RE: Change in Control and Severance Agreement
[MMC
Energy, Inc. Letterhead]
April
4,
2008
Xx.
Xxxxx
Xxxxxx
000
Xxxx
000 Xxxxxx
New
York,
NY 10025
Dear
Xx.
Xxxxxx:
MMC
Energy, Inc. (the “Company”)
has
determined that appropriate steps should be taken to reinforce and encourage
your continued employment and dedication. In consideration for you remaining
in
its employ, the Company and you agree as follows:
1. TERMINATION
OF YOUR EMPLOYMENT IN CONNECTION WITH A QUALIFYING EVENT.
In
the
event of a Qualifying Termination (as defined below), then:
(a) subject
to your execution and nonrevocation of the release as provided in
Section 5(b) below, the Company shall pay to you a cash amount equal to the
greater of (i) two and one-half times (2.5 times) your annual base salary in
effect immediately prior to the date of your termination of employment or (ii)
$632,500, (and you shall not be entitled to any other severance benefits which
may otherwise be payable to you upon a termination of employment as set forth
in
any other agreement between you and the Company or any of its Subsidiaries
(as
defined below), if any) (the “Payment”).
The
Payment shall be payable to you in accordance with the Company’s normal payroll
cycle over the thirty-month period immediately following the date of such
Qualifying Termination; provided,
however,
(A) if
there shall occur a Change in Control, (1) any portion of the Payment that
is to
be paid hereunder but has not yet been paid shall be accelerated and paid to
you
as a lump sum within ten days of such Change in Control and
(2)
if the relevant Qualifying Event occurs subsequent to a Change in Control,
the
Payment shall be payable to you as a lump sum within ten days of such Qualifying
Event and (B) if the relevant Qualifying Event occurs on or prior to December
31, 2008, the Payment shall be payable to you as a lump sum within ten days
of
such Qualifying Event.
(b) subject
to your execution and nonrevocation of the release as provided in
Section 5(b) below, notwithstanding any provision to the contrary contained
in any plan or agreement evidencing an Equity Award granted to you (other than
an Excluded Agreement) the vesting and/or exercisability of each of your
outstanding Equity Awards shall be accelerated in full, effective as of the
date
of your termination of employment; provided,
however,
that
such acceleration of vesting and/or exercisability shall not apply to any Equity
Award where such acceleration would be contrary to applicable law.
2. TERM
(a) The
initial term of this Agreement (the “Initial
Term”)
shall
commence on the date hereof (the “Effective
Date”)
and
shall terminate on the third anniversary of the Effective Date, except as
otherwise provided in Sections 2(b) and 2(c) below.
(b) During
the one-year period commencing immediately prior to the expiration of the
Initial Term or any Renewal Term (as defined below) then in effect, the
Compensation Committee of the Board of Directors (the “Committee”)
shall
determine, in its sole discretion, whether and for what period, if any, and
upon
what terms and conditions (including any modification to the terms and
conditions of this Agreement as then in effect that the Committee shall
determine to be advisable) the Company shall offer to you to extend the term
of
this Agreement (any such extension being referred to herein as a “Renewal
Term”)
following the expiration of the then-effective Initial Term or Renewal Term
as
the case may be. Following its determination, the Committee shall advise you
in
writing of the terms and conditions upon which the Company would be willing
to
extend the term of this Agreement; provided,
however,
that if
the Committee fails to so advise you or if you do not accept the terms and
conditions upon which the Company would be willing to extend the term of the
Agreement, the Agreement shall terminate upon the expiration of the Initial
Term
or Renewal Term then in effect except as otherwise provided in Section
2(c).
(c) Notwithstanding
the provisions of Sections 2(a) and 2(b) above, the then-effective Initial
Term
or Renewal Term shall automatically be extended in the event that such term
would otherwise expire during the period commencing upon the first public
announcement of a definitive agreement that would result in a Change in Control
(even though still subject to approval of the Company’s stockholders and other
conditions and contingencies) and ending upon the expiration of the Change
in
Control Period. Such extension shall be upon the terms and conditions of this
Agreement as then in effect, provided that such extension of the term of the
Agreement shall expire upon the first to occur of the first public announcement
of the termination of such definitive agreement or the expiration of the Change
in Control Period.
(d) Notwithstanding
the provisions of this Section 2, the obligation of the Company to make payments
or provide benefits pursuant to this Agreement to which you have acquired a
right in accordance with the applicable provisions of this Agreement prior
to
the expiration of the then-effective Initial Term or Renewal Term shall survive
the termination of this Agreement until such payments and benefits have been
provided in full.
(e) Notwithstanding
the provisions of Sections 2(a), 2(b) and 2(c) but subject to Section 2(d),
prior to the occurrence of a Change in Control, this Agreement shall immediately
terminate upon your termination of employment for any reason other than by
the
Company without Cause (as defined below) or by you for Good Reason (as defined
below).
2
3. SECTION
409A; SECTION 280G.
(a) To
the
extent applicable, this Agreement shall be interpreted in accordance with
Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”)
and
Department of Treasury regulations and other interpretive guidance issued
thereunder, including without limitation any such regulations or other guidance
that may be issued after the Effective Date (collectively, “409A
Guidance”).
Notwithstanding anything in this Agreement to the contrary, if a payment
obligation under this Agreement arises on account of your separation from
service while you are a “specified employee” (as defined under 409A Guidance),
any payment of “deferred compensation” (as defined under Treasury Regulation
Section 1.409A-1(b)(1), after giving effect to the exemptions in Treasury
Regulation Sections 1.409A-1(b)(3) through (b)(12)) that is scheduled to be
paid
within six (6) months after such separation from service shall accrue with
interest and shall be paid within fifteen (15) days after the end of the
six-month period beginning on the date of such separation from service or,
if
earlier, within fifteen (15) days after the appointment of the personal
representative or executor of your estate following your death. For purposes
of
the preceding sentence, interest shall accrue at the prime rate of interest
plus
five percent (5%), as published in the northeast edition of The Wall Street
Journal on the date of your separation from service. The Company shall consult
with you in good faith regarding the implementation of this Section 3;
provided,
that
neither the Company nor any of its Subsidiaries, nor any of their respective
directors, employees or representatives shall have any liability to you with
respect to such implementation provided such implementation is done in good
faith. The preceding provisions, however, shall not be construed as a guarantee
by the Company of any particular tax effect to you under this Agreement. The
Company shall not be liable to you for any payment made under this Agreement
that is determined to result in an additional tax, penalty, or interest under
Section 409A of the Code, nor for reporting in good faith any payment made
under
this Agreement as an amount includible in gross income under Section 409A of
the
Code. For purposes of Section 409A of the Code, the right to a series of
installment payments under this Agreement shall be treated as a right to a
series of separate payments. “Termination of employment,” “resignation,” or
words of similar import, as used in this Agreement mean, for purposes of any
payments under this Agreement that are payments of deferred compensation subject
to Section 409A of the Code, your “separation from service” as defined in
Section 409A of the Code.
(b)
Certain
Additional Payments.
(i) Gross-Up
Payment Amount.
Notwithstanding anything in this Agreement to the contrary, in the event it
shall be determined that any payment or distribution by the Company to or for
your benefit, whether paid, payable, distributed or distributable pursuant
to
this Agreement or otherwise would be subject to the excise tax imposed by
Section 4999 of the Internal Revenue Code of 1986 (the “Code”)
(or
any successor provision) or any interest or penalties with respect to such
excise tax (such excise tax, together with any such interest and penalties,
are
collectively referred to in this Agreement as the “Excise
Tax”),
then
you shall be entitled to receive an additional payment (a “Gross-Up
Payment”)
in an
amount such that after the payment by you of all taxes (including any interest
or penalties imposed with respect to such taxes), including any Excise Tax,
imposed upon the Gross-Up Payment, you retain an amount of the Gross-Up Payment
equal to the Excise Tax imposed upon the Payment.
3
(ii) Determinations.
All
determinations required to be made under this Section 3, including whether
and when a Gross-Up Payment is required and the amount of such Gross-Up Payment
and the assumptions to be utilized in arriving at such determination, shall
be
made by an accounting firm of recognized standing reasonably selected by you
(the “Accounting
Firm”),
which
shall provide detailed supporting calculations to both you and the Company
within thirty (30) business days of the receipt of written notice from
you
that there has been a Payment. Any Gross-Up Payment, as determined pursuant
to
this Section 3, shall be paid by the Company to you within five (5) days of
the receipt of the Accounting Firm’s determination. All fees and expenses of the
Accounting Firm shall be borne by the Company. Any determination by the
Accounting Firm shall be binding upon you and the Company. As a result of the
possible uncertainty in application of Section 4999 of the Code at the time
of
the initial determination by the Accounting Firm hereunder, it is possible
that
Gross-Up Payments will not have been made by the Company that should have been
made (“Underpayment”),
consistent with the calculations required to be made hereunder. In the event
that you thereafter are required to make a payment of any Excise Tax, the
Accounting Firm shall determine the amount of the Underpayment that has occurred
and any such Underpayment shall be promptly paid by the Company to or for your
benefit.
(iii) 409A
Payment Deadline.
In all
events and without in any way tolling the time periods provided for in Section
3(b)(ii) above, the Gross-Up Payment, if any, including any Underpayment, shall
not be made later than the December 31 following your taxable year in which
you
remit the Excise Tax.
4. DEFINITIONS.
For
purposes of this Agreement, the following terms shall have the following
meanings:
(a) “Cause”
shall
be defined as the occurrence of:
(i) your
conviction for a felony, excluding convictions associated with traffic
violations; (ii) you being
under the influence of drugs or alcohol (other than prescription medicine or
other medically-related drugs to the extent that they are taken in accordance
with their directions) during the performance of your duties under this
Agreement, or, while under the influence of such drugs or alcohol, engaging
in
grossly inappropriate conduct during the performance of your duties under this
Agreement; or engaging in behavior that would constitute grounds for liability
for harassment (as proscribed by the U.S. Equal Employment Opportunity
Commission Guidelines or any other applicable state or local regulatory body)
or
other egregious conduct that violates laws governing the workplace,
(iii) an
egregious and material act of dishonesty (including without limitation theft
or
embezzlement) whether or not involving the Company but relating to your business
affairs; (iv) a willful and material violation of any provision of the Company’s
Code of Conduct, Policy Memorandum Concerning Xxxxxxx Xxxxxxx or that certain
Assignment of Inventions, Non-Disclosure and Non-Competition Agreement, dated
March 3, 2008, between you and the Company; (v) intentional reckless conduct
that is materially detrimental to the business or reputation of the Company;
or
(vi) material and continued failure (other than by reason of Disability) to
carry out reasonably assigned duties or instructions consistent with the title
of Chief Financial Officer (provided that material failure to carry out
reasonably assigned duties shall be deemed to constitute Cause only after a
finding by the Board of Directors of such material failure on your part, which
shall include the specifics giving rise to such failure, and the failure by
you
to remedy such material failure within 30 days after delivery of a written
version of such finding to you).
4
(b) “Change
in Control”
means
the occurrence of any of the following, provided
that
the
occurrence also constitutes, within the meaning of 409A Guidance, a change
in
the ownership or effective control of the Company or a change in the ownership
of a substantial portion of the assets of the Company:
(i)
any
“person” (as such term is used in Sections 13(d) and 14(d) of the Exchange
Act), other than a trustee or other fiduciary holding securities of the Company
under an employee benefit plan of the Company, becomes the “beneficial owner”
(as defined in Rule 13d-3 promulgated under the Exchange Act), directly or
indirectly, of securities of the Company representing more than fifty percent
(50%) of total fair market value or total voting power of the Company’s
then-outstanding securities entitled to vote generally in the election of
directors;
(ii) the
Company is party to a merger, consolidation or similar transaction, or series
of
related transactions, which results in the holders of the voting securities
of
the Company outstanding immediately prior to such transaction(s) failing to
retain immediately after such transaction(s) direct or indirect beneficial
ownership of more than fifty percent (50%) of the total combined voting power
of
the securities entitled to vote generally in the election of directors of the
Company or the surviving entity outstanding immediately after such
transaction(s);
(iii) the
sale
or disposition of all or substantially all of the Company’s assets or
consummation of any transaction, or series of related transactions, having
similar effect (other than a sale or disposition to one or more subsidiaries
of
the Company); or
(iv) a
change
in the composition of the Board over a period of twelve (12) months or less
as a
result of which a majority of the Board members ceases, by reason of one or
more
contested elections for Board membership, to be comprised of individuals who
either (A) have been Board members continuously since the beginning of such
period or (B) have been elected or nominated for election as Board members
during such period by at least a majority of the Board members described in
clause (A) who were still in office at the time the Board approved such election
or nomination.
(c) “Change
in Control Period”
means
a
period commencing upon the date of the consummation of a Change in Control
and
ending on the date occurring twelve (12) months following the date of the
consummation of such Change in Control.
(d) “Disability”
shall
mean your absence from employment for at least ninety (90) days in
any
twelve (12) month period as a result of your incapacity due to mental or
physical illness or incapacity, as reasonably determined by the
Company.
5
(e) “Equity
Award”
means
any option, stock appreciation right, restricted stock, restricted stock unit,
performance share or performance unit award or other award with respect to
shares of the capital stock of the Company granted to you by the Company prior
to a Change in Control, including any such award which is assumed or continued
by, or for which a replacement award is substituted by, any successor to the
Company in connection with the Change in Control.
(f) “Excluded
Agreement”
means
any written agreement between you and the Company entered into after the date
of
this Agreement which expressly disclaims the operation of Section 1(b)
hereof.
(g) “Good
Reason”
shall
mean (i)
the
assignment to you, without your explicit consent, of duties that are
significantly different from, and that result in a substantial diminution of,
your duties on the Effective Date; (ii) the
assignment to you of a title that is different from and subordinate to the
title
specified in the definition of Cause above; or (iii) a
material breach by the Company of this Agreement; provided,
however,
that no diminution of duties, position or title shall be deemed to occur solely
because the Company becomes a subsidiary of another corporation or entity or
because there has been a change in the reporting hierarchy incident thereto
involving you.
(h) “Qualifying
Termination”
shall
mean:
(i)
the
occurrence of a Change in Control and, (A) on or within thirty (30) days
thereafter, your employment is terminated for any reason by the Company or
you
or (B) within twelve (12) months thereafter your employment is terminated by
(1)
the Company (or its successor) for any reason other than death, disability
or
Cause or (2) you for Good Reason; or
(ii)
any
time
prior to the occurrence of any Change in Control, your employment is terminated
by (A) the Company for any reason other than for death, Disability or Cause
or
(B) you for Good Reason.
(i) “Subsidiaries”
shall
mean collectively, MMC Energy North America, LLC and any other current or future
direct or indirect subsidiary of such entity or the Company.
5. MISCELLANEOUS.
(a) Governing
Law.
The
terms of this Agreement and all rights and obligations of the parties thereto,
including its enforcement, shall be interpreted and governed by the laws of
the
State of New York without regard to the principles of conflicts of laws of
the
State of New York or those of any other jurisdiction which could cause the
application of the laws of any jurisdiction other than the State of New
York.
(b) Release.
Any and
all payments and other benefits to which you may become entitled under Section
1
are conditioned upon and subject to your execution of, and not having revoked
within any applicable revocation period, a general release of the Company,
its
Subsidiaries and their respective directors and officers, and in the form
attached on Annex
A
hereto.
6
(c) Entire
Agreement; Amendments.
The
terms contained in this Agreement constitute the entire agreement between the
parties with respect to the subject matter hereof and supersede all prior
negotiations, representations or agreements relating thereto whether written
or
oral. Without in any way limiting the foregoing, the parties hereby agree that
as of the Effective Date, that certain Employment Agreement, dated as of May
15,
2006, between the Company and Xxxxx Xxxxxx is hereby terminated and of no
further force or effect; provided,
however,
that
such termination shall not relieve either party thereto for any breach of such
Employment Agreement occurring prior to its termination. No amendment or
modification of this Agreement shall be valid or binding upon the parties unless
in writing and signed by both parties.
(d) Withholding.
The
Company shall be permitted in its discretion to withhold from any amounts
payable under this Agreement such Federal, state or local taxes as the Company
determines are required to be withheld pursuant to any applicable law or
regulation.
(e) No
Guarantee of Employment.
This
Agreement does not and shall not be construed as a guarantee of continued
employment of you by the Company for any period of time.
(f) Headings.
The
headings of the sections contained in this Agreement are for convenience of
reference only and shall not be deemed to control or affect the meaning or
construction of any provision of this Agreement.
(g) Notice.
For
purposes of this Agreement, notices and all other communications provided for
in
this Agreement shall be in writing and shall be deemed to have been given when
hand delivered, sent by overnight courier, or mailed by first-class, registered
or certified mail, return receipt requested, postage prepaid, addressed, in
the
case of you, to your address as shown on the Company’s records, and, in the case
of the Company, to its principal office, to the attention of Chair of the
Compensation Committee of the Board of Directors (with a copy to Xxxx X. Xxxxx,
DLA Xxxxx US LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX 00000) or to such
other address as either party may have furnished to the other in writing in
accordance herewith, except that notices of change of address shall be effective
only upon receipt.
(h) Counterparts.
This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed an original of the party executing the same and all of which together
shall constitute one and the same instrument.
(i) Successors
and Assigns.
The
rights and obligations of the Company under this Agreement shall be binding
upon
its successors and assigns and may be assigned by the Company to the successors
in interest of the Company. The rights and obligations of you under this
Agreement shall be binding upon your heirs, legatees, personal representatives,
executors or administrators. This Agreement may not be assigned by you, but
any
amount owed to you upon your death shall inure to the benefit of your heirs,
legatees, personal representatives, executors, or administrators.
(j) Waiver.
No
delay or omission by the Company in exercising any right under this Agreement
shall operate as a waiver of that or any other right. A waiver or consent given
by the Company on any one occasion shall be effective only in that instance
and
shall not be construed as a bar or waiver of any right on any other
occasion.
7
(k) Severability.
In the
event that any one or more of the provisions of this Agreement is held to be
invalid, illegal or unenforceable, the validity, legality and enforceability
of
the remaining provisions will not in any way be affected or impaired
thereby.
[Remainder
of Page Intentionally Left Blank]
8
IN
WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the
date first written above.
| MMC ENERGY, INC. | ||
| |
|
|
| By: | /s/ Xxxxxxx Xxxxxxxx | |
|
Name: Xxxxxxx Xxxxxxxx |
||
|
Title:
Chief Executive Officer
|
||
ACCEPTED
AND AGREED TO
as
of the
first date written above
By:
/s/
Xxxxx
Xxxxxx
Xxxxx
Xxxxxx
9
ANNEX
A
RELEASE
OF CLAIMS
This
Release of all Claims (the "Release")
is
entered into by and between MMC Energy, Inc. [OR NAME OF ANY SUCCESSOR ENTITY]
(the “Company”)
and
Xxxxx Xxxxxx (the “Executive”)
and
dated as of [INSERT DATE] (the “Effective
Date”).
In
consideration of the promises set forth in the change in control and severance
agreement between the Executive and the Company, dated as of April 4, 2008
(the
“Agreement”),
the
Executive and the Company (the “Parties”)
hereby
agree as follows:
1. Agreement
Entitlements.
The
Executive’s termination of employment shall be effective as of the Effective
Date. Consequently, the Company shall provide the Executive the post-termination
payments and other benefit to which he would not be entitled under the
Agreement, but for the execution of this Release (capitalized terms used herein
and not otherwise defined have the meanings ascribed to them in the
Agreement).
2. Release
of Claims.
(a) As
used
in this Release, the term “claims” shall include all claims, covenants,
warranties, promises, undertakings, actions, suits, causes of action,
obligations, debts, accounts, attorneys’ fees, judgments, losses and
liabilities, of whatsoever kind or nature, in law, equity or
otherwise.
(b) The
Executive, for and on behalf of himself and his successors, assigns, legal
representatives, heirs, executors and administrators, does hereby remise,
release, absolve and discharge, the Company, its Subsidiaries, all of their
respective successors and assigns, subsidiaries, affiliates and legal
representatives (in their capacities as such), past and present, and all of
their respective directors, officers, shareholders, members, agents, employees,
attorneys, successors, assigns, legal representatives, heirs, executors and
administrators, past and present, and each and every one of them, in their
individual and corporate capacities as such (collectively, the “Releasees”)
from
any and all claims which the Executive had, may have had, or now has against
the
Company, the Releasees, collectively or any member of the Releasees
individually, for or by reason of any matter, cause or thing whatsoever
including any claim arising out of or attributable to the Executive’s employment
or the termination of the Executive’s employment with the Company, including but
not limited to claims of breach of contract, wrongful termination, unjust
dismissal, defamation, libel or slander, or under any applicable Federal, state
or local law dealing with discrimination based on age, race, sex, national
origin, handicap, religion, disability, sexual preference or any other factor.
This release of claims includes, but is not limited to, all claims arising
under: the Age Discrimination in Employment Act of 1967 (the “ADEA”,
a law
which prohibits discrimination on the basis of age); the National Labor
Relations Act; Title VII of the Civil Rights Act of 1964; the Americans with
Disabilities Act of 1990; the Civil Rights Act of 1991; the Employee Retirement
Income Security Act of 1974; the Family Medical Leave Act; the Equal Pay Act;
all as amended, and all other Federal, state and local labor and
anti-discrimination laws, the common law and any other purported restriction
on
an employer’s right to terminate the employment of employees. Notwithstanding
the foregoing, this Section 2(b) shall not apply to any claims that arise under
or are in connection with (i) this Release, (ii) employee benefit plans of
general applicability in which the Executive participated as of the date of
his
termination of employment, and (iii) the Executive’s rights, if any, to
indemnification by the Company under the articles, by-laws, policies or other
agreements or applicable law.
(c) The
Executive represents that the Executive has not filed or permitted to be filed
against the Releasees, any member of the Releasees individually or the Releasees
collectively, any complaint, charge, claim, suit, action or proceeding before
any local, state or federal court or other body (each individually, a
“Proceeding”).
The
Executive further represents that the Executive is not aware of any basis on
which such a Proceeding could reasonably be instituted. The Executive covenants
and agrees that the Executive will not initiate or cause to be initiated on
the
Executive’s behalf any Proceeding at any time hereafter with respect to the
subject matter of this Release and claims release pursuant to this Release
(including, without limitation, any claims relating to the termination of the
Executive’s employment), except as may be necessary to enforce this Release, to
obtain benefits described in or granted under this Release, to seek a
determination of the validity of the waiver of the Executive’s rights under the
ADEA or as required by law. Except as otherwise provided in the preceding
sentence, the Executive will not voluntarily participate in any judicial
proceeding of any nature or description against the Releasees, any member of
the
Releasees individually or the Releasees collectively as of the Effective Date.
The Executive waives any right the Executive may have to benefit in any manner
from any relief (whether monetary or otherwise) arising out of any Proceeding,
including any Proceeding conducted by the Equal Employment Opportunity
Commission (“EEOC”).
Further, the Executive understands that, by executing this Release, the
Executive will be limiting the Executive’s right to pursue certain claims and
the availability of certain remedies the Executive may have against the
Releasees, any member of the Releasees individually or the Releasees
collectively. Notwithstanding the above, nothing in this Section 2(c) shall
prevent the Executive from initiating or participating in an investigation
or
proceeding conducted by the EEOC.
3. Time
to Consider.
The
Executive acknowledges that he has been advised that he has twenty-one (21)
days
from the date of receipt of this Release to consider all the provisions of
this
Release and he does hereby knowingly and voluntarily waive said given twenty-one
(21) day period. EXECUTIVE FURTHER ACKNOWLEDGES THAT HE HAS READ THIS RELEASE
CAREFULLY, HAS BEEN ADVISED BY THE COMPANY TO, AND HAS IN FACT, CONSULTED AN
ATTORNEY, AND FULLY UNDERSTANDS THAT BY SIGNING BELOW HE IS GIVING UP CERTAIN
RIGHTS WHICH HE MAY HAVE TO SUE OR ASSERT A CLAIM AGAINST ANY OF THE RELEASEES,
AS DESCRIBED IN SECTION 2 OF THIS RELEASE AND THE OTHER PROVISIONS HEREOF.
EXECUTIVE ACKNOWLEDGES THAT HE HAS NOT BEEN FORCED OR PRESSURED IN ANY MANNER
WHATSOEVER TO SIGN THIS RELEASE, AND EXECUTIVE AGREES TO ALL OF ITS TERMS
VOLUNTARILY.
4. Revocation.
The
Executive hereby acknowledges and understands that the Executive shall have
seven (7) days from the date of his execution of this Release to revoke this
Release and that neither the Company nor any other person is obligated to
provide any post-employment benefits to the Executive pursuant to Section 1
until eight (8) days have passed since the Executive’s signing of this Release
without the Executive having revoked this Release, in which event the Company
immediately shall arrange and/or pay for any such benefits otherwise
attributable to said eight (8) day period, consistent with the terms of the
Release. If the Executive revokes this Release, the Executive will be deemed
not
to have accepted the terms of this Release, and no action will be required
of
the Company under any section of this Release.
5. Availability
of Relief.
In the
event that the Executive fails to abide by any of the terms of this Release,
including but not limited to Section 2 of this Release, the Company may, in
addition to any other legal, monetary or equitable remedies it may have,
terminate any portion of the payments that are subsequently due pursuant to
Section 1, if any, without waiving the release granted to the Releasees
herein.
6. Miscellaneous.
(a) Notices.
All
notices, requests, demands and other communications hereunder shall be given
in
accordance with the notice provisions contained in Section 5(g) of the
Agreement.
(b) Successors.
This
Release shall be binding upon and inure to the benefit of the Parties, their
respective heirs, successors and assigns.
(c) Taxes.
The
Company shall withhold from any amounts payable under this Release such taxes
as
may be required to be withheld pursuant to any applicable law or
regulation.
(d) Severability.
In the
event that any provision of this Release is determined to be invalid or
unenforceable, the remaining terms and conditions of this Release shall be
unaffected and shall remain in full force and effect. In addition, if any
provision is determined to be invalid or unenforceable due to its duration
and/or scope, the duration and/or scope of such provision, as the case may
be,
shall be reduced, such reduction shall be to the smallest extent necessary
to
comply with applicable law, and such provision shall be enforceable, in its
reduced form, to the fullest extent permitted by applicable law.
(e) Non-Admission.
Nothing
contained in this Release shall be deemed or construed as an admission of
wrongdoing or liability on the part of the Executive or on the part of the
Company.
(f) Non-Waiver.
A
failure of either the Executive or any of the Releasees to insist on strict
compliance with any provision of this Release shall not be deemed a waiver
of
such provision or any other provision hereof.
(g) Governing
Law.
The
validity, interpretations, construction and performance of this Release shall
be
governed by the laws of the State of New York without giving effect to conflict
of laws principles.
(h) Headings.
The
headings of the sections contained in this Release are for convenience of
reference only and shall not be deemed to control or affect the meaning or
construction of any provision of this Release.
(i) Counterparts. This
Release may be executed by one or more of the Parties hereto on any number
of
separate counterparts and all such counterparts shall be deemed to be one and
the same instrument. Each party hereto confirms that any facsimile copy of
such
party’s executed counterpart of this Release (or its signature page thereof)
shall be deemed to be an executed original thereof.
IN
WITNESS WHEREOF, the Executive has hereunto set the Executive’s hand as of the
date first written above.
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