Exhibit 2.3
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and
entered into this 13th day of September, 2005 by and between
BayCorp Holdings, Ltd., a Delaware corporation (the
"Company"), and Xxxxx X. Xxxxxx Xx. ("Executive"), to be
effective as of the Effective Date, as defined in Section 1.
BACKGROUND
The Company is being acquired by Xxxxx Group Ltd. and
its wholly owned subsidiary, Xxxxx Acquisition Corp.
Following the acquisition, the Company desires to employ
Executive as Chief Executive Officer and President of the
Company, or such other executive position of comparable
status and responsibilities as the Board of Directors of the
Company shall assign from time to time, from and after the
Effective Date, in accordance with the terms of this
Agreement. In addition, the Company desires to have the
Executive serve as a member of its Board of Directors.
Executive is willing to serve as Chief Executive Officer and
President in accordance with the terms and conditions of
this Agreement and as a member of the Board of Directors.
NOW THEREFORE, in consideration of the foregoing and of
the mutual covenants and agreements set forth herein, and
other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
1. Effective Date. The effective date of this
Agreement (the "Effective Date") shall be the effective date
of, and contingent upon, the merger between the Company and
Xxxxx Acquisition Corp. (the "Merger").
2. Employment. Executive is hereby employed on the
Effective Date as Chief Executive Officer and President of
the Company, or such other executive position of comparable
status and responsibilities as the Board of Directors of the
Company shall assign from time to time, and Executive shall
have the duties, responsibilities, and authority as shall be
assigned to him from time to time by the Board of Directors
of the Company or its designee. Executive will report to
the Board of Directors of the Company. The Executive will
also serve as a member of the Board of Directors of the
Company so long as Executive remains the Chief Executive
Officer of the Company.
3. Employment Period. Unless earlier terminated in
accordance with Section 7 hereof, Executive's initial
employment shall be for a one-year term beginning on the
Effective Date and ending on the corresponding date of the
following calendar year (the "Initial Term"). Following the
Initial Term, this Agreement and Executive's employment
hereunder will automatically be extended for additional one-
year periods (each such period being referred to as a
"Renewal Term") on the terms and conditions set forth
herein, without further action by Executive or the Company.
This process of automatic renewal shall continue from year
to year unless and until either the Executive or the Company
gives written notice to the other, at least ninety (90) days
prior to the end of the Renewal Term then in effect, that
the Term of the Agreement shall not be extended, in which
case the Executive's employment will terminate on the last
day of the Renewal Term in which the notice is given. The
Initial Term and any Renewal Terms are referred to
collectively herein as the "Term".
4. Extent of Service. During the Term, Executive
agrees to employment with the Company on a full-time basis
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devoting all of his business time, attention, skill, and
efforts exclusively to the faithful performance of his
duties hereunder, excluding any periods of vacation,
holiday, sick leave, and Company-approved leave of absence
to which Executive is entitled in accordance with Company
policies. It shall not be a violation of this Agreement for
Executive to (i) continue his duties and responsibilities as
Chairman, President and Chief Executive Officer of
HoustonStreet, (ii) devote reasonable time to charitable,
religious or community activities, (iii) serve on corporate,
civic, educational, or charitable boards or committees,
subject to the Company's standards of business conduct or
other code of ethics, (iv) deliver lectures or fulfill
speaking engagements from time to time on an infrequent
basis, and/or (v) manage personal business interests and
investments, subject to the Company's standards of business
conduct or other code of ethics, and so long as such
activities do not interfere in a material manner or on a
routine basis with the performance of Executive's
responsibilities under this Agreement.
5. Compensation and Benefits.
(a) Base Salary. During the Term, the Company will
pay to Executive a base salary at the rate of Two Hundred
Thousand US Dollars (U.S. $200,000) per year ("Base
Salary"), less normal withholdings, payable in approximately
equal bi-weekly or other installments as are or become
customary under the Company's payroll practices for its
employees from time to time. The Company acknowledges that
Executive will continue to receive a salary of One Hundred
Thousand US Dollars (U.S. $100,000) per year from
HoustonStreet and that Executive's Base Salary is in
addition and unrelated to any salary Executive may receive
from HoustonStreet. The compensation committee of the Board
of Directors of the Company (or the full Board excluding
Executive, if there is no compensation committee) shall
review, outside the presence of Executive, Executive's Base
Salary annually and may increase (but not decrease except as
provided in Section 7(d)(1)) Executive's Base Salary from
year to year, based upon its good faith evaluation of
Executive's performance, the Company's results of
operations, changes in general economic conditions and other
relevant factors. Such adjusted salary then shall become
Executive's Base Salary for purposes of this Agreement.
(b) Incentive, Savings, and Retirement Plans.
During the Term, Executive shall be entitled to participate
in all incentive, savings, and retirement plans, practices,
policies, and programs available to senior executive
officers of the Company ("Peer Executives"), if there are
any, and on the same basis as such Peer Executives. Without
limiting the foregoing, Executive may be entitled to receive
discretionary cash bonuses as determined from time to time
by the compensation committee of the Board of Directors of
the Company (or the full Board excluding Executive, if there
is no compensation committee) outside the presence of
Executive.
(c) Welfare Benefit Plans. During the Term,
Executive and Executive's eligible dependents shall be
eligible for participation in, and shall receive all
benefits under, the welfare benefit plans, practices,
policies, and programs provided by the Company (including,
without limitation, medical, prescription drug, dental,
disability, employee life, dependent life, accidental death,
and travel accident insurance plans and programs) ("Welfare
Plans") to the extent available to other Peer Executives.
Without limiting the foregoing, the following shall apply:
(i) The Company will provide the Executive with
a term life insurance policy (the "Life Insurance Policy")
in the amount of $1,000,000 U.S. Dollars consistent with
past Company practices and subject to Executive's continued
eligibility for coverage at reasonable rates. The Executive
shall select the beneficiaries under the Life Insurance
Policy, and ownership of the Life Insurance Policy shall be
vested in the Executive. Coverage shall begin no later than
the Effective Date and continue for the Term of this
Agreement. If the Executive's employment is terminated and
the Company is no longer obligated under this Agreement to
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maintain the Life Insurance Policy, the Executive shall have
the option to continue the Life Insurance Policy at the
Executive's expense.
(ii) The Company will provide the Executive with
a long-term disability policy ("the Disability Policy") that
will provide monthly benefits of no less than $5,000 U.S.
Dollars per month. Coverage shall begin no later than the
Effective Date and continue for the Term of this Agreement.
If the Executive's employment is terminated and the Company
is no longer obligated under this Agreement to maintain the
Disability Policy, the Executive shall have the option to
continue the Disability Policy at the Executive's expense.
(d) Expenses. Executive shall be entitled to
receive prompt reimbursement for all reasonable expenses
incurred by Executive during the Term in the course of
performing his duties and responsibilities under this
Agreement, in accordance with the policies, practices, and
procedures of the Company.
(e) Fringe Benefits. During the Term, Executive
shall be entitled to fringe benefits in accordance with the
plans, practices, programs, and policies of the Company
available to other Peer Executives.
(f) Vacation. During the Term, Executive will be
entitled to paid vacation time not to exceed 20 business
days per year.
6. Change of Control. For the purposes of this
Agreement, a "Change of Control" shall mean the occurrence
of any of the following events:
(a) any person is or becomes a "beneficial owner"
(as defined in Rule 13d-3 under the Securities
Exchange Act of 1934 (the "Exchange Act")),
directly or indirectly, of either (i) a majority of
the then-outstanding shares of common stock of the
Company ("Company Common Stock") or (ii) securities
of the Company representing a majority of the
combined voting power of the Company's then
outstanding securities eligible to vote for the
election of directors (the "Company Voting
Securities"); provided, however, that for purposes
of this paragraph (a), the following acquisitions
of Company Common Stock or Company Voting
Securities shall not constitute a Change of
Control: (A) an acquisition by the Company or any
entity that, directly or indirectly through one or
more intermediaries, controls, is controlled by, or
is under common control with the Company (a
"Company Affiliate"), (B) an acquisition by any
employee benefit plan (or related trust) sponsored
or maintained by the Company or a Company
Affiliate, (C) an acquisition by Executive or
another Company officer or group of Company
officers, or (D) an acquisition pursuant to a Non-
Qualifying Transaction (as defined in paragraph (b)
below); or
(b) the consummation of a recapitalization,
reorganization, merger, consolidation, statutory
share exchange, or similar form of transaction
involving the Company or a subsidiary of the
Company (a "Reorganization"), or the sale or other
disposition of all or substantially all of the
Company's assets (a "Sale") or the acquisition of
assets or stock of another entity (an
"Acquisition"); provided, however, such
Reorganization, Sale, or Acquisition shall be
deemed to be a "Non-Qualifying Transaction" if
immediately following such Reorganization, Sale, or
Acquisition the individuals and entities who were
the beneficial owners of the outstanding Company
Common Stock and outstanding Company Voting
Securities immediately prior to such
Reorganization, Sale, or Acquisition beneficially
own, directly or indirectly, more than 50% of,
respectively, the then outstanding shares of common
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stock and the combined voting power of the then
outstanding voting securities entitled to vote
generally in the election of directors, as the case
may be, of the entity resulting from or surviving
such Reorganization, Sale, or Acquisition
(including, without limitation, an entity which as
a result of such transaction owns the Company or
all or substantially all of the Company's assets or
stock either directly or through one or more
subsidiary entities, the "Surviving Entity"); or
(c) approval by the shareholders of the Company of
a complete liquidation or dissolution of the
Company.
7. Termination of Employment.
(a) Death. Executive's employment shall terminate
automatically upon Executive's death during the Term.
(b) Disability. If the Company determines in good
faith that the Disability (as defined below) of Executive
has occurred during the Term, it may give to Executive
written notice of its intention to terminate Executive's
employment. In such event, Executive's employment with the
Company shall terminate effective on the 30th day after
receipt of such written notice by Executive (the "Disability
Effective Date"), provided that, within the 30 days after
such receipt, Executive shall not have returned to full-time
performance of Executive's duties. For purposes of this
Agreement, "Disability" shall have the same meaning as
provided in the long-term disability plan or policy
maintained by the Company and covering Executive. If no
such long-term disability plan or policy is maintained,
"Disability" shall mean the inability of Executive, as
determined by the Board, to perform the essential functions
of his regular duties and responsibilities, with or without
reasonable accommodation, due to a medically determinable
physical or mental illness which has lasted (or can
reasonably be expected to last) for a period of six
consecutive months. At the request of Executive or his
personal representative, the Board's determination that the
Disability of Executive has occurred shall be certified a
physician mutually agreed upon by Executive, or his personal
representative, and the Company. Failing such independent
certification (if so requested by Executive), Executive's
termination shall be deemed a termination by the Company
without Cause and not a termination by reason of his
Disability.
(c) Termination by the Company. The Company may
terminate Executive's employment during the Term with or
without Cause. For purposes of this Agreement, "Cause"
shall mean:
(i) failure or refusal by Executive to perform
substantially Executive's duties with the Company (other
than any such failure resulting from incapacity due to
physical or mental illness, or following Executive's
delivery of notice of termination for Good Reason, and
specifically excluding any failure by Executive, after
reasonable efforts, to meet performance expectations) or to
obey a lawful directive from the Board consistent with the
Executive's duties and responsibilities, after a written
demand for substantial performance is delivered to Executive
by the Board which identifies the manner in which the Board
believes that Executive has not substantially performed
Executive's duties or has failed or refused to obey a lawful
directive, or
(ii) engaging by Executive in illegal conduct,
intentional misconduct, or gross misconduct which the Board
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(excluding Executive) in its reasonable judgment determines
is likely to be injurious to the Company or its reputation
or to subject the Company to liability for damages, or
(iii) conviction of Executive (or a plea of
guilty or nolo contendere by Executive to) a felony or other
crime involving moral turpitude.
The cessation of employment of Executive shall not be
deemed to be for Cause unless and until there shall have
been delivered to Executive a copy of a resolution duly
adopted by the affirmative vote of not less than a majority
of the entire membership of the Board of the Company
(excluding Executive, if Executive is a member of the
Board), finding that, in the good faith opinion of such
Board, Executive is guilty of the conduct described in
subparagraph (i), (ii), or (iii) above, and specifying the
particulars thereof in detail. Such finding shall be
effective to terminate Executive's employment for Cause only
if Executive was provided reasonable notice of the proposed
action and was given an opportunity, together with counsel,
to be heard by the Board.
(d) Termination by Executive. During the Term,
Executive's employment may be terminated by Executive for
Good Reason or no reason. For purposes of this Agreement,
unless written consent of Executive is obtained, "Good
Reason" shall mean:
(i) a reduction by the Company in Executive's
Base Salary; provided however, the Company may, on one
occasion, reduce Executive's Base Salary by an amount not to
exceed 15% of the Base Salary then in effect without such
reduction constituting "Good Reason" under this Agreement.
Such reduced salary then shall become Executive's Base
Salary for purposes of this Agreement provided that the
Company shall annually review the continuing necessity for
such reduction and will restore such amounts to Executive's
Base Salary when the Board, in its business judgment,
determines it is prudent to do so;
(ii) any failure by the Company to comply with
and satisfy 14(c) of this Agreement;
(iii) a material reduction by the Company of
Executive's duties, responsibilities or authority that is
inconsistent with Executive's position as Chief Executive
Officer and President; or
(iv) a breach of this Agreement by the Company
which is not cured in accordance herewith.
Good Reason shall not include Executive's death or
Disability; provided that Executive's mental or physical
incapacity following the occurrence of an event described in
clause (i) - ( iv) above shall not affect Executive's
ability to terminate for Good Reason. In the event that
"Cause" exists under this Agreement and the Company acts to
terminate Executive's employment for Cause, Executive shall
not be entitled to exercise a termination for Good Reason or
to receive payments or benefits pursuant to Section 8 of
this Agreement for termination for Good Reason. Except as
provided in Section 8(b)(1), Executive's continued
employment shall not constitute consent to, or a waiver of
rights with respect to, any circumstance constituting Good
Reason hereunder. Any claim of "Good Reason" under this
Agreement shall be communicated by Executive to the Company
in writing within 10 business days of his knowledge of its
occurrence, which writing shall specifically identify the
factual details concerning all events giving rise to
Executive's claim of Good Reason under this Section 7(d).
No general description of unspecified events shall
constitute proper notice of Good Reason or termination for
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Good Reason. The Company shall have an opportunity to cure
any claimed event of Good Reason described in clause (i) -
(iv) above within 30 days of such notice from Executive.
(e) Notice of Termination. Any termination by the
Company for Cause, or by Executive for Good Reason, shall be
communicated by Notice of Termination to the other party
hereto given in accordance with Section 15(f) of this
Agreement. For purposes of this Agreement, a "Notice of
Termination" means a written notice which (i) indicates the
specific termination provision in this Agreement relied
upon, (ii) to the extent applicable, sets forth the facts
and circumstances claimed to provide a basis for termination
of Executive's employment under the provision so indicated,
and (iii) specifies the termination date. The failure by
Executive or the Company to set forth in the Notice of
Termination any fact or circumstance which contributes to a
showing of Good Reason or Cause shall not waive any right of
Executive or the Company, respectively, hereunder or
preclude Executive or the Company, respectively, from
asserting such fact or circumstance in enforcing Executive's
or the Company's rights hereunder.
(f) Date of Termination. "Date of Termination"
means (i) if Executive's employment is terminated by the
Company for Cause, or by Executive for Good Reason, the date
of receipt of the Notice of Termination or a date within 15
days after receipt of the Notice of Termination, as
specified in such notice, (ii) if Executive's employment is
terminated by the Company other than for Cause or
Disability, the Date of Termination shall be the date of
receipt of the Notice of Termination or a date within 45
days after receipt of the Notice of Termination, as
specified in such notice, (iii) if Executive's employment is
terminated by reason of death or Disability, the Date of
Termination shall be the date of death of Executive or the
Disability Effective Date, as the case may be, and (iv) if
Executive's employment is terminated by Executive without
Good Reason, the Date of Termination shall be 30 days
following the Company's receipt of the Notice of
Termination, unless the Company specifies an earlier Date of
Termination.
8. Obligations of the Company upon Termination.
(a) Benefits Payable on All Terminations of
Employment. The following benefits ("Standard Benefits")
shall be payable to the Executive, his estate or his legal
representative (as the case may be) upon any termination of
employment, whenever and however occurring:
(i) in a single lump sum, within thirty (30)
days after the Date of Termination, cash payment in the sum
of the following amounts, to the extent not previously paid
to Executive (the "Accrued Obligations"): (1) Executive's
Base Salary through the Date of Termination, and (2) unless
Executive has a later payout date that is required in
connection with the terms of a deferral plan or agreement,
any vested compensation previously deferred by Executive
(together with any amount equivalent to accrued interest or
earnings thereon); and
(ii) to the extent not theretofore paid or
provided, the Company shall timely pay or provide to
Executive any other amounts or benefits accrued for the
benefit of Executive and vested under any plan, program,
policy, or practice of the Company prior to the Date of
Termination (such other amounts and benefits shall be
hereinafter referred to as the "Other Benefits"). With
respect to the provision of Other Benefits, the term Other
Benefits as used in this paragraph shall include, without
limitation, and Executive or his estate, beneficiaries, or
legal representatives, as applicable, shall be entitled to
receive, benefits under such plans, programs, practices, and
policies relating to death, disability, or retirement
benefits, if any, as are applicable to Executive or his
family on the Date of Termination; and
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(iii) if Executive's employment shall be
terminated for Cause, or if Executive voluntarily terminates
employment without Good Reason or decides not to extend the
Term of this Agreement as contemplated in Section 3, this
Agreement shall terminate without further obligations to
Executive, other than for payment of Accrued Obligations and
Other Benefits as provided in this Section.
(b) Additional Termination Benefits. Upon
occurrence of any Additional Benefit Event (as defined in
paragraph (c) below), and in addition to the Standard
Benefits, the Executive shall also be entitled to the
following:
(i) in consideration of Executive's execution
of a Release and Agreement Not to Xxx in substantially the
form of Exhibit A hereto as such form may be amended to
comply with applicable law at the time of execution of such
Release and Agreement Not to Xxx (the "Release"), payments
to Executive over a 12-month period following the Date of
Termination equal to the annual Base Salary at the Date of
Termination, payable in approximately equal bi-weekly or
other installments as are or become customary under the
Company's payroll practices for its employees from time to
time; and
(ii) the Company shall, at its expense, provide
for a 12-month period: (1) medical and dental benefits
substantially similar in the aggregate to those provided to
the Executive and the Executive's dependents immediately
prior to the Date of Termination, and (2) continued coverage
for the Executive under the Life Insurance Policy and the
Disability Policy; provided, however, that the Company
obligations with respect to the foregoing benefits shall be
reduced to the extent that the Executive or the Executive's
dependents obtain any such benefits pursuant to a subsequent
employer's benefit plan.
(c) Additional Benefit Events. The Additional
Benefit Events are:
(i) termination by the Company of the
Executive's employment within thirty-six (36) months of the
Effective Date, without Cause (but excluding termination on
death or for Disability);
(ii) the Executive's termination of his
employment within thirty-six (36) months of the Effective
Date, for Good Reason;
(iii) the Company's exercise of its right to
terminate further renewal of Executive's employment pursuant
to Section 3, which results in the Term of this Agreement
being less than thirty-six (36) months;
(iv) the occurrence of any event described in
paragraphs (i)-(ii) at any time within twelve (12) months
following a Change of Control; or
(v) the occurrence of any event described in
paragraphs (i)-(iii) following a Change of Control but prior
to the third anniversary of the Effective Date.
For purposes of paragraphs (i) and (ii), an
Additional Benefit Event will be deemed to have occurred
when the underlying event giving rise to the right of
termination occurred, without regard to when Notice of
Termination was delivered or the date on which it became
effective. For purposes of paragraph (iii), if Executive's
employment is terminated by the Company without Cause prior
to the occurrence of a Change of Control and if it can
reasonably be shown that Executive's termination (1) was at
the direction or request of a third party that had taken
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steps reasonably calculated to effect a Change of Control
after such termination, or (2) otherwise occurred in
anticipation of a Change of Control, and in either case a
Change of Control as defined hereunder does, in fact, occur,
then Executive shall have the rights described in Section
8(b) as if the Change of Control had occurred on the date
immediately preceding the Date of Termination.
(d) Resignations. Termination of Executive's
employment for any reason whatsoever shall constitute
Executive's resignation from the Board of Directors of the
Company and resignation as an officer of the Company, its
subsidiaries, and affiliates.
9. Non-exclusivity of Rights. Nothing in this
Agreement shall prevent or limit Executive's continuing or
future participation in any employee benefit plan, program,
policy, or practice provided by the Company and for which
Executive may qualify, except as specifically provided
herein. Amounts which are vested benefits or which
Executive is otherwise entitled to receive under any
employee benefit plan, policy, practice, or program of the
Company, its subsidiaries or any of its affiliated companies
at or subsequent to the Date of Termination shall be payable
in accordance with such plan, policy, practice, or program
except as explicitly modified by this Agreement.
10. No Obligation to Mitigate. In no event shall
Executive be obligated to seek other employment or take any
other action by way of mitigation of the amounts payable to
Executive under any of the provisions of this Agreement and,
except as explicitly provided herein, such amounts shall not
be reduced whether or not Executive obtains other
employment.
11. Representations and Warranties. Executive hereby
represents and warrants to the Company that Executive is not
a party to, or otherwise subject to, any covenant not to
compete with any person or entity, and Executive's execution
of this Agreement and performance of his obligations
hereunder will not violate the terms or conditions of any
contract or obligation, written or oral, between Executive
and any other person or entity.
12. Restrictions on Conduct of Executive.
(a) General. Executive and the Company understand
and agree that the purpose of the provisions of this Section
12 is to protect legitimate business interests of the
Company, as more fully described below, and is not intended
to impair or infringe upon Executive's right to work, earn a
living, or acquire and possess property from the fruits of
his labor. Executive hereby acknowledges that Executive has
received good and valuable consideration for the
restrictions set forth in this Section 12 in the form of the
compensation and benefits provided for herein. Executive
hereby further acknowledges that the restrictions set forth
in this Section 12 are reasonable and that they do not, and
will not, unduly impair his ability to earn a living after
the termination of this Agreement.
In addition, the parties acknowledge: (A) that
Executive's services under this Agreement require unique
expertise and talent in the provision of Competitive
Services and that Executive will have substantial contacts
with customers, suppliers, advertisers, and vendors of the
Company; (B) that pursuant to this Agreement, Executive will
be placed in a position of trust and responsibility and he
will have access to a substantial amount of Confidential
Information and Trade Secrets and that the Company is
placing him in such position and giving him access to such
information in reliance upon his agreement not to solicit
customers during the Restricted Period; (C) that due to
Executive's unique experience and talent, the loss of
Executive's services to the Company under this Agreement
cannot reasonably or adequately be compensated solely by
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damages in an action at law; (D) that Executive is capable
of competing with the Company; and (E) that Executive is
capable of obtaining gainful, lucrative, and desirable
employment that does not violate the restrictions contained
in this Agreement.
Therefore, Executive shall be subject to the
restrictions set forth in this Section 12.
(b)Definitions. The following capitalized terms
used in this Section 12 shall have the meanings assigned to
them below, which definitions shall apply to both the
singular and the plural forms of such terms:
"Competitive Services" means the businesses of
(i) generating, selling or trading wholesale electricity,
(ii) developing and/or constructing electricity generating
facilities, (iii) oil or gas exploration, or (iv) developing
or operating online or internet-based crude oil or refined
product trading exchanges.
"Confidential Information" means all information
regarding the Company and its subsidiaries, their
activities, business, or clients that is the subject of
reasonable efforts by the Company to maintain its
confidentiality and that is not generally disclosed by
practice or authority to persons not employed by the Company
or its subsidiaries, but that does not rise to the level of
a Trade Secret. "Confidential Information" shall include,
but is not limited to, financial plans and data concerning
the Company and its subsidiaries; management planning
information; business plans; oil and gas drilling prospects;
operational methods; feasibility studies, market studies;
marketing plans or strategies; product development
techniques or plans; customer lists; customer files, data
and financial information, details of customer contracts;
current and anticipated customer requirements; identifying
and other information pertaining to business referral
sources; past, current, and planned research and
development; business acquisition plans; and new personnel
acquisition plans. "Confidential Information" shall not
include information that has become generally available to
the public by the act of one who has the right to disclose
such information without violating any right or privilege of
the Company or its subsidiaries. This definition shall not
limit any definition of "confidential information" or any
equivalent term under state or federal law.
"Determination Date" means the date of
termination of Executive's employment with the Company for
any reason whatsoever or any earlier date of an alleged
breach of the Restrictive Covenants by Executive.
"Non-Competition Period" means the Term of this
Agreement plus an additional 12-month period following the
date of Executive's termination of employment.
"Person" means any individual or any
corporation, partnership, joint venture, limited liability
company, association, or other entity or enterprise.
"Principal or Representative" means a principal,
owner, partner, stockholder, joint venturer, investor,
member, trustee, director, officer, manager, employee,
agent, representative, or consultant.
"Protected Customers" means any Person to whom
the Company has sold its products or services or solicited
to sell its products or services, other than through general
advertising targeted at consumers, during the 12 months
prior to the Determination Date.
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"Protected Employees" means employees of the
Company who were employed by the Company or its affiliates
at any time within six months prior to the Determination
Date, other than those who were discharged by the Company or
such affiliated employer without cause.
"Restricted Period" means the Term of this
Agreement plus the 24-month period following the date of
Executive's termination of employment.
"Restrictive Covenants" means the restrictive
covenants contained in Section 12(c) hereof.
"Third Party Information" means confidential or
proprietary information subject to a duty on the Company's
and its affiliates' part to maintain the confidentiality of
such information and to use it only for certain limited
purposes.
"Trade Secret" means all information, without
regard to form, including, but not limited to, technical or
nontechnical data, a formula, a pattern, a compilation, a
program, a device, a method, a technique, a drawing, a
process, financial data, financial plans, product plans,
distribution lists or a list of actual or potential
customers, advertisers, or suppliers which is not commonly
known by or available to the public and which information:
(A) derives economic value, actual or potential, from not
being generally known to, and not being readily
ascertainable by proper means by, other persons who can
obtain economic value from its disclosure or use; and (B) is
the subject of efforts that are reasonable under the
circumstances to maintain its secrecy. Without limiting the
foregoing, Trade Secret means any item of confidential
information that constitutes a "trade secret(s)" under the
common law or statutory law of the State of Delaware.
"Work Product" means all inventions,
innovations, improvements, developments, methods, processes,
programs, designs, analyses, drawings, reports, and all
similar or related information (whether or not patentable)
that relate to the Company's or its affiliates' actual or
anticipated business, research, and development, or existing
or future products or services and that are conceived,
developed, contributed to, made, or reduced to practice by
Executive (either solely or jointly with others) while
employed by the Company or its affiliates.
(c) Restrictive Covenants.
(i) Restriction on Disclosure and Use of
Confidential Information and Trade Secrets. Executive
understands and agrees that the Confidential Information and
Trade Secrets constitute valuable assets of the Company and
its affiliated entities, and may not be converted to
Executive's own use. Accordingly, Executive hereby agrees
that Executive shall not, throughout the term of this
Agreement and at all times after the date that this
Agreement terminates for any reason, directly or indirectly,
reveal, divulge, or disclose to any Person not expressly
authorized by the Company any Confidential Information, and
Executive shall not, directly or indirectly, use or make use
of any Confidential Information in connection with any
business activity other than that of the Company.
Throughout the term of this Agreement and at all times after
the date that this Agreement terminates for any reason,
Executive shall not directly or indirectly transmit or
disclose any Trade Secret of the Company to any Person, and
shall not make use of any such Trade Secret, directly or
indirectly, for himself or for others, without the prior
written consent of the Company. The parties acknowledge and
agree that this Agreement is not intended to, and does not,
alter either the Company's rights or Executive's obligations
under any state or federal statutory or common law regarding
trade secrets and unfair trade practices.
10
Anything herein to the contrary notwithstanding,
Executive shall not be restricted from disclosing or using
Confidential Information or any Trade Secret that is
required to be disclosed by law, court order, or other legal
process; provided, however, that in the event disclosure is
so contemplated, Executive shall provide the Company with
prompt notice so that the Company may seek an appropriate
protective order prior to any such required disclosure by
Executive.
Executive acknowledges that any and all
Confidential Information is the exclusive property of the
Company and agrees to deliver to the Company on the Date of
Termination, or at any other time the Company may request in
writing, any and all Confidential Information which he may
then possess or have under his control in whatever form same
may exist, including, but not by way of limitation, hard
copy files, soft copy files, computer disks, and all copies
thereof.
(ii) Nonsolicitation of Protected Employees.
Executive understands and agrees that the relationship
between the Company and each of its Protected Employees
constitutes a valuable asset of the Company and may not be
converted to Executive's own use. Accordingly, Executive
hereby agrees that during the Restricted Period, Executive
shall not directly or indirectly on Executive's own behalf
or as a Principal or Representative of any Person or
otherwise solicit or induce any Protected Employee to
terminate his employment relationship with the Company or to
enter into employment with any other Person.
(iii) Restriction on Relationships with
Protected Customers. Executive understands and agrees that
the relationship between the Company and each of its
Protected Customers constitutes a valuable asset of the
Company and may not be converted to Executive's own use.
Accordingly, Executive hereby agrees that, during the Non-
Competition Period, Executive shall not, without the prior
written consent of the Company, directly or indirectly, on
Executive's own behalf or as a Principal or Representative
of any Person, solicit, divert, take away or attempt to
solicit, divert, or take away a Protected Customer for the
purpose of providing or selling Competitive Services;
provided, however, that the prohibition of this covenant
shall apply only to Protected Customers with whom Executive
had Material Contact on the Company's behalf during the 12
months immediately preceding the Date of Termination; and,
provided further, that the prohibition of this covenant
shall not apply to the conduct of general advertising
activities. For purposes of this Agreement, Executive had
"Material Contact" with a Protected Customer if (a) he had
business dealings with the Protected Customer on the
Company's behalf; (b) he was responsible for supervising or
coordinating the dealings between the Company and the
Protected Customer; or (c) he obtained Trade Secrets or
Confidential Information about the customer as a result of
his association with the Company.
(iv) Ownership of Work Product. Executive
acknowledges that the Work Product belongs to the Company or
its affiliates and Executive hereby assigns, and agrees to
assign, all of the Work Product to the Company or its
affiliates. Any copyrightable work prepared in whole or in
part by Executive in the course of his work for any of the
foregoing entities shall be deemed a "work made for hire"
under the copyright laws, and the Company or such affiliate
shall own all rights therein. To the extent that any such
copyrightable work is not a "work made for hire," Executive
hereby assigns and agrees to assign to the Company or such
affiliate all right, title, and interest, including without
limitation, copyright in and to such copyrightable work.
Executive shall promptly disclose such Work Product and
copyrightable work to the Board and perform all actions
reasonably requested by the Board (whether during or after
11
the Term of this Agreement) to establish and confirm the
Company's or such affiliate's ownership (including, without
limitation, assignments, consents, powers of attorney, and
other instruments).
(v) Third Party Information. Executive
understands that the Company and its affiliates will receive
Third Party Information. During the Term of this Agreement
and thereafter, and without in any way limiting the
provisions of Section 12(c)(i) above, Executive will hold
Third Party Information in the strictest confidence and will
not disclose to anyone (other than personnel of the Company
or its affiliates who need to know such information in
connection with their work for the Company or its
affiliates) or use, except in connection with his work for
the Company or its affiliates, Third Party Information
unless expressly authorized by a member of the Board (other
than Executive) in writing.
(vi) Use of Information of Prior Employers.
During the Term of this Agreement, Executive will not
improperly use or disclose any confidential information or
trade secrets, if any, of any former employers or any other
person to whom Executive has an obligation of
confidentiality, and will not bring onto the premises of the
Company or any of its affiliates any unpublished documents
or any property belonging to any former employer or any
other person to whom Executive has an obligation of
confidentiality unless consented to in writing by the former
employer or person. Executive will use in the performance
of his duties only information which is (i) generally known
and used by persons with training and experience comparable
to Executive's and which is (x) common knowledge in the
industry or (y) is otherwise legally in the public domain,
(ii) is otherwise provided or developed by the Company or
its affiliates or (iii) in the case of materials, property,
or information belonging to any former employer or other
person to whom Executive has an obligation of
confidentiality, approved for such use in writing by such
former employer or person.
(vii) Non-Competition Covenant. Executive
hereby agrees that, during the Non-Competition Period,
Executive shall not, directly or indirectly, on Executive's
own behalf or as a Principal or Representative of any
Person, perform duties substantially similar to any of the
duties performed by Executive for the Company within the
twelve (12) months prior to the Determination Date as a
proprietor, employee, agent, independent contractor,
consultant, director, officer, or in any similar capacity
for any business: (A) engaged in the activities described in
clauses (i), (ii) or (iii) of the definition of Competitive
Services in the States of Texas, Vermont, Maine or New
Hampshire, or (B) engaged in the activities described in
clause (iv) of the definition of Competitive Services in the
United States.
(d) Enforcement of Restrictive Covenants.
(i) Rights and Remedies Upon Breach. In the
event Executive breaches, or threatens to commit a breach
of, any of the provisions of the Restrictive Covenants, the
Company shall have the right and remedy to enjoin,
preliminarily and permanently, Executive from violating or
threatening to violate the Restrictive Covenants and to have
the Restrictive Covenants specifically enforced by any court
or tribunal of competent jurisdiction, it being agreed that
any breach or threatened breach of the Restrictive Covenants
would cause irreparable injury to the Company and that money
damages would not provide an adequate remedy to the Company.
Such right and remedy shall be independent of any others and
severally enforceable, and shall be in addition to, and not
in lieu of, any other rights and remedies available to the
Company at law or in equity.
(ii) Severability of Covenants. Executive
acknowledges and agrees that the Restrictive Covenants are
reasonable and valid in
12
time and scope and in all other respects. The covenants set
forth in this Agreement shall be considered and construed as
separate and independent covenants. Should any part or
provision of any covenant be held invalid, void, or
unenforceable, such invalidity, voidness, or
unenforceability shall not render invalid, void, or
unenforceable any other part or provision of this Agreement.
If any portion of the foregoing provisions is found to be
invalid or unenforceable because its duration, the
territory, the definition of activities, or the definition
of information covered is considered to be invalid or
unreasonable in scope, the invalid or unreasonable term
shall be redefined, or a new enforceable term provided, such
that the intent of the Company and Executive in agreeing to
the provisions of this Agreement will not be impaired and
the provision in question shall be enforceable to the
fullest extent of the applicable laws.
(iii) Reformation. The parties hereunder
agree that it is their intention that the Restrictive
Covenants be enforced in accordance with their terms to the
maximum extent possible under applicable law. The parties
further agree that, in the event any tribunal of competent
jurisdiction shall find that any provision hereof is not
enforceable in accordance with its terms, the tribunal shall
reform the Restrictive Covenants such that they shall be
enforceable to the maximum extent permissible at law.
13. Arbitration. (a) Any claim or dispute arising under
or relating to this Agreement or the breach, termination, or
validity of any term of this Agreement, including, but not
by way of limitation, the legality and enforceability of the
Restrictive Covenants, shall be subject to arbitration, and
prior to commencing any court action, the parties agree that
they shall arbitrate all controversies; provided, however,
that nothing in this Section 13 shall prohibit the Company
from exercising its right under Section 12(d)(i) to pursue
injunctive remedies with respect to a breach or threatened
breach of the Restrictive Covenants.
(b) The parties agree that any and all disputes,
claims or controversies arising out of or relating to this
Agreement shall be submitted to JAMS, or its successor, for
mediation, and if the matter is not resolved through
mediation, then it shall be submitted to JAMS, or its
successor, for final and binding arbitration pursuant to the
arbitration clause set forth above and the JAMS
Comprehensive Arbitration Rules and Procedures. Either party
may commence mediation by providing to JAMS and the other
party a written request for mediation, setting forth the
subject of the dispute and the relief requested. The parties
will cooperate with JAMS and with one another in selecting a
mediator from JAMS panel of neutrals, and in scheduling the
mediation proceedings. The parties covenant that they will
participate in the mediation in good faith, and that they
will share equally in its costs. All offers, promises,
conduct and statements, whether oral or written, made in the
course of the mediation by any of the parties, their agents,
employees, experts and attorneys, and by the mediator or any
JAMS employees, are confidential, privileged and
inadmissible for any purpose, including impeachment, in any
arbitration or other proceeding involving the parties,
provided that evidence that is otherwise admissible or
discoverable shall not be rendered inadmissible or non-
discoverable as a result of its use in the mediation. Either
party may initiate arbitration with respect to the matters
submitted to mediation by filing a written demand for
arbitration at any time following the initial mediation
session or 45 days after the date of filing the written
request for mediation, whichever occurs first. The mediation
may continue after the commencement of arbitration if the
parties so desire. Unless otherwise agreed by the parties,
the mediator shall be disqualified from serving as
arbitrator in the case. The provisions of this Section 13
may be enforced by any court of competent jurisdiction, and
the party seeking enforcement shall be entitled to an award
of all costs, fees and expenses, including attorneys' fees,
to be paid by the party against whom enforcement is ordered.
13
The arbitration shall be conducted in Boston,
Massachusetts. The arbitrator(s) shall be authorized to
award both liquidated and actual damages, in addition to
injunctive relief, but no punitive damages. The
arbitrator(s) may also award attorneys' fees and costs,
without regard to any restriction on the amount of such
award under applicable law. Such an award shall be binding
and conclusive upon the parties hereto, subject to 9 U.S.C.
10. Each party shall have the right to have the award made
the judgment of a court of competent jurisdiction.
14. Assignment and Successors.
(a) This Agreement is personal to Executive and
without the prior written consent of the Company shall not
be assignable by Executive otherwise than by will or the
laws of descent and distribution. This Agreement shall
inure to the benefit of and be enforceable by Executive's
legal representatives.
(b) This Agreement shall inure to the benefit of
and be binding upon the Company and its successors and
assigns. Any assignment by the Company as provided for in
Section 14(c) will not in any way affect the rights and
obligations of the parties under this Agreement, and in
particular (but by way of example only) will not affect the
rights of the Executive to receive Additional Termination
Benefits upon occurrence of an Additional Benefit Event.
(c) The Company will require any Surviving Entity
resulting from a Reorganization, Sale, or Acquisition (if
other than the Company) to assume expressly and agree to
perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if
no Reorganization, Sale, or Acquisition had taken place. As
used in this Agreement, "Company" shall mean the Company as
hereinbefore defined and any successor to its business
and/or assets as aforesaid which assumes and agrees to
perform this Agreement by operation of law, or otherwise.
15. Miscellaneous.
(a) Waiver. Failure of either party to insist, in
one or more instances, on performance by the other in strict
accordance with the terms and conditions of this Agreement
shall not be deemed a waiver or relinquishment of any right
granted in this Agreement or of the future performance of
any such term or condition or of any other term or condition
of this Agreement, unless such waiver is contained in a
writing signed by the party making the waiver.
(b) Severability. If any provision or covenant, or
any part thereof, of this Agreement should be held by any
tribunal of competent jurisdiction to be invalid, illegal or
unenforceable, either in whole or in part, such invalidity,
illegality, or unenforceability shall not affect the
validity, legality, or enforceability of the remaining
provisions or covenants, or any part thereof, of this
Agreement, all of which shall remain in full force and
effect.
(c) Other Agents. Nothing in this Agreement is to
be interpreted as limiting the Company from employing other
personnel on such terms and conditions as may be
satisfactory to it on terms consistent with the provisions
of this Agreement.
(d) Entire Agreement. Except as provided herein,
this Agreement contains the entire agreement between the
Company and Executive with respect to the subject matter
hereof and, from and after the Effective Date, this
Agreement shall supersede any other agreement between the
parties with respect to the subject matter hereof. Without
14
limiting the generality of the preceding sentence, the
parties hereby acknowledge and agree that the certain
Retention and Incentive Agreement, dated as of December 3,
2001, by and between the Company and Executive, is hereby
terminated and that no further payments to Executive shall
be due thereunder.
(e) Governing Law. Except to the extent preempted
by federal law, and without regard to conflict of laws
principles, the laws of the State of Delaware shall govern
this Agreement in all respects, whether as to its validity,
construction, capacity, performance, or otherwise.
(f) Notices. All notices, requests, demands, and
other communications required or permitted hereunder shall
be in writing and shall be deemed to have been duly given if
delivered or three days after mailing if mailed, first
class, certified mail, postage prepaid:
To the Company: BayCorp Holdings, Ltd.
0 Xxx Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxx Xxxxxxxxx 00000
Attention: Xxxx Xxxxxxxxxxxx
with a copy to:
Xxxxx Group Ltd.
X.X. Xxxxxx Drive
P.O. Box N7776
Xxxxxx Xxx, New Providence, Bahamas
Attention: Xxxxxxx Xxxxxxx
To Executive: Xxxxx X. Xxxxxx Xx.
000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxxxxx 00000
Any party may change the address to which notices, requests,
demands, and other communications shall be delivered or
mailed by giving notice thereof to the other party in the
same manner provided herein.
(g) Amendments and Modifications. This Agreement
may be amended or modified only by a writing signed by both
parties hereto, which makes specific reference to this
Agreement.
(h) Construction. Each party and his or its
counsel have reviewed this Agreement and have been provided
the opportunity to revise this Agreement and accordingly,
the normal rule of construction to the effect that any
ambiguities are to be resolved against the drafting party
shall not be employed in the interpretation of this
Agreement. Instead, the language of all parts of this
Agreement shall be construed as a whole, and according to
its fair meaning, and not strictly for or against either
party.
(i) Withholding. The Company or its subsidiaries,
if applicable, shall be entitled to deduct or withhold from
any amounts owing from the Company or any such affiliate to
Executive any federal, state, local, or foreign withholding
taxes, excise taxes, or employment taxes ("Taxes") imposed
with respect to Executive's compensation or other payments
from the Company or any of its affiliates. In the event the
Company or its affiliates do not make such deductions or
withholdings, Executive shall indemnify the Company and its
affiliates for any amounts paid with respect to any such
15
Taxes, provided however, that the Executive shall not be
obligated to reimburse the Company for interest, fines or
penalties incurred by it as a consequence of its failure to
withhold and remit federal and state taxes as required by
law.
(j) Release of Claims Existing Prior to Effective
Date. Upon the Effective Date, the Executive hereby
irrevocably releases and forever discharges the Company and
its directors, officers, employees, agents, attorneys,
representatives, subsidiaries, partners, affiliates,
controlling persons and insurers, and their respective
successors and assigns, and each of them, of and from any
and all liabilities, losses, claims, demands, debts,
accounts, covenants, agreements, obligations, costs,
expenses, actions or causes of action of every nature,
character or description, now accrued or which may hereafter
accrue, without limitation and whether or not in law, equity
or otherwise, based in whole or in part on any known or
unknown facts, conduct, activities, transactions, events or
occurrences, matured or unmatured, contingent or otherwise,
which have or allegedly have existed, occurred, happened,
arisen or transpired from the beginning of time to the
Effective Date, except for (i) compensation for services
rendered that have been accrued but not yet paid in the
ordinary course of business consistent with past practice,
and (ii) employment benefits that have been accrued and
vested but not yet paid in the ordinary course of business
consistent with past practice (collectively, subject only to
the foregoing exceptions, the "Pre-Effective Claims"). The
Executive represents, warrants and covenants that no Pre-
Effective Claim released herein has been assigned,
expressly, impliedly, by operation of law or otherwise, and
that all Pre-Effective Claims released hereby are owned
solely by the Executive, which has the sole authority to
release them.
The Executive shall forever refrain and forebear from
commencing, instituting, prosecuting or making any suit,
action, claim, litigation or proceeding of any kind before
or in any court, regulatory authority, governmental
authority, taxing authority, arbitral or other authority to
collect or enforce any Pre-Effective Claims which are
released and discharged hereby.
IN WITNESS WHEREOF, the parties hereto have duly
executed and delivered this Employment Agreement as of the
date first above written.
BAYCORP HOLDINGS, LTD.
By: /s/ Xxxxx X. Xxxxxx Xx.
_________________________
Title: President
EXECUTIVE:
/s/ Xxxxx X. Xxxxxx Xx.
______________________________
Xxxxx X. Xxxxxx Xx.
16
EXHIBIT A
Form of Release and Agreement Not to Xxx
THIS RELEASE AND AGREEMENT NOT TO XXX (this "Release")
is granted effective as of the ____ day of _________, ____,
by Xxxxx X. Xxxxxx Xx. ("Executive") in favor of BayCorp
Holdings, Ltd. (the "Company") and its affiliates. This is
the Release referred to in that certain Employment Agreement
dated as of ________, 2005 by and between the Company and
Executive (the "Employment Agreement"), with respect to
which this Release is an integral part.
FOR AND IN CONSIDERATION of the payments and benefits
provided by Section 8 of the Employment Agreement and the
Company's other promises and covenants as recited in the
Employment Agreement, the receipt and sufficiency of which
are hereby acknowledged, Executive, for himself, his
successors, and assigns, now and forever hereby releases and
discharges the Company and all its past and present
officers, directors, stockholders, employees, agents, parent
corporations, predecessors, subsidiaries, affiliates,
estates, successors, assigns, benefit plans, consultants,
administrators, and attorneys (hereinafter collectively
referred to as "Releasees") from any and all claims,
charges, actions, causes of action, sums of money due,
suits, debts, covenants, contracts, agreements, promises,
demands, or liabilities (hereinafter collectively referred
to as "Claims") whatsoever, in law or in equity, whether
known or unknown, which Executive ever had or now has from
the beginning of time up to the date this Release
("Release") is executed, including, but not limited to,
claims under the Age Discrimination in Employment Act, as
amended by the Older Workers Benefit Protection Act, Title
VII of the Civil Rights Act of 1964 (and all of its
amendments), the Americans with Disabilities Act, as
amended, or any other federal or state statutes, all tort
claims, all claims for wrongful employment termination or
breach of contract, and any other claims which Executive
has, had, or may have against the Releasees on account of or
arising out of Executive's employment with or termination
from the Company; provided, however, that nothing contained
in this Release shall in any way diminish or impair (i) any
rights of Executive to the benefits conferred or referenced
in the Employment Agreement, (ii) any rights to
indemnification that may exist from time to time under the
Company's certificate of incorporation or bylaws, or
Delaware law, or (iii) Executive's ability to raise an
affirmative defense in connection with any lawsuit or other
legal claim or charge instituted or asserted by the Company
against Executive (collectively, the "Excluded Claims").
Notwithstanding the foregoing, the Executive may assert
Claims against the Releasees in the following limited
circumstances only, and subject to the following
limitations. In the event that a Releasee asserts a claim
against the Executive arising out of or in connection with
his employment by the Company, the Executive may then assert
any Claim otherwise barred by this Release, by way of
counterclaim, affirmative defense, set-off, recoupment or in
any other fashion permitted at law or in equity, provided
however, that recovery on the Executive's Claim will be
permitted only to reduce or offset any recovery rewarded to
a Releasee against the Executive, or to obtain equitable non-
monetary relief, and may not result in an affirmative
recovery by the Executive on the Claim against any Releasee.
Without limiting the generality of the foregoing,
Executive hereby acknowledges and covenants that in
consideration for the sums being paid to him he has
knowingly waived any right or opportunity to assert any
claim that is in any way connected with any employment
relationship or the termination of any employment
relationship which existed between the Company and
Executive. Executive further understands and agrees that,
except for the Excluded Claims, he has knowingly
relinquished, waived, and forever released any and all
remedies arising out of the aforesaid employment
relationship or the termination thereof, including, without
17
limitation, claims for backpay, front pay, liquidated
damages, compensatory damages, general damages, special
damages, punitive damages, exemplary damages, costs,
expenses, and attorneys' fees.
Executive specifically acknowledges and agrees that he
has knowingly and voluntarily released the Company and all
other Releasees from any and all claims arising under the
Age Discrimination in Employment Act ("ADEA"),
29 U.S.C. 621, et seq., which Executive ever had or now
has from the beginning of time up to the date this Release
is executed, including but not limited to those claims which
are in any way connected with any employment relationship or
the termination of any employment relationship which existed
between the Company and Executive. Executive further
acknowledges and agrees that he has been advised to consult
with an attorney prior to executing this Release and that he
has been given twenty-one (21) days to consider this Release
prior to its execution. Executive also understands that he
may revoke this Release at any time within seven (7) days
following its execution. Executive understands, however,
that this Release shall not become effective and that none
of the consideration described above shall be paid to him
until the expiration of the seven-day revocation period.
Executive agrees never to seek reemployment or future
employment with the Company or any of the other Releasees.
Executive acknowledges that the terms of this Release
must be kept confidential. Accordingly, Executive agrees
not to disclose or publish to any person or entity the terms
and conditions or sums being paid in connection with this
Release, except as required by law, as necessary to prepare
tax returns, or as necessary to enforce the Excluded Claims.
It is understood and agreed by Executive that the
payment made to him is not to be construed as an admission
of any liability whatsoever on the part of the Company or
any of the other Releasees, by whom liability is expressly
denied.
Executive agrees and covenants that he will not make any
derogatory or disparaging statements about or relating to
the Company, its business practices, its products, its
services, or its employment practices and that he will not
engage in any harassing conduct directed at Company. For
purposes of this provision, "Company" means and includes the
Company and any entity that, directly or indirectly through
one or more intermediaries, controls, is controlled by, or
is under common control with the Company, and their
respective officers, directors, agents, representatives, and
employees. Nothing in this provision is intended to
prohibit Executive from testifying truthfully in any
judicial or quasi-judicial proceeding.
This Release is executed by Executive voluntarily and is
not based upon any representations or statements of any kind
made by the Company or any of the other Releasees as to the
merits, legal liabilities or value of his claims. Executive
further acknowledges that he has had a full and reasonable
opportunity to consider this Release and that he has not
been pressured or in any way coerced into executing this
Release.
Executive acknowledges and agrees that this Release may
not be revoked at any time after the expiration of the seven-
day revocation period and that he will not institute any
suit, action, or proceeding, whether at law or equity,
challenging the enforceability of this Release. Executive
further acknowledges and agrees that, with the exception of
an action to challenge his waiver of claims under the ADEA,
he shall not ever attempt to challenge the terms of this
Release, attempt to obtain an order declaring this Release
to be null and void, or institute litigation against the
Company or any other Releasee based upon a claim which is
covered by the terms of the release contained herein,
without first repaying all monies paid to him under Section
8 of the Employment Agreement. Furthermore, with the
exception of an action to challenge his waiver of claims
18
under the ADEA, if Executive does not prevail in an action
to challenge this Release, to obtain an order declaring this
Release to be null and void, or in any action against the
Company or any other Releasee based upon a claim which is
covered by the release set forth herein, Executive shall pay
to the Company and/or the appropriate Releasee all their
costs and attorneys' fees incurred in their defense of
Executive's action.
This Release and the rights and obligations of the
parties hereto shall be governed and construed in accordance
with the laws of the State of Delaware. If any provision
hereof is unenforceable or is held to be unenforceable, such
provision shall be fully severable, and this document and
its terms shall be construed and enforced as if such
unenforceable provision had never comprised a part hereof,
the remaining provisions hereof shall remain in full force
and effect, and the court or tribunal construing the
provisions shall add as a part hereof a provision as similar
in terms and effect to such unenforceable provision as may
be enforceable, in lieu of the unenforceable provision.
This document contains all terms of the Release and
supersedes and invalidates any previous agreements or
contracts. No representations, inducements, promises, or
agreements, oral or otherwise, which are not embodied herein
shall be of any force or effect.
IN WITNESS WHEREOF, the undersigned acknowledges that he
has read these three pages and he sets his hand and seal
this ____ day of ____________, 20___.
EXECUTIVE
_____________________________
Sworn to and subscribed before me this _____ day of
______________,
20___.
_____________________
Notary Public
My Commission Expires:
_____________________
