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EXECUTIVE EMPLOYMENT AGREEMENT
This Agreement is entered into as of February 3, 1997 (the "Effective
Date"), by and between Arterial Vascular Engineering, Inc., a Delaware
corporation (the "Company"), and Xxxxx X. Xxxxxx (the "Executive").
WHEREAS, the Company desires to employ the Executive and the Executive
desires employment with the Company on the terms and conditions set forth below;
NOW, THEREFORE, in consideration of the foregoing recital and the
respective covenants and Agreements of the parties contained in this document,
the Company and the Executive agree as follows:
1. Employment.
(a) The Company hereby employs the Executive on a full time
exclusive basis to render services to the Company as Chief Operating Officer and
in connection therewith to perform such duties as the Company shall reasonably
require of the Executive.
(b) The Executive accepts this employment and agrees to
perform services for the Company and its subsidiaries and affiliates, loyally,
conscientiously and to the best of the Executive's talents and abilities during
the term of this Agreement.
(c) The Executive shall perform such services for the Company
as are customarily rendered by a Chief Operating Officer in the field of
percutaneous transluminal coronary angioplasty, coronary stents, peripheral
stents and such other areas as the Company may from time to time during the term
of this agreement become significantly involved (collectively referred to as the
"Field"), and such other related services as the Company may from time to time
reasonably request.
(d) The Executive may be designated an officer of the Company,
but the Executive shall not be entitled to any additional compensation for
holding any office. However, the Company agrees to indemnify the Executive
acting in an officer capacity to the fullest extent allowable under law.
(e) The Executive shall report only to the President, the
Chairman of the Board, and the Board of Directors of the Company.
2. Term.
The term of this Agreement (hereinafter the "Term") shall
commence on February 3, 1997 and shall continue through February 2, 2001 and may
be extended further by agreement of all parties.
3. Salary and Expenses.
The Company agrees to pay the Executive salary in accordance
with the Company's standard payroll practices applicable to executives, at the
rate of $200,000 per
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year ("Base Compensation"). Annually, the Board of Directors will review the
salary of the Executive and may increase the Executive's Base Compensation if it
believes an adjustment is appropriate in light of the Executive's duties, and
individual and corporate performance. The Executive shall be entitled to be
reimbursed by the Company for all normal and reasonable expenses incurred by the
Executive on behalf of the Company in connection with the Executive's services,
provided they are in accordance with approved Company policy, and subject to
submission of documentation therefor as required from time to time by the
Company.
4. Life Insurance.
(a) The Company shall have the right to purchase life
insurance on the Executive's life, for which the Company will be the
beneficiary. The Executive represents that to the best of the Executive's
knowledge the Executive is currently in good health, and insurable at normal
rates.
(b) Based upon the foregoing representation being accurate,
the Company shall provide the Executive with term life insurance in the amount
of $500,000, provided that the cost of such insurance shall not exceed normal
rates.
5. Benefits.
The Executive shall be entitled to four weeks of vacation a
year, and subject to the terms and conditions of the Company's plans (including,
where applicable, insurability at normal rates), the Company shall furnish the
Executive with medical insurance and benefits in accordance with Company
policies from time to time in effect for Executives at the Executive's level of
employment. In this connection and for the purposes described in paragraph 4,
the Executive agrees to furnish such applications and submit to such medical
examination as may be required.
6. Representation.
The Executive represents and warrants to the Company that the
Executive is free to enter into this Agreement, and is not subject to any
restrictions or Agreements relating to prior employment.
7. Exclusivity.
(a) The Executive shall be free to consult to, serve on the
board of directors of, purchase shares of and otherwise assist other companies
during the term of this Agreement, provided that such activities do not
interfere with the Executive's duties hereunder and do not violate the
restriction in paragraphs 7(b) and (c).
(b) Except with the Company's prior written consent, during
the Term hereof, the Executive shall not (except pursuant to this Agreement)
directly or indirectly enter the employ of or render any services in the United
States, Europe or Asia to any person, firm or corporation engaged in the
business of providing products or services in the Field. Further, during said
period the Executive shall not engage in such business on the Executive's own
account and the Executive shall not become interested in any such business
directly or indirectly, as an individual, partner, shareholder, director,
officer, principal, agent, Executive, trustee, consultant, or in any other
relationship or capacity, except as permitted by paragraph 8.
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(c) Except with the Company's prior written consent or in the
performance of the Executive's duties hereunder, the Executive shall not consult
with or give any advice to any third party in any way relating to the Field
while the Executive is employed by the Company.
(d) For purposes of this paragraph 7, the Company hereby
consents to the following outside activities: None.
8. Rights of Company.
The provisions of paragraphs 1, 7 and 12 are of the essence of
this Agreement and the material breach of any of them shall be grounds for the
immediate termination of the Executive's services. Notwithstanding the
foregoing, with respect to nonwillful breaches, the Executive shall be given
notice thereof and one week to cure the breach. Nothing contained in such
paragraphs shall be deemed to prohibit the Executive from acquiring, solely as
an investment, shares of capital stock of any publicly traded corporation in the
Field, provided that such investment does not exceed 5% of the stock of such
public corporation, and provided that such investment may exceed 5% with the
approval of the Board of Directors.
9. Termination.
(a) If the Executive shall become physically or mentally
disabled so that the Executive is unable to fully perform the services
hereunder, the Company shall continue to pay the Executive compensation (less
the amount of any disability insurance the Executive receives from Company
sources) only during the first twelve weeks of such incapacity. If such
incapacity continues for a period of 12 consecutive weeks or for shorter periods
aggregating 110 days during any 12-month period of the Term hereof, the Company
may at any time within 10 business days after the end of the aforesaid
disability period terminate the Term of this Agreement by written notice to the
Executive. If the Company terminates the Term of this Agreement by reason of the
Executive's disability, the restriction contained in paragraph 7(b) of this
Agreement shall also terminate.
(b) If the Executive shall die during the Term, this Agreement
shall automatically terminate and no further compensation shall accrue to the
Executive following the date of the Executive's death. Compensation which has
accrued prior to death shall be paid.
(c) The Company shall have the right to terminate the Term and
to discharge the Executive for Cause (as defined below) upon written notice. If
the Company discharges the Executive for Cause, the restrictions contained in
paragraph 7 shall remain in effect.
10. Severance Benefits.
(a) In the event the Executive's employment is terminated as a
result of an Involuntarily Termination during the Term for any reason (other
than for Cause), either prior to the occurrence of a Change of Control or after
the two-year period following a Change of Control, then the Executive shall be
entitled to receive severance pay which equals one half of the Executive's then
current Base Compensation. Any such severance payment to
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which the Executive is entitled to receive pursuant to such Involuntary
Termination shall be paid in one lump sum, payable on the Termination Date.
(b) If there is a Change of Control during the term of this
Agreement, and the Executive's employment terminates as a result of Involuntary
Termination other than for Cause at any time within two years after such Change
of Control, then the Executive shall be entitled to receive severance pay which
equals the Executive's then current Base Compensation. In addition to the amount
of severance pay that the Executive is entitled to receive in the event of an
Involuntary Termination of the Executive's employment other than for Cause, the
Executive shall be entitled to receive (a) vacation pay equal to the amount of
compensation for accrued but unused vacation time, payable in a lump sum at the
time of or prior to the Termination Date and (b) for the twelve months following
the Termination Date, all benefits which existed prior to termination as are
provided by the Company. Any severance payments to which the Executive is
entitled to receive pursuant to an Involuntary Termination shall be paid in two
equal sums, payable on the Termination Date and on the six month anniversary of
the Termination Date.
(c) If the Executive is terminated for Cause, then the
Executive shall not be entitled to receive severance or other benefits except
for those statutorily required.
(d) If the Company terminates the Executive's employment as a
result of the Executive's Disability, or such Executive's employment is
terminated due to the death of the Executive, then the Executive shall not be
entitled to receive severance or other benefits except for those (if any) as may
then be established under the Company's then existing severance and benefits
plans and policies at the time of such Disability or death.
(e) If the Executive's employment is terminated by the
Executive's voluntary resignation prior to a Change of Control, then the
Executive shall not be entitled to receive severance pay.
(f) If the Executive's employment is terminated by the
Executive's voluntary resignation subsequent to a Change of Control, then the
Executive shall be entitled to receive severance pay which equals one-half of
the Executive's then current Base Compensation. Any severance payments to which
the Executive is entitled to receive pursuant to a voluntary resignation
subsequent to a Change of Control shall be paid in six equal sums, payable on
the Termination Date and on each of the five monthly anniversaries of the
Termination Date thereafter.
(g) If there is a Change of Control during the term of this
Agreement, and the Executive's employment terminates as a result of an
Involuntary Termination other than for Cause at any time within two years after
such Change of Control, 100% of the unvested portion of any stock options held
by the Executive under the Company's stock option plans shall automatically be
accelerated and the Executive or the Executive's representative, as the case may
be, shall have the right to exercise all or any portion of such stock option, in
addition to any portion of the option exercisable prior to the Change of
Control; provided, however, that if the Company's Board of Directors (the
"Board"), upon receipt of a written opinion of the Company's independent
auditors, (i) determines that the enforcement of this paragraph 10(g) would
preclude accounting for any proposed business combination involving a Change in
Control as a
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"pooling of interests" and (ii) otherwise desires to approve a proposed Change
in Control business combination which requires as a condition to the closing of
such transaction that it be accounted for as a "pooling of interests," then this
paragraph 10(g) shall become null and void and of no force or effect, and
Executive shall instead, upon the occurrence of an Involuntary Termination other
than for Cause at any time within two years after a Change of Control, be
entitled to the severance benefits set forth in paragraph 10(h). For purposes of
this paragraph 10(g), the Board's determination shall require the unanimous
approval of the non-employee members of the Board.
(h) In the event that paragraph 10(g) becomes null and void
pursuant to its terms, then Executive shall receive from the Company, upon the
occurrence of an Involuntary Termination other than for Cause at any time within
two years after a Change of Control and in addition to any other severance
benefits payable under this Agreement, a cash amount equal to 50% of his total
taxable compensation (including, without limitation, salary, bonus and other
compensation) received from or payable by the Company during the 12-month period
ending on the date of the Involuntary Termination other than for Cause.
(i) Upon the occurrence of an Involuntary Termination other
than for Cause, and prior to the receipt of any benefits under this Agreement in
connection with the occurrence of an Involuntary Termination other than for
Cause, Executive shall, as of the date of an Involuntary Termination other than
for Cause, execute an Executive agreement and release in substantially the form
attached hereto as Exhibit A ("Agreement and Release"). Such Agreement and
Release shall specifically relate to all of Executive's rights and claims in
existence at the time of such execution and shall confirm Executive's
obligations under the Company's standard form of proprietary information
agreement. It is understood that Executive has twenty-one (21) days to consider
whether to execute such Agreement and Release and Executive may revoke such
Agreement and Release within seven (7) business days after execution of such
Agreement and Release. In the event Executive does not execute such Agreement
and Release within the twenty-one (21) day period, or if Executive revokes such
Agreement and Release within the seven (7) business-day period, no benefits
shall be payable or otherwise become effective under this Agreement.
(j) To the extent that Executive's stock option agreements
evidencing outstanding stock options do not provide for the following, such
agreements shall hereby be deemed to be amended (unless paragraph 10(g) becomes
null and void) to provide for full vesting of stock options upon the occurrence
of an Involuntary Termination other than for Cause at any time within two years
after a Change of Control; provided, however, that to the extent that an
amendment would result in a charge to earnings for the Company, no such
amendment shall be deemed made until the earlier of (i) such time as the
aforementioned adverse effects shall not result from such amendment and (ii)
immediately prior to the occurrence of an Involuntary Termination other than for
Cause at any time within two years after a Change of Control.
(k) In the event that any payments or other benefits received
or to be received by Executive pursuant to this Agreement ("Payments") would (1)
constitute a "parachute payment" within the meaning of Section 280G of the
Internal Revenue Code of 1986, as amended (the "Code"), and (2) but for this
paragraph 10(k), be subject to the excise tax imposed by Section 4999 of the
Code (the "Excise Tax"), then, in accordance with this paragraph 10(k), such
Payments shall be reduced to the maximum amount that would result in no portion
of the payments being subject to the Excise Tax, but only if and to the extent
that such a reduction would result in Executive's receipt of Payments that are
greater than the net amount that Executive would receive hereunder (after
application of the Excise Tax) if no reduction is made. The amount of required
reduction, if any, shall be the smallest amount so that Executive's net proceeds
with respect to the
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Payments (after taking into account payment of any Excise Tax) shall be
maximized, as determined by Executive. Executive's determination of any required
reduction pursuant to this paragraph 10(k) shall be conclusive and binding upon
the Company. The Company shall reduce Payments in accordance with this paragraph
10(k) only upon written notice from Executive indicating the amount of such
reduction, if any. If the Internal Revenue Service (the "IRS") determines that a
Payment is subject to the Excise Tax, then paragraph 10(l) shall apply.
(l) If, notwithstanding any reduction described in paragraph
10(k) (or in the absence of any such reduction), the IRS determines that
Executive is liable for the Excise Tax as a result of the receipt of Payments,
then Executive shall be obligated to pay back to the Company, within thirty (30)
days after final IRS determination, an amount of the Payments equal to the
"Repayment Amount." The Repayment Amount shall be the smallest such amount, if
any, as shall be required to be paid to the Company so that Executive's net
proceeds with respect to the Payments (after taking into account the payment of
the Excise Tax imposed on such Payments) shall be maximized. Notwithstanding the
foregoing, the Repayment Amount shall be zero if a Repayment Amount of more than
zero would not eliminate the Excise Tax imposed on the Payments. If the Excise
Tax is not eliminated pursuant to this paragraph 10(l), Executive shall pay the
Excise Tax.
(m) Notwithstanding the other provisions of this Agreement, to
the extent that any amounts payable pursuant to this Agreement would not be
deductible by the Company for federal income tax purposes on account of the
limitations of Section 162(m) of the Code, the Company may defer payment of such
amounts to the earliest one or more subsequent calendar years in which the
payment of such amounts would be deductible by the Company.
11. Definition of Terms. The following terms referred to in this
Agreement shall have the following meanings:
(a) "Change of Control" shall mean the occurrence of any of
the following events:
(i) Any "person" (as such term is used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934, as amended) is or
becomes the "beneficial owner" (as defined in Rule 13d-3 under said Act),
directly or indirectly, of securities of the Company representing 50% or more of
the total voting power represented by the Company's then outstanding voting
securities; or
(ii) The shareholders of the Company approve a (A)
merger or consolidation of the Company with any other corporation, other than a
merger or consolidation which would result in the voting securities of the
Company outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity) at least fifty percent (50%) of the total voting power
represented by the voting securities of the Company or such surviving entity
outstanding immediately after such merger or consolidation, or (B) a plan of
complete liquidation of the Company or an Agreement for the sale or disposition
by the Company of all or substantially all the Company's assets.
(b) "Involuntary Termination" shall mean (i) without the
Executive's express written consent, the assignment to the Executive of any
duties or the significant reduction of the Executive's duties, either of which
is without good business reasons and
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is inconsistent with the Executive's position with the Company and
responsibilities in effect immediately prior to such assignment, or the removal
of the Executive from such position and responsibilities; (ii) without the
Executive's express written consent, a substantial reduction, without good
business reasons, of the facilities and perquisites (including office space and
location) available to the Executive immediately prior to such reduction; (iii)
a reduction by the Company in the Base Compensation of the Executive as in
effect immediately prior to such reduction; (iv) a material reduction by the
Company in the kind or level of Executive benefits to which the Executive is
entitled immediately prior to such reduction with the result that the
Executive's overall benefits package is significantly reduced; (v) the
relocation of the Executive to a facility or a location more than 25 miles from
the Executive's then present location, without the Executive's express written
consent; (vi) any purported termination of the Executive by the Company which is
not effected for Disability or for Cause, or any purported termination for which
the grounds relied upon are not valid; or (vii) the failure of the Company to
obtain the assumption of this Agreement by any successors.
(c) "Cause" shall mean the commission of a felony or any other
crime involving moral turpitude, repeated failure to perform services in
accordance with the requests of superiors within the context of the Executive's
duties as described in this Agreement, the commission of any material fraud or
act of gross dishonesty, willful misconduct which causes harm, gross negligence
or a material breach of this Agreement.
(d) "Disability" shall mean that the Executive has been unable
to perform his duties under this Agreement as the result of the Executive's
incapacity due to physical or mental illness, and such inability, after at least
12 consecutive weeks or shorter periods aggregating 110 days during any 12-month
period, is determined to be total and permanent by a physician selected by the
Company or its insurers and acceptable to the Executive or the Executive's legal
representative (such Agreement as to acceptability not to be unreasonably
withheld). Termination resulting from Disability may only be effected after at
least 30 days' written notice by the Company of its intention to terminate the
Executive's employment. In the event that the Executive resumes the performance
of substantially all of the Executive's duties hereunder before the termination
of the Executive's employment becomes effective, the notice of intent to
terminate shall automatically be deemed to have been revoked.
(e) "Termination Date" shall mean (i) if this Agreement is
terminated by the Company for Disability, thirty (30) days after notice of
termination is given to the Executive (provided that the Executive shall not
have returned to the performance of the Executive's duties on a full-time basis
during such thirty (30) day period), (ii) if the Executive's employment is
terminated by the Company for any other reason, the date on which a notice of
termination is given, provided that if within thirty (30) days after the Company
gives the Executive notice of termination, the Executive notifies the Company
that a dispute exists concerning the termination, the Termination Date shall be
the date on which the dispute is finally determined, either by mutual written
Agreement of the parties, by final judgment, order or decree of a court of
competent jurisdiction (the time for appeal therefrom having expired and no
appeal having been perfected), or (iii) if the Agreement is terminated by the
Executive, the date on which the Executive delivers the notice of termination to
the Company.
12. Confidentially.
Prior hereto or concurrently herewith, the Executive has
signed or shall sign the Company's standard Proprietary Information Agreement.
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13. General.
(a) Applicable Law Controls. Nothing contained in this
Agreement shall be construed to require the commission of any act contrary to
law, and wherever there is any conflict between any provisions of this Agreement
and any material statute, law, ordinance or regulation contrary to which the
parties have no legal right to contract, then the latter shall prevail;
provided, however, that in any such event the provisions of this Agreement so
affected shall be curtailed and limited only to the extent necessary to bring
them within applicable legal requirements.
(b) Waiver/Estoppel. Any party hereto may waive the benefit of
any term, condition or covenant in this Agreement or any right or remedy at law
or in equity to which any party may be entitled but only by an instrument in
writing signed by the parties to be charged. The parties' rights and remedies
under and pursuant to this Agreement or at law or in equity shall be cumulative
and the exercise of any rights or remedies under one provision hereof shall not
be deemed an election of remedies; and any waiver or forbearance or any breach
of this Agreement or remedy granted hereunder or at law or in equity shall not
be deemed a waiver of any preceding or succeeding breach of the same or any
other provision hereof or of the opportunity to exercise such right or remedy or
any other right or remedy, whether or not similar, at any preceding or
subsequent time.
(c) Governing Law. This Agreement shall be governed by,
construed and enforced, and the legality and validity of each term and condition
shall be determined, in accordance with the laws of the State of California
applicable without regard to the principles of conflicts of laws.
(d) Captions. The section headings contained herein are for
reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
(e) No Joint Venture. Nothing herein contained shall
constitute a partnership between or a joint venture by the parties hereto or
appoint any party the agent of any other party. No party shall hold itself out
contrary to the terms of this paragraph and, except as otherwise specifically
provided herein, no party shall become liable for the representations, act or
omission of any other party. This Agreement is not for the benefit of any third
party who is not referred to herein and shall not be deemed to give any right or
remedy to any such third party.
(f) Assignment. The Company may assign this Agreement to any
entity into which or with which it may merge or which acquires a substantial
portion of its assets or business or with whom it has a joint venture,
partnership or other business relationship. Notwithstanding the foregoing
provision of this paragraph, no such assignment shall relieve the assignor from
any of its obligations hereunder or change any of the terms and provisions of
Executive's employment hereunder. This Agreement shall be fully effective and
binding upon the successors in interest, predecessors in interest, assigns and
affiliates and subsidiaries of the Company.
(g) Modification/Entire Agreement. This Agreement may not be
altered, modified or amended except by an instrument in writing signed by all of
the parties hereto. No person, whether or not an officer, agent, employee or
representative of
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any party, has made or has any authority to make for or on behalf of that party
any Agreement, representation, warranty statement, promise, arrangement or
understanding not expressly set forth in this Agreement. This Agreement
constitutes the entire Agreement between the parties and supersedes all prior
Agreements with respect to the subject matter hereof.
14. Counterparts. This Agreement may be executed in counterparts, which
together will constitute one instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
EXECUTIVE ARTERIAL VASCULAR ENGINEERING, INC.
/s/ Xxxxx X. Xxxxxx /s/ Xxxx Xxxxxxxxx
------------------------- --------------------------
Xxxxx X. Xxxxxx Xxxx Xxxxxxxxx
President and Chief Executive Officer
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Consent of Spouse: I hereby consent to this Agreement for purposes of any
community property interest I may have in the foregoing arrangements. I have had
the opportunity to seek independent counsel with regard to this consent and
knowingly and voluntarily waive the right to such counsel.
/s/ Xxxxxxxxx Xxxxxx
-------------------------
Signature of Spouse
Xxxxxxxxx Xxxxxx
-------------------------
Printed Name of Spouse
Feb. 14, 1997
-------------------------
Date Signed
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EXHIBIT A
EXECUTIVE AGREEMENT AND RELEASE
I understand and agree completely to the terms set forth in the
foregoing agreement.
I hereby confirm my obligations under the Company's standard form of
proprietary information agreement.
Except as otherwise set forth in this Agreement, I hereby release,
acquit and forever discharge the Company, its parents and subsidiaries, and
their officers, directors, agents, servants, employees, shareholders,
successors, assigns and affiliates, of and from any and all claims, liabilities,
demands, causes of action, costs, expenses, attorneys fees, damages, indemnities
and obligations of every kind and nature, in law, equity, or otherwise, known
and unknown, suspected and unsuspected, disclosed and undisclosed (other than
any claim for indemnification I may have as a result of any third-party action
against me based on my employment with the Company), arising out of or in any
way related to agreements, events, acts or conduct at any time prior to and
including the execution date of this Agreement, including but not limited to:
all such claims and demands directly or indirectly arising out of or in any way
connected with my employment with the Company or the termination of that
employment, including but not limited to, claims of intentional and negligent
infliction of emotional distress; any and all tort claims for personal injury;
any and all claims or demands related to salary, bonuses, commissions, stock,
stock options, or any other ownership interests in the Company, vacation pay,
fringe benefits, expense reimbursements, severance pay, or any other form of
compensation(other than any claim for benefits expressly contemplated by the
Agreement); claims pursuant to any federal, state or local law or cause of
action including, but not limited to, the federal Civil Rights Act of 1964, as
amended; the federal Age Discrimination in Employment Act of 1967, as amended
("ADEA"); the federal Americans with Disabilities Act of 1990; the California
Fair Employment and Housing Act, as amended; tort law; contract law; wrongful
discharge; discrimination; fraud; defamation; emotional distress; and breach of
the implied covenant of good faith and fair dealing.
I acknowledge that I am knowingly and voluntarily waiving and releasing
any rights I may have under ADEA. I also acknowledge that the consideration
given for the waiver and release in the preceding paragraph hereof is in
addition to anything of value to which I was already entitled. I further
acknowledge that I have been advised by this writing, as required by the ADEA,
that: (A) my waiver and release do not apply to any rights or claims that may
arise after the Effective Date of this Agreement; (B) I have the right to
consult with an attorney prior to executing this Agreement; (C) I have
twenty-one (21) days to consider this Agreement (although I may choose to
voluntarily execute this Agreement earlier); (D) I have seven (7) days following
the execution of this Agreement by the parties to revoke the Agreement; and (E)
this Agreement shall not be effective until the date upon which the revocation
period has expired, which shall be the eighth day after this Agreement is
executed by me, provided that the Company has also executed this Agreement by
that date ("Effective Date").
In giving this release, which includes claims that may be unknown to me
at present, I acknowledge that I have read and understand Section 1542 of the
California Civil Code which reads as follows: "A general release does not extend
to claims which the creditor does not know or suspect to exist in his favor at
the time of executing the release, which if known by him must have materially
affected his settlement with the debtor." I hereby expressly waive and
relinquish all rights and benefits under that section and any law of any
jurisdiction of similar effect with respect to my release of any claims I may
have against the Company.
By:
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Name:
Date:
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