SEPARATION AGREEMENT
Exhibit
10.5
THIS
SEPARATION AGREEMENT (“Agreement”) is made as of this 24th day of June, 2008
(the “Execution Date”) and entered into by and between Xxxxx Xxxxxx, a resident
of the State of Arkansas (“Xxxxxx”), on the one hand, and Equity Media Holdings
Corporation, a Delaware corporation (“EMHC”), and Retro Programming Services,
Inc., a wholly owned subsidiary of EMHC (“RPS”), on the other hand. Xxxxxx, EMHC
and RPS may be collectively referred to herein as the “Parties” or individually
as “Party.”
RECITALS
WHEREAS,
Xxxxxx has been employed by EMHC and in connection with such employment has
served as the President and Chief Executive Officer of EMHC and President and
Chief Executive Officer of RPS;
WHEREAS,
pursuant to the terms, conditions and agreements set forth herein and except
as
otherwise provided herein, the Parties now mutually desire to provide for the
termination of Xxxxxx’x employment with EMHC, RPS and each of their respective
subsidiaries and affiliates;
WHEREAS,
by and through this Agreement and the RTN Transfer Agreement (as defined below),
the Parties desire to address fully, finally and forever all matters between
them arising up to and through the Execution Date, including, but not limited
to, any matters arising out of Xxxxxx’x employment with EMHC and/or RPS and/or
the termination of the foregoing;
NOW
THEREFORE, in consideration of the agreements contained herein as well as other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, each of the Parties agrees as follows:
1. Termination
of Employment.
Xxxxxx’x
employment as President and Chief Executive Officer of EMHC was terminated
effective as of February 13, 2008 and Xxxxxx’x employment as President and Chief
Executive Officer of RPS and any other subsidiaries and affiliates of EMHC
is
hereby terminated effective as of the Execution Date. In
addition, effective as of the Execution Date, to the extent not previously
terminated, Xxxxxx hereby resigns from any and all offices and directorships
he
may hold with each of EMHC, RPS and each of their subsidiaries and affiliates,
other than his position as a director of EMHC, and agrees to take any other
actions reasonably required to effectuate the foregoing.
2. Termination
of Prior Agreements; Consulting Agreement.
Except
as otherwise provided herein, the Employment Agreement by and between EMHC
and
Xxxxxx, dated March 30, 2007 (the “Employment Agreement”) is hereby terminated,
along with all rights, obligations and responsibilities of the parties
thereunder. Each other agreement between Xxxxxx and any of EMHC, RPS and each
of
their respective subsidiaries and affiliates, other than this Agreement and
the
RTN Transfer Agreement dated of even date herewith (the “RTN Transfer
Agreement”), are hereby terminated in all respects, except as otherwise provided
in the RTN Transfer Agreement. Notwithstanding the foregoing, (a) the Option
Agreement pursuant to the EMHC 2007 Stock Incentive Plan between EMHC and
Xxxxxx, dated May 9, 2007 (the “Option Agreement”) shall continue in effect in
accordance with their terms, except as expressly modified by Section 9 of this
Agreement, and (b) Section 13 (Remedies Upon Breach), Section 14 (Assignment
of
Intellectual Property Rights) and Section 15 (Miscellaneous) of the Employment
Agreement and (c) that certain Indemnification Agreement dated August 10, 2007
by and between EMHC and Xxxxxx (the “Indemnification Agreement”) shall survive
the termination of the Employment Agreement and remain binding on the parties
thereto. Concurrently with the execution of this Agreement, Xxxxxx and EMHC
are
executing the consulting agreement in the form attached hereto as Exhibit
A
(“Consulting Agreement”).
3. Payments
and Continuation of Benefits. The
Parties agree that Xxxxxx shall be entitled to receive the following, subject
to
the following terms and conditions:
(a) Accrued
Obligations.
On or
as soon as practicable after the Execution Date, EMHC shall (i) pay to Xxxxxx
all unpaid salary and vacation accrued but not paid through the Execution Date,
and (ii) reimburse to Xxxxxx all outstanding reimbursable expenses incurred
by
Xxxxxx and submitted to, and approved by, EMHC prior to the Execution Date
in
accordance with EMHC’s applicable policies and practices, to the extent not
reimbursed prior to the Execution Date.
(b) Severance.
In
consideration of and subject to and conditioned upon (i) Xxxxxx’x execution and
non-revocation of the Release (as defined below) and (ii) Xxxxxx’x continued
compliance with Sections 4 and 5 below, EMHC shall pay or provide the following
to Xxxxxx (collectively, the “Severance”):
i.
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Continued
payment of Xxxxxx’x current annual base salary through the payment of
$26,667 per month in each of the 44 consecutive months starting with
the
current month, payable in accordance with the customary payroll practices
of EMHC as in existence on the Execution Date;
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ii.
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A
single payment of $3,667 in lieu of any benefits Xxxxxx would have
received if he had been able to participate in EMHC’s retirement and
pension plans from the Execution Date through February 24, 2012.
Such
amount shall be paid to Xxxxxx in one lump sum cash payment within
30 days
following the expiration of the revocation period provided in the
Release;
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iii.
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Continued
enrollment from the Execution Date through the earliest to occur
of (A)
the expiration of the maximum coverage period permitted under Internal
Revenue Code Section 4980B (together with the regulations thereunder,
“COBRA”), (B) February 24, 2012, or (C) such time as Xxxxxx becomes
eligible for coverage under another “group health plan” (within the
meaning of COBRA) (in any case, the “Continuation Period”) at the same
level of benefits (including deductibles and co-pays) and at EMHC’s sole
cost and expense,
in
the group health plans (the “Benefit Plans”) in which Xxxxxx was enrolled
immediately prior to the Execution Date, as may be adjusted in a
manner
applicable to plan participants generally. Notwithstanding the foregoing,
if the Continuation Period terminates pursuant to clause (A) of this
Section 3(b)(iv), then, until the earlier of such time as the Continuation
Period would have expired under clause (B) or clause (C) of this
Section
3(b)(iv) (absent such termination pursuant to clause (A)), EMHC shall
make
monthly payments to Xxxxxx on or about the last day of each calendar
month
in the amount of $670.76; and
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iv.
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Monthly
payments beginning in June 2008 and continuing through February 2012
in
the amount of $2,013.36 in lieu of any provision of life, disability,
accidental death and dismemberment and/or other insurance
benefits.
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To
the
extent that any Severance payments or benefits would become due or payable
prior
to the expiration of the revocation period applicable under the Release, such
payments shall be delayed until (and subject to and conditioned upon) the
expiration of such revocation period, and shall be paid as soon as practicable
thereafter (assuming that the Release has not been revoked).
(c) Exclusivity
of Benefits.
Except
as expressly provided in this Section 3 and the RTN Transfer Agreement, Xxxxxx
shall not be entitled to any additional payments or benefits in connection
with
his employment with EMHC, RPS or any of their subsidiaries or affiliates, or
the
termination thereof or under or in connection with any contract, agreement
or
understanding between Xxxxxx and any of the foregoing. Except as expressly
provided herein, all employee benefits and perquisites provided or funded in
whole or in part by EMHC, RPS or any of their subsidiaries or affiliates shall
cease as of the Execution Date.
(d) Payment
Upon Death of Xxxxxx.
If
Xxxxxx dies during any period during which payments pursuant to this Section
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are to be made, payments for the remainder of such period following his death
shall be made to his spouse or, if provided for by will or otherwise by law,
to
his heirs.
4. Confidential
Information and Trade Secrets.
As
consideration for and to induce EMHC to enter into this Agreement and to pay
the
Xxxxxxxxx, Xxxxxx hereby covenants and agrees to the provisions set forth below:
(a) Except
as
the Board of Directors of EMHC may expressly authorize or direct in writing,
Xxxxxx agrees that he will not at any time for any reason, either directly
or
indirectly, (i) copy, reproduce, divulge, disclose or communicate to any person
or entity, in any manner whatsoever, any Confidential Information (as defined
below), (ii) remove from the custody and control of EMHC any physical or
electronic manifestation of the Confidential Information or (iii) utilize,
or
permit others to utilize, any Confidential Information for any reason. All
Confidential Information, including all physical or electronic manifestations
thereof, shall be the exclusive property of EMHC, whether or not prepared,
compiled or obtained by Xxxxxx or by EMHC prior to Xxxxxx’x
employment.
(b) “Confidential
Information” shall mean all information and trade secrets relating to or used in
the business and operations of EMHC and its subsidiaries and affiliates
(including, but not limited to, marketing methods and procedures, customer
lists, sources of supplies and materials, business systems and procedures,
information regarding its financial matters, or any other information concerning
the personnel, operations, trade secrets, know how, or business or planned
business of EMHC and its subsidiaries and affiliates), whether prepared,
compiled, developed or obtained by Xxxxxx or by EMHC and its subsidiaries and
affiliates prior to or during Xxxxxx’x employment with EMHC or RPS, that is
treated by EMHC as confidential or proprietary or is reasonably considered
by
EMHC to be confidential or proprietary. Notwithstanding the foregoing,
“Confidential Information” shall not include information independently developed
by Xxxxxx prior to March 30, 2007.
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(c) The
provisions of Section 4(a) shall not apply to: (i) Confidential Information
that
is public knowledge other than as a result of a breach of any obligation of
confidence; or (ii) Confidential Information disclosed under a requirement
of
law or as directed by applicable legal authority having jurisdiction over
Xxxxxx, provided that Xxxxxx shall deliver written notice to EMHC of such
required disclosure and afford EMHC the opportunity to legally curtail such
disclosure within the time period required for disclosure. All protections
in
this Section 4 for the benefit of EMHC shall be deemed to include its
subsidiaries and affiliates.
5. Non-Solicitation
and Non-Disparagement. As
consideration for and to induce EMHC to enter into this Agreement and to pay
the
Xxxxxxxxx, Xxxxxx hereby covenants and agrees that, except is provided in
Section 5(b), for a period commencing on the Execution Date and ending on
February 24, 2012 (“Restriction Period”), he will not:
(a) solicit
to employ or knowingly permit any company or any business directly or indirectly
controlled by him to solicit to employ any person who was employed by EMHC,
RPS
or any of their subsidiaries or affiliates at or within the prior six months,
or
in any manner seek to induce any such person to leave his or her employment,
it
being understood that a general advertisement seeking employees shall not be
deemed to be such solicitation;
(b) at
any
time, whether during or after the Restriction Period, make any statement,
publicly or privately, to
any
individual or entity, including, without limitation, clients, customers,
employees, financial or credit institutions or news agencies, in any case,
which
could reasonably be expected to disparage, defame, libel or slander EMHC, RPS,
any of their subsidiaries, affiliates or any of their respective employees,
officers or directors; or
(c) hold
himself out as an employee, agent or representative of EMHC, RPS or any of
their
subsidiaries or affiliates, except as otherwise provided in the Consulting
Agreement.
6. Remedies
Upon Breach.
(a) Xxxxxx
acknowledges that EMHC and RPS will suffer substantial damage which will be
difficult to compute and that the remedies at law will be inadequate if Xxxxxx
should violate any of the covenants or other obligations contained in Sections
4
or 5 hereof, and that the restrictions in Sections 4 and 5 of this Agreement
are
reasonable and necessary for the protection of the legitimate business interests
of EMHC, RPS and their subsidiaries and affiliates. Accordingly, the Parties
agree that EMHC and RPS, as applicable, shall be entitled to the remedies of
injunction and/or specific performance (in addition to any other remedies,
at
law or in equity, as may be available), and neither EMHC nor RPS shall be
required to post a bond in connection therewith.
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(b) In
the
event of an alleged breach by Xxxxxx that is disputed by him, EMHC shall
continue to make payments to Xxxxxx hereunder during the pendency of such
dispute but for no more than twelve (12) months and, if such dispute is resolved
adversely to Xxxxxx, Xxxxxx shall return to EMHC all payments so made upon
demand.
7. Indemnification.
Nothing
herein shall impair or affect any indemnification rights provided in EMHC’s or
RPS’s certificate of incorporation or bylaws. Further, the Parties acknowledge
and agree that EMHC’s duties and obligations under the Indemnification Agreement
shall continue in full force and effect following the Execution Date pursuant
to
the terms and conditions contained therein.
8. Releases.
(a)
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Xxxxxx
agrees that, as a condition to Xxxxxx’x right to receive the Severance,
within the timeframe specified in the release of claims attached
hereto as
Exhibit
B(1)
(the “Release”), Xxxxxx shall execute, deliver to EMHC and thereafter
shall not revoke the Release.
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(b)
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EMHC
agrees that, as a condition to Xxxxxx’x execution of this Agreement,
within the timeframe specified in the release of claims attached
hereto as
Exhibit
B(2),
EMHC shall execute, deliver to Xxxxxx and thereafter shall not revoke
such
release.
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9. Cancellation
of Unvested Options.
Effective
upon the
expiration of the revocation period applicable under the Release and assuming
that the Release has not been revoked, Xxxxxx hereby surrenders to EMHC for
cancellation all options to purchase securities of EHMC granted to him that
did
not vest prior to the Execution Date and agrees that he will not exercise any
such options that vest between the Execution Date and the expiration of such
revocation period.
10. No
Admission. This
Agreement shall not in any way be construed as an admission by EMHC,
RPS
or any of their subsidiaries or affiliates
of any
liability whatsoever or as an admission by any of the foregoing of any acts
of
wrongdoing or discrimination against Xxxxxx or any other persons. In fact,
each
of the foregoing entities specifically disclaims, on behalf of itself, its
subsidiaries and affiliates, any liability to and wrongdoing or discrimination
against Xxxxxx or any other persons.
11. Confidentiality.
Except
as otherwise required by law, Xxxxxx and EMHC agree not to disclose the terms
of
this Agreement or the substance of the discussions preceding this Agreement
to
any other person; provided, however, that this Section 11 shall not apply
to:
(a) Xxxxxx’x
communications to his immediate family, attorneys, accountants and/or financial
advisors,
(b) EMHC’s
communications to any third party with a legitimate business need to know,
as
determined in EMHC’s reasonable and good faith discretion (such as its
attorneys, accountants, auditors and/or financial advisors), and
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(c) disclosure
by EMHC, to the extent required by applicable U.S. federal securities
laws,
as
long
as the Parties, prior to disclosure (except in situations to which Section
11(c)
applies), first agree not to disclose such information to anyone else. In
addition, if Xxxxxx is required by law to disclose any of the terms of this
Agreement or the substance of the discussions preceding this Agreement, Xxxxxx
will provide written notice to EMHC in advance of such disclosure, and will
cooperate with EMHC to prevent or limit such disclosure.
12. Cooperation.
Xxxxxx
agrees to cooperate with EMHC and RPS with respect to all matters arising during
or related to his employment about which he has personal knowledge because
of
his employment with EMHC and RPS, including but not limited to all matters
(formal or informal) in connection with any government investigation, internal
investigations, litigation (potential or ongoing), administrative, regulatory,
or other proceeding which currently exists, or which may have arisen prior
to or
arises following the signing of the Agreement. Such cooperation will include,
but not be limited to, Xxxxxx’x willingness to be interviewed by representatives
of EMHC and RPS, and to participate in such proceedings by deposition or
testimony. Xxxxxx understands that EMHC and/or RPS will reimburse him for his
reasonable out-of-pocket expenses (including attorney’s fees and legal costs)
incurred in connection with such cooperation.
13. Binding
Effect. This
Agreement shall be binding upon Xxxxxx, his heirs, representatives, executors,
administrators, successors, and assigns, and upon EMHC and RPS and their
respective successors, parents, affiliated companies, and assigns. If either
Party violates any provision of this Agreement, the other Party may present
this
Agreement to any court of competent jurisdiction for the purpose of obtaining
legal and equitable relief.
14. Governing
Law. This
Agreement is deemed by the Parties to be made and entered into in the State
of
Arkansas. It shall be interpreted, enforced, and governed under the laws of
Arkansas. Any action or proceeding arising under or with respect to this
Agreement shall be brought in a federal or state court having jurisdiction
located in the County of Pulaski, State of Arkansas.
15. Severability. If
any
term, provision, covenant or condition of this Agreement is held by a court
of
competent jurisdiction to exceed the limitations permitted by applicable law,
as
determined by such court in such action, then the provisions will be deemed
reformed to apply to the maximum limitations permitted by applicable law and
the
Parties hereby expressly acknowledge their desire that in such event such action
be taken. Notwithstanding the foregoing, the Parties further agree that if
any
term, provision, covenant or condition of this Agreement is held by a court
of
competent jurisdiction to be invalid, void or unenforceable, the remainder
of
the provisions shall remain in full force and effect and in no way shall be
affected, impaired or invalidated.
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16. Section
409A of the Code.
If at
any time EMHC determines that any payment under this Agreement may be or become
subject to the imposition of taxes under Internal Revenue Code Section 409A,
EMHC shall have the right, in its sole discretion and upon providing written
notice to Xxxxxx, to adopt such amendments to this Agreement or take such other
actions (including amendments and actions with retroactive effect) as EMHC
determines are necessary or appropriate to (a) exempt the payments provided
hereunder according to Internal Revenue Code Section 409A and/or preserve the
intended tax treatment of such payments, or (b) comply with the requirements
of
Internal Revenue Code Section 409A. Any such amendments by EMHC shall have
no
cumulative adverse financial impact upon Xxxxxx. In no event whatsoever shall
EMHC or any of the other Releasees (as defined in the Release) be liable for
any
additional tax, interest or penalties that may be imposed on Xxxxxx by Internal
Revenue Code Section 409A or any damages for failing to comply with Code Section
409A.
17. Withholding.
EMHC
shall withhold from any amounts payable under this Agreement such federal,
state, local or foreign taxes as shall be required to be withheld pursuant
to
any applicable law or regulation.
18. Reliance. Xxxxxx
hereby acknowledges that he has not relied on any information provided or
statements made by EMHC, or any of its agents, representatives, or attorneys
that are not contained in this Agreement. In return for executing this
Agreement, Xxxxxx is receiving only the consideration described in this
Agreement.
19. Entire
Agreement. This
Agreement, the RTN Transfer Agreement, the Consulting Agreement and the Option
Agreement (as amended by this Agreement) contain the entire agreement between
the Parties, and, except as otherwise provided herein, this Agreement, the
RTN
Transfer Agreement, the Consulting Agreement and the Option Agreement (as
amended by this Agreement) supersede any other oral or written agreements or
understandings between the Parties, including without limitation the Employment
Agreement.
20. Amendments. All
modifications and amendments to this Agreement must be made in writing and
signed by the Parties.
21. Waiver. No
delay
or omission by the Parties in exercising any right under this Agreement shall
operate as a waiver of that or any other right. A waiver or consent given by
a
Party on any one occasion shall be effective only in that instance and shall
not
be construed as a bar or waiver of any right on any other occasion.
22. Captions. The
captions of the sections of this Agreement are for convenience of reference
only
and in no way define, limit or affect the scope or substance of any section
of
this Agreement.
23. Proper
Authorization; Due Execution. EMHC
and
RPS each represent and warrant to Xxxxxx that this Agreement has been approved
by its Board of Directors and that the officer signing on its behalf below
has
been fully authorized to do so.
24. Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed an original but all of which together constitute one and the same
instrument. The execution of this Agreement may be by actual or facsimile
signature.
25. Further
Assurances. From
time
to time, each of the Parties shall execute, acknowledge, and deliver any
instruments or documents necessary to carry out the purposes of this
Agreement.
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26. No
Third-Party Beneficiaries. Nothing
in this Agreement, express or implied, shall confer on any person, other than
the Parties to this Agreement, any right or remedy of any nature
whatsoever.
27. Non-Disparagement
by EMHC. EMHC agrees
that it will not, at any time, make any statement, publicly or privately,
to
any
individual or entity, including, without limitation, clients, customers,
employees, financial or credit institutions or news agencies, in any case,
which
could reasonably be expected to disparage, defame, libel or slander
Xxxxxx.
28. Review
and Approval. The
Parties hereto acknowledge that they have each had adequate and legally
sufficient time to review and seek legal guidance concerning this Agreement.
Xxxxxx specifically has been advised to consult with an attorney concerning
this
Agreement. Xxxxxx understands the rights that are waived by this Agreement,
including rights under the Age Discrimination in Employment Act. Specifically,
Xxxxxx acknowledges that he has twenty-one (21) days to consider this Agreement.
If Xxxxxx chooses to execute this Agreement prior to the end of twenty-one
(21)
days, it is solely his choice.
29. Cancellation
upon Written Notice.
Xxxxxx
may revoke his signature on this Agreement and the Release within seven (7)
days
following his signing of this Agreement and the Release by sending notice to
EMHC, either by certified mail, return receipt requested, or overnight delivery
so that the notice arrives before the expiration of the seven day revocation
period. Xxxxxx understands and agrees that if he revokes this Agreement or
the
Release within the seven (7) days, EMHC is not obligated to fulfill the
obligations contained in this Agreement.
30. Voluntary
Execution and Waiver. Xxxxxx
further represents and warrants that he freely negotiated the terms of this
Agreement and that he enters into it and executes it and the Release
voluntarily. Xxxxxx understands that this is a voluntary waiver of any claims
under the laws and orders stated in the Release that relate in any way to his
employment with, complaints about, compensation due, or separation from EMHC
and/or RPS.
This
Separation Agreement becomes effective as of the date all Parties have executed
below and the revocation period described in Section 29 has expired without
Xxxxxx’x revocation.
[Signatures
are on Following Page]
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[Signature Page to Separation Agreement dated June 24, 2008]
Date:
June 24, 2008
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Xxxxx
Xxxxxx
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EQUITY
MEDIA HOLDINGS CORPORATION
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By:
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Date:
June 24, 2008
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Name:
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Title:
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RETRO
PROGRAMMING SERVICES, INC.
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By:
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Date:
June 24, 2008
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Name:
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Title:
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9
EXHIBIT B(1)
GENERAL
RELEASE
For
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the undersigned does hereby release and forever discharge the
“Releasees”
hereunder, consisting of Equity Media Holdings Corporation, a Delaware
corporation (the
“Company”),
and
each of its affiliates and subsidiaries, and each of their present and former
partners, associates, affiliates, subsidiaries, successors, heirs, assigns,
agents, directors, officers, employees, shareholders, representatives, lawyers,
lenders, insurers, and all persons acting by, through, under or in concert
with
them, or any of them, of and from any and all manner of action or actions,
cause
or causes of action, in law or in equity, suits, debts, liens, contracts,
agreements, promises, liability, claims, demands, damages, losses, costs,
attorneys’ fees or expenses, of any nature whatsoever, known or unknown, fixed
or contingent (hereinafter called “Claims”),
which
the undersigned now has or may hereafter have against the Releasees, or any
of
them, by reason of any matter, cause, or thing whatsoever from the beginning
of
time to the date hereof.
The
Claims released herein include, without limiting the generality of the
foregoing, any Claims in any way arising out of, based upon, or related to
the
undersigned’s employment by the Releasees, or any of them, or the termination
thereof; including, without limitation, any claim for wages, salary,
commissions, bonuses, incentive payments, profit-sharing payments, expense
reimbursements, leave, vacation, Separation pay or other benefits; any claim
for
benefits under any stock option, restricted stock or other equity-based
incentive plan of the Releasees, or any of them (or any related agreement to
which any Releasee is a party); any alleged breach of any express or implied
contract of employment; any alleged torts or other alleged legal restrictions
on
any Releasee’s right to terminate the employment of the undersigned; and any
alleged violation of any federal, state or local statute or ordinance including,
without limitation, Title VII of the Civil Rights Act of 1964, the Civil Rights
Act of 1991, the Civil Rights Act of 1866,
the
Consolidated Omnibus Budget Reconciliation Act of 1985,
the Age
Discrimination in Employment Act (including the Older Workers’ Benefit
Protection Act), the Equal Pay Act, the Family and Medical Leave Act,
the
Americans
with Disabilities Act, the Fair Labor Standards Act, the Employee Retirement
Income Security Act, the National Labor Relations Act, the Arkansas Civil Rights
Act,1
each as
amended, and any
and
all claims under the laws of any state, county, municipality, or other
governmental subdivision of the United States or any state, including but not
limited to the State of Arkansas.
Notwithstanding
the foregoing, this Release shall not operate to release any Claims which the
undersigned may have to payments or benefits under Section 3 of that certain
Separation Agreement, dated as of June _, 2008, between the Company, Retro
Programming Services, Inc. and the undersigned (the “Separation
Agreement”),
to
which this Release is attached, or under the RTN Transfer Agreement, Option
Agreement or Consulting Agreement or Indemnification Agreement referenced
therein.
IN
ACCORDANCE WITH THE OLDER WORKERS BENEFIT PROTECTION ACT OF 1990, THE
UNDERSIGNED IS HEREBY ADVISED AS FOLLOWS:
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(1) HE
IS
ADVISED TO CONSULT WITH AN ATTORNEY BEFORE SIGNING THE SEPARATION AGREEMENT
AND
THIS RELEASE;
(2) HE
HAS
TWENTY-ONE (21) DAYS FROM HIS RECEIPT OF THE SEPARATION AGREEMENT AND THIS
RELEASE TO CONSIDER BOTH BEFORE SIGNING THEM; AND
(3) HE
HAS
SEVEN (7) DAYS AFTER SIGNING THE SEPARATION AGREEMENT AND THIS RELEASE TO REVOKE
HIS SIGNATURE, AND THE SEPARATION AGREEMENT AND THIS RELEASE WILL BECOME
EFFECTIVE UPON THE EXPIRATION OF THAT REVOCATION PERIOD PROVIDED HE DOES NOT
EXERCISE HIS RIGHT TO REVOKE.
The
undersigned represents and warrants that there has been no assignment or other
transfer of any interest in any Claim which he may have against Releasees,
or
any of them, and the undersigned agrees to indemnify and hold the Releasees,
and
each of them, harmless from any Claims against the Releasees, or any of them,
as
the result of any such assignment or transfer or any rights or Claims under
any
such assignment or transfer. It is the intention of the parties that this
indemnity does not require payment as a condition precedent to recovery by
the
Releasees against the undersigned under this indemnity.
The
undersigned agrees that if he hereafter commences any suit arising out of,
based
upon, or relating to any of the Claims released hereunder or in any manner
asserts against Releasees, or any of them, any of the Claims released hereunder,
then the undersigned shall pay to Releasees, and each of them, in addition
to
any other damages caused to Releasees thereby, all attorneys’ fees incurred by
Releasees in defending or otherwise responding to said suit or Claim, to the
fullest extent permitted by law.
The
undersigned further understands and agrees that neither the payment of any
sum
of money nor the execution of the Separation Agreement or this Release shall
constitute or be construed as an admission of any liability or wrongdoing
whatsoever by the Releasees, or any of them, who have consistently taken the
position that they have no liability whatsoever to the undersigned.
The
undersigned acknowledges that different or additional facts may be discovered
in
addition to what is now known or believed to be true by him with respect to
the
matters released in the Separation Agreement or this Release, and the
undersigned agrees that the Separation Agreement and this Release shall be
and
remain in effect in all respects as a complete and final release of the matters
released, notwithstanding any different or additional facts.
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IN
WITNESS WHEREOF, the undersigned has executed this Release this 24th day of
June, 2008.
Xxxxx
Xxxxxx
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EXHIBIT B(2)
GENERAL
RELEASE
For
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the undersigned on behalf of itself and its subsidiaries does
hereby release and forever discharge the “Releasee”
hereunder, consisting of Xxxxx Xxxxxx, from any and all manner of action or
actions, cause or causes of action, in law or in equity, suits, debts, liens,
contracts, agreements, promises, liability, claims, demands, damages, losses,
costs, attorneys’ fees or expenses, of any nature whatsoever, known or unknown,
fixed or contingent (hereinafter called “Claims”),
which
the undersigned now has or may hereafter have against the Releasee by reason
of
any matter, cause, or thing whatsoever from the beginning of time to the date
hereof.
The
Claims released herein include, without limiting the generality of the
foregoing, any Claims in any way arising out of, based upon, or related to
the
Releasee’s employment by the undersigned or the termination, including any
alleged torts or claims
under the laws of any state, county, municipality, or other governmental
subdivision of the United States or any state, including but not limited to
the
State of Arkansas.
Notwithstanding
the foregoing, this release shall not operate to release any Claims which the
undersigned may have in connection with Releasee’s defaults, nonperformance or
breaches under that certain Separation Agreement, dated as of June _, 2008,
between the undersigned and Releasee (the “Separation
Agreement”)
or the
RTN Transfer Agreement, Option Agreement or Consulting Agreement referenced
therein or Section 14 of the Employment Agreement referenced
therein.
The
undersigned represents and warrants that there has been no assignment or other
transfer of any interest in any Claim which it may have against Releasee and
the
undersigned agrees to indemnify and hold the Releasee harmless from any Claims
against the Releasee as the result of any such assignment or transfer or any
rights or Claims under any such assignment or transfer. It is the
intention of the parties that this indemnity does not require payment as a
condition precedent to recovery by the Releasee against the undersigned under
this indemnity.
The
undersigned agrees that if it hereafter commences any suit arising out of,
based
upon, or relating to any of the Claims released hereunder or in any manner
asserts against Releasee any of the Claims released hereunder, then the
undersigned shall pay to Releasee, in addition to any other damages caused
to
Releasee thereby, all attorneys’ fees incurred by Releasee in defending or
otherwise responding to said suit or Claim, to the fullest extent permitted
by
law.
The
undersigned further understands and agrees that neither the payment of any
sum
of money nor the execution of the Separation Agreement or this Release shall
constitute or be construed as an admission of any liability or wrongdoing
whatsoever by the Releasee.
The
undersigned acknowledges that different or additional facts may be discovered
in
addition to what is now known or believed to be true by it with respect to
the
matters released in the Separation Agreement or this Release, and the
undersigned agrees that the Separation Agreement and this Release shall be
and
remain in effect in all respects as a complete and final release of the matters
released, notwithstanding any different or additional facts.
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Notwithstanding
anything to the contrary, in the event the release being executed by Releasee
on
even date herewith in favor of the undersigned and its affiliates and certain
other persons is revoked by Releasee in any manner, this Release shall be deemed
immediately null and void.
IN
WITNESS WHEREOF, the undersigned has executed this Release this 24th day of
June, 2008.
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