Legal Releases. (a) Executive, on behalf of Executive and Executive’s heirs, personal representatives and assigns, and any other person or entity that could or might act on behalf of Executive (collectively, the “Executive Releasers”), hereby fully and forever releases and discharges the Company, its past, present and future subsidiaries, and each of their respective officers, directors, independent contractors, attorneys and insurers (collectively, the “Executive Releasees”) of and from any and all actions, causes of action, claims, demands, costs and expenses, including attorneys’ fees, of every kind and nature whatsoever, in law or in equity, whether now known or unknown, that the Executive Releasers, or any person acting under any of them, may now have, or claim at any future time to have, based in whole or in part upon any act or omission arising out of Executive’s employment relationship with, and/or service as a member of the Board (if any) for, the Company or its subsidiaries occurring on or before the Effective Date, without regard to present actual knowledge of such acts or omissions, including specifically, but not by way of limitation, matters which may arise at common law, such as breach of contract, express or implied, promissory estoppel, wrongful discharge, tortious interference with contractual rights, infliction of emotional distress, defamation, or under federal, state or local laws, including, but not limited to, any rights or claims based upon any discrimination proscribed by the Age Discrimination in Employment Act of 1967 (the “ADEA”), the Older Worker Benefit Protection Act (“OWBPA”), Title VII of the Civil Rights Act of 1967, the Civil Rights Act of 1991, the Americans with Disabilities Act of 1990, the Family and Medical Leave Act of 1993, the Delaware Employment Discrimination Law, the Florida Civil Rights Act, or any other federal, state or local employment-related and/or anti-discrimination law, rule or regulation in any jurisdiction and all claims relating to equity incentives of any kind, except as specifically set forth in the Agreement; provided, however, that, notwithstanding the foregoing or anything else contained in the Agreement or this Release, the release set forth in this paragraph shall not extend to the rights of Executive pursuant to: (i) Section 3(c) (Stock Options) and Section 3(e) (Special Bonus) and of the Agreement, which sections shall survive the signing of this Release; (ii) any vested, unpaid rights under any pension, retirement, profit sharing or similar plan; or (iii) Executive’s rights, if any, to indemnification, and/or defense under any Company certificate of incorporation, bylaw and/or policy or procedure, or under any insurance contract, in connection with Executive’s acts or omissions within the course and scope of Executive’s employment with the Company. Executive hereby warrants that Executive has not assigned or transferred to any person any portion of any claim which is released, waived and discharged above. Executive further states and agrees that Executive has not experienced any illness, injury, or disability that is compensable or recoverable under the worker’s compensation laws of any state that was not reported to the Company by Executive before the Effective Date, and Executive agrees not to file a worker’s compensation claim asserting the existence of any such previously undisclosed illness, injury, or disability. Executive understands and agrees that by signing this Release, Executive is giving up any right to bring any legal claim against the Company concerning, directly or indirectly, Executive’s employment relationship with the Company, including Executive’s separation from employment. Executive agrees that this Release is intended to be interpreted in the broadest possible manner in favor of the Company to include all actual or potential legal claims that Executive may have against the Company, except as specifically provided otherwise in this Release. (b) Executive represents that he has not filed any lawsuits or arbitration demands against the Company. Executive further agrees and acknowledges that Executive: (i) understands the language used in this Release and its legal effect; (ii) understands that by signing this Release Executive is giving up the right to xxx the Company for discrimination under any Federal, State or local law or regulation, including, but not limited to, the Age Discrimination in Employment Act; (iii) will receive compensation and/or benefits under the Agreement to which Executive would not have been entitled without signing this Release; (iv) has been advised by the Company to consult with an attorney before signing the Agreement and this Release; and (v) has been given no less than forty-five days to consider whether to sign this Release. Nothing in this Agreement shall interfere with Executive’s right to file a charge or participate in an investigation with the U.S. Equal Employment Opportunity Commission (the “EEOC”). Executive, however, understands and agrees that Executive is expressly waiving any right to seek, or to share in, any individual relief, monetary or otherwise, involving claims released in paragraph (a) of this Agreement, whether raised by Executive or others. (c) For a period of seven days after the Effective Date, Executive may, in Executive’s sole discretion, rescind this Release, by delivering a written notice of rescission to [insert contact] at the Company. If Executive rescinds this Release within seven calendar days after the Effective Date, this Release shall be void, all actions taken pursuant to this Release shall be reversed, and neither this Release nor the fact of or circumstances surrounding its execution shall be admissible for any purpose whatsoever in any proceeding between the parties, except in connection with a claim or defense involving the validity or effective rescission of this Release. If Executive does not rescind this Release within seven calendar days after the Effective Date, this Release shall become final and binding and shall be irrevocable. (d) The Company, on behalf of itself and its past, present and future subsidiaries, and each officer, director, independent contractor, attorney and insurer of the Company and any of the Company’s subsidiaries (past, present and future) (collectively, the “Company Releasers”), hereby fully and forever releases and discharges Executive and Executive’s heirs, personal representatives and assigns and any other person or entity that could or might act on behalf of Executive (collectively, the “Company Releasees”) of and from any and all actions, causes of action, claims, demands, costs and expenses, including attorneys’ fees, of every kind and nature whatsoever, in law or in equity, whether now known or unknown, that the Company Releasers, or any person acting under any of them, may now have, or claim at any future time to have, based in whole or in part upon any act or omission arising out of Executive’s employment relationship with, and/or service as a member of the Board (if any) for, the Company or its subsidiaries occurring on or before the Effective Date, without regard to present actual knowledge of such acts or omissions, including specifically, but not by way of limitation, matters which may arise at common law, such as breach of contract, express or implied, promissory estoppel, wrongful discharge, tortious interference with contractual rights, infliction of emotional distress, defamation, or under federal, state or local laws; provided, however, that, notwithstanding the foregoing or anything else contained in the Agreement or this Release, the release set forth in this paragraph shall not extend to the rights of the Company pursuant to: (i) Section 6(a) (Noncompetition; Nonsolicitation), Section 6(b) (Nondisparagement), Section 6(c) (Confidentiality) and Section 6(d) (Acknowledgement) of the Agreement, which sections shall survive the signing of this Release; (ii) any act or omission of Executive that was actively concealed from the Company by Executive or at Executive’s direction; or (iii) any acts of fraud, intentional misrepresentation (that could reasonably be expected to have a material effect on the business of the Company), embezzlement, or other misappropriation of Company funds, assets or property. The Company hereby warrants that the Company has not assigned or transferred to any person any portion of any claim which is released, waived and discharged above. The Company understands and agrees that by signing this Release the Company is giving up any right to bring any legal claim against Executive concerning, directly or indirectly, Executive’s employment relationship with the Company, including Executive’s separation from employment. The Company agrees that this Release is intended to be interpreted in the broadest possible manner in favor of Executive, to include all actual or potential legal claims that the Company may have against Executive, except as specifically provided otherwise in this Release or the Agreement. (e) Executive acknowledges that the Company paid Executive for all earned, unpaid wages and all accrued, unused vacation, less applicable withholdings, through his last day of employment, and that Executive is entitled to no further payments for wages, compensation, benefits, bonuses, equity, or any other type of compensation or benefit, except for those payments Executive will receive in accordance with the terms of the Agreement if he signs and does not revoke this Release. (f) Executive acknowledges that because of Executive’s position with the Company, Executive may possess information that may be relevant to or discoverable in connection with claims, litigation or judicial, arbitral or investigative proceedings initiated by a private party or by a regulator, governmental entity, or self-regulatory organization, that relates to or arises from matters with which Executive was involved during Executive’s employment with the Company, or that concern matters of which Executive has information or knowledge (collectively, a “Proceeding”). Executive agrees that Executive shall testify truthfully in connection with any such Proceeding, shall cooperate with the Company in connection with every such Proceeding, and that Executive’s duty of cooperation shall include an obligation to meet with the Company representatives and/or counsel concerning all such Proceedings for such purposes, and at such times and places, as the Company reasonably requests, and to appear for deposition and/or testimony upon the Company’s reasonable request and without a subpoena. The Company shall reimburse Executive for reasonable out-of-pocket expenses that Executive incurs in honoring Executive’s obligation of cooperation under this paragraph; provided, however, if Executive’s duty of cooperation under this paragraph involves an expenditure of time and efforts by Executive on more than three (3) business days in any calendar month, then the Parties shall agree appropriate terms of reimbursement in addition to reimbursement for reasonable out-of-pocket expenses. Notwithstanding the foregoing, the obligations of Executive under this paragraph shall expire on the second anniversary of the Effective Date; after which date the Executive will only be required to cooperate at Executive’s option and pursuant to a reimbursement schedule to be agreed with the Company.
Appears in 4 contracts
Samples: Employment Agreement (Parabel Inc.), Employment Agreement (Parabel Inc.), Employment Agreement (Parabel Inc.)
Legal Releases. (a) Executive, on behalf of Executive and Executive’s heirs, personal representatives and assigns, and any other person or entity that could or might act on behalf of Executive (collectively, the “Executive Releasers”), hereby fully and forever releases and discharges the Company, its past, present and future subsidiaries, and each of their respective officers, directors, independent contractors, attorneys and insurers (collectively, the “Executive Releasees”) of and from any and all actions, causes of action, claims, demands, costs and expenses, including attorneys’ fees, of every kind and nature whatsoever, in law or in equity, whether now known or unknown, that the Executive Releasers, or any person acting under any of them, may now have, or claim at any future time to have, based in whole or in part upon any act or omission arising out of Executive’s employment relationship with, and/or service as a member of the Board (if any) for, the Company or its subsidiaries occurring on or before the Effective Date, without regard to present actual knowledge of such acts or omissions, including specifically, but not by way of limitation, matters which may arise at common law, such as breach of contract, express or implied, promissory estoppel, wrongful discharge, tortious interference with contractual rights, infliction of emotional distress, defamation, or under federal, state or local laws, including, but not limited to, any rights or claims based upon any discrimination proscribed by the Age Discrimination in Employment Act of 1967 (the “ADEA”), the Older Worker Benefit Protection Act (“OWBPA”), Title VII of the Civil Rights Act of 1967, the Civil Rights Act of 1991, the Americans with Disabilities Act of 1990, the Family and Medical Leave Act of 1993, the Delaware Employment Discrimination Law, the Florida Civil Rights Act, or any other federal, state or local employment-related and/or anti-discrimination law, rule or regulation in any jurisdiction and all claims relating to equity incentives of any kind, except as specifically set forth in the Agreement; provided, however, that, notwithstanding the foregoing or anything else contained in the Agreement or this Release, the release set forth in this paragraph shall not extend to the rights of Executive pursuant to: (i) Section 3(c3(d) (Stock OptionsAppreciation Rights) (including, for the avoidance of doubt, any written agreements between the Company and Executive entered into pursuant to the Stock Appreciation Rights provision of Section 3(d)), Section 3(e) (Special Bonus) and Section 3(f) (Commission Plan) of the Agreement, which sections shall survive the signing of this Release; (ii) any vested, unpaid rights under any pension, retirement, profit sharing or similar plan; or (iii) Executive’s rights, if any, to indemnification, and/or defense under any Company certificate of incorporation, bylaw and/or policy or procedure, or under any insurance contract, in connection with Executive’s acts or omissions within the course and scope of Executive’s employment with the Company. Executive hereby warrants that Executive has not assigned or transferred to any person any portion of any claim which is released, waived and discharged above. Executive further states and agrees that Executive has not experienced any illness, injury, or disability that is compensable or recoverable under the worker’s compensation laws of any state that was not reported to the Company by Executive before the Effective Date, and Executive agrees not to file a worker’s compensation claim asserting the existence of any such previously undisclosed illness, injury, or disability. Executive understands and agrees that by signing this Release, Executive is giving up any right to bring any legal claim against the Company concerning, directly or indirectly, Executive’s employment relationship with the Company, including Executive’s separation from employment. Executive agrees that this Release is intended to be interpreted in the broadest possible manner in favor of the Company to include all actual or potential legal claims that Executive may have against the Company, except as specifically provided otherwise in this Release.
(b) Executive represents that he has not filed any lawsuits or arbitration demands against the Company. Executive further agrees and acknowledges that Executive: (i) understands the language used in this Release and its legal effect; (ii) understands that by signing this Release Executive is giving up the right to xxx the Company for discrimination under any Federal, State or local law or regulation, including, but not limited to, the Age Discrimination in Employment Act; (iii) will receive compensation and/or benefits under the Agreement to which Executive would not have been entitled without signing this Release; (iv) has been advised by the Company to consult with an attorney before signing the Agreement and this Release; and (v) has been given no less than forty-five days to consider whether to sign this Release. Nothing in this Agreement shall interfere with Executive’s right to file a charge or participate in an investigation with the U.S. Equal Employment Opportunity Commission (the “EEOC”). Executive, however, understands and agrees that Executive is expressly waiving any right to seek, or to share in, any individual relief, monetary or otherwise, involving claims released in paragraph (a) of this Agreement, whether raised by Executive or others.
(c) For a period of seven days after the Effective Date, Executive may, in Executive’s sole discretion, rescind this Release, by delivering a written notice of rescission to [insert contact] at the Company. If Executive rescinds this Release within seven calendar days after the Effective Date, this Release shall be void, all actions taken pursuant to this Release shall be reversed, and neither this Release nor the fact of or circumstances surrounding its execution shall be admissible for any purpose whatsoever in any proceeding between the parties, except in connection with a claim or defense involving the validity or effective rescission of this Release. If Executive does not rescind this Release within seven calendar days after the Effective Date, this Release shall become final and binding and shall be irrevocable.
(d) The Company, on behalf of itself and its past, present and future subsidiaries, and each officer, director, independent contractor, attorney and insurer of the Company and any of the Company’s subsidiaries (past, present and future) (collectively, the “Company Releasers”), hereby fully and forever releases and discharges Executive and Executive’s heirs, personal representatives and assigns and any other person or entity that could or might act on behalf of Executive (collectively, the “Company Releasees”) of and from any and all actions, causes of action, claims, demands, costs and expenses, including attorneys’ fees, of every kind and nature whatsoever, in law or in equity, whether now known or unknown, that the Company Releasers, or any person acting under any of them, may now have, or claim at any future time to have, based in whole or in part upon any act or omission arising out of Executive’s employment relationship with, and/or service as a member of the Board (if any) for, the Company or its subsidiaries occurring on or before the Effective Date, without regard to present actual knowledge of such acts or omissions, including specifically, but not by way of limitation, matters which may arise at common law, such as breach of contract, express or implied, promissory estoppel, wrongful discharge, tortious interference with contractual rights, infliction of emotional distress, defamation, or under federal, state or local laws; provided, however, that, notwithstanding the foregoing or anything else contained in the Agreement or this Release, the release set forth in this paragraph shall not extend to the rights of the Company pursuant to: (i) Section 6(a) (Noncompetition; Nonsolicitation), Section 6(b) (Nondisparagement), Section 6(c) (Confidentiality) and Section 6(d) (Acknowledgement) of the Agreement, which sections shall survive the signing of this Release; (ii) any act or omission of Executive that was actively concealed from the Company by Executive or at Executive’s direction; or (iii) any acts of fraud, intentional misrepresentation (that could reasonably be expected to have a material effect on the business of the Company), embezzlement, or other misappropriation of Company funds, assets or property. The Company hereby warrants that the Company has not assigned or transferred to any person any portion of any claim which is released, waived and discharged above. The Company understands and agrees that by signing this Release the Company is giving up any right to bring any legal claim against Executive concerning, directly or indirectly, Executive’s employment relationship with the Company, including Executive’s separation from employment. The Company agrees that this Release is intended to be interpreted in the broadest possible manner in favor of Executive, to include all actual or potential legal claims that the Company may have against Executive, except as specifically provided otherwise in this Release or the Agreement.
(e) Executive acknowledges that the Company paid Executive for all earned, unpaid wages and all accrued, unused vacation, less applicable withholdings, through his last day of employment, and that Executive is entitled to no further payments for wages, compensation, benefits, bonuses, equity, or any other type of compensation or benefit, except for those payments Executive will receive in accordance with the terms of the Agreement if he signs and does not revoke this Release.
(f) Executive acknowledges that because of Executive’s position with the Company, Executive may possess information that may be relevant to or discoverable in connection with claims, litigation or judicial, arbitral or investigative proceedings initiated by a private party or by a regulator, governmental entity, or self-regulatory organization, that relates to or arises from matters with which Executive was involved during Executive’s employment with the Company, or that concern matters of which Executive has information or knowledge (collectively, a “Proceeding”). Executive agrees that Executive shall testify truthfully in connection with any such Proceeding, shall cooperate with the Company in connection with every such Proceeding, and that Executive’s duty of cooperation shall include an obligation to meet with the Company representatives and/or counsel concerning all such Proceedings for such purposes, and at such times and places, as the Company reasonably requests, and to appear for deposition and/or testimony upon the Company’s reasonable request and without a subpoena. The Company shall reimburse Executive for reasonable out-of-pocket expenses that Executive incurs in honoring Executive’s obligation of cooperation under this paragraph; provided, however, if Executive’s duty of cooperation under this paragraph involves an expenditure of time and efforts by Executive on more than three (3) business days in any calendar month, then the Parties shall agree appropriate terms of reimbursement in addition to reimbursement for reasonable out-of-pocket expenses. Notwithstanding the foregoing, the obligations of Executive under this paragraph shall expire on the second anniversary of the Effective Date; after which date the Executive will only be required to cooperate at Executive’s option and pursuant to a reimbursement schedule to be agreed with the Company.
Appears in 2 contracts
Samples: Employment Agreement (Parabel Inc.), Employment Agreement (PetroAlgae Inc.)
Legal Releases. (a) Executive, on his own behalf and on behalf of Executive and Executive’s his heirs, personal representatives representatives, executors, administrators and assigns, knowingly and voluntarily releases and forever discharges the Company and its affiliates and any other person or entity that could or might act on behalf of Executive their respective parents, subsidiaries and affiliates, together with all of their respective past and present directors, members, managers, officers, shareholders, trustees, partners, employees, agents, attorneys and servants, and each of their affiliates, predecessors, successors and assigns (collectively, the “Executive Releasers”), hereby fully and forever releases and discharges the Company, its past, present and future subsidiaries, and each of their respective officers, directors, independent contractors, attorneys and insurers (collectively, the “Executive Company Releasees”) of and from any and all actionsclaims, charges, complaints, promises, agreements, controversies, liens, demands, causes of action, claimsobligations, demands, costs damages and expenses, including attorneys’ fees, liabilities of every kind and any nature whatsoever, in law or in equity, whether now known or unknown, suspected or unsuspected, that the Executive Releasersor his heirs, executors, administrators, or any person acting under any of themassigns ever had, may now have, or may hereafter claim at to have against any future time to have, based in whole or in part upon any act or omission arising out of Executive’s employment relationship with, and/or service as a member of the Board (if any) forCompany Releasees by reason of any matter, cause or thing whatsoever from the Company or its subsidiaries occurring on or before beginning of time through the Effective Separation Date, without regard to present actual knowledge of such acts whether or omissions, including specifically, but not by way of limitation, matters which may arise at common law, such as breach of contract, express or implied, promissory estoppel, wrongful discharge, tortious interference with contractual rights, infliction of emotional distress, defamation, or under federal, previously asserted before any state or local lawsfederal court, includingagency or governmental entity or any arbitral body. This release includes, but not limited towithout limitation, any rights or claims based upon relating in any discrimination proscribed by way to Executive’s employment relationship with the Company or any of the Company Releasees, or his resignation therefrom, or arising under any statute or regulation, including Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, Age Discrimination in Employment Act of 1967 (the “ADEA”), the Older Worker Benefit Protection Act (“OWBPA”), Title VII of the Civil Rights Act of 1967, the Civil Rights Act of 1991, the Americans with Disabilities Act of 1990, the Employee Retirement Income Security Act of 1974, and the Family and Medical Leave Act of 1993, the Delaware Employment Discrimination Law, the Florida Civil Rights Acteach as amended, or any other federal, state or local employmentlaw, regulation, ordinance, or common law, or under any policy, agreement, understanding or promise, written or oral, formal or informal, between Executive and the Company or any of the Company Releasees, as well as any rights relating to any Company stock or other equity-related and/or anti-discrimination law, rule or regulation in any jurisdiction and all claims relating to equity incentives incentive that had not vested by its own terms as of any kind, except as specifically set forth in the AgreementSeparation Date; provided, however, that, that notwithstanding the foregoing or anything else contained in this Agreement, the Agreement release set forth in this Section 2(a) shall not extend to (i) any rights arising under or recognized by this Supplemental Release or the Transition Agreement; (ii) any rights under Section 10 of the Employment Agreement; or (iii) any claim or claims that the Executive may have against the Company as of the Separation Date of which he is not aware as of the Separation Date because of willful concealment by the Company. Executive further agrees that he will not seek or be entitled to any personal recovery in any claim, charge, action or proceeding whatsoever against the Company or any of the Company Releasees for any of the matters released in this Section 2(a). Executive represents and warrants that as of the Separation Date he has no knowledge of any fact willfully concealed from him by the Company within the meaning of this Section 2(a).
(b) The Company, on its own behalf and on behalf of its current and past parents, subsidiaries and affiliates and each of their predecessors, successors and assigns, knowingly and voluntarily releases and forever discharges Executive and his spouse, heirs, personal representatives, executors, administrators and assigns, (collectively, the “Executive Releasees”) from any and all claims, charges, complaints, promises, agreements, controversies, liens, demands, causes of action, obligations, damages and liabilities of any nature whatsoever, known or unknown, suspected or unsuspected, that the Company, its current and past parents, subsidiaries and affiliates and each of their predecessors, successors and assigns ever had, now have, or may hereafter claim to have against any of the Executive Releasees by reason of any matter, cause or thing whatsoever from the beginning of time through the Separation Date, whether or not previously asserted before any state or federal court, agency or governmental entity or any arbitral body. This release includes, without limitation, any rights or claims relating in any way to Executive’s employment relationship with the Company, or his separation therefrom, or arising under any statute or regulation, or any other federal, state or local law, regulation, ordinance, or common law, or under any policy, agreement, understanding or promise, written or oral, formal or informal, between Executive and the Company; provided, however, that notwithstanding the foregoing or anything else contained in this Supplemental Release, the release set forth in this paragraph Section 2(b) shall not extend to the rights of Executive pursuant to: (i) Section 3(c) (Stock Options) and Section 3(e) (Special Bonus) and of any rights arising under this Supplemental Release or the Transition Agreement, which sections shall survive the signing of this Release; (ii) any vested, unpaid rights under any pension, retirement, profit sharing a breach of fiduciary duty or similar plan; or (iii) Executive’s rights, if any, other misconduct relating to indemnification, and/or defense under any Company certificate of incorporation, bylaw and/or policy or procedure, or under any insurance contract, in connection with Executive’s acts or omissions within the course and scope of Executive’s employment with the Company. Company that renders Executive hereby warrants that Executive has not assigned or transferred ineligible for indemnification pursuant to any person any portion of any claim which is released, waived and discharged above. Executive further states and agrees that Executive has not experienced any illness, injury, or disability that is compensable or recoverable under the worker’s compensation laws of any state that was not reported to the Company by Executive before the Effective Date, and Executive agrees not to file a worker’s compensation claim asserting the existence of any such previously undisclosed illness, injury, or disability. Executive understands and agrees that by signing this Release, Executive is giving up any right to bring any legal claim against the Company concerning, directly or indirectly, Executive’s employment relationship with the Company, including Executive’s separation from employment. Executive agrees that this Release is intended to be interpreted in the broadest possible manner in favor Section 10 of the Company to include all actual or potential legal claims that Executive may have against the Company, except as specifically provided otherwise in this Release.
(b) Executive represents that he has not filed any lawsuits or arbitration demands against the Company. Executive further agrees and acknowledges that Executive: (i) understands the language used in this Release and its legal effect; (ii) understands that by signing this Release Executive is giving up the right to xxx the Company for discrimination under any Federal, State or local law or regulation, including, but not limited to, the Age Discrimination in Employment Act; (iii) will receive compensation and/or benefits under the Agreement to which Executive would not have been entitled without signing this Release; (iv) has been advised by the Company to consult with an attorney before signing the Agreement and this Release; and (v) has been given no less than forty-five days to consider whether to sign this Release. Nothing in this Agreement shall interfere with Executive’s right to file a charge or participate in an investigation with the U.S. Equal Employment Opportunity Commission (the “EEOC”). Executive, however, understands and agrees that Executive is expressly waiving any right to seek, or to share in, any individual relief, monetary or otherwise, involving claims released in paragraph (a) of this Agreement, whether raised by Executive or others.
(c) For a period of seven days after the Effective Date, Executive may, in Executive’s sole discretion, rescind this Release, by delivering a written notice of rescission to [insert contact] at the Company. If Executive rescinds this Release within seven calendar days after the Effective Date, this Release shall be void, all actions taken pursuant to this Release shall be reversed, and neither this Release nor the fact of or circumstances surrounding its execution shall be admissible for any purpose whatsoever in any proceeding between the parties, except in connection with a claim or defense involving the validity or effective rescission of this Release. If Executive does not rescind this Release within seven calendar days after the Effective Date, this Release shall become final and binding and shall be irrevocable.
(d) The Company, on behalf of itself and its past, present and future subsidiaries, and each officer, director, independent contractor, attorney and insurer of the Company and any of the Company’s subsidiaries (past, present and future) (collectively, the “Company Releasers”), hereby fully and forever releases and discharges Executive and Executive’s heirs, personal representatives and assigns and any other person or entity that could or might act on behalf of Executive (collectively, the “Company Releasees”) of and from any and all actions, causes of action, claims, demands, costs and expenses, including attorneys’ fees, of every kind and nature whatsoever, in law or in equity, whether now known or unknown, that the Company Releasers, or any person acting under any of them, may now have, or claim at any future time to have, based in whole or in part upon any act or omission arising out of Executive’s employment relationship with, and/or service as a member of the Board (if any) for, the Company or its subsidiaries occurring on or before the Effective Date, without regard to present actual knowledge of such acts or omissions, including specifically, but not by way of limitation, matters which may arise at common law, such as breach of contract, express or implied, promissory estoppel, wrongful discharge, tortious interference with contractual rights, infliction of emotional distress, defamation, or under federal, state or local laws; provided, however, that, notwithstanding the foregoing or anything else contained in the Agreement or this Release, the release set forth in this paragraph shall not extend to the rights of the Company pursuant to: (i) Section 6(a) (Noncompetition; Nonsolicitation), Section 6(b) (Nondisparagement), Section 6(c) (Confidentiality) and Section 6(d) (Acknowledgement) of the Agreement, which sections shall survive the signing of this Release; (ii) any act or omission of Executive that was actively concealed from the Company by Executive or at Executive’s direction; or (iii) any acts of fraud, intentional misrepresentation (that could reasonably be expected to have a material effect on the business of the Company), embezzlement, claim or other misappropriation of Company funds, assets or property. The Company hereby warrants that the Company has not assigned or transferred to any person any portion of any claim which is released, waived and discharged above. The Company understands and agrees that by signing this Release the Company is giving up any right to bring any legal claim against Executive concerning, directly or indirectly, Executive’s employment relationship with the Company, including Executive’s separation from employment. The Company agrees that this Release is intended to be interpreted in the broadest possible manner in favor of Executive, to include all actual or potential legal claims that the Company may have against Executive as of the Separation Date of which it is not aware as of the Separation Date because of willful concealment by Executive. The Company, except as specifically provided otherwise on its own behalf and on behalf of its current and past parents and subsidiaries, and each of their predecessors, successors and assigns, represents that it has not commenced or joined in any claim, charge, action or proceeding whatsoever against Executive arising out of or relating to any of the matters released in this Release Section 2(b). The Company, on its own behalf and on behalf of its current and past parents and subsidiaries, and each of their predecessors, successors and assigns, further agrees that it will not seek or the Agreement.
(e) Executive acknowledges that the Company paid be entitled to any personal recovery in any claim, charge, action or proceeding whatsoever against Executive for all earned, unpaid wages any of the matters released in this Section 2(b). The Company represents and all accrued, unused vacation, less applicable withholdings, through his last day warrants that as of employment, and that the Separation Date it has no knowledge of any fact willfully concealed from it by the Executive is entitled to no further payments for wages, compensation, benefits, bonuses, equitywithin the meaning of this Section 2(b), or any breach of fiduciary duty by Executive or other type of compensation or benefit, except for those payments misconduct by Executive will receive in accordance with the terms of the Agreement if he signs and does not revoke this Release.
(f) Executive acknowledges that because of Executive’s position with the Company, Executive may possess information that may be relevant relating to or discoverable in connection with claims, litigation or judicial, arbitral or investigative proceedings initiated by a private party or by a regulator, governmental entity, or self-regulatory organization, that relates to or arises from matters with which Executive was involved during Executive’s employment with the CompanyCompany that renders Executive ineligible for indemnification pursuant to Section 10 of the Employment Agreement
(c) In order to provide a full and complete release, each of the Parties understands and agrees that this Supplemental Release is intended to include all claims, if any, covered under this Paragraph 2 that such Party may have and not now know or suspect to exist in his or its favor against any other Party and that concern matters this Supplemental Release extinguishes such claims. Thus, each of the Parties expressly waives all rights under any statute or common law principle in any jurisdiction that provides, in effect, that a general release does not extend to claims which the releasing party 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 party being released.
(d) Executive acknowledges that he consulted with an attorney of his choosing before signing the Transition Agreement and this Supplemental Release, and that the Company provided him with no fewer than twenty-one (21) days during which to consider the provisions of the Transition Agreement and this Supplemental Release and, specifically the release set forth at Paragraph 2(a), above, although Executive may sign and return the Supplemental Release sooner if he so chooses. Executive further acknowledges that he has information or knowledge the right to revoke this Supplemental Release for a period of seven (collectively, a 7) days after signing it and that this Supplemental Release shall not become effective until such seven (7)-day period has expired (the “ProceedingFinal Separation Date”). Executive acknowledges and agrees that if he wishes to revoke this Supplemental Release, he must do so in writing, and that such revocation must be signed by the Executive shall testify truthfully in connection with any such Proceeding, shall cooperate with and received by the Company in connection care of its Chief Executive Officer no later than 5 p.m. (Mountain Time) on the seventh (7th) day after Executive has signed this Supplemental Release. Executive acknowledges and agrees that, in the event that he revokes this Supplemental Release, he shall have no right to receive the Severance Benefit. Executive represents that he has read this Supplemental Release, including the release set forth in Paragraph 2(a), above, affirms that this Supplemental Release and the Transition Agreement provide him with every such Proceedingbenefits to which he would not otherwise be entitled, and understands its terms and that Executive’s duty of cooperation shall include an obligation to meet with the Company representatives and/or counsel concerning all such Proceedings for such purposeshe enters into this Supplemental Release freely, voluntarily, and at such times and places, as the Company reasonably requests, and to appear for deposition and/or testimony upon the Company’s reasonable request and without a subpoena. The Company shall reimburse Executive for reasonable out-of-pocket expenses that Executive incurs in honoring Executive’s obligation of cooperation under this paragraph; provided, however, if Executive’s duty of cooperation under this paragraph involves an expenditure of time and efforts by Executive on more than three (3) business days in any calendar month, then the Parties shall agree appropriate terms of reimbursement in addition to reimbursement for reasonable out-of-pocket expenses. Notwithstanding the foregoing, the obligations of Executive under this paragraph shall expire on the second anniversary of the Effective Date; after which date the Executive will only be required to cooperate at Executive’s option and pursuant to a reimbursement schedule to be agreed with the Companycoercion.
Appears in 1 contract
Legal Releases. (a) Executive, on his own behalf and on behalf of Executive and Executive’s his heirs, personal representatives representatives, executors, administrators and assigns, knowingly and voluntarily releases and forever discharges the Company and its affiliates and any other person or entity that could or might act on behalf of Executive their respective parents, subsidiaries and affiliates, together with all of their respective past and present directors, members, managers, officers, shareholders, trustees, partners, employees, agents, attorneys and servants, and each of their affiliates, predecessors, successors and assigns (collectively, the “Executive Releasers”), hereby fully and forever releases and discharges the Company, its past, present and future subsidiaries, and each of their respective officers, directors, independent contractors, attorneys and insurers (collectively, the “Executive Company Releasees”) of and from any and all actionsclaims, charges, complaints, promises, agreements, controversies, liens, demands, causes of action, claimsobligations, demands, costs damages and expenses, including attorneys’ fees, liabilities of every kind and any nature whatsoever, in law or in equity, whether now known or unknown, suspected or unsuspected, that the Executive Releasersor his heirs, executors, administrators, or any person acting under any of themassigns ever had, may now have, or may hereafter claim at to have against any future time to have, based in whole or in part upon any act or omission arising out of Executive’s employment relationship with, and/or service as a member of the Board (if any) forCompany Releasees by reason of any matter, cause or thing whatsoever from the Company or its subsidiaries occurring on or before beginning of time through the Effective Date, without regard to present actual knowledge of such acts whether or omissions, including specifically, but not by way of limitation, matters which may arise at common law, such as breach of contract, express or implied, promissory estoppel, wrongful discharge, tortious interference with contractual rights, infliction of emotional distress, defamation, or under federal, previously asserted before any state or local lawsfederal court, includingagency or governmental entity or any arbitral body. This release includes, but not limited towithout limitation, any rights or claims based upon relating in any discrimination proscribed by way to Executive’s employment relationship with the Company or any of the Company Releasees, or his resignation therefrom, or arising under any statute or regulation, including Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, Age Discrimination in Employment Act of 1967 (the “ADEA”), the Older Worker Benefit Protection Act (“OWBPA”), Title VII of the Civil Rights Act of 1967, the Civil Rights Act of 1991, the Americans with Disabilities Act of 1990, the Employee Retirement Income Security Act of 1974, and the Family and Medical Leave Act of 1993, the Delaware Employment Discrimination Law, the Florida Civil Rights Acteach as amended, or any other federal, state or local employmentlaw, regulation, ordinance, or common law, or under any policy, agreement, understanding or promise, written or oral, formal or informal, between Executive and the Company or any of the Company Releasees, as well as any rights relating to any Company stock or other equity-related and/or anti-discrimination law, rule or regulation in any jurisdiction and all claims relating to equity incentives incentive that had not vested by its own terms as of any kind, except as specifically set forth in the AgreementSeparation Date; provided, however, that, that notwithstanding the foregoing or anything else contained in the Agreement or this ReleaseAgreement, the release set forth in this paragraph Section 12(a) shall not extend to the rights of Executive pursuant to: (i) Section 3(c) (Stock Options) and Section 3(e) (Special Bonus) and of the any rights arising under or recognized by this Agreement, which sections shall survive the signing of this Release; (ii) any vested, unpaid rights under any pension, retirement, profit sharing or similar planSection 10 of the Employment Agreement; or (iii) Executive’s rights, if any, to indemnification, and/or defense under any claim or claims that the Executive may have against the Company certificate as of incorporation, bylaw and/or policy or procedure, or under any insurance contract, in connection with Executive’s acts or omissions within the course and scope Effective Date of Executive’s employment with which he is not aware as of the Effective Date because of willful concealment by the Company. Executive hereby further agrees that he will not seek or be entitled to any personal recovery in any claim, charge, action or proceeding whatsoever against the Company or any of the Company Releasees for any of the matters released in this Section 12(a). Executive represents and warrants that Executive as of the Effective Date he has not assigned or transferred to any person any portion no knowledge of any claim which is releasedfact willfully concealed from him by the Company within the meaning of this Section 12(a).
(b) The Company, waived on its own behalf and discharged above. on behalf of its current and past parents, subsidiaries and affiliates and each of their predecessors, successors and assigns, knowingly and voluntarily releases and forever discharges Executive further states and agrees his heirs, personal representatives, executors, administrators and assigns, (collectively, the “Executive Releasees”) from any and all claims, charges, complaints, promises, agreements, controversies, liens, demands, causes of action, obligations, damages and liabilities of any nature whatsoever, known or unknown, suspected or unsuspected, that Executive has not experienced any illnessthe Company, injuryits current and past parents, subsidiaries and affiliates and each of their predecessors, successors and assigns ever had, now have, or disability that is compensable or recoverable under may hereafter claim to have against any of the worker’s compensation laws Executive Releasees by reason of any state that was not reported to matter, cause or thing whatsoever from the Company by Executive before beginning of time through the Effective Date, and Executive agrees whether or not previously asserted before any state or federal court, agency or governmental entity or any arbitral body. This release includes, without limitation, any rights or claims relating in any way to file a worker’s compensation claim asserting the existence of any such previously undisclosed illness, injury, or disability. Executive understands and agrees that by signing this Release, Executive is giving up any right to bring any legal claim against the Company concerning, directly or indirectly, Executive’s employment relationship with the Company, including or his separation therefrom, or arising under any statute or regulation, or any other federal, state or local law, regulation, ordinance, or common law, or under any policy, agreement, understanding or promise, written or oral, formal or informal, between Executive and the Company; provided, however, that notwithstanding the foregoing or anything else contained in this Agreement, the release set forth in this Section 12(b) shall not extend to: (i) any rights arising under this Agreement; (ii) a breach of fiduciary duty or other misconduct relating to Executive’s separation employment with the Company that renders Executive ineligible for indemnification pursuant to Section 10 of the Employment Agreement; or (iii) any claim or claims that the Company may have against Executive as of the Effective Date of which it is not aware as of the Effective Date because of willful concealment by Executive. The Company, on its own behalf and on behalf of its current and past parents and subsidiaries, and each of their predecessors, successors and assigns, represents that it has not commenced or joined in any claim, charge, action or proceeding whatsoever against Executive arising out of or relating to any of the matters released in this Section 12(b). The Company, on its own behalf and on behalf of its current and past parents and subsidiaries, and each of their predecessors, successors and assigns, further agrees that it will not seek or be entitled to any personal recovery in any claim, charge, action or proceeding whatsoever against Executive for any of the matters released in this Section 12(b). The Company represents and warrants that as of the Effective Date it has no knowledge of any fact willfully concealed from employment. it by the Executive within the meaning of this Section 12(b), or any breach of fiduciary duty by Executive or other misconduct by Executive relating to Executive’s employment with the Company that renders Executive ineligible for indemnification pursuant to Section 10 of the Employment Agreement.
(c) In order to provide a full and complete release, each of the Parties understands and agrees that this Release Agreement is intended to be interpreted include all claims, if any, covered under this Section 12 that such Party may have and not now know or suspect to exist in the broadest possible manner in his or its favor against any other Party and that this Agreement extinguishes such claims. Thus, each of the Company Parties expressly waives all rights under any statute or common law principle in any jurisdiction that provides, in effect, that a general release does not extend to include all actual claims which the releasing party does not know or potential legal claims that Executive may suspect to exist in his favor at the time of executing the release, which if known by him must have against materially affected his settlement with the Companyparty being released. Notwithstanding any other provision of this Section 12, except as specifically provided otherwise however, nothing in this ReleaseSection 12 is intended or shall be construed to limit or otherwise affect in any way Executive’s rights under Section 10 of the Employment Agreement, under the February 2004 Agreement, or under this Agreement.
(bd) Executive represents that he has not filed any lawsuits or arbitration demands against the Company. Executive further agrees and acknowledges that Executivehe: (i) understands the language used in this Release Agreement and its the Agreement’s legal effect; (ii) understands that by signing this Release Executive is giving up the right to xxx the Company for discrimination under any Federal, State or local law or regulation, including, but not limited to, the Age Discrimination in Employment Act; (iii) will receive compensation and/or benefits under the this Agreement to which Executive he would not have been entitled without signing this ReleaseAgreement; (iviii) has been advised by the Company to consult with an attorney before signing the Agreement and this ReleaseAgreement; and (viv) has been will be given no less than forty-five up to twenty one (21) calendar days to consider whether to sign this ReleaseAgreement. Nothing in this Agreement shall interfere with Executive’s right to file a charge or participate in an investigation with the U.S. Equal Employment Opportunity Commission (the “EEOC”). Executive, however, understands and agrees that Executive is expressly waiving any right to seek, or to share in, any individual relief, monetary or otherwise, involving claims released in paragraph (a) of this Agreement, whether raised by Executive or others.
(c) For a period of seven days after the Effective Date, Executive may, in Executive’s his sole discretion, rescind this ReleaseAgreement, by delivering a written notice of rescission to [insert contact] at the CompanyPxxxx Xxxxxxx. If Executive rescinds this Release Agreement within seven calendar days after the Effective Date, this Release Agreement shall be void, all actions taken pursuant to this Release Agreement shall be reversed, and neither this Release Agreement nor the fact of or circumstances surrounding its execution shall be admissible for any purpose whatsoever in any proceeding between the parties, except in connection with a claim or defense involving the validity or effective rescission of this ReleaseAgreement. If Executive does not rescind this Release Agreement within seven calendar days after the Effective Date, this Release Agreement shall become final and binding and shall be irrevocable.
(d) The Company, on behalf of itself and its past, present and future subsidiaries, and each officer, director, independent contractor, attorney and insurer of the Company and any of the Company’s subsidiaries (past, present and future) (collectively, the “Company Releasers”), hereby fully and forever releases and discharges Executive and Executive’s heirs, personal representatives and assigns and any other person or entity that could or might act on behalf of Executive (collectively, the “Company Releasees”) of and from any and all actions, causes of action, claims, demands, costs and expenses, including attorneys’ fees, of every kind and nature whatsoever, in law or in equity, whether now known or unknown, that the Company Releasers, or any person acting under any of them, may now have, or claim at any future time to have, based in whole or in part upon any act or omission arising out of Executive’s employment relationship with, and/or service as a member of the Board (if any) for, the Company or its subsidiaries occurring on or before the Effective Date, without regard to present actual knowledge of such acts or omissions, including specifically, but not by way of limitation, matters which may arise at common law, such as breach of contract, express or implied, promissory estoppel, wrongful discharge, tortious interference with contractual rights, infliction of emotional distress, defamation, or under federal, state or local laws; provided, however, that, notwithstanding the foregoing or anything else contained in the Agreement or this Release, the release set forth in this paragraph shall not extend to the rights of the Company pursuant to: (i) Section 6(a) (Noncompetition; Nonsolicitation), Section 6(b) (Nondisparagement), Section 6(c) (Confidentiality) and Section 6(d) (Acknowledgement) of the Agreement, which sections shall survive the signing of this Release; (ii) any act or omission of Executive that was actively concealed from the Company by Executive or at Executive’s direction; or (iii) any acts of fraud, intentional misrepresentation (that could reasonably be expected to have a material effect on the business of the Company), embezzlement, or other misappropriation of Company funds, assets or property. The Company hereby warrants that the Company has not assigned or transferred to any person any portion of any claim which is released, waived and discharged above. The Company understands and agrees that by signing this Release the Company is giving up any right to bring any legal claim against Executive concerning, directly or indirectly, Executive’s employment relationship with the Company, including Executive’s separation from employment. The Company agrees that this Release is intended to be interpreted in the broadest possible manner in favor of Executive, to include all actual or potential legal claims that the Company may have against Executive, except as specifically provided otherwise in this Release or the Agreement.
(e) Executive acknowledges that the Company paid Executive for all earned, unpaid wages and all accrued, unused vacation, less applicable withholdings, through his last day of employment, and that Executive is entitled to no further payments for wages, compensation, benefits, bonuses, equity, or any other type of compensation or benefit, except for those payments Executive will receive in accordance with the terms of the Agreement if he signs and does not revoke this Release.
(f) Executive acknowledges that because of Executive’s position with the Company, Executive may possess information that may be relevant to or discoverable in connection with claims, litigation or judicial, arbitral or investigative proceedings initiated by a private party or by a regulator, governmental entity, or self-regulatory organization, that relates to or arises from matters with which Executive was involved during Executive’s employment with the Company, or that concern matters of which Executive has information or knowledge (collectively, a “Proceeding”). Executive agrees that Executive shall testify truthfully in connection with any such Proceeding, shall cooperate with the Company in connection with every such Proceeding, and that Executive’s duty of cooperation shall include an obligation to meet with the Company representatives and/or counsel concerning all such Proceedings for such purposes, and at such times and places, as the Company reasonably requests, and to appear for deposition and/or testimony upon the Company’s reasonable request and without a subpoena. The Company shall reimburse Executive for reasonable out-of-pocket expenses that Executive incurs in honoring Executive’s obligation of cooperation under this paragraph; provided, however, if Executive’s duty of cooperation under this paragraph involves an expenditure of time and efforts by Executive on more than three (3) business days in any calendar month, then the Parties shall agree appropriate terms of reimbursement in addition to reimbursement for reasonable out-of-pocket expenses. Notwithstanding the foregoing, the obligations of Executive under this paragraph shall expire on the second anniversary of the Effective Date; after which date the Executive will only be required to cooperate at Executive’s option and pursuant to a reimbursement schedule to be agreed with the Company.
Appears in 1 contract
