payment thereof prior to a “separation from service”
would violate Section 409A. For purposes of any such provision of
this Agreement relating to any such payments or benefits, references to a
“termination,” “termination of employment,” “termination of service,” or like
terms shall mean “separation from service.”
21.
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The
following paragraph is hereby added as a new Section 24 of
the Agreement:
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Installments as Separate
Payments. If under this Agreement, an amount is paid in two
(2) or more installments, for purposes of Section 409A, each installment shall
be treated as a separate payment.
22.
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The
Employee acknowledges and agrees that none of the Merger Agreement, the
consummation of the transactions contemplated thereby (including, without
limitation, the Merger) or this Amendment (and the changes to the
Agreement set forth herein, including, without limitation, any change in
office or title, duties or compensation (whether related to base salary or
referenced cash bonus)) and any changes in connection with or directly
relating to the changes set forth in this Amendment shall be deemed an
occurrence of any item listed as constituting “Good Reason” for purposes
of the Agreement as set forth in Section 5(f)(iii)
thereof; provided,
however, that the parties acknowledge and agree that nothing in
this paragraph 22 shall be construed as precluding the Employee from
claiming "Good Reason" termination under the terms of the Agreement, as
amended by this Amendment (the "Amended
Agreement"), if after the effective date hereof, any other changes
are made to the Employee's terms and conditions of employment and such
other changes constitute "Good Reason" under the Amended
Agreement.
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23.
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All
other provisions of the Agreement not specifically amended in this
Amendment shall remain in full force and
effect.
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24.
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This
Amendment shall be governed by, and construed in accordance with, the
internal laws of the State of New Jersey, without reference to the choice
of law principles thereof.
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25.
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This
Amendment may be executed in multiple counterparts, which, when taken
together, shall constitute one
instrument.
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26.
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The
effectiveness of this Amendment shall be expressly conditioned upon the
consummation of the transactions contemplated by the Merger
Agreement. If the transactions contemplated by the Merger
Agreement are not consummated, then this Amendment shall be deemed void
ab initio, and
the Agreement shall remain unchanged and in full force and
effect.
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* * *
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IN WITNESS WHEREOF, the
Company has caused this Amendment to be executed on its behalf by its duly
authorized officer and the Employee has executed this Amendment, as of the date
first written above.
BERLINER
COMMUNICATIONS, INC.
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By:
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/s/ Xxxx Xxxxxxxx
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Name:
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Xxxx
Xxxxxxxx
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Title:
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Chief
Executive Officer
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EMPLOYEE
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By:
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/s/ Xxxxxxx X. Xxxxxxxx, Xx.
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Name:
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Xxxxxxx X. Xxxxxxxx, Xx. |
ACCEPTED
AND ACKNOWLEDGED
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BY
BCI Communications, Inc.
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By:
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/s/ Xxxx Xxxxxxxx
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Name:
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Xxxx
Xxxxxxxx
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Title:
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Chief
Executive
Officer
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SIGNATURE
PAGE TO
R
CARDONNE EMPLOYMENT AGREEMENT AMENDMENT
EXHIBIT
A
FORM
OF RELEASE
[COMPANY
LETTERHEAD]
[Employee
Name and Address]
Dear
[Employee Name]:
This is
to confirm our agreement relating to your separation from
employment.
1. In
consideration of the terms hereof, your employment with the Company shall end
[ended] [was terminated] effective as of the close of business, [date]
(“Termination Date”), and your employment under the terms of the agreement
between the Company and you dated [date] (“Employment Agreement”) is hereby
terminated at such time. In addition to any salary payments owing for
the final payroll period through the Termination Date and whatever vested rights
you may have under the [list applicable Company benefit plan(s)], you shall
receive the following payment(s) and benefits [for the period(s) indicated],
less any payroll deductions required by law, which shall be in lieu of any other
payments or benefits (including vacation or other paid leave time) to which you
otherwise might be entitled: [insert applicable payments and benefits
from employment agreement].
2. In
consideration of the terms hereof, you have agreed to and do waive any claims
you may have for employment by the Company or any of its subsidiaries and have
agreed not to seek such employment or reemployment by the Company or any of its
subsidiaries in the future. You have further agreed to and do release
and forever discharge the Company, subsidiaries and affiliates and each of their
respective past and present officers, directors, managers, shareholders,
partners, members, employees, representatives and agents from any and all claims
and causes of action, known or unknown, arising out of, relating to or occurring
during your employment by the Company or any of its subsidiaries or the
termination thereof, including, but not limited to, wrongful discharge, breach
of contract, tort, fraud, defamation, the Civil Rights Acts, Age Discrimination
in Employment Act, Americans with Disabilities Act, Employee Retirement Income
Security Act, Family Medical Leave Act or any other federal, state or local law
relating to employment, discrimination in employment, termination of employment,
wages, benefits or otherwise. This release does not include your
right to enforce the terms of this agreement.
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3. You
and the Company agree that in the event you apply for unemployment insurance
benefits, the Company shall respond to any inquiry from the applicable
governmental authority that your employment ended as a result of [insert type of
separation].
4. You
and the Company agree that in the event the Company receives any inquiries from
prospective employers, it shall be the policy of the Company to respond by
advising that the Company’s policy is to provide information only as to service
dates and positions held and by providing such information.
5. You
agree to return to the Company prior to the effective date of your termination
of employment all property and documents of the Company or any of its
subsidiaries in your possession, custody or control, including, without
limitation, automobiles, credit cards, computers and telecommunication
equipment, keys, instructional and policy manuals, mailing lists, computer
software, financial and accounting records, reports and files, and any other
physical or personal property which you obtained in the course of your
employment by the Company or any of its subsidiaries, and you further agree not
to retain copies of any such documents, excluding publicly available documents
and documents relating directly to your own compensation and employee
benefits.
6. You
agree that the restrictive covenants set forth in Section 6 and Section 7
of the Employment Agreement shall remain in full force and effect in accordance
with the terms of the Employment Agreement.
7. You
agree to provide your reasonable cooperation in connection with any action or
proceeding (or any appeal from any action or proceeding) to which you were
participating in as of the Termination Date or about which you had specific
knowledge if so requested by the Company; provided, that, the Company will pay
any reasonable costs and expenses you incur in connection therewith; provided,
further, that, such cooperation will not unreasonably interfere with your
then-current employment or business activities.
8. You
agree to maintain the terms of this agreement confidential to the extent
practicable and as permitted by law, except that you may disclose this agreement
to your legal and financial advisors and to your spouse.
9. Neither
by offering to make nor by making this agreement does either party admit any
failure of performance, wrongdoing, or violation of law.
10. This
agreement, together with Section 6 and Section 7 of the Employment Agreement,
sets forth the entire understanding of the parties and supersedes any and all
prior agreements, oral or written, relating to your employment by the Company or
any of its subsidiaries or the termination thereof. This agreement
may not be modified except by a writing, signed by you and by a duly authorized
officer of the Company. This agreement shall be binding upon your
heirs and personal representatives, and the successors and assigns of the
Company.
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11. You
acknowledge that before entering into this agreement, you have had the
opportunity to consult with any attorney or other advisor of your choice, and
you have been advised to do so if you choose. You further acknowledge
that you have entered into this agreement of your own free will, and that no
promises or representations have been made to you by any person to induce you to
enter into this agreement other than the express terms set forth
herein. You further acknowledge that you have read this agreement and
understand all of its terms, including the waiver and release of claims set
forth in paragraph 2 above.
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If the
foregoing is acceptable to you, please sign the annexed copy of this agreement
and return it to me. You may take up to 21 days from today to
consider, sign and return this agreement. In addition, you may revoke
the agreement after signing it, but only by delivering a signed revocation
notice to me within seven days of your signing this agreement.
Very
truly yours,
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[Name
and Position]
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Accepted
and Agreed:
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[Employee’s
Name]
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Date
Signed
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