Restrictive Covenants and Miscellaneous Provisions. (a) Executive shall not disclose any of the trade secrets or other confidential or restricted information of CPT, CDI or any of the Released Parties and shall not make use of such trade secrets or confidential or restricted information in any fashion at any time, including in any future employment, work, task or business. (b) Executive shall comply at all times after the Effective Date of this Agreement with all provisions of Section 9 of the Employment Agreement (including but not limited to Section 9(c), as amended and restated as set forth below), regardless of the nature of his separation, which provisions include covenants concerning the non-disclosure of confidential information, return of documents, and a prohibition on the inducement or employment of employees, agents, or consultants of the Company. Executive acknowledges and agrees that Section 9 of the Employment Agreement (including but not limited to Section 9(c), as amended and restated as set forth below) shall survive the separation of his employment, regardless of the separation reason and shall survive the execution of this Agreement. (c) The parties agree that Section 9(c) of the Employment Agreement is amended and restated to read in its entirety as follows to limit the scope of the restrictions on competitive employment: “Executive agrees that during the period commencing on the date hereof and ending twelve (12) months thereafter (the “Non-Competition Period”), absent CPT’s prior written approval, he will not, as owner, part-owner, shareholder, partner, director, principal, agent, employee, consultant or otherwise, directly or indirectly engage or participate in activities relating to, or render services to any publicly traded real estate investment trust listed on Exhibit C to this Agreement or their subsidiaries or affiliates (collectively, the “Selected REITs”); provided that Executive may make passive investments in a Selected REIT if Executive’s investment constitutes less than 2% of the total equity of such enterprise.” (d) Executive understands and agrees that CPT and CDI shall have the right to terminate the Installment Severance Payments and/or sxx Executive for breach of this Agreement if Executive violate the provisions of Sections 4(b) or 4(c), or otherwise fail to comply in any material respect with this Agreement, in each case upon fifteen (15) days written notice from CPT; provided that Executive shall have a period of thirty (30) days after Executive receives such written notice to cure the same, and the Installment Severance Payments shall continue to be made during such period. Executive further acknowledges that but for his agreements to comply with his obligations described in this Section 4 and elsewhere in this Agreement, CPT would not provide Executive with the Installment Severance Payments or the other compensation, benefits and consideration set forth in Section 2 and elsewhere in this Agreement. (e) Executive warrants that he has returned, or will return promptly following his resignation, to CPT all company property in his possession, including, but not limited to, company files, work product, computer equipment, computer software, cell phones, pagers, corporate credit cards, identification cards, manuals, company documents and company keys. Executive further agrees to cooperate and work with the Vice President of Human Resources to ensure Executive’s compliance with this Section 4(e). (f) Executive understands that the short-term disability and long-term disability insurance coverage provided by CPT or CDI, if any, will end on March 16, 2007. Executive also understands that CPT and CDI will not pay for any business-related or other charges incurred by him after March 16, 2007. Executive further understands that he will cease to accrue vacation time as of March 16, 2007. (g) This Agreement does not constitute an admission of any kind by CPT or CDI, but is simply an accommodation that offers certain extra benefits to which Executive would, at least in part, not otherwise be entitled in return for his agreeing to and signing this document. (h) The parties agree not to make any statements that disparage the reputation of one another, or any of the Released Parties or their properties or services. Any breach or violation of this non-disparagement provision shall entitle the other party to sxx under this Agreement for the immediate recovery of any damages caused by such breach. (i) All payments and benefits under this Agreement are gross amounts and will be subject to taxes and lawful deductions, if any. (j) The venue for the litigation of any dispute arising out of this Agreement shall be a court of competent jurisdiction in Hxxxxx County, Texas. Texas law shall govern the interpretation and enforcement of this Agreement. (k) The parties agree that if there is any conflict between this and any other agreement, then this document will control. (l) Executive represents that he is entering into this Agreement freely and voluntarily. Executive has carefully read and understands all of the provisions of this Agreement. Executive understands that it sets forth the entire agreement between himself and Company and he represents that no other statements, promises, or commitments of any kind, written or oral, have been made to him by the Company, or any of its agents, to cause him to accept it. Executive acknowledges that he has been advised to consult legal counsel concerning this Agreement prior to signing the Agreement, and that he has had sufficient opportunity to do so. Executive understands that he may have up to twenty-one (21) days from the date of this letter to consider this Agreement. Executive understands that if he signs this Agreement, he will then have seven (7) days to cancel it if he so chooses. Executive may cancel this Agreement by delivering a written notice of cancellation to Cxxxx Xxxxxxxxxxxxxxx at 3 Xxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000. However, if Executive elects to cancel this Agreement, he understands he will not be entitled to any of the benefits, compensation, or other consideration referenced in this Agreement. Executive realizes this Agreement is not effective or enforceable until the seven-day period expires without revocation. Executive understands that this Agreement will not become effective until the eighth day after he signs the Agreement without revocation (the “Effective Date”). Executive understands that CPT and CDI will have no duty to pay him or provide him with the compensation, benefits and consideration listed in Section 2 and elsewhere in the Agreement until the Effective Date of this Agreement.
Appears in 1 contract
Restrictive Covenants and Miscellaneous Provisions. (a) A. While Executive understands that he has had such an obligation since he began his employment with ACSHI or any of the Released Parties, he confirms that he shall not disclose any of the trade secrets or other confidential or restricted proprietary information of CPT, CDI ACSHI or any of the Released Parties and shall not make use of such trade secrets or confidential or restricted proprietary information in any fashion at any time, including in any future employment, worktask, task work or business.
(b) B. Executive shall agrees to comply at all times after the Effective Date of this Agreement with all provisions of Section 9 Sections 5.2(c) and (d) of the Employment Agreement (including but not limited to Section 9(c), as amended and restated as set forth below)Agreement, regardless of the nature of his separation, which provisions include covenants concerning the a non-disclosure of confidential informationcompetition covenant, return of documents, and a prohibition on the inducement or employment solicitation of employeesemployees of the Company, a prohibition on the interference with the relationship between ACSHI and its providers, agents, customers, suppliers, distributors, licensees or consultants of the Companyother business relations, and a non-disparagement covenant. Executive acknowledges and agrees that Section 9 Sections 5.2(c) and (d) of the Employment Agreement (including but not limited to Section 9(c), as amended and restated as set forth below) shall survive the separation of his employment, regardless of the separation reason and shall survive the execution of this Agreement.
(c) The parties agree that Section 9(c) of the Employment Agreement is amended and restated to read in its entirety as follows to limit the scope of the restrictions on competitive employment: “Executive agrees that during the period commencing on the date hereof and ending twelve (12) months thereafter (the “Non-Competition Period”), absent CPT’s prior written approval, he will not, as owner, part-owner, shareholder, partner, director, principal, agent, employee, consultant or otherwise, directly or indirectly engage or participate in activities relating to, or render services to any publicly traded real estate investment trust listed on Exhibit C to this Agreement or their subsidiaries or affiliates (collectively, the “Selected REITs”); provided that Executive may make passive investments in a Selected REIT if Executive’s investment constitutes less than 2% of the total equity of such enterprise.”
(d) C. Executive understands and agrees that CPT and CDI ACSHI shall have the right to and will terminate the Installment Severance Payments and/or sxx Executive payment for the continued insurance benefits provided in Section II (B) above, and/or xxx him for breach of this Agreement if Executive violate he violates the provisions of Sections 4(bSection IV (B), (E), (H) or 4(c(J), or otherwise fail fails to comply in any material respect with this Agreement. In addition, in each case upon fifteen Executive’s right to exercise any of the Stock Options will terminate on the day he violates the provisions of Section IV (15B), (E), (H) days written notice from CPT; provided that Executive shall have a period of thirty or (30) days after Executive receives such written notice J), or otherwise fails to cure the same, and the Installment Severance Payments shall continue to be made during such periodcomply with this Agreement. Executive further acknowledges that but for his agreements to comply with his obligations described in this Section 4 and elsewhere in this Agreement, CPT ACSHI would not provide Executive him with the Installment Severance Payments or the other compensation, benefits and other consideration set forth in Section 2 II and elsewhere in the Agreement. Page 5 EXECUTIVE'S INITIALS _______________ HOUSTON: 100017.00001: 1186879v3
D. The parties agree that Sections 5 (Termination), 5.1 (Termination Events) and 5.2(a) and (b) (Effects of Termination) of the Employment Agreement shall not apply to Executive’s separation and shall have no effect and be unenforceable as of the Effective Date of this Agreement.
(e) E. Except as provided herein, Executive warrants that he has returned, or will return promptly following his resignation, returned to CPT ACSHI all company property in his possession, including, but not limited to, originals and all copies of company files, work product, confidential information, proprietary information, trade secrets or documents containing trade secrets, computer equipment, computer software, cell phones, pagers, corporate credit cards, identification cards, manuals, company documents documents, building access cards and company keys. The parties agree that Executive shall be entitled to keep the laptop computer he was using as of the Separation Date (“Executive Laptop”). Executive agrees that on or before the Effective Date of this Agreement, he will present the Executive Laptop to Xxxx Xxxxxx so that the Company may review the Executive Laptop and scrub it of any Company information, whether or not such information is confidential or trade secret. Executive represents and warrants that he has not copied or downloaded any Company information from the Executive Laptop and he agrees that he will not copy or download any Company information from the Executive Laptop. Executive further agrees to cooperate and work with the Vice President of Human Resources Chief Financial Officer to ensure Executive’s his compliance with this Section 4(eIV (E).
(f) F. Executive understands that the short-term disability and disability, long-term disability and life insurance coverage provided by CPT or CDIACSHI, if any, will end on March 16June 30, 2007. Executive also understands that CPT and CDI ACSHI will not pay for any business-related or other charges incurred by him after March 16June 30, 2007, unless such expenses are expressly approved in advance by the Xx Xxxxxx or the Board of Directors of ACSHI. Executive further understands that he will cease to accrue vacation time as of March 16June 30, 2007. Executive shall be paid for any accrued, unused vacation within fourteen (14) days after the Effective Date of this Agreement.
(g) This G. Executive acknowledges and agrees that this Agreement does not constitute an admission of any kind by CPT or CDIACSHI, but is simply an accommodation that offers certain extra benefits to which Executive would, at least in part, he would not otherwise be entitled in return for his agreeing to and signing this document.
(h) H. Executive agrees not to voluntarily make the terms and conditions or the circumstances surrounding this Agreement known to anyone other than an attorney and/or tax consultant from whom he receives counseling, or, if he is married, to his spouse, or except as otherwise required by law. Executive acknowledges that any such person must agree not to further disclose the terms of this Agreement.
I. ACSHI agrees not to voluntarily make the terms and conditions or the circumstances surrounding this Agreement known to anyone other than its Board of Directors, attorneys and/or tax consultants from whom it receives counseling, or except as otherwise required by law or the rules of the New York Stock Exchange. Page 6 EXECUTIVE'S INITIALS _______________ HOUSTON: 100017.00001: 1186879v3
J. The parties agree to comply with their non-disparagement obligations as set out in Section 5.2(d) of the Employment Agreement. Executive further agrees not to make take any statements action to interfere with or damage the Company’s relationship with its vendors, lenders, brokers and/or clients. Executive agrees that disparage the reputation of one another, or any of the Released Parties or their properties or services. Any breach or violation of this non-disparagement and non-interference provision shall entitle ACSHI to terminate the other party to sxx under Installment Severance Payments and/or the paid insurance benefits and/or xxx him on this Agreement for the immediate recovery of any damages caused by such breach.
(i) All payments and benefits under this Agreement are gross amounts and will be subject to taxes and lawful deductions, if any.
(j) K. The venue for the litigation of any dispute arising out of this Agreement shall be a court of competent jurisdiction in Hxxxxx Dallas County, Texas. If either party files a lawsuit in state court arising out of this Agreement, the other party may remove the lawsuit to federal court to the extent jurisdiction exists. Texas law shall govern the interpretation and enforcement of this Agreement.
(k) L. The parties agree that Installment Severance Payments and Relocation Payment identified in Section II above are gross amounts and will be subject to taxes and lawful deductions, if there is any conflict between this and any other agreement, then this document will controlany.
(l) M. Executive represents acknowledges that in the course of his employment with the Company, he has gained knowledge and experience and/or was a witness to events and circumstances that may arise in the Company's defense or prosecution of subsequent proceedings. Executive agrees to cooperate fully with the Company, including without limitation providing truthful testimony, and to appear upon the Company's reasonable request as a witness and/or consultant in defending or prosecuting claims of all kinds, including but not limited to any litigation, administrative actions or arbitrations, at the Company's expense.
N. Executive shall be entitled to indemnification as provided for in ACSHI's articles of incorporation or bylaws and/or under the laws of Texas. Nothing herein shall affect Executive's coverage under the terms and conditions of any applicable Directors' and Officers' Liability Policy held by ACSHI, if any.
O. Executive acknowledges and agrees that he is entering into this Agreement freely and voluntarily. Executive has carefully read and understands all of the provisions of this Agreement. Executive understands that it this Agreement sets forth the entire agreement between himself him and the Company and he represents that no other statements, promises, or commitments of any kind, written or oral, have been made to him by the Company, or any of its agents, to cause him to accept it. Executive acknowledges that he has been advised to consult legal counsel concerning this Agreement prior to signing the Agreement, and that he has had sufficient opportunity to do so. Executive understands that he may have up to twenty-one (21) days from the date of his receipt of this letter Agreement to consider this Agreement. Executive understands that if he signs this Agreement, he will then have seven (7) days to cancel it if he so chooses. Executive may cancel this Agreement by delivering a written notice of cancellation to Cxxxx Xxxxxxxxxxxxxxx at 3 Xxxxxxxx Xxxxxthe Board of Directors, Xxxxx 0000American CareSource Holdings, XxxxxxxInc., Xxxxx 000000000 Xxxxxx X. Xxxxxxx Freeway, Suite 700, Dallas, Texas 75240. However, if Executive elects to cancel this Agreement, he understands that he will not be entitled to any of the Page 7 EXECUTIVE'S INITIALS _______________ HOUSTON: 100017.00001: 1186879v3 benefits, compensation, or other consideration referenced in this Agreement. Executive realizes understands and agrees that this Agreement is not effective or enforceable until the seven-day period expires without revocation. Executive understands that this Agreement will not become effective until the eighth day after he signs the Agreement without revocation (the “Effective Date”). Executive understands and agrees that CPT and CDI ACSHI will have no duty to pay him or provide him with the compensation, compensation and benefits and consideration listed in Section 2 and elsewhere in the Agreement II until the Effective Date of this Agreement.. Executive has read and acknowledged the press release attached as Exhibit B that is not subject to revision or edit by the executive. Page 8 EXECUTIVE'S INITIALS _______________ HOUSTON: 100017.00001: 1186879v3 I acknowledge acceptance of this Agreement by my signature below: Xxxxx Xxxxxxxxxxxx Date Agreed to and accepted on behalf of American CareSource Holdings, Inc.: By: /s/ Xxxxxx X. Xxxxxx Name: Xxxxxx Xxxxxx Title: Executive Chairman Date: July 12, 2007 Page 9 EXECUTIVE'S INITIALS _______________ HOUSTON: 100017.00001: 1186879v3 Date Split Adjusted* Granted Options Exercise Price Vested Options (1) Forfeited Options Grant 1 May 15, 2005 618,565 $0.31 435,288 183,277 Grant 2 May 15, 2005 112,466 $0.31 72,478 39,988 Grant 3 October 3, 2005 56,233 $0.49 31,241 24,993 * Adjusted for 1.124664 split (1) As of June 20, 2007
Appears in 1 contract
Samples: Separation Agreement (American Caresource Holdings, Inc.)
Restrictive Covenants and Miscellaneous Provisions. (a) Executive confirms that, while he understands that he has had such an obligation since he began his employment with the Company or any of the other Company Released Parties, he shall not disclose any of the trade secrets or other confidential or restricted information Confidential Information (as defined in the Noncompete Agreement) of CPT, CDI the Company or any of the other Company Released Parties and shall not make use of such trade secrets or confidential or restricted information Confidential Information in any fashion at any time, including in any future employment, work, task work or business.
(b) Executive shall agrees to comply at all times after the Effective Date of this Agreement date hereof with all the provisions of Section 9 of the Employment Agreement (including but not limited to Section 9(c), as amended and restated as set forth below), regardless of the nature of his separation, which provisions include covenants concerning the non-disclosure of confidential information, return of documents, and a prohibition on the inducement or employment of employees, agents, or consultants of the CompanyNoncompete Agreement. Executive acknowledges and agrees that Section 9 the Noncompete Agreement (i) prohibits Executive until the second anniversary of the Employment Agreement Termination Date from, among other things, (including but not limited to Section 9(cx) engaging in Competitive Activities (as defined in the Noncompete Agreement), as amended and restated as set forth below(y) encouraging, soliciting or inducing any employee of the Company to terminate such person's employment, and (ii) shall survive the separation of his employment, regardless of the separation reason reason, and shall survive the execution of this Agreement.
(c) The parties agree that Section 9(c) of the Employment Agreement is amended and restated to read in its entirety as follows to limit the scope of the restrictions on competitive employment: “Executive agrees that during the period commencing on the date hereof and ending twelve (12) months thereafter (the “Non-Competition Period”), absent CPT’s prior written approval, he will not, as owner, part-owner, shareholder, partner, director, principal, agent, employee, consultant or otherwise, directly or indirectly engage or participate in activities relating to, or render services to any publicly traded real estate investment trust listed on Exhibit C to this Agreement or their subsidiaries or affiliates (collectively, the “Selected REITs”); provided that Executive may make passive investments in a Selected REIT if Executive’s investment constitutes less than 2% of the total equity of such enterprise.”
(d) Executive understands and agrees that CPT and CDI the Company shall have the right to terminate the Installment Severance Payments and/or sxx Executive and may xxx him for breach of this Agreement if Executive violate he violates the provisions of Sections 4(b) the Noncompete Agreement or 4(c), or otherwise fail to comply in any material respect with this Agreement, in each case upon fifteen (15) days written notice from CPT; provided that Executive shall have a period of thirty (30) days after Executive receives such written notice to cure the same, and the Installment Severance Payments shall continue to be made during such period. Executive further acknowledges that but for his agreements to comply with his obligations described in this Section 4 Agreement and elsewhere in this the Noncompete Agreement, CPT the Company would not provide Executive him with the Installment Severance Payments or the other compensation, benefits and consideration set forth herein.
(d) The parties acknowledge and agree that (a) a breach of any material provision of this Agreement by the Company shall entitle Executive to terminate this Agreement and the Employment Agreement for Good Reason, in which event Executive shall be entitled to the payments and benefits set forth in Section 2 8(e) of the Employment Agreement, and elsewhere (b) a breach of any material provision of this Agreement by Executive shall entitle the Company to terminate this Agreement and the Employment Agreement for Cause, in this which event Executive shall be entitled to the payment set forth in Section 8(c)(ii) of the Employment Agreement.
(e) Executive warrants agrees that on or before the Termination Date he has returned, or will return promptly following his resignation, to CPT the Company all company of the Company's property in his possessionpossession (including originals and all copies), including, but not limited to, company files, work product, computer equipment, computer software, cell phones, pagers, corporate credit cards, identification cards, manuals, company documents and company keys. Executive further agrees to cooperate and work with the Vice President of Human Resources to ensure Executive’s compliance with this Section 4(e).
(f) Executive understands that the short-term disability and long-term disability insurance coverage provided by CPT or CDI, if any, will end on March 16, 2007. Executive also understands that CPT and CDI will not pay for any business-related or other charges incurred by him after March 16, 2007. Executive further understands that he will cease to accrue vacation time as of March 16, 2007.
(g) This Agreement does not constitute an admission of any kind by CPT or CDIthe Company, but is simply an accommodation that offers certain extra benefits to which Executive would, at least in part, would not otherwise be entitled in return for his agreeing to and signing this document.
(hg) The parties agree Executive agrees not to make any statements that disparage the reputation of one another, the Company or any of the other Company Released Parties Parties, or their properties or services. Any Executive agrees that any breach or violation of this non-disparagement provision shall entitle the other party Company to sxx under xxx him on this Agreement for the immediate recovery of any damages caused by such breach. The provisions of this Section 4(g) shall survive the separation of Executive's employment, regardless of the separation reason, and shall survive the execution of this Agreement. Nothing herein shall prevent Executive from providing truthful testimony under oath or to a government agency.
(h) The Company agrees not to make any statements that disparage the reputation of Executive. The Company agrees that any breach or violation of this non-disparagement provision shall entitle Executive to xxx the Company on this Agreement for the immediate recovery of any damages caused by such breach. The provisions of this Section 4(h) shall survive the separation of Executive's employment, regardless of the separation reason, and shall survive the execution of this Agreement. Nothing herein shall prevent any Company official from providing truthful testimony under oath or to a government agency.
(i) All payments and benefits under this Agreement are gross amounts and will be subject to taxes and lawful deductions, if any.
(j) The venue for the litigation of any dispute arising out of this Agreement shall be a court of competent jurisdiction in Hxxxxx Xxxxxx County, Texas. If either party files a lawsuit in state court arising out of this Agreement, the other party may remove the lawsuit to federal court to the extent jurisdiction exists. Texas law shall govern the interpretation and enforcement of this Agreement.
(k) The parties agree that if there is any conflict between this Capitalized terms used herein and any other agreement, then this document will controlnot otherwise defined shall the meanings assigned to such terms in the Employment Agreement.
(l) Executive represents that he is entering into this Agreement freely and voluntarily. Executive has carefully read and understands all of the provisions of this Agreement. Executive understands that it sets forth the entire agreement between himself Executive and the Company and he Executive represents that no other statements, promises, or commitments of any kind, written or oral, have been made to him Executive by the Company, or any of its agents, to cause him Executive to accept it. Executive acknowledges that he has been advised to consult legal counsel concerning this Agreement prior to signing the this Agreement, and that he has had sufficient opportunity to do so. Executive understands that he may have up to twenty-one (21) 21 days from the date of he received this letter Agreement to consider this Agreement. Executive understands that if he signs this Agreement, he will then have seven (7) days to cancel it if he so chooses. Executive may cancel this Agreement by delivering a written notice of cancellation to Cxxxx Xxxxxxxxxxxxxxx at 3 Xxxxxxxx XxxxxXxxxxxx X. Xxxxxxx, Xx., American Campus Communities, Inc., 00000 Xxxx Xxxxxxx Xxxx., Xxxxx 0000X-000, XxxxxxxXxxxxx, Xxxxx 00000. However, if Executive elects to cancel this Agreement, he Executive understands that he will not be entitled to any of the benefits, compensation, Separation Payment or other benefits or consideration referenced in this Agreement. Executive realizes this Agreement is not effective or enforceable until the seven-day period expires without revocation. Executive understands that this Agreement will not become effective or enforceable until the eighth day after he signs the this Agreement without revocation (the “"Effective Date”"). Executive understands that CPT and CDI the Company will have no duty to pay him or provide him with the compensation, Separation Payment or other benefits and or consideration listed described in Section 2 and elsewhere in the this Agreement until after the Effective Date of this AgreementDate.
Appears in 1 contract
Samples: Separation Agreement (American Campus Communities Operating Partnership LP)
Restrictive Covenants and Miscellaneous Provisions. (a) Executive confirms that, while he understands that he has had such an obligation since he began his employment with the Company or any of the other Company Released Parties, he shall not disclose any of the trade secrets or other confidential or restricted information Confidential Company Information (as defined in the Employment Agreement) of CPT, CDI the Company or any of the other Company Released Parties and shall not make use of such trade secrets or confidential or restricted information Confidential Company Information in any fashion at any time, including in any future employment, work, task work or business.
(b) Executive shall agrees to comply at all times after the Effective Date of this Agreement date hereof with all the provisions of Section 9 of the Employment Agreement (including but not limited to Section 9(c)that survive his termination of employment. Without limitation, as amended and restated as set forth below), regardless of the nature of his separation, which provisions include covenants concerning the non-disclosure of confidential information, return of documents, and a prohibition on the inducement or employment of employees, agents, or consultants of the Company. Executive acknowledges and agrees that Section 9 15 of the Employment Agreement (including but not limited to Section 9(ci) prohibits Executive until the first anniversary of the Termination Date from, among other things, (x) engaging in certain activities (as defined in the Employment Agreement), as amended and restated as set forth below(y) encouraging, soliciting or inducing any employee of the Company to terminate such person's employment, and (ii) shall survive the separation of his employment, regardless of the separation reason reason, and shall survive the execution of this Agreement.
(c) The parties agree that Section 9(c) of the Employment Agreement is amended and restated to read in its entirety as follows to limit the scope of the restrictions on competitive employment: “Executive agrees that during the period commencing on the date hereof and ending twelve (12) months thereafter (the “Non-Competition Period”), absent CPT’s prior written approval, he will not, as owner, part-owner, shareholder, partner, director, principal, agent, employee, consultant or otherwise, directly or indirectly engage or participate in activities relating to, or render services to any publicly traded real estate investment trust listed on Exhibit C to this Agreement or their subsidiaries or affiliates (collectively, the “Selected REITs”); provided that Executive may make passive investments in a Selected REIT if Executive’s investment constitutes less than 2% of the total equity of such enterprise.”
(d) Executive understands and agrees that CPT and CDI the Company shall have the right to terminate the Installment Severance Payments and/or sxx Executive and may sue him for breach of this Agreement if Executive violate he violates the provisions of Sections 4(b) the Employment Agreement or 4(c), or otherwise fail to comply in any material respect with this Agreement, in each case upon fifteen (15) days written notice from CPT; provided that Executive shall have a period of thirty (30) days after Executive receives such written notice to cure the same, and the Installment Severance Payments shall continue to be made during such period. Executive further acknowledges that but for his agreements to comply with his obligations described in this Section 4 Agreement and elsewhere in this the Employment Agreement, CPT the Company would not provide Executive him with the Installment Severance Payments or the other compensation, benefits and consideration set forth in Section 2 and elsewhere in this Agreementherein.
(e) Executive warrants that he has returned, or will return promptly following his resignation, to CPT all company property in his possession, including, but not limited to, company files, work product, computer equipment, computer software, cell phones, pagers, corporate credit cards, identification cards, manuals, company documents and company keys. Executive further agrees to cooperate and work with the Vice President of Human Resources to ensure Executive’s compliance with this Section 4(e).
(f) Executive understands that the short-term disability and long-term disability insurance coverage provided by CPT or CDI, if any, will end on March 16, 2007. Executive also understands that CPT and CDI will not pay for any business-related or other charges incurred by him after March 16, 2007. Executive further understands that he will cease to accrue vacation time as of March 16, 2007.
(gd) This Agreement does not constitute an admission of any kind by CPT or CDI, the Company but is simply an accommodation that offers certain extra the Executive the Consideration (which provides additional benefits to which Executive would, at least in part, he would not otherwise be entitled to receive) in return for his agreeing to to, signing and signing not revoking this document.
(he) The parties agree Executive agrees not to make any statements that disparage the reputation of one another, the Company or any of the other Company Released Parties Parties, or their properties or services. Any Executive agrees that any breach or violation of this non-disparagement provision shall entitle the other party Company to sxx under sue him on this Agreement for the immediate recovery of any damages caused by such breach. The provisions of this Section 4(e) shall survive the termination of Executive's employment, regardless of the separation reason, and shall survive the execution of this Agreement. Nothing herein shall prevent Executive from providing truthful testimony under oath or to a government agency.
(if) All payments and benefits under this Agreement are gross amounts and will be subject to taxes and lawful deductions, if any.
(jg) The venue for Capitalized terms used herein and not otherwise defined shall the litigation of any dispute arising out of this Agreement shall be a court of competent jurisdiction meanings assigned to such terms in Hxxxxx County, Texas. Texas law shall govern the interpretation and enforcement of this Employment Agreement.
(k) The parties agree that if there is any conflict between this and any other agreement, then this document will control.
(lh) Executive represents that he is entering into this Agreement freely and voluntarily. Executive has carefully read and understands all of the provisions of this Agreement. Executive understands that it sets forth the entire agreement between himself Executive and the Company and he Executive represents that no other statements, promises, or commitments of any kind, written or oral, have been made to him Executive by the Company, or any of its agents, to cause him Executive to accept it. Executive acknowledges that he has been advised to consult legal counsel concerning this Agreement prior to signing the this Agreement, and that he has had sufficient opportunity to do so. Executive understands that he may have up to twenty-one (21) 21 days from the date of he received this letter Agreement to consider this Agreement. Executive understands that if he signs this Agreement, he will then have seven (7) days to cancel revoke it if he so chooses. Executive may cancel revoke this Agreement by delivering a written notice of cancellation revocation to Cxxxx Xxxxxxxxxxxxxxx at 3 Xxxxxxxx XxxxxJxxxxxxx Xxxxxxx, Summit Hotel Properties, Inc., 10000 Xxx Xxxx Xxxxxxx, Xxxxx 0000X-000, XxxxxxxXxxxxx, Xxxxx 00000. However, if Executive elects to cancel revoke this Agreement, he Executive understands that he will not be entitled to any of the benefits, compensation, or other consideration Consideration referenced in this Agreement. Executive realizes this Agreement is not effective or enforceable until the seven-day period expires without revocation. Executive understands that this Agreement will not become effective or enforceable until the eighth day after he signs the this Agreement without revocation (the “"Effective Date”"). Executive understands that CPT and CDI the Company will have no duty to pay him or provide him with the compensation, benefits and or consideration listed described in Section 2 and elsewhere in the this Agreement until after the Effective Date Date.
(i) Sections 17, 18, 19 and 23 of the Employment Agreement are hereby incorporated into this Agreement, mutatis mutandis.
(j) This Agreement may be executed in two or more counterparts, each of which shall be deemed to constitute an original.
Appears in 1 contract
Samples: Separation Agreement (Summit Hotel Properties, Inc.)
Restrictive Covenants and Miscellaneous Provisions. (a) A. While Executive understands that he has had such an obligation since he began his employment with PMC or any of the Company Released Parties, he confirms that he shall not disclose any of the trade secrets or other confidential or restricted proprietary information of CPT, CDI PMC or any of the Company Released Parties and shall not make use of such trade secrets or confidential or restricted proprietary information in any fashion at any time, including in any future employment, worktask, task work or business.
(b) . Confidential or proprietary information shall not include information that is or becomes generally available to the public other than as a result of disclosure by the Executive shall or his representatives that Executive has no reason to believe was disclosed without authorization. Executive further agrees to comply at all times after the Effective Date of this Agreement with all provisions of Section 9 of his obligations under the Employment Agreement (including but not limited to Section 9(c), as amended and restated as set forth below), regardless and/or the common law that survives the termination of the nature of his separation, which provisions include covenants concerning the non-disclosure of confidential information, return of documents, and a prohibition on the inducement or Executive’s employment of employees, agents, or consultants of the Company. Executive acknowledges and agrees that Section 9 of and/or the Employment Agreement (including but not limited to Section 9(c), as amended and restated as set forth below) shall survive the separation of his employment, regardless of the separation reason and shall survive the execution of this Agreement.. /s/ asr EXECUTIVE'S INITIALS
(c) The parties agree that Section 9(c) of the Employment Agreement is amended and restated to read in its entirety as follows to limit the scope of the restrictions on competitive employment: “Executive agrees that during the period commencing on the date hereof and ending twelve (12) months thereafter (the “Non-Competition Period”), absent CPT’s prior written approval, he will not, as owner, part-owner, shareholder, partner, director, principal, agent, employee, consultant or otherwise, directly or indirectly engage or participate in activities relating to, or render services to any publicly traded real estate investment trust listed on Exhibit C to this Agreement or their subsidiaries or affiliates (collectively, the “Selected REITs”); provided that Executive may make passive investments in a Selected REIT if Executive’s investment constitutes less than 2% of the total equity of such enterprise.”
(d) B. Executive understands and agrees that CPT and CDI PMC shall have the right to and will terminate the Installment Severance Payments payments for the continued insurance benefits provided in Section II above, and/or sxx Executive xxx him for breach of this Agreement if Executive violate he violates the provisions of Sections 4(b) or 4(c)Section IV, or otherwise fail fails to comply in any material respect with this Agreement, in each case upon fifteen (15) days written notice from CPT; provided that Executive shall have a period of thirty (30) days after Executive receives such written notice to cure the same, and the Installment Severance Payments shall continue to be made during such period. Executive further acknowledges that but for his agreements to comply with his obligations described in this Section 4 IV and elsewhere in this Agreement, CPT PMC would not provide Executive him with the Installment Severance Payments or the other compensation, benefits and other consideration set forth in Section 2 II and elsewhere in this the Agreement.
(e) C. Executive warrants that he has returned, or will return promptly following his resignation, returned to CPT PMC all company property in his possession, including, but not limited to, originals and all copies of non-Board related company files, work product, confidential information, proprietary information, trade secrets or documents containing confidential, proprietary, and/or trade secret information, computer equipment, computer software, cell phones, pagers, personal data devices, corporate credit cards, identification cards, manuals, company documents and company keys. Executive further agrees to cooperate and work with the Vice President of Human Resources Chief Financial Officer to ensure Executive’s his compliance with this Section 4(eIV(C).
(f) D. Executive understands that the short-term disability and disability, long-term disability and life insurance coverage provided by CPT or CDIPMC, if any, will end terminate on March 16, 2007the Separation Date. Executive also understands that CPT and CDI PMC will not pay for any business-related or other charges incurred by him after March 16the Separation Date, 2007unless such expenses are expressly approved in advance by the Chief Financial Officer of PMC or provided for in the Consulting Agreement. Executive further understands that he will cease ceased to accrue vacation time as of March 16, 2007the Separation Date.
(g) This E. Executive acknowledges and agrees that this Agreement does not constitute an admission of any kind by CPT or CDIPMC, but is simply an accommodation that offers certain extra benefits to which Executive would, at least in part, he would not otherwise be entitled in return for his agreeing to and signing this document.
(h) The parties F. Executive agrees not to voluntarily make the terms and conditions or the circumstances surrounding this Agreement known to anyone other than an attorney and/or tax consultant from whom he receives counseling, or, if he is married, to his spouse, or except as otherwise required by law. Executive acknowledges that any such person must agree not to further disclose the terms of this Agreement.
G. PMC agrees not to make any statements statement that disparage disparages the reputation of one anotherExecutive or his services. Executive agrees not to make any statement that disparages the reputation of PMC, its executives, trust managers or employees, or any of the Released Parties or their properties or its services. Any Executive agrees that any breach or violation of this non-disparagement provision shall entitle PMC to terminate the other party to sxx under paid insurance benefits and/or xxx him on this Agreement for the immediate recovery of any damages caused by such breach.
(i) All payments and benefits under this Agreement are gross amounts and will be subject to taxes and lawful deductions, if any.
(j) H. The venue for the litigation of any dispute arising out of this Agreement shall be a court of competent jurisdiction in Hxxxxx Dallas County, Texas. Texas law shall govern the interpretation and enforcement If either party files a lawsuit in state court arising out of this Agreement, the other party may remove the lawsuit to federal court to the extent jurisdiction exists. This Agreement shall be governed by the laws of the State of Texas. /s/ asr EXECUTIVE'S INITIALS
I. All payments under this Agreement will be subject to taxes and lawful deductions, if any.
(k) The parties agree J. Executive acknowledges that if there in the course of his employment with the Company, he has gained knowledge and experience and/or was a witness to events and circumstances that may arise in the Company’s defense or prosecution of subsequent proceedings. Executive agrees to cooperate fully with the Company in the investigation, defense or prosecution of such proceedings, including without limitation providing truthful testimony and promptly meeting with the Company’s counsel at reasonable times upon their request. Executive further agrees to appear upon the Company’s reasonable request as a witness and/or consultant in defending or prosecuting claims of all kinds, including but not limited to any litigation, administrative actions or arbitrations, at the Company’s expense, which shall include payment of Executive’s reasonable attorneys’ fees incurred as a result of such appearance. To the extent he is any conflict between required to provide services pursuant to this and any other agreementSection IV(J), PMC agrees to compensate Executive for his time incurred, unless such time is incurred providing testimony in a deposition, hearing, trial or administrative action, either through the applicable payment provisions contained in the Consulting Agreement or otherwise at a reasonable rate consistent with the then this document will controlcurrent market.
(l) K. Executive represents acknowledges and agrees that he is entering into this Agreement freely and voluntarily. Executive has carefully read and understands all of the provisions of this Agreement. Executive understands that it this Agreement sets forth the entire agreement between himself him and the Company and he represents that no other statements, promises, or commitments of any kind, written or oral, have been made to him by the Company, or any of its agents, to cause him to accept it. Executive acknowledges that he has been advised to consult legal counsel concerning this Agreement prior to signing the Agreement, and that he has had sufficient opportunity to do so. Executive acknowledges and understands that the information contained on Attachment A hereto is being provided to him pursuant to the Older Workers’ Benefit Protection Act. Executive understands that he may have up to twentyforty-one five (2145) days from the date of his receipt of this letter Agreement to consider this Agreement. Executive understands that if he signs this Agreement, he will then have seven (7) days to cancel it if he so chooses. Executive may cancel this Agreement by delivering a written notice of cancellation to Cxxxx Xxxxxxxxxxxxxxx at 3 Xxxxxxxx Xxxxxthe Chief Financial Officer, PMC Commercial Trust, 00000 Xxxxxxx Xxxx, Xxxxx 0000#000, XxxxxxxXxxxxx, Xxxxx 00000. However, if Executive elects to cancel this Agreement, he understands that he will not be entitled to any of the benefits, compensation, or other consideration referenced in this Agreement; however, Executive’s cancellation of this agreement shall not constitute a waiver of any provision of the Employment Agreement. Executive realizes understands and agrees that this Agreement is not effective or enforceable until the seven-day period expires without revocation. Executive understands that this Agreement will not become effective until the eighth day after he signs the Agreement without revocation (the “Effective Date”). Executive understands and agrees that CPT and CDI PMC will have no duty to pay him or provide him with the compensation, compensation and benefits and consideration listed in Section 2 and elsewhere in the Agreement II until the Effective Date of this Agreement. /s/ asr EXECUTIVE'S INITIALS
L. PMC agrees that any breach or violation of this Agreement or the Consulting Agreement by Executive shall not give PMC the right to withhold payment of the lump sum payment pursuant to the first bullet point of Section II of this Agreement.
M. To the extent that any party has incurred legal fees or expenses in connection with the subject matter of this Agreement, each party shall bear the cost of his or its own legal fees and expenses, except as provided herein. In the event that either party materially breaches any provision of this Agreement, the prevailing party in any action to enforce this Agreement shall be entitled to payment of all reasonable legal fees and expenses incurred in the prosecution or defense of such an action, including costs of court.
Appears in 1 contract
Restrictive Covenants and Miscellaneous Provisions. (a) Executive confirms that, while he understands that he has had such an obligation since he began his employment with the Company or any of the other Company Released Parties, he shall not disclose any of the trade secrets or other confidential or restricted information Confidential Information (as defined in the Noncompete Agreement) of CPT, CDI the Company or any of the other Company Released Parties and shall not make use of such trade secrets or confidential or restricted information Confidential Information in any fashion at any time, including in any future employment, work, task work or business.
(b) Executive shall agrees to comply at all times after the Effective Date of this Agreement date hereof with all the provisions of Section 9 of the Employment Agreement (including but not limited to Section 9(c), as amended and restated as set forth below), regardless of the nature of his separation, which provisions include covenants concerning the non-disclosure of confidential information, return of documents, and a prohibition on the inducement or employment of employees, agents, or consultants of the CompanyNoncompete Agreement. Executive acknowledges and agrees that Section 9 the Noncompete Agreement (i) prohibits Executive until the second anniversary of the Employment Agreement Final Termination Date from, among other things, (including but not limited to Section 9(cx) engaging in Competitive Activities (as defined in the Noncompete Agreement), as amended and restated as set forth below(y) encouraging, soliciting or inducing any employee of the Company to terminate such person’s employment, and (ii) shall survive the separation of his employment, regardless of the separation reason reason, and shall survive the execution of this Agreement.
(c) The parties agree that Section 9(c) of the Employment Agreement is amended and restated to read in its entirety as follows to limit the scope of the restrictions on competitive employment: “Executive agrees that during the period commencing on the date hereof and ending twelve (12) months thereafter (the “Non-Competition Period”), absent CPT’s prior written approval, he will not, as owner, part-owner, shareholder, partner, director, principal, agent, employee, consultant or otherwise, directly or indirectly engage or participate in activities relating to, or render services to any publicly traded real estate investment trust listed on Exhibit C to this Agreement or their subsidiaries or affiliates (collectively, the “Selected REITs”); provided that Executive may make passive investments in a Selected REIT if Executive’s investment constitutes less than 2% of the total equity of such enterprise.”
(d) Executive understands and agrees that CPT and CDI the Company shall have the right to terminate the Installment Severance Payments and/or sxx Executive and may xxx him for breach of this Agreement if Executive violate he violates the provisions of Sections 4(b) the Noncompete Agreement or 4(c), or otherwise fail to comply in any material respect with this Agreement, in each case upon fifteen (15) days written notice from CPT; provided that Executive shall have a period of thirty (30) days after Executive receives such written notice to cure the same, and the Installment Severance Payments shall continue to be made during such period. Executive further acknowledges that but for his agreements to comply with his obligations described in this Section 4 Agreement and elsewhere in this the Noncompete Agreement, CPT the Company would not provide Executive him with the Installment Severance Payments or the other compensation, benefits and consideration set forth herein.
(d) The parties acknowledge and agree that (a) a breach of any material provision of this Agreement by the Company shall entitle Executive to terminate this Agreement and the Employment Agreement for Good Reason, in which event Executive shall be entitled to the payments and benefits set forth in Section 2 8(e) of the Employment Agreement, and elsewhere (b) a breach of any material provision of this Agreement by Executive shall entitle the Company to terminate this Agreement and the Employment Agreement for Cause, in this Agreementwhich event Executive shall be entitled to the payment set forth in Section 8(c)(ii) of the Employment Agreement (but no other payment or other benefits or consideration set forth herein).
(e) Executive warrants agrees that on or before the Final Termination Date he has returned, or will return promptly following his resignation, to CPT the Company all company of the Company’s property in his possessionpossession (including originals and all copies), including, but not limited to, company files, work product, computer equipment, computer software, cell phones, pagers, corporate credit cards, identification cards, manuals, company documents and company keys. Executive further agrees to cooperate and work with the Vice President of Human Resources to ensure Executive’s compliance with this Section 4(e).
(f) Executive understands that the short-term disability and long-term disability insurance coverage provided by CPT or CDI, if any, will end on March 16, 2007. Executive also understands that CPT and CDI will not pay for any business-related or other charges incurred by him after March 16, 2007. Executive further understands that he will cease to accrue vacation time as of March 16, 2007.
(g) This Agreement does not constitute an admission of any kind by CPT or CDIthe Company, but is simply an accommodation that offers certain extra benefits to which Executive would, at least in part, would not otherwise be entitled in return for his agreeing to and signing this document.
(hg) The parties agree Executive agrees not to make any statements that disparage the reputation of one another, the Company or any of the other Company Released Parties Parties, or their properties or services. Any Executive agrees that any breach or violation of this non-disparagement provision shall entitle the other party Company to sxx under xxx him on this Agreement for the immediate recovery of any damages caused by such breach. The provisions of this Section 4(g) shall survive the separation of Executive’s employment, regardless of the separation reason, and shall survive the execution of this Agreement. Nothing herein shall prevent Executive from providing truthful testimony under oath or to a government agency.
(h) The Company agrees not to make any statements that disparage the reputation of Executive. The Company agrees that any breach or violation of this non-disparagement provision shall entitle Executive to xxx the Company on this Agreement for the immediate recovery of any damages caused by such breach. The provisions of this Section 4(h) shall survive the separation of Executive’s employment, regardless of the separation reason, and shall survive the execution of this Agreement. Nothing herein shall prevent any Company official from providing truthful testimony under oath or to a government agency.
(i) All payments and benefits under this Agreement are gross amounts and will be subject to taxes and lawful deductions, if any.
(j) The venue for the litigation of any dispute arising out of this Agreement shall be a court of competent jurisdiction in Hxxxxx Xxxxxx County, Texas. If either party files a lawsuit in state court arising out of this Agreement, the other party may remove the lawsuit to federal court to the extent jurisdiction exists. Texas law shall govern the interpretation and enforcement of this Agreement.
(k) The parties agree that if there is any conflict between this Capitalized terms used herein and any other agreement, then this document will controlnot otherwise defined shall the meanings assigned to such terms in the Employment Agreement.
(l) Executive represents that he is entering into this Agreement freely and voluntarily. Executive has carefully read and understands all of the provisions of this Agreement. Executive understands that it sets forth the entire agreement between himself Executive and the Company and he Executive represents that no other statements, promises, or commitments of any kind, written or oral, have been made to him Executive by the Company, or any of its agents, to cause him Executive to accept it. Executive acknowledges that he has been advised to consult legal counsel concerning this Agreement prior to signing the this Agreement, and that he has had sufficient opportunity to do so. Executive understands that he may have up to twenty-one (21) 21 days from the date of he received this letter Agreement to consider this Agreement. Executive understands that if he signs this Agreement, he will then have seven (7) days to cancel it if he so chooses. Executive may cancel this Agreement by delivering a written notice of cancellation to Cxxxx Xxxxxxxxxxxxxxx at 3 Xxxxxxxx XxxxxXxxxxxx X. Xxxxxxx, Xx., American Campus Communities, Inc., 00000 Xxxx Xxxxxxx Xxxx., Xxxxx 0000X-000, XxxxxxxXxxxxx, Xxxxx 00000. However, if Executive elects to cancel this Agreement, he Executive understands that he will not be entitled to any of the benefits, compensation, Separation Payment or other benefits or consideration referenced in this Agreement. Executive realizes this Agreement is not effective or enforceable until the seven-day period expires without revocation. Executive understands that this Agreement will not become effective or enforceable until the eighth day after he signs the this Agreement without revocation (the “Effective Date”). Executive understands that CPT and CDI the Company will have no duty to pay him or provide him with the compensation, Separation Payment or other benefits and or consideration listed described in Section 2 and elsewhere in the this Agreement until after the Effective Date of this AgreementDate.
Appears in 1 contract
Samples: Separation Agreement (American Campus Communities Operating Partnership LP)
Restrictive Covenants and Miscellaneous Provisions. (a) Executive confirms that, while he understands that he has had such an obligation since he began his employment with the Company or any of the other Company Released Parties, he shall not disclose any of the trade secrets or other confidential or restricted information Confidential Information (as defined in the Noncompete Agreement) of CPT, CDI the Company or any of the other Company Released Parties and shall not make use of such trade secrets or confidential or restricted information Confidential Information in any fashion at any time, including in any future employment, work, task or business.
(b) Executive shall agrees that for one year following the Termination Date, Executive will comply at all times after with the Effective Date of this Agreement with all provisions of Section 9 Sections 4 (Non-Competition) and 5 (Non-Solicitation; Non-Interference) of the Employment Agreement (including but not limited to Section 9(c), as amended and restated as set forth below), regardless of the nature of his separation, which provisions include covenants concerning the non-disclosure of confidential information, return of documents, and a prohibition on the inducement or employment of employees, agents, or consultants of the CompanyNoncompete Agreement. Executive acknowledges and agrees that Section 9 of he will, at all times following the Employment Agreement (including but Termination Date, comply with all other post-employment obligations contained in the Noncompete Agreement. Notwithstanding the foregoing, Executive shall not limited to Section 9(c)be prohibited from soliciting, as amended and restated as set forth below) shall survive the separation of his employment, regardless of the separation reason and shall survive the execution of this Agreementrecruiting or hiring Debbie Elliot.
(c) The parties agree that Section 9(c) of the Employment Agreement is amended and restated to read in its entirety as follows to limit the scope of the restrictions on competitive employment: “Executive agrees that during the period commencing on the date hereof and ending twelve (12) months thereafter (the “Non-Competition Period”), absent CPT’s prior written approval, he will not, as owner, part-owner, shareholder, partner, director, principal, agent, employee, consultant or otherwise, directly or indirectly engage or participate in activities relating to, or render services to any publicly traded real estate investment trust listed on Exhibit C to this Agreement or their subsidiaries or affiliates (collectively, the “Selected REITs”); provided that Executive may make passive investments in a Selected REIT if Executive’s investment constitutes less than 2% of the total equity of such enterprise.”
(d) Executive understands and agrees that CPT and CDI agxxxx xxxx xxx Company shall have the right to terminate the Installment Severance Payments and/or sxx Executive and may sue him for breach of this Agreement contract if Executive violate he violates the provisions of Sections 4(b) the Xxxcompete Agreement or 4(c), or otherwise fail to comply in any material respect with this Agreement, in each case upon fifteen (15) days written notice from CPT; provided that Executive shall have a period of thirty (30) days after Executive receives such written notice to cure the same, and the Installment Severance Payments shall continue to be made during such period. Executive further acknowledges that but for his agreements to comply with his obligations described in this Section 4 Agreement and elsewhere in this the Noncompete Agreement, CPT the Company would not provide Executive him with the Installment Severance Payments or the other compensation, benefits Special Compensation and consideration Benefits set forth in Section 2 and elsewhere in this Agreement2.
(ed) Executive warrants agrees that on or before the Termination Date he has returned, or will return promptly following his resignation, to CPT the Company all company of the Company's property in his possession, including, but not limited to, company files, work product, computer equipment, computer software, cell phones, pagers, corporate credit cards, identification cards, manuals, company documents and company keys. Executive further agrees to cooperate and work with the Vice President of Human Resources to ensure Executive’s compliance with this Section 4(e).
(f) Executive understands that the short-term disability and long-term disability insurance coverage provided by CPT or CDI, if any, will end on March 16, 2007. Executive also understands that CPT and CDI will not pay for any business-related or other charges incurred by him after March 16, 2007. Executive further understands that he will cease to accrue vacation time as of March 16, 2007.
(ge) This Agreement does not constitute an admission of any kind by CPT the Company or CDI, but is simply an accommodation that offers certain extra benefits to which Executive would, at least in part, not otherwise be entitled in return for his agreeing to and signing this documentby Executive.
(hf) The parties agree Executive agrees not to make any statements that disparage the reputation of one another, the Company or any of the other Company Released Parties Parties, or their properties or services. Any Executive agrees that any breach or violation of this non-disparagement provision shall entitle the other party Company to sxx under sue him on this Agreement for the immediate recovery of any damages xxxsed by such breach.
(g) The Company agrees not to make any statements that disparage the reputation of Executive. The Company agrees that any breach or violation of this non-disparagement provision shall entitle Executive to sue the Company on this Agreement for the immediate recovery of any xxxages caused by such breach.
(ih) All payments and benefits under this Agreement are gross amounts and will be subject to taxes and lawful deductions, if any.
(ji) The venue for the litigation of any dispute arising out of this Agreement shall be a court of competent jurisdiction in Hxxxxx Travis County, Texas. If either party files a lawsuit in state court xxxxxng out of this Agreement, the other party may remove the lawsuit to federal court to the extent jurisdiction exists. Texas law shall govern the interpretation and enforcement of this Agreement
(j) The Company acknowledges and agrees that nothing in this Agreement shall be modify Executive's rights or the Company's obligations under the Indemnification Agreement, including without limitation the Company's obligation to use reasonable best efforts to acquire directors and officers liability insurance covering Executive or any claim made against Executive for his service as an officer or director of the Company.
(k) The parties agree that if there is any conflict between this Capitalized terms used herein and any other agreement, then this document will controlnot otherwise defined shall the meanings assigned to such terms in the Employment Agreement.
(l) Executive represents that he is entering into this Agreement freely and voluntarily. Executive has carefully read and understands understand all of the provisions of this Agreement. Executive understands that it sets forth the entire agreement between himself him and Company and he represents Executive represent that no other statements, promises, or commitments of any kind, written or oral, have been made to him by the Company, or any of its agents, to cause him to accept it. Executive acknowledges that he has been advised to consult legal counsel concerning this Agreement prior to signing the Agreement, and that he has had sufficient opportunity to do so. Executive understands that he may have up to twenty-one (21) 21 days from the date of this letter Agreement to consider this Agreement. Executive understands understand that if he signs this Agreement, he will then have seven (7) days to cancel it if he so chooses. Executive may cancel this Agreement by delivering a written notice of cancellation to Cxxxx Xxxxxxxxxxxxxxx William C. Bayless Jr. at 3 Xxxxxxxx XxxxxAmerican Campus Communities, Inc., 805 Las Xxxxx Xxxx., Xxxxx 0000000, XxxxxxxAustin, Xxxxx 00000TX 78746. However, if Executive elects to cancel this AgreementExecutxxx xxxxxx xx xxxxxx xxxx Xxxxxxxxx, he understands xx xxxxxxxxnds that he will not be entitled to any of the benefits, compensation, or other consideration referenced in this Agreement. Executive realizes this Agreement is not effective or enforceable until the seven-day period expires without revocation. Executive understands that this Agreement will not become effective until the eighth day after he signs the Agreement without revocation (the “Effective Date”)revocation. Executive understands that CPT and CDI the Company will have no duty to pay him Executive or provide him with the compensation, compensation and benefits and consideration listed in Section 2 and elsewhere in until the eighth day after he signs the Agreement until the Effective Date of this Agreementwithout revocation.
Appears in 1 contract
Samples: Separation Agreement (American Campus Communities Inc)
Restrictive Covenants and Miscellaneous Provisions. (a) Executive A. While I understand that I have had such an obligation since I began my employment with Sunset or any of the Released Parties, I confirm that I shall not disclose any of the trade secrets or other confidential or restricted information of CPT, CDI Sunset or any of the Released Parties and shall not make use of such trade secrets or confidential or restricted information in any fashion at any time, including in any future employment, work, task or business.
(b) Executive shall B. I agree to comply at all times after the Effective Date of this Agreement with all provisions of Section 9 of the Employment Agreement (including but not limited to Agreement, with the exception of Section 9(c), as amended and restated as set forth below9(b), regardless of the nature of his my separation, which provisions include covenants concerning the non-disclosure of confidential information, return of documents, information and a prohibition on the inducement or employment of employees, agents, or consultants of the Company. Executive acknowledges I acknowledge and agrees agree that Sections 9 (with the exception of Section 9 9(b)) and 10 of the Employment Agreement (including but not limited to Section 9(c), as amended and restated as set forth below) shall survive the separation of his my employment, regardless of the separation reason and shall survive the execution of this Agreement.
(c) The parties C. I understand and agree that Section 9(c) of the Employment Agreement is amended and restated to read in its entirety as follows to limit the scope of the restrictions on competitive employment: “Executive agrees that during the period commencing on the date hereof and ending twelve (12) months thereafter (the “Non-Competition Period”), absent CPT’s prior written approval, he will not, as owner, part-owner, shareholder, partner, director, principal, agent, employee, consultant or otherwise, directly or indirectly engage or participate in activities relating to, or render services to any publicly traded real estate investment trust listed on Exhibit C to this Agreement or their subsidiaries or affiliates (collectively, the “Selected REITs”); provided that Executive may make passive investments in a Selected REIT if Executive’s investment constitutes less than 2% of the total equity of such enterprise.”
(d) Executive understands and agrees that CPT and CDI Sunset shall have the right to and will terminate the Installment Severance Payments and/or sxx Executive xxx me for breach of this Agreement if Executive I violate the provisions of Sections 4(b) or 4(cSection IV(B), or otherwise fail to comply in any material respect with this Agreement, in each case upon fifteen (15) days written notice from CPT; provided that Executive shall have a period of thirty (30) days after Executive receives such written notice to cure the same, and the Installment Severance Payments shall continue to be made during such period. Executive I further acknowledges acknowledge that but for his my agreements to comply with his my obligations described in this Section 4 and elsewhere in this Agreement, CPT Sunset would not provide Executive me with the Installment Severance Payments or the other compensation, benefits and consideration set forth in Section 2 II.
D. The parties agree that Section 4 (Termination) of the Employment Agreement shall not apply to Executive’s separation and elsewhere in shall have no effect and be unenforceable as of the Effective Date of this Agreement.
(e) Executive warrants E. I warrant that he has returned, or will return promptly following his resignation, I have returned to CPT Sunset all company property in his my possession, including, but not limited to, originals and copies of all company files, work product, computer equipment, computer software, cell phones, pagers, corporate credit cards, identification cards, manuals, company documents and company keys. Executive I further agrees agree to cooperate and work with the Vice President of Human Resources Chief Operating Officer to ensure Executive’s my compliance with this Section 4(eIV(E).
(f) Executive understands F. I understand that the short-term disability and disability, long-term disability and life insurance coverage provided by CPT or CDISunset, if any, will end on March 16August 31, 20072005. Executive I also understands understand that CPT and CDI Sunset will not pay for any business-related or other charges incurred by him me after March 16August 31, 20072005, unless such expenses are expressly approved in advance by the President and Chief Operating Officer or the Board of Directors of Sunset. Executive I further understands understand that he I will cease to accrue vacation time as of March 16August 31, 20072005. Executive shall be paid for any accrued, unused vacation within fourteen (14) days after the Effective Date of this Agreement.
(g) G. This Agreement does not constitute an admission of any kind by CPT or CDISunset, but is simply an accommodation that offers certain extra benefits to which Executive would, at least in part, I would not otherwise be entitled in return for his my agreeing to and signing this document.
(h) The parties H. I agree not to voluntarily make the terms and conditions or the circumstances surrounding this Agreement known to anyone other than an attorney and/or tax consultant from whom I receive counseling, or, if I am married, to my spouse, or except as otherwise required by law. I acknowledge that any such person must agree not to further disclose the terms of this Agreement.
I. Sunset agrees not to voluntarily make the terms and conditions or the circumstances surrounding this Agreement known to anyone other than its attorneys and/or tax consultants from whom it receives counseling, or except as otherwise required by law or the rules of the New York Stock Exchange. J. I agree not to make any statements that disparage the reputation of one another, Sunset or any of the Released Parties Parties, or their properties or services. Any I further agree not to apply for or accept employment with Sunset at any time in the future. I further agree not to take any action to interfere with or damage the Company’s relationship with its vendors, lenders, brokers and/or clients. I agree that any breach or violation of this non-disparagement and non-interference provision shall entitle Sunset to terminate this Agreement, the other party to sxx under Installment Severance Payments and/or xxx me on this Agreement for the immediate recovery of any damages caused by such breach.
(i) All payments and benefits under K. Sunset agrees not to make any statements that disparage the reputation of Executive. Sunset agrees that any breach or violation of this non-disparagement provision shall entitle Executive to xxx Sunset on this Agreement for the immediate recovery of any damages caused by such breach.
L. The payments identified in Section II above are gross amounts and will be subject to taxes and lawful deductions, if any.
(j) M. I acknowledge that in the course of my employment with the Company, I have gained knowledge and experience and/or was a witness to events and circumstances that may arise in the Company’s defense or prosecution of subsequent proceedings. I agree to cooperate fully with the Company, including without limitation providing truthful testimony, and to appear upon the Company’s reasonable request as a witness and/or consultant in defending or prosecuting claims of all kinds, including but not limited to any litigation, administrative actions or arbitrations, at the Company’s expense.
N. The venue for the litigation of any dispute arising out of this Agreement shall be a court of competent jurisdiction in Hxxxxx Xxxxx County, TexasFlorida. Texas If either party files a lawsuit in state court arising out of this Agreement, the other party may remove the lawsuit to federal court to the extent jurisdiction exists. Florida law shall govern the interpretation and enforcement of this Agreement.
(k) The parties agree that if there is any conflict between this and any other agreement, then this document will control.
(l) Executive represents that he is O. I am entering into this Agreement freely and voluntarily. Executive has I have carefully read and understands understand all of the provisions of this Agreement. Executive understands I understand that it sets forth the entire agreement between himself me and the Company and he represents I represent that no other statements, promises, or commitments of any kind, written or oral, have been made to him me by the Company, or any of its agents, to cause him me to accept it. Executive acknowledges I acknowledge that he has I have been advised to consult legal counsel concerning this Agreement prior to signing the Agreement, and that he has I have had sufficient opportunity to do so. Executive understands I understand that he I may have up to twenty-one (21) days from the date of this letter to consider this Agreement. Executive understands I understand that if he signs I sign this Agreement, he I will then have seven (7) days to cancel it if he I so chooseschoose. Executive I may cancel this Agreement by delivering a written notice of cancellation to Cxxxx Xxxxxxxxxxxxxxx at 3 Xxxxxxxx Xxxxxthe Board of Directors, Xxxxx 0000Sunset Financial Resources, Inc., 00000 Xxxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxxxx, Xxxxxxx 00000. However, if Executive elects I elect to cancel this Agreement, he understands he I understand I will not be entitled to any of the benefits, compensation, or other consideration referenced in this Agreement. Executive realizes I realize this Agreement is not effective or enforceable until the seven-day period expires without revocation. Executive understands I understand that this Agreement will not become effective until the eighth day after he signs I sign the Agreement without revocation (the “Effective Date”). Executive understands I understand that CPT and CDI Sunset will have no duty to pay him me or provide him me with the compensation, compensation and benefits and consideration listed in Section 2 and elsewhere in the Agreement II until the Effective Date of this Agreement.
Appears in 1 contract
Samples: Separation Agreement (Sunset Financial Resources Inc)
Restrictive Covenants and Miscellaneous Provisions. (a) Executive confirms that, while he understands that he has had such an obligation since he began his employment with the Company or any of the other Company Released Parties, he shall not disclose any of the trade secrets or other confidential or restricted information Confidential Information (as defined in the Noncompete Agreement) of CPT, CDI the Company or any of the other Company Released Parties and shall not make use of such trade secrets or confidential or restricted information Confidential Information in any fashion at any time, including in any future employment, work, task work or business.
(b) Executive shall agrees to comply at all times after the Effective Termination Date of this Agreement with all the provisions of Section 9 of the Employment Agreement (including but not limited to Section 9(c), as amended and restated as set forth below), regardless of the nature of his separation, which provisions include covenants concerning the non-disclosure of confidential information, return of documents, and a prohibition on the inducement or employment of employees, agents, or consultants of the CompanyNoncompete Agreement. Executive acknowledges and agrees that Section 9 the Noncompete Agreement (i) prohibits Executive until the second anniversary of the Employment Agreement Termination Date from, among other things, (including but not limited to Section 9(cx) engaging in Competitive Activities (as defined in the Noncompete Agreement), as amended and restated as set forth below(y) encouraging, soliciting or inducing any employee of the Company to terminate such person’s employment, and (ii) shall survive the separation of his employment, regardless of the separation reason reason, and shall survive the execution of this Agreement.
(c) The parties agree that Section 9(c) of the Employment Agreement is amended and restated to read in its entirety as follows to limit the scope of the restrictions on competitive employment: “Executive agrees that during the period commencing on the date hereof and ending twelve (12) months thereafter (the “Non-Competition Period”), absent CPT’s prior written approval, he will not, as owner, part-owner, shareholder, partner, director, principal, agent, employee, consultant or otherwise, directly or indirectly engage or participate in activities relating to, or render services to any publicly traded real estate investment trust listed on Exhibit C to this Agreement or their subsidiaries or affiliates (collectively, the “Selected REITs”); provided that Executive may make passive investments in a Selected REIT if Executive’s investment constitutes less than 2% of the total equity of such enterprise.”
(d) Executive understands and agrees that CPT and CDI the Company shall have the right to terminate the Installment Severance Payments and/or sxx Executive and may xxx him for breach of this Agreement if Executive violate he violates the provisions of Sections 4(b) the Noncompete Agreement or 4(c), or otherwise fail to comply in any material respect with this Agreement, in each case upon fifteen (15) days written notice from CPT; provided that Executive shall have a period of thirty (30) days after Executive receives such written notice to cure the same, and the Installment Severance Payments shall continue to be made during such period. Executive further acknowledges that but for his agreements to comply with his obligations described in this Section 4 Agreement and elsewhere in this the Noncompete Agreement, CPT the Company would not provide Executive him with the Installment Severance Payments or the other compensation, benefits and consideration set forth herein.
(d) The parties acknowledge and agree that (a) a breach of any material provision of this Agreement by the Company shall entitle Executive to terminate this Agreement and the Employment Agreement for Good Reason, in which event Executive shall be entitled to the payments and benefits set forth in Section 2 8(e) of the Employment Agreement, and elsewhere (b) a breach of any material provision of this Agreement by Executive shall entitle the Company to terminate this Agreement and the Employment Agreement for Cause, in this which event Executive shall be entitled to the payment set forth in Section 8(c)(ii) of the Employment Agreement.
(e) Executive warrants agrees that on or before the Termination Date he has returned, or will return promptly following his resignation, to CPT the Company all company of the Company’s property in his possessionpossession (including originals and all copies), including, but not limited to, company files, work product, computer equipment, computer software, cell phones, pagers, corporate credit cards, identification cards, manuals, company documents and company keys. Executive further agrees , except as may be required to cooperate and work with perform his duties as a member of the Vice President of Human Resources to ensure Executive’s compliance with this Section 4(e)Board.
(f) Executive understands that the short-term disability and long-term disability insurance coverage provided by CPT or CDI, if any, will end on March 16, 2007. Executive also understands that CPT and CDI will not pay for any business-related or other charges incurred by him after March 16, 2007. Executive further understands that he will cease to accrue vacation time as of March 16, 2007.
(g) This Agreement does not constitute an admission of any kind by CPT or CDI, but is simply an accommodation that offers certain extra benefits to which Executive would, at least in part, not otherwise be entitled in return for his agreeing to and signing this documentthe Company.
(hg) The parties agree Executive agrees not to make any statements that disparage the reputation of one another, the Company or any of the other Company Released Parties Parties, or their properties or services. Any Executive agrees that any breach or violation of this non-disparagement provision shall entitle the other party Company to sxx under xxx him on this Agreement for the immediate recovery of any damages caused by such breach.
(h) The Company agrees not to make any statements that disparage the reputation of Executive. The Company agrees that any breach or violation of this non-disparagement provision shall entitle Executive to xxx the Company on this Agreement for the immediate recovery of any damages caused by such breach.
(i) All payments and benefits under this Agreement are gross amounts and will be subject to taxes and lawful deductions, if any.
(j) The venue for the litigation of any dispute arising out of this Agreement shall be a court of competent jurisdiction in Hxxxxx Xxxxxx County, Texas. If either party files a lawsuit in state court arising out of this Agreement, the other party may remove the lawsuit to federal court to the extent jurisdiction exists. Texas law shall govern the interpretation and enforcement of this Agreement.
(k) The parties agree that if there is any conflict between this Capitalized terms used herein and any other agreement, then this document will controlnot otherwise defined shall the meanings assigned to such terms in the Employment Agreement.
(l) Executive represents that he is entering into this Agreement freely and voluntarily. Executive has carefully read and understands understand all of the provisions of this Agreement. Executive understands that it sets forth the entire agreement between himself him and Company and he represents Executive represent that no other statements, promises, or commitments of any kind, written or oral, have been made to him by the Company, or any of its agents, to cause him to accept it. Executive acknowledges that he has been advised to consult legal counsel concerning this Agreement prior to signing the Agreement, and that he has had sufficient opportunity to do so. Executive understands that he may have up to twenty-one (21) days from the date of this letter to consider this Agreement. Executive understands that if he signs this Agreement, he will then have seven (7) days to cancel it if he so chooses. Executive may cancel this Agreement by delivering a written notice of cancellation to Cxxxx Xxxxxxxxxxxxxxx at 3 Xxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000. However, if Executive elects to cancel this Agreement, he understands he will not be entitled to any of the benefits, compensation, or other consideration referenced in this Agreement. Executive realizes this Agreement is not effective or enforceable until the seven-day period expires without revocation. Executive understands understand and agrees that this Agreement will not become effective or enforceable until the eighth day after he signs the Agreement without revocation (the “Effective Date”). Executive understands that CPT and CDI the Company will have no duty to pay him Executive or provide him with the compensation, benefits benefits, and consideration listed in Section 2 and elsewhere in the this Agreement until the Effective Date of this AgreementDate.
Appears in 1 contract
Samples: Separation Agreement (American Campus Communities Inc)
Restrictive Covenants and Miscellaneous Provisions. (a) Executive A. While I understand that I have had such an obligation since I began my employment with Sunset or any of the Released Parties, I confirm that I shall not disclose any of the trade secrets or other confidential or restricted information of CPT, CDI Sunset or any of the Released Parties and shall not make use of such trade secrets or confidential or restricted information in any fashion at any time, including in any future employment, worktask, task work or business. For purposes of this provision, “confidential or restricted information” shall have the same definition as Confidential Information under the Employment Agreement between the parties and shall not include information in the public domain, whether previously disclosed by Sunset or by a third party not due to the actions of Executive.
(b) Executive shall B. I agree to comply at all times after the Effective Date of this Agreement with all provisions of Section 9 of the Employment Agreement (including but not limited to Section 9(c), as amended and restated as set forth below)Agreement, regardless of the nature of his my separation, which provisions include covenants concerning the non-disclosure of confidential information, return of documents, and a prohibition on the inducement or employment of employees, agents, or consultants of the CompanyCompany and a non-competition covenant. Executive acknowledges I acknowledge and agrees agree that Section Sections 9 and 10 of the Employment Agreement (including but not limited to Section 9(c), as amended and restated as set forth below) shall survive the separation of his my employment, regardless of the separation reason and shall survive the execution of this Agreement.
(c) The parties C. I understand and agree that Section 9(c) of the Employment Agreement is amended and restated to read in its entirety as follows to limit the scope of the restrictions on competitive employment: “Executive agrees that during the period commencing on the date hereof and ending twelve (12) months thereafter (the “Non-Competition Period”), absent CPT’s prior written approval, he will not, as owner, part-owner, shareholder, partner, director, principal, agent, employee, consultant or otherwise, directly or indirectly engage or participate in activities relating to, or render services to any publicly traded real estate investment trust listed on Exhibit C to this Agreement or their subsidiaries or affiliates (collectively, the “Selected REITs”); provided that Executive may make passive investments in a Selected REIT if Executive’s investment constitutes less than 2% of the total equity of such enterprise.”
(d) Executive understands and agrees that CPT and CDI Sunset shall have the right to and will terminate the Installment Severance Payments Payments, and/or sxx Executive payment for the continued insurance benefits provided in Section II(B) above, and/or xxx me for breach of this Agreement if Executive I violate the provisions of Sections 4(b) or 4(cSection IV(B), or otherwise fail to comply in any material respect with this Agreement, in each case upon fifteen (15) days written notice from CPT; provided that Executive shall have a period of thirty (30) days after Executive receives such written notice to cure the same, and the Installment Severance Payments shall continue to be made during such period. Executive I further acknowledges acknowledge that but for his my agreements to comply with his my obligations described in this Section 4 and elsewhere in this Agreement, CPT Sunset would not provide Executive me with the Installment Severance Payments or the other compensation, benefits and other consideration set forth in Section 2 II and elsewhere in the Agreement. The parties agree that, in the event a court determines that Sunset wrongfully terminated Executive’s benefits under this Agreement, Sunset agrees to reimburse Executive for any attorneys’ fees incurred in prosecuting an action against Sunset to challenge such termination of benefits.
D. The parties agree that Sections 4 (Termination) and 8 (Compensation Upon Termination or Change of Control) of the Employment Agreement shall not apply to Executive’s separation and shall have no effect and be unenforceable as of the Effective Date of this Agreement.
(e) Executive warrants E. I warrant that he has I have returned, or will return promptly following his resignationby the Separation Date, to CPT Sunset all company property in his my possession, including, but not limited to, originals and all copies of company files, work product, computer equipment, computer software, cell phones, pagers, corporate credit cards, identification cards, manuals, company documents and company keys. Executive I further agrees agree to cooperate and work with the Vice President of Human Resources Chief Financial Officer to ensure Executive’s my compliance with this Section 4(eIV(E).
(f) Executive understands F. I understand that the short-term disability and disability, long-term disability and life insurance coverage provided by CPT or CDISunset, if any, will end on March 16July 14, 20072006. Executive I also understands understand that CPT and CDI Sunset will not pay for any business-related or other charges incurred by him me after March 16July 14, 20072006, unless such expenses are expressly approved in advance by the Chief Financial Officer or Board of Directors of Sunset. Executive I further understands understand that he I will cease to accrue vacation time as of March 16July 14, 20072006. Executive shall be paid by Sunset for any accrued, unused vacation within fourteen (14) days after the Effective Date of this Agreement.
(g) G. This Agreement does not constitute an admission of any kind by CPT or CDISunset, but is simply an accommodation that offers certain extra benefits to which Executive would, at least in part, I would not otherwise be entitled in return for his my agreeing to and signing this document.
(h) The parties H. I agree not to voluntarily make the terms and conditions or the circumstances surrounding this Agreement known to anyone other than an attorney and/or tax consultant from whom I receive counseling, or, if I am married, to my spouse, or except as otherwise required by law. I acknowledge that any such person must agree not to further disclose the terms of this Agreement.
I. Sunset agrees not to voluntarily make the terms and conditions or the circumstances surrounding this Agreement known to anyone other than its attorneys and/or tax consultants from whom it receives counseling, or except as otherwise required by law or the rules of the New York Stock Exchange.
J. I agree not to make any statements that disparage the reputation of one another, Sunset or any of the Released Parties Parties, or their properties or services. Any I further agree not to take any action to interfere with or damage the Company’s relationship with its vendors, lenders, brokers and/or clients. I agree that any breach or violation of this non-disparagement and non-interference provision shall entitle the other party Sunset to sxx under xxx me on this Agreement for the immediate recovery of any damages caused by such breach.
(i) All payments and benefits under K. Sunset agrees not to make any statements that disparage the reputation of Executive. Sunset agrees that any breach or violation of this non-disparagement provision shall entitle Executive to xxx Sunset on this Agreement for the immediate recovery of any damages caused by such breach.
L. For a period of one year after the Separation Date, I agree not to voluntarily speak to the press or Sunset’s material shareholders about the business affairs of Sunset. I agree that any breach of this provision shall allow Sunset to terminate its obligations under Section II hereof. Sunset agrees that any response to the press or Sunset’s material shareholders by Xxxxxx to the effect of “no comment” or “I no longer work for Sunset and it would be inappropriate for me to comment” would not be considered a breach of this provision.
M. The severance payments identified in Section II above are gross amounts and will be subject to taxes and lawful applicable payroll tax deductions, if any.
(j) N. I acknowledge that in the course of my employment with the Company, I have gained knowledge and experience and/or was a witness to events and circumstances that may arise in the Company’s defense or prosecution of subsequent proceedings. I agree to cooperate fully with the Company, including without limitation providing truthful testimony, and to appear upon the Company’s reasonable request as a witness and/or consultant in defending or prosecuting claims of all kinds, including but not limited to any litigation, administrative actions or arbitrations, at the Company’s expense.
O. Executive shall be entitled to indemnification and defense by Sunset for acts or omissions which occurred while Executive was an officer and/or director of Sunset as provided for in Sunset’s declaration of trust, articles of amendment or bylaws, Sunset’s Directors and Officers Liability Insurance Policy and to the maximum extent permissible under the laws of Florida. Nothing herein shall adversely affect Executive’s coverage under the terms and conditions of any applicable Directors’ and Officers’ Liability Insurance Policy held by Sunset.
P. The venue for the litigation of any dispute arising out of this Agreement shall be a court of competent jurisdiction in Hxxxxx Xxxxx County, TexasFlorida. Texas If either party files a lawsuit in state court arising out of this Agreement, the other party may remove the lawsuit to federal court to the extent jurisdiction exists. Florida law shall govern the interpretation and enforcement of this Agreement.
Q. Commencing on the Separation Date and expiring on the second anniversary thereof (kthe “Standstill Period”), I will not, directly or indirectly, acquire any amount of any class of Sunset’s voting securities, whether in open market purchases or otherwise. This Standstill Period and this provision shall not apply to the exercise and sale of the stock options referenced in Section I(D) The parties agree above. During the Standstill Period, I will not directly or indirectly, either personally or as part of a group (for purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), (a) initiate any offer for tenders of voting securities of Sunset that if there is could result in my acquisition of any conflict between this and amount of any class of Sunset’s voting securities or (b) present to Sunset’s stockholders or board of directors any proposal for a merger or other agreementform of acquisition or consolidation that previously had not been approved in writing by Sunset’s Chairman of the Board of Directors nor, then this document will controlwithout Sunset’s prior written consent, solicit proxies or submit a proposal required to be included in Sunset’s proxy statement pursuant to Rule 14a-8 promulgated under the Exchange Act.
(l) Executive represents that he is R. I am entering into this Agreement freely and voluntarily. Executive has I have carefully read and understands understand all of the provisions of this Agreement. Executive understands I understand that it sets forth the entire agreement between himself me and the Company and he represents I represent that no other statements, promises, or commitments of any kind, written or oral, have been made to him me by the Company, or any of its agents, to cause him me to accept it. Executive acknowledges I acknowledge that he has I have been advised to consult legal counsel concerning this Agreement prior to signing the Agreement, and that he has I have had sufficient opportunity to do so. Executive understands I understand that he I may have up to twenty-one (21) days from the date of this letter to consider this Agreement. Executive understands I understand that if he signs I sign this Agreement, he I will then have seven (7) days to cancel it if he I so chooseschoose. Executive I may cancel this Agreement by delivering a written notice of cancellation to Cxxxx Xxxxxxxxxxxxxxx at 3 Xxxxxxxx Xxxxxthe Board of Directors, Xxxxx 0000Sunset Financial Resources, Inc., 00000 Xxxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxxxx, Xxxxxxx 00000. However, if Executive elects I elect to cancel this Agreement, he understands he I understand I will not be entitled to any of the benefits, compensation, or other consideration referenced in this Agreement. Executive realizes I realize this Agreement is not effective or enforceable until the seven-day period expires without revocation. Executive understands that this Agreement will not become effective until the eighth day after he signs the Agreement without revocation (the “Effective Date”). Executive understands that CPT and CDI will have no duty to pay him or provide him with the compensation, benefits and consideration listed in Section 2 and elsewhere in the Agreement until the Effective Date of this Agreement.effective
Appears in 1 contract
Samples: Separation Agreement (Sunset Financial Resources Inc)
Restrictive Covenants and Miscellaneous Provisions. (a) Executive confirms that, while he understands that he has had such an obligation since he began his employment with the Company or any of the other Company Released Parties, he shall not disclose any of the trade secrets or other confidential or restricted information Confidential Company Information (as defined in the Employment Agreement) of CPT, CDI the Company or any of the other Company Released Parties and shall not make use of such trade secrets or confidential or restricted information Confidential Company Information in any fashion at any time, including in any future employment, work, task work or business.
(b) Executive shall agrees to comply at all times after the Effective date hereof and until the Termination Date of this Agreement with all the provisions of Section 9 of the Employment Agreement (including but not limited to Section 9(c), as amended and restated as set forth below), regardless of the nature of his separation, which provisions include covenants concerning the non-disclosure of confidential information, return of documents, and a prohibition on the inducement or employment of employees, agents, or consultants of the CompanyAgreement. Executive acknowledges and agrees that Section 9 15 of the Employment Agreement (including but not limited to Section 9(ci) prohibits Executive until the first anniversary of the Termination Date from, among other things, (x) engaging in certain activities (as defined in the Employment Agreement), as amended and restated as set forth below(y) encouraging, soliciting or inducing any employee of the Company to terminate such person's employment, and (ii) shall survive the separation of his employment, regardless of the separation reason reason, and shall survive the execution of this Agreement.
(c) The parties agree that Section 9(c) of the Employment Agreement is amended and restated to read in its entirety as follows to limit the scope of the restrictions on competitive employment: “Executive agrees that during the period commencing on the date hereof and ending twelve (12) months thereafter (the “Non-Competition Period”), absent CPT’s prior written approval, he will not, as owner, part-owner, shareholder, partner, director, principal, agent, employee, consultant or otherwise, directly or indirectly engage or participate in activities relating to, or render services to any publicly traded real estate investment trust listed on Exhibit C to this Agreement or their subsidiaries or affiliates (collectively, the “Selected REITs”); provided that Executive may make passive investments in a Selected REIT if Executive’s investment constitutes less than 2% of the total equity of such enterprise.”
(d) Executive understands and agrees that CPT and CDI the Company shall have the right to terminate the Installment Severance Payments and/or and may sxx Executive him for breach of this Agreement if Executive violate he violates the provisions of Sections 4(b) the Employment Agreement or 4(c), or otherwise fail to comply in any material respect with this Agreement, in each case upon fifteen (15) days written notice from CPT; provided that Executive shall have a period of thirty (30) days after Executive receives such written notice to cure the same, and the Installment Severance Payments shall continue to be made during such period. Executive further acknowledges that but for his agreements to comply with his obligations described in this Section 4 Agreement and elsewhere in this the Employment Agreement, CPT the Company would not provide Executive him with the Installment Severance Payments or the other compensation, benefits and consideration set forth in Section 2 and elsewhere in this Agreementherein.
(e) Executive warrants that he has returned, or will return promptly following his resignation, to CPT all company property in his possession, including, but not limited to, company files, work product, computer equipment, computer software, cell phones, pagers, corporate credit cards, identification cards, manuals, company documents and company keys. Executive further agrees to cooperate and work with the Vice President of Human Resources to ensure Executive’s compliance with this Section 4(e).
(f) Executive understands that the short-term disability and long-term disability insurance coverage provided by CPT or CDI, if any, will end on March 16, 2007. Executive also understands that CPT and CDI will not pay for any business-related or other charges incurred by him after March 16, 2007. Executive further understands that he will cease to accrue vacation time as of March 16, 2007.
(gd) This Agreement does not constitute an admission of any kind by CPT or CDIthe Company, but is simply an accommodation that offers certain extra the Executive the Consideration (which provides additional benefits to which Executive would, at least in part, he would not otherwise be entitled to receive) in return for his agreeing to to, signing and signing not revoking this documentdocument and the Supplemental Release.
(he) The parties agree Executive agrees not to make any statements that disparage the reputation of one another, the Company or any of the other Company Released Parties Parties, or their properties or services. Any Executive agrees that any breach or violation of this non-disparagement provision shall entitle the other party Company to sxx under him on this Agreement for the immediate recovery of any damages caused by such breach. The provisions of this Section 4(e) shall survive the termination of Executive's employment, regardless of the separation reason, and shall survive the execution of this Agreement. Nothing herein shall prevent Executive from providing truthful testimony under oath or to a government agency.
(if) The Company agrees to instruct its executives, employees and directors to not to make any statements that disparage the reputation of Executive. The Company agrees that any breach or violation of this non-disparagement provision shall entitle Executive to sxx the Company on this Agreement for the immediate recovery of any damages caused by such breach. The provisions of this Section 4(f) shall survive the termination of Executive's employment, regardless of the separation reason, and shall survive the execution of this Agreement. Nothing herein shall prevent any Company official from providing truthful testimony under oath or to a government agency.
(g) All payments and benefits under this Agreement are gross amounts and will be subject to taxes and lawful deductions, if any.
(jh) The venue for the litigation of any dispute arising out of this Agreement shall be a court of competent jurisdiction in Hxxxxx Txxxxx County, Texas. If either party files a lawsuit in state court arising out of this Agreement, the other party may remove the lawsuit to federal court to the extent jurisdiction exists. Texas law shall govern the interpretation and enforcement of this Agreement.
(ki) The parties agree that if there is any conflict between this Capitalized terms used herein and any other agreement, then this document will controlnot otherwise defined shall the meanings assigned to such terms in the Employment Agreement.
(lj) Executive represents that he is entering into this Agreement freely and voluntarily. Executive has carefully read and understands all of the provisions of this Agreement. Executive understands that it sets forth the entire agreement between himself Executive and the Company and he Executive represents that no other statements, promises, or commitments of any kind, written or oral, have been made to him Executive by the Company, or any of its agents, to cause him Executive to accept it. Executive acknowledges that he has been advised to consult legal counsel concerning this Agreement prior to signing the this Agreement, and that he has had sufficient opportunity to do so. Executive understands that he may have up to twenty-one (21) 21 days from the date of he received this letter Agreement to consider this Agreement. Executive understands that if he signs this Agreement, he will then have seven (7) days to cancel revoke it if he so chooses. Executive may cancel revoke this Agreement by delivering a written notice of cancellation revocation to Cxxxx Xxxxxxxxxxxxxxx at 3 Xxxxxxxx XxxxxDxxxxx Xxxxxx, Summit Hotel Properties, Inc., 10000 Xxx Xxxx Xxxxxxx, Xxxxx 0000X-000, XxxxxxxXxxxxx, Xxxxx 00000. However, if Executive elects to cancel revoke this Agreement, he Executive understands that he will not be entitled to any of the benefits, compensation, or other consideration Consideration referenced in this Agreement. Executive realizes this Agreement is not effective or enforceable until the seven-day period expires without revocation. Executive understands that this Agreement will not become effective or enforceable until the eighth day after he signs the this Agreement without revocation (the “"Effective Date”"). Executive understands that CPT and CDI the Company will have no duty to pay him or provide him with the compensation, benefits and or consideration listed described in Section 2 and elsewhere in the this Agreement until after the Effective Date of this AgreementDate.
Appears in 1 contract
Samples: Separation Agreement (Summit Hotel Properties, Inc.)
Restrictive Covenants and Miscellaneous Provisions. (a) Executive A. While I understand that I have had such an obligation since I began my employment with Sunset or any of the Released Parties, I confirm that I shall not disclose any of the trade secrets or other confidential or restricted information of CPT, CDI Sunset or any of the Released Parties and shall not make use of such trade secrets or confidential or restricted information in any fashion at any time, including in any future employment, worktask, task work or business.
(b) Executive shall B. I agree to comply at all times after the Effective Separation Date of this Agreement with all provisions of Section 9 of the Employment Agreement (including but not limited to Agreement, with the exception of Section 9(c), as amended and restated as set forth below9(b), regardless of the nature of his my separation, which provisions include covenants concerning the non-disclosure of confidential information, return of documents, information and a prohibition on the inducement or employment of employees, agents, or consultants of the Company. Executive acknowledges I acknowledge and agrees agree that Sections 9 (with the exception of Section 9 9(b)) and 10 of the Employment Agreement (including but not limited to Section 9(c), as amended and restated as set forth below) shall survive the separation of his my employment, regardless of the separation reason and shall survive the execution of this Agreement.
(c) The parties C. I understand and agree that Section 9(c) of the Employment Agreement is amended and restated to read in its entirety as follows to limit the scope of the restrictions on competitive employment: “Executive agrees that during the period commencing on the date hereof and ending twelve (12) months thereafter (the “Non-Competition Period”), absent CPT’s prior written approval, he will not, as owner, part-owner, shareholder, partner, director, principal, agent, employee, consultant or otherwise, directly or indirectly engage or participate in activities relating to, or render services to any publicly traded real estate investment trust listed on Exhibit C to this Agreement or their subsidiaries or affiliates (collectively, the “Selected REITs”); provided that Executive may make passive investments in a Selected REIT if Executive’s investment constitutes less than 2% of the total equity of such enterprise.”
(d) Executive understands and agrees that CPT and CDI Sunset shall have the right to and will terminate payment for the Installment Severance Payments continued insurance benefits as provided in Section II(C) and/or sxx Executive xxx me for breach of this Agreement if Executive I violate the provisions of Sections 4(b) or 4(cSection IV(B), or otherwise fail to comply in any material respect with this Agreement, in each case upon fifteen (15) days written notice from CPT; provided that Executive shall have a period of thirty (30) days after Executive receives such written notice to cure the same, and the Installment Severance Payments shall continue to be made during such period. Executive I further acknowledges acknowledge that but for his my agreements to comply with his my obligations described in this Section 4 and elsewhere in this Agreement, CPT Sunset would not provide Executive me with the Installment Severance Payments or the other compensation, benefits and consideration set forth in Section 2 II.
D. The parties agree that Section 4 (Termination) of the Employment Agreement shall not apply to Executive’s separation and elsewhere in shall have no effect and be unenforceable as of the Effective Date of this Agreement.
(e) Executive warrants E. I warrant that he has returned, or will return promptly following his resignation, I have returned to CPT Sunset all company property in his my possession, including, but not limited to, company files, work product, computer equipment, computer software, cell phones, pagers, corporate credit cards, identification cards, manuals, company documents and company keys. Executive I further agrees agree to cooperate and work with the Vice President of Human Resources Chief Operating Officer to ensure Executive’s my compliance with this Section 4(eIV(E).
(f) Executive understands F. I understand that the short-term disability and disability, long-term disability and life insurance coverage provided by CPT or CDISunset, if any, will end on March 16September 27, 20072005. Executive I also understands understand that CPT and CDI Sunset will not pay for any business-related or other charges incurred by him me after March 16September 27, 20072005, unless such expenses are expressly approved in advance by the Chief Executive Officer or Board of Sunset. Executive I further understands understand that he I will cease to accrue vacation time as of March 16September 27, 20072005. Executive shall be paid for any accrued, unused vacation within fourteen (14) days after the Effective Date of this Agreement.
(g) G. This Agreement does not constitute an admission of any kind by CPT or CDISunset, but is simply an accommodation that offers certain extra benefits to which Executive would, at least in part, I would not otherwise be entitled in return for his my agreeing to and signing this document.
(h) The parties H. I agree not to voluntarily make the terms and conditions or the circumstances surrounding this Agreement known to anyone other than an attorney and/or tax consultant from whom I receive counseling, or, if I am married, to my spouse, or except as otherwise required by law. I acknowledge that any such person must agree not to further disclose the terms of this Agreement.
I. Sunset agrees not to voluntarily make the terms and conditions or the circumstances surrounding this Agreement known to anyone other than its attorneys and/or tax consultants from whom it receives counseling, or except as otherwise required by law or the rules of the New York Stock Exchange.
J. I agree not to make any statements that disparage the reputation of one another, Sunset or any of the Released Parties Parties, or their properties or services. Any I further agree not to take any action to interfere with or damage the Company’s relationship with its vendors, lenders, brokers and/or clients. I agree that any breach or violation of this non-disparagement and non-interference provision shall entitle the other party Sunset to sxx under terminate this Agreement and/or xxx me on this Agreement for the immediate recovery of any damages caused by such breach.
(i) All payments and benefits under K. Sunset agrees not to make any statements that disparage the reputation of Executive. Sunset agrees that any breach or violation of this non-disparagement provision shall entitle Executive to xxx Sunset on this Agreement are gross amounts and will be subject to taxes and lawful deductions, if anyfor the immediate recovery of any damages caused by such breach.
(j) L. I acknowledge that in the course of my employment with the Company, I have gained knowledge and experience and/or was a witness to events and circumstances that may arise in the Company’s defense or prosecution of subsequent proceedings. I agree to cooperate fully with the Company, including without limitation providing truthful testimony, and to appear upon the Company’s reasonable request as a witness and/or consultant in defending or prosecuting claims of all kinds, including but not limited to any litigation, administrative actions or arbitrations, at the Company’s expense.
M. The venue for the litigation of any dispute arising out of this Agreement shall be a court of competent jurisdiction in Hxxxxx Xxxxx County, TexasFlorida. Texas If either party files a lawsuit in state court arising out of this Agreement, the other party may remove the lawsuit to federal court to the extent jurisdiction exists. Florida law shall govern the interpretation and enforcement of this Agreement.
(k) The parties agree that if there is any conflict between this and any other agreement, then this document will control.
(l) Executive represents that he is N. I am entering into this Agreement freely and voluntarily. Executive has I have carefully read and understands understand all of the provisions of this Agreement. Executive understands I understand that it sets forth the entire agreement between himself and Company and he represents that no other statements, promises, or commitments of any kind, written or oral, have been made to him by the Company, or any of its agents, to cause him to accept it. Executive acknowledges that he has been advised to consult legal counsel concerning this Agreement prior to signing the Agreement, and that he has had sufficient opportunity to do so. Executive understands that he may have up to twenty-one (21) days from the date of this letter to consider this Agreement. Executive understands that if he signs this Agreement, he will then have seven (7) days to cancel it if he so chooses. Executive may cancel this Agreement by delivering a written notice of cancellation to Cxxxx Xxxxxxxxxxxxxxx at 3 Xxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000. However, if Executive elects to cancel this Agreement, he understands he will not be entitled to any of the benefits, compensation, or other consideration referenced in this Agreement. Executive realizes this Agreement is not effective or enforceable until the seven-day period expires without revocation. Executive understands that this Agreement will not become effective until the eighth day after he signs the Agreement without revocation (the “Effective Date”). Executive understands that CPT and CDI will have no duty to pay him or provide him with the compensation, benefits and consideration listed in Section 2 and elsewhere in the Agreement until the Effective Date of this Agreement.entire
Appears in 1 contract
Samples: Separation Agreement (Sunset Financial Resources Inc)
Restrictive Covenants and Miscellaneous Provisions. (a) Executive A. While I understand that I have had such an obligation since I began my employment with Sunset or any of the Released Parties, I confirm that I shall not disclose any of the trade secrets or other confidential or restricted information of CPT, CDI Sunset or any of the Released Parties and shall not make use of such trade secrets or confidential or restricted information in any fashion at any time, including in any future employment, worktask, task work or business.
(b) Executive shall B. I agree to comply at all times after the Effective Date of this Agreement with all provisions the non-disclosure of confidential information obligations contained in Section 9 of the Employment Agreement and I acknowledge and agree that this portion of Section 9 of the Employment Agreement (including but not limited to Section 9(c), as amended and restated as set forth below), regardless of the nature of his separation, which provisions include covenants concerning the non-disclosure of confidential information, return of documents, and a prohibition on the inducement or employment of employees, agents, or consultants of the Company. Executive acknowledges and agrees that Section 9 of the Employment Agreement (including but not limited to Section 9(c), as amended and restated as set forth below) shall survive the separation of his my employment, regardless of the separation reason and shall survive the execution of this Agreement. In addition, I will not offer or attempt to offer employment to or recruit or solicit anyone who is an employee of Sunset or of a subsidiary for a period of one (1) year from the Effective Date of this Agreement.
(c) The parties C. I understand and agree that Section 9(c) of the Employment Agreement is amended and restated to read in its entirety as follows to limit the scope of the restrictions on competitive employment: “Executive agrees that during the period commencing on the date hereof and ending twelve (12) months thereafter (the “Non-Competition Period”), absent CPT’s prior written approval, he will not, as owner, part-owner, shareholder, partner, director, principal, agent, employee, consultant or otherwise, directly or indirectly engage or participate in activities relating to, or render services to any publicly traded real estate investment trust listed on Exhibit C to this Agreement or their subsidiaries or affiliates (collectively, the “Selected REITs”); provided that Executive may make passive investments in a Selected REIT if Executive’s investment constitutes less than 2% of the total equity of such enterprise.”
(d) Executive understands and agrees that CPT and CDI Sunset shall have the right to and will terminate the Installment Severance Payments Payments, and/or sxx Executive payment for the continued insurance benefits provided in Section II(C) above, and/or xxx me for breach of this Agreement if Executive I violate the provisions of Sections 4(b) or 4(cSection IV(B), or otherwise fail to comply in any material respect with materially breach this Agreement, in each case upon fifteen (15) days written notice from CPT; provided that Executive shall have a period of thirty (30) days after Executive receives such written notice to cure the same, and the Installment Severance Payments shall continue to be made during such period. Executive I further acknowledges acknowledge that but for his my agreements to comply with his my obligations described in this Section 4 and elsewhere in this Agreement, CPT Sunset would not provide Executive me with the Installment Severance Payments or the other compensation, benefits and consideration set forth in Section 2 II.
D. The parties agree that Section 4 (Termination) of the Employment Agreement shall not apply to Executive’s separation and elsewhere in shall have no effect and be unenforceable as of the Effective Date of this Agreement.
(e) Executive warrants E. I warrant that he has returned, or will return promptly following his resignation, I have returned to CPT Sunset all company property in his my possession, including, but not limited to, originals and all copies of company files, work product, computer equipment, computer software, cell phones, pagers, corporate credit cards, identification cards, manuals, company documents and company keys. Executive I further agrees agree to cooperate and work with the Vice President of Human Resources and Chief Operating Officer to ensure Executive’s my compliance with this Section 4(eIV(E).
(f) Executive understands F. I understand that the short-term disability and disability, long-term disability and life insurance coverage provided by CPT or CDISunset, if any, will end on March 16September 12, 20072005. Executive I also understands understand that CPT and CDI Sunset will not pay for any business-related or other charges incurred by him me after March 16September 12, 20072005, unless such expenses are expressly approved in advance by the President and Chief Operating Officer or Board of Directors of Sunset. Executive I further understands understand that he I will cease to accrue vacation time as of March 16September 12, 20072005. Executive has already been paid for all accrued and unused vacation.
(g) G. This Agreement does not constitute an admission of any kind by CPT or CDISunset, but is simply an accommodation that offers certain extra benefits to which Executive would, at least in part, I would not otherwise be entitled in return for his my agreeing to and signing this document.
(h) The parties H. I agree not to voluntarily make the terms and conditions or the circumstances surrounding this Agreement known to anyone other than an attorney and/or tax consultant from whom I receive counseling, or, if I am married, to my spouse, or except as otherwise required by law. I acknowledge that any such person must agree not to further disclose the terms of this Agreement.
I. Sunset agrees not to voluntarily make the terms and conditions or the circumstances surrounding this Agreement known to anyone other than its attorneys and/or tax consultants from whom it receives counseling, or except as otherwise required by law or the rules of the New York Stock Exchange.
J. I agree not to make any statements that disparage the reputation of one another, defame Sunset or any of the Released Parties Parties, or their properties or services. Any I further agree not to take any action to interfere with or damage the Company’s relationship with its vendors, lenders, brokers and/or clients. I agree that any breach or violation of this non-disparagement provision shall entitle the other party Sunset to sxx under terminate this Agreement and/or xxx me on this Agreement for the immediate recovery of any damages caused by such breach.
(i) All payments and benefits under K. Sunset agrees not to make any statements that defame Executive. Sunset agrees that any breach or violation of this provision shall terminate this Agreement and entitle Executive to xxx Sunset on this Agreement for the immediate recovery of any damages caused by such breach.
L. The payments identified in Section II above are gross amounts and will be subject to taxes and lawful deductions, if any.
M. I acknowledge that in the course of my employment with the Company, I have gained knowledge and experience and/or was a witness to events and circumstances that may arise in the Company’s defense or prosecution of subsequent proceedings. I agree to cooperate fully with the Company, including without limitation providing truthful testimony, and to appear upon the Company’s reasonable request as a witness and/or consultant in defending or prosecuting claims of all kinds, including but not limited to any litigation, administrative actions or arbitrations, at the Company’s expense. N. I also agree to provide transition services of up to ten (j10) days to the Company as may be requested by the President of the Company (or his designee) prior to October 31, 2005, and I agree that a portion of the Installment Severance Payments are intended to compensate me for such services. Additional transition services beyond the ten days may be provided at the request of Sunset at a rate of $200.00 per hour.
O. Executive agrees that he will neither seek nor accept reemployment with Sunset, its parent companies, subsidiaries, predecessors, successors, or any affiliates of each at any time in the future.
P. The venue for the litigation of any dispute arising out of this Agreement shall be a court of competent jurisdiction in Hxxxxx Xxxxx County, TexasFlorida. Texas If either party files a lawsuit in state court arising out of this Agreement, the other party may remove the lawsuit to federal court to the extent jurisdiction exists. Florida law shall govern the interpretation and enforcement of this Agreement.
Q. Commencing on the Separation Date and expiring on the second anniversary thereof (kthe “Standstill Period”), I will not, directly or indirectly, acquire any amount of any class of Sunset’s voting securities, whether in open market purchases or otherwise. During the Standstill Period, I will not directly or indirectly, either personally or as part of a group (for purposes of Section 13(d) The parties agree of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), (a) initiate any offer for tenders of voting securities of Sunset that if there is could result in my acquisition of any conflict between this and amount of any class of Sunset’s voting securities or (b) present to Sunset’s stockholders or board of directors any proposal for a merger or other agreementform of acquisition or consolidation that previously had not been approved in writing by Sunset’s Chairman of the Board of Directors nor, then this document will controlwithout Sunset’s prior written consent, solicit proxies or submit a proposal required to be included in Sunset’s proxy statement pursuant to Rule 14a-8 promulgated under the Exchange Act.
(l) Executive represents that he is R. I am entering into this Agreement freely and voluntarily. Executive has I have carefully read and understands understand all of the provisions of this Agreement. Executive understands I understand that it sets forth the entire agreement between himself me and the Company and he represents I represent that no other statements, promises, or commitments of any kind, written or oral, have been made to him me by the Company, or any of its agents, to cause him me to accept it. Executive acknowledges I acknowledge that he has I have been advised to consult legal counsel concerning this Agreement prior to signing the Agreement, and that he has I have had sufficient opportunity to do so. Executive understands I understand that he I may have up to twenty-one (21) days from the date of this letter to consider this Agreement. Executive understands I understand that if he signs I sign this Agreement, he I will then have seven (7) days to cancel it if he I so chooseschoose. Executive I may cancel this Agreement by delivering a written notice of cancellation to Cxxxx Xxxxxxxxxxxxxxx at 3 Xxxxxxxx Xxxxxthe Board of Directors, Xxxxx 0000Sunset Financial Resources, Inc., 00000 Xxxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxxxx, Xxxxxxx 00000. However, if Executive elects I elect to cancel this Agreement, he understands he I understand I will not be entitled to any of the benefits, compensation, or other consideration referenced in this Agreement. Executive realizes I realize this Agreement is not effective or enforceable until the seven-day period expires without revocation. Executive understands I understand that this Agreement will not become effective until the eighth day after he signs I sign the Agreement without revocation (the “Effective Date”). Executive understands I understand that CPT and CDI Sunset will have no duty to pay him me or provide him me with the compensation, compensation and benefits and consideration listed in Section 2 and elsewhere in the Agreement II until the Effective Date of this Agreement.
Appears in 1 contract
Samples: Separation Agreement (Sunset Financial Resources Inc)
