[MTM Letterhead]
May 21, 2004
Mr. Xxxx Xxxxxxxx
00 Xxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Dear Xx. Xxxxxxxx,
1. General. MTM Technologies, Inc. (the "Company") hereby employs you (the
"Executive"), and the Executive accepts employment by the Company as Senior
Vice President and Chief Financial Officer. The Executive shall be employed
by the Company on an "at-will" basis and the Company and the Executive
shall have the right to terminate this Agreement at any time upon thirty
(30) days written notice to the other party.
2. Duties and Status. During the period that the Executive is employed by the
Company (the "Employment Period"), the Executive shall report directly to
the Chief Executive Officer of the Company and exercise such authority,
perform such executive duties and functions and discharge such executive
responsibilities as are reasonably associated with the Executive's
position, consistent with the responsibilities assigned to officers of
companies comparable to the Company, commensurate with the authority vested
in the Executive pursuant to this Agreement and consistent with the By-laws
of the Company. The Executive will render such business and professional
services in the performance of his duties, consistent with the Executive's
position within the Company, as shall reasonably be assigned to him by the
Chief Executive Officer of the Company. During the Employment Period, the
Executive shall devote substantially all of his business time and his full
skill and efforts to the business of the Company.
3. Compensation; Benefits and Expenses .
a. Salary. During the Employment Period, the Company shall pay to the
Executive, as compensation for the performance of his duties and
obligations under this Agreement, a base salary at the rate of
$175,000 per annum, payable in arrears not less frequently than
monthly in accordance with the normal payroll practices of the
Company. The Executive's base salary shall be subject to review each
year for possible increase by the Board in its sole discretion, but in
no event shall such base salary be decreased from its then existing
level during the Employment Period.
b. Bonus. In addition to the base salary payable to the Executive
hereunder, the Executive also shall be entitled to receive additional
compensation, at such times and in such amounts, as shall be
determined in the sole discretion of the Board and the Compensation
Committee thereof, consistent with the management bonus plan of the
Company in effect from time to time for senior executives, if any.
c. Stock Options. The Executive shall be entitled to receive awards under
any stock option or equity based incentive compensation plan or
arrangement adopted by the Company during the Employment Period for
which senior executives are eligible. The level of the Executive's
participation in any such plan or arrangement shall be determined in
the sole discretion of the Board and the Compensation Committee
thereof.
d. Vacation and Sick Leave. The Executive shall be entitled to four (4)
weeks paid vacation time per calendar year and such paid sick leave as
is in accordance with the normal Company policies and practices in
effect from time to time for senior executives; provided, however,
that no more than two weeks of such vacation time may be used
consecutively, and provided, further, that any accrued but unused
vacation time and paid sick leave remaining at the end of each
calendar year shall be forfeited.
e. Other Benefits. During the Employment Period, the Executive shall be
entitled to participate in all of the employee benefit plans, programs
and arrangements of the Company in effect during the Employment Period
which are generally available to the most senior executives of the
Company (including, without limitation, 401(k) and group medical
insurance plans), subject to and on a basis consistent with the terms,
conditions and overall administration of such plans, programs and
arrangements.
f. Expenses. In addition to any amounts payable to the Executive pursuant
to this Section 3, the Company shall reimburse the Executive upon
production of accounts and vouchers or other reasonable evidence of
payment by the Executive, all in accordance with the Company's regular
procedures in effect from time to time, all reasonable and ordinary
expenses as shall have been incurred by him in the performance of his
duties hereunder.
4. Termination Without Cause or for Good Reason. Notwithstanding any other
term of this Agreement, in the event of a termination of the Executive's
employment on or before the fourth (4th) anniversary date of this Agreement
(x) by the Company other than for "cause" (as defined in Section 4(d)
hereof) or (y) by the Executive for "good reason" (as defined in Section
4(e) hereof) or (z) as a result of death or Permanent and Total Disability
(as defined in Section 4(g) hereof), in each such case the Company shall
provide to the Executive (or his legal representative) (i) the rights,
payments and benefits payable at such times as set forth herein, and (ii) a
release and waiver of claims in favor of the Executive, substantially in
the form attached hereto as Exhibit A, as consideration for the execution
and non-revocation by the Executive of a release agreement in favor of the
Company and its shareholders and their respective directors, officers and
employees, substantially in the form attached hereto as Exhibit B:
a. Salary. A continuance of his salary at one hundred percent (100%) of
his then current base salary, as a severance payment, for a period
equal to one (1) year from the date of termination of the Executive's
employment (the "Severance Period"). Any payments pursuant to this
Section 4(a) shall be in lieu of any other severance benefits to which
the Executive is entitled pursuant to any other severance plans,
programs, arrangements, or policies of the Company.
b. Options. The impact of the Executive's termination of employment on
the stock options held by the Executive (including, without
limitation, the maximum period that any such option shall remain
exercisable) shall be governed by the applicable stock option plan and
agreement. Notwithstanding the foregoing, any stock options granted to
the Executive on or after the date hereof shall provide that, upon
termination of the Executive's employment by the Company other than
for "cause" or by the Executive for "good reason", any unvested shares
subject to such options shall become fully vested and immediately
exercisable in connection with such termination.
c. Other Benefits. During the Severance Period, the Executive will be
entitled to a continuance of coverage under all health, life,
disability and similar employee benefit plans and programs of the
Company on the same basis as the Executive was entitled to participate
immediately prior to the Severance Period, provided that the
Executive's continued participation is possible under the general
terms and provisions of such plans and programs. In the event that the
Executive's participation in any such plan or program is barred for
any reason, the Company shall arrange to provide the Executive with
benefits substantially similar to those which the Executive would
otherwise have been entitled to receive under such plans and programs
from which his continued participation is barred; provided, however,
that the aggregate cost of providing benefits to the Executive
pursuant to this Section 4(c) shall not be materially increased as a
result of providing such alternative coverage. In the event that the
Executive is covered under substitute benefit plans of another
employer prior to the expiration of the Severance Period, the Company
will no longer be obligated to continue the respective coverage's
provided for in this Section 4(c).
d. Cause. For purposes of this Agreement and subject to the Executive's
opportunity to cure as provided in Section 4(f) hereof, the Company
shall have "cause" to terminate the Executive's employment hereunder
if such termination shall be the result of:
i. the Executive's failure to comply in any material manner with the
reasonable policies and rules of the Company or the directives of
the Board; or
ii. the Executive's performance of any material act of fraud or
dishonesty in connection with the performance of his duties
hereunder; or
iii. the Executive's gross negligence or willful misconduct in the
performance of his duties hereunder; or
iv. the Executive's conviction for, or plea of nolo contendere to, a
felony or misdemeanor resulting in a jail sentence or any crime
involving moral turpitude; or
v. any material breach by the Executive of the obligations set forth
below in Section 10.
e. Good Reason. For purposes of this Agreement and subject to the
Company's opportunity to cure as provided in Section 4(f) hereof, the
Executive shall have "good reason" to terminate his employment
hereunder if such termination shall be the result of:
i. a reduction by the Company of the Executive's base salary;
ii. a material diminution in the Executive's duties or
responsibilities, as set forth in Sections 1 and 2 hereof; or
iii. the relocation, without the Executive's prior written consent, of
the Executive's principal work location beyond 50 miles from its
current location.
f. Cure Rights. Notwithstanding the provisions of Sections 4(d) and 4(e)
hereof, it shall be a condition precedent to the Company's right to
terminate the Executive's employment for "cause" and the Executive's
right to terminate his employment for "good reason" that (1) the party
seeking the termination shall first have given the other party written
notice stating with reasonable specificity the reason for the
termination ("breach") and (2) if such breach is susceptible of cure
or remedy, a period of thirty (30) days from and after the giving of
such notice shall have elapsed without the breaching party having
effectively cured or remedied such breach during such 30-day period,
unless such breach cannot be cured or remedied within thirty days, in
which case the period for remedy or cure shall be extended for a
reasonable time (not to exceed an additional thirty (30) days)
provided the breaching party has made and continues to make a diligent
effort to effect such remedy or cure. Notwithstanding anything to the
contrary contained herein, the right to cure set forth in this Section
4(f) shall not apply if there are habitual or repeated breaches by
either party.
g. Permanent and Total Disability. The Employment Period shall be
terminated by the death of the Executive. The Employment Period may be
terminated by the Board if the Executive shall be rendered incapable
of performing his duties to the Company by reason of any medically
determined physical or mental impairment for a period of either (i)
six (6) or more consecutive months from the first date of the
Executive's absence due to the disability or (ii) nine (9) months
during any eighteen (18) month period (a "Permanent and Total
Disability"). If the Employment Period is terminated by reason of
Permanent and Total Disability of the Executive, the Company shall
give thirty (30) days' advance written notice to that effect to the
Executive. Until the effective date of the termination as a result of
a Permanent and Total Disability, the Company shall continue to pay to
the Executive the compensation set forth in Section 3 hereof;
provided, however, that to the extent that the Executive receives
payments pursuant to any disability insurance policy for which the
Company pays the premium, the Company may deduct the amounts received
by the Executive pursuant to that policy from the compensation payable
to him.
5. Other Termination of Employment. In the event that the Executive's
employment with the Company is terminated during the Employment Period by
the Company for "cause", or by the Executive other than for "good reason",
the Company shall pay the Executive (or his legal representative) any
earned but unpaid salary amounts and any un-reimbursed expenses through the
Executive's final date of employment with the Company, and the Company
shall have no further obligations to the Executive, except under the plans,
programs and arrangements described in Section 3(e) hereof in accordance
with the terms of such plans.
6. Withholding of Taxes. All payments required to be made by the Company to
the Executive under this Agreement shall be subject to the withholding of
such amounts, if any, relating to tax, excise tax and other payroll
deductions as the Company may reasonably determine it should withhold
pursuant to any applicable law or regulation.
7. No Other Obligations. The benefits payable to the Executive under this
Agreement are not in lieu of any benefits payable under any employee
benefit plan, program or arrangement of the Company, except as provided
specifically herein, and upon termination, the Executive will receive such
benefits or payments, if any, as he may be entitled to receive pursuant to
the terms of such plans, programs and arrangements. Except for the
obligations of the Company provided by this Agreement (including, without
limitation, pursuant to the preceding sentence hereof), the Company shall
have no further obligations to the Executive upon his termination of
employment.
8. Reduction for "Parachute Payments". Notwithstanding anything in this
Agreement to the contrary, any amounts payable hereunder to the Executive
in connection with a change in control, as well as any other "parachute
payments," as such term is defined under Section 280G of the Internal
Revenue Code of 1986, as amended (the "Code"), payable under any other
plans, agreements or policies of the Company, shall be reduced to the
extent necessary to assure that the Executive does not become subject to
the excess parachute payment excise tax under Section 4999 of the Code and
the Company does not lose all or part of its compensation deduction for
such payments.
9. Indemnity. The Company shall, during his employment with the Company and
thereafter, indemnify the Executive to the fullest extent permitted by law
and by its Certificate of Incorporation and By-laws and shall assure that
the Executive is covered by the Company's directors' and officers'
insurance policies and any other insurance policies that protect employees,
as in effect from time to time.
10. Restrictive Covenants .
a. Proprietary Information.
i. The Executive agrees that all information and know-how, whether
or not in writing, of a private, secret or confidential nature
concerning the business or financial affairs of the Company or
any of the Company's Affiliates is and shall be the exclusive
property of the Company or the Company's Affiliates. Such
information and know-how shall include, but not be limited to,
inventions, products, processes, methods, techniques, formulas,
compositions, compounds, projects, developments, plans, research
data, clinical data, financial data, personnel data, computer
programs, and customer and supplier lists (collectively,
"Proprietary Information."). Except in connection with, and on a
basis consistent with, the performance of his duties hereunder,
the Executive shall not disclose any Proprietary Information to
others outside the Company or the Company's Affiliates or use the
same for any unauthorized purposes without written approval by
the Board, either during or after the Employment Period.
ii. The Executive agrees that all files, letters, memoranda, reports,
records, data, sketches, drawings, laboratory notebooks, program
listings, customer lists, customer solicitations or other
written, photographic, or other tangible material containing
Proprietary Information, whether created by the Executive or
others, which shall come into his custody or possession, shall be
and are the exclusive property of the Company or the Company's
Affiliates to be used by the Executive only in the performance of
his duties for the Company. The Executive agrees to deliver to
the Company upon the expiration of the Employment Period such
material containing Proprietary Information.
iii. The Executive agrees that his obligation not to disclose or use
information, know-how and records of the types set forth in
paragraphs (i) and (ii) above, also extends to such types of
information, know-how, records and tangible property of customers
of the Company or the Company's Affiliates or suppliers to the
Company or the Company's Affiliates or other third parties who
may have disclosed or entrusted the same to the Company or the
Company's Affiliates or to the Executive in the course of the
Company's business.
iv. Notwithstanding the foregoing, such Proprietary Information shall
not include information which (A) is or becomes generally
available or known to the public, other than as a result of any
disclosure by the Executive in violation hereof; or (B) is or
becomes available to the Executive on a non-confidential basis
from any source other than the Company, other than any such
source that the Executive knows is prohibited by a legal,
contractual, or fiduciary obligation to the Company from
disclosing such information.
v. Other than in connection with any requirements pursuant to
applicable "whistleblower" statutes, in the event that the
Executive is requested pursuant to, or becomes compelled by, any
applicable law, regulation, or legal process to disclose any
Proprietary Information, the Executive shall provide the Company
with prompt written notice thereof so that the Company may seek a
protective order or other appropriate remedy or, in the Company's
sole and absolute discretion, waive compliance with the terms
hereof. In the event that no such protective order or other
remedy is obtained, or the Company waives compliance with the
terms hereof, the Executive shall furnish only that portion of
such Proprietary Information which the Executive is advised by
counsel is legally required. The Executive will cooperate with
the Company, at the Company's sole cost and expense, in its
efforts to obtain reliable assurance that confidential treatment
will be accorded such Proprietary Information.
b. Developments.
i. The Executive shall make full and prompt disclosure to the
Company of all inventions, improvements, discoveries, methods,
developments, software, and works of authorship, whether
patentable or not, which are created, made, conceived or reduced
to practice by the Executive or under his direction or jointly
with others during the Employment Period, whether or not during
normal working hours or on the premises of the Company or the
Company's Affiliates (collectively, "Developments").
ii. The Executive agrees to assign and does hereby assign to the
Company (or any entity designated by the Company) all his right,
title and interest in and to all Developments and all related
patents, patent applications, copyrights and copyright
applications. The Executive also hereby waives all claims to
moral rights in any Developments.
iii. Notwithstanding anything to the contrary contained herein, the
provisions of Sections 10(b)(i) and 10(b)(ii) hereof shall not
apply to Developments which consist of products (and not of
services) which do not relate to the present or planned business
or research and development of the Company or the Company's
Affiliates and which are made and conceived by the Executive not
during normal working hours, not on the premises of the Company
or the Company's Affiliates and not using the tools, devices,
equipment or personnel of the Company or the Company's Affiliates
or Proprietary Information.
iv. The Executive agrees to cooperate fully with the Company or the
Company's Affiliates, both during and after the Employment
Period, with respect to the procurement, maintenance and
enforcement of copyrights and patents (both in the United States
and foreign countries) relating to Developments. The Executive
shall sign all papers, including, without limitation, copyright
applications, patent applications, declarations, oaths, formal
assignments, assignment of priority rights, and powers of
attorney, which the Company or the Company's Affiliates may deem
reasonably necessary or desirable in order to protect their
rights and interests in any Development.
c. Other Agreements. The Executive represents that his performance of all
the terms of this Agreement and as an employee of the Company does not
and will not breach any agreement, other than agreements with the
Company's Affiliates, (i) to keep in confidence proprietary
information, knowledge or data acquired by him in confidence or in
trust prior to his employment with the Company, (ii) to refrain from
competing, directly or indirectly, with the business of his previous
employer or any other party, and (iii) to refrain from soliciting the
employment of any employees of his previous employer or any other
party.
d. Non-Competition and Non-Solicitation . During the Executive's
employment hereunder and for a period of (i) two (2) years thereafter
upon the Executive's termination of employment by giving notice as set
forth in Section 1 hereof or (ii) one (1) year thereafter upon the
Company's termination of the Executive's employment by giving notice
as set forth in Section 1 hereof, without the prior written consent of
the Company, the Executive shall not engage (whether as an employee,
consultant, director or independent contractor) in any Business
Activities on behalf of any person, firm or corporation, and the
Executive shall not acquire any financial interest (except for equity
interests in publicly-held companies that will not be significant and
that, in any event, will not exceed five percent (5%) of equity of
that company) in any entity which engages in Business Activities
within 200 miles of any of the Company's offices in operation on the
Commencement Date and within 100 miles of any office of the Company
established after the Commencement Date. During the period that the
above non-competition restriction applies, the Executive shall not,
without the written consent of the Company (i) solicit any employee of
the Company or any of the Company's Affiliates to terminate his
employment, or (ii) solicit any customers, partners, resellers,
vendors or suppliers of the Company on behalf of any individual or
entity other than the Company or its Affiliates. As used herein, the
term "Business Activities" shall mean conduct of business as a middle
market information technology service provider focused on network
management and monitoring, LAN-WAN broadband, security, storage, and
messaging.
e. Enforcement. The Company shall be entitled to seek a restraining order
or injunction in any court of competent jurisdiction to prevent any
continuation of any violation of the provisions of this Section 10.
f. Affiliates. For purposes hereof, the Company's Affiliates shall mean
any individual or entity that directly or indirectly, through one or
more intermediaries, controls, is controlled by or is under common
control with the Company. For purposes of this definition, "control"
means the power to direct the management and policies of another,
whether through the ownership of voting securities, by contract or
otherwise.
11. Notice. All notices, requests and other communications pursuant to this
Agreement shall be in writing and shall be deemed to have been duly given,
if delivered in person against written receipt therefor, or by overnight
courier, or sent by express, registered or certified mail, postage prepaid,
addressed as follows:
If to the Executive:
Xxxx Xxxxxxxx
00 Xxxxxxx Xxxxx
Xxxxxxxx, XX 00000
If to the Company:
MTM Technologies, Inc.
000 Xxxxxxxxx Xxx
Xxxxxx Xxxxxxx, XX 00000
Attn: Chief Executive Officer
Either party may, by written notice to the other, change the address to which
notices to such party are to be delivered or mailed.
12. Dispute Resolution; Mediation and Arbitration. Except as specifically
provided herein, any dispute or controversy arising under or in connection
with this Agreement shall be, upon the demand of either party, subject to a
non-binding mediation proceeding before a mediator on the panel of the CPR
Institute for Dispute Resolution, such mediator to be agreed upon by the
parties. If a mediator is not agreed upon or if mediation is not
successful, the matter shall be settled exclusively by arbitration,
conducted before a single arbitrator mutually selected by the parties, in
the State of New York, in accordance with the rules of the American
Arbitration Association then in effect. If the parties are unable to agree
on a single arbitrator, each party shall select an arbitrator and the two
arbitrators selected by the parties shall select a third arbitrator. If
three arbitrators are selected, they shall act by majority vote. Judgment
may be entered on the arbitrator's award in any court having jurisdiction.
Each party shall bear their own costs and expenses of any such mediation or
arbitration proceeding and shall split evenly any common costs; provided,
however, that if the dispute concerns the issue of termination for "cause"
or resignation for "good reason," the non-prevailing party shall pay for
all of the prevailing party's costs and expenses, including legal fees
relating to such mediation or arbitration proceeding.
13. Waiver of Breach . Any waiver of any breach of this Agreement shall not be
construed to be a continuing waiver or consent to any subsequent breach on
the part either of the Executive or of the Company.
14. Non-Assignment; Successors. Neither party hereto may assign his or its
rights or delegate his or its duties under this Agreement without the prior
written consent of the other party; provided, however, that (i) this
Agreement shall inure to the benefit of and be binding upon the successors
and assigns of the Company upon any sale of all or substantially all of the
Company's assets, or upon any merger, consolidation or reorganization of
the Company with or into any other corporation, all as though such
successors and assigns of the Company and their respective successors and
assigns were the Company and (ii) this Agreement shall inure to the benefit
of and be binding upon the heirs, assigns or designees of the Executive to
the extent of any payments due to them hereunder. As used in this
Agreement, the term "Company" shall be deemed to refer to any such
successor or assign of the Company referred to in the preceding sentence.
15. Severability. To the extent any provision of this Agreement or portion
thereof shall be invalid or unenforceable, it shall be considered deleted
there-from and the remainder of such provision and of this Agreement shall
be unaffected and shall continue in full force and effect.
16. Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall be deemed to be an original but all of which together
will constitute one and the same instrument.
17. Governing Law. This Agreement shall be construed, interpreted and enforced
in accordance with the laws of the State of New York, without giving effect
to the choice of law principles thereof.
18. Entire Agreement. This Agreement constitutes the entire agreement by the
Company and the Executive with respect to the subject matter hereof and
except as specifically provided herein, supersedes any and all prior
agreements or understandings between the Executive and the Company with
respect to the subject matter hereof, whether written or oral. This
Agreement may be amended or modified only by a written instrument executed
by the Executive and the Company.
[SIGNATURES ON NEXT PAGE]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
May 21, 2004.
MTM TECHNOLOGIES, INC.
/s/ Xxxxxxx X. Xxxxxx
By: __________________________
Name: Xxxxxxx X. Xxxxxx
Title: Chief Executive Officer
AGREED AND ACCEPTED:
/s/ Xxxx Xxxxxxxx
____________________
Xxxx Xxxxxxxx
Exhibit A
---------
RELEASE OF CLAIMS AND COVENANT NOT TO SUE
-----------------------------------------
This RELEASE OF CLAIMS AND COVENANT NOT TO SUE is executed and delivered by MTM
Technologies, Inc., a New York corporation (the "Company"), to ___________ (the
"Executive").
Pursuant to the provisions of Section 4 of the letter agreement between the
Company and the Executive dated __________ , 2004 (the "Agreement ") the Company
hereby agrees as follows:
The Company and its affiliates release and forever discharge the Executive from,
and covenant not to sue or proceed against the Executive on the basis of, any
and all past or present causes of action, suits, agreements or other claims
which the Company or its affiliates have against the Executive upon or by reason
of any matter, cause or thing whatsoever, including, but not limited to, any
matters arising out of his employment by the Company and the cessation of said
employment. This release shall not, however, constitute a waiver of any of the
Company's rights under the Agreement. The Company hereby covenants that it has
not transferred or assigned to any person or entity any of the claims that are
subject to this release and covenant.
This RELEASE OF CLAIMS AND COVENANT NOT TO SUE is executed by the Company and
delivered to the Executive on ____________, 20__.
MTM TECHNOLOGIES, INC.
By: _______________________
Name: _______________________
Title: _______________________
Exhibit B
---------
RELEASE AGREEMENT
-----------------
This RELEASE AGREEMENT (the " Agreement ") is made as of _________, 20__ by and
between MTM Technologies, Inc., a New York corporation (the " Company "), and
________ (the " Executive ").
Recitals:
--------
A. The Company and the Executive are parties to a Letter Agreement dated
__________, 2004 (the "Letter Agreement"). Capitalized terms that are not
otherwise defined herein shall have the meanings ascribed to such terms in the
Letter Agreement.
B. Effective as of ________, 20__ (the " Separation Date"), the Executive's
employment with the Company was or will be terminated.
C. The Company is not obligated to pay the Executive any additional compensation
or benefits other than that which has been earned as of the Executive's
Separation Date and other than that which is set forth in the Letter Agreement.
This Agreement is the Release Agreement referenced in the Letter Agreement and
the payment of the severance benefits set forth in the Letter Agreement is
conditioned upon the execution and delivery by the Executive of this Agreement.
Agreement:
---------
NOW, THEREFORE, in return for good and valuable consideration and in
consideration of the premises and the mutual promises made hereafter, the
Executive and the Company agree as follows:
1. Agreement. Subject to the terms and conditions of the Letter Agreement; (a)
the Company agrees to pay the Executive the severance payments and to otherwise
comply with the provisions of the Letter Agreement, as the case may be, and (b)
the Executive agrees to comply with the restrictive covenants in Section 10 of
the Letter Agreement and to otherwise comply with the provisions of the
Agreement.
2. Acknowledgment. The Executive and the Company acknowledge that the amounts
to be paid pursuant to the Letter Agreement are in excess of any earned wages or
benefits due and owing the Executive through his Separation Date.
3. Release. In exchange for the good and valuable consideration set forth in
Section 1 of this Agreement, the Executive, on behalf of himself, his heirs,
executors and assigns, releases, waives and discharges any and all manner of
action, causes of action, claims, rights, charges, suits, damages, debts,
demands, obligations, attorneys' fees, or any and all other liabilities or
claims of whatsoever nature, whether in law or in equity, known or unknown,
including, but not limited to, any claim and/or claim of damages or other relief
for tort, breach of contract, personal injury, negligence, age discrimination
under The Age Discrimination In Employment Act of 1967, any alleged violation of
the Civil Rights Acts of 1964 and 1991, the Equal Pay Act of 1963, the
Rehabilitation Act of 1973, the Older Workers Benefit Protection Act of 1990,
the Americans with Disabilities Act of 1990, the Family and Medical Leave Act of
1993, any employment discrimination prohibited by other federal, state or local
laws, including, but not limited to, sex, race, national origin, marital status,
age, handicap, height, weight, or religious discrimination, and any other claims
for unlawful employment practices which the Executive has claimed or may claim
or could claim in any local, state or federal forum, against the Company, its
shareholders and their respective directors, officers, employees, successors and
assigns, affiliates and all others, as a result of the Executive's employment
at, and separation of employment from, the Company; provided that, the Executive
and the Company retain the right to enforce this Agreement and the provisions of
Section 4 of the Letter Agreement. The Executive hereby covenants that he has
not transferred or assigned to any person or entity any of the claims that are
subject to this release and covenant.
4. Irrevocable Bar. The parties intend that this Agreement will irrevocably
bar any action or claim whatsoever by the Executive against the Company for any
resultant injuries or damages, whether known or unknown, sustained or to be
sustained, as a result of any of the Company's acts, omissions and conduct
having occurred up to the present date, including, but not limited to, the
Executive's employment with the Company and the termination of that employment,
other than those concerning this Agreement and the provisions of Section 4 of
the Letter Agreement.
5. Rights or Claims Arising After the Date Hereof. The Executive and the
Company understand that the Executive is not waiving rights or claims that may
arise as a result of any act, omission or conduct of the Company occurring after
the date this Agreement is executed.
6. Review of Agreement. The Executive understands and agrees that he has read
this Agreement carefully and understands all of its terms.
7. Advice to Consult Attorney. The Executive understands and agrees that he is
advised to consult with an attorney prior to executing this Agreement.
8. Period within which to Consider Agreement. The Executive understands and
agrees that he has been given 21 days (or more) within which to consider this
Agreement.
9. Revocation. The Executive understands and agrees that he may revoke this
Agreement for a period of seven (7) calendar days following the execution of
this Agreement. Neither this Agreement nor the Company's obligations under
Section 4 of the Letter Agreement shall be effective until this revocation
period has expired (at which time such obligations shall be effective,
retroactive to the time contemplated in the Letter Agreement). Without limiting
the generality of the foregoing, the provisions of Section 10 of the Letter
Agreement (relative to restrictive covenants) shall not be terminated or
otherwise affected by any revocation of this Agreement. The Executive
understands that any revocation, to be effective, must be in writing and
received, within seven (7) days of execution of this Agreement, by the Company
at its principal executive offices.
10. Voluntary Action; No Reliance. In agreeing to sign this Agreement, the
Executive is doing so completely voluntarily and agrees that he has not relied
on any oral statements or explanations made by the Company or its
representatives.
11. Nondisclosure. Both parties agree not to disclose the terms of this
Agreement to any third party, except as is required by law, or as is necessary
for purposes of securing counsel from either parties' attorneys or accountants.
12. No Disparaging Statements. The Executive and the Company agree not to make
any disparaging statements about the other.
13. Full Accord and Satisfaction. This Agreement is in full accord and
satisfaction and compromise of the claims of the Executive and the Company and
is not to be construed as an admission of liability on the part of the Company.
14. Miscellaneous. The headings in this Agreement are inserted for convenience
of reference only and shall not be a part of or control or affect the meaning of
any provision hereof. This Agreement maybe executed in counterparts, each of
which shall be deemed an original but all of which together shall constitute one
and the same instrument, and shall bind and shall inure to the benefit of the
parties hereto, and their respective successors and assigns. Copies
(photostatic, facsimile or otherwise) of this Agreement and signatures hereto
shall be deemed to be originals and may be relied on to the same extent as the
manually-signed originals. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
15. Entire Agreement, Modification. This Agreement contains the entire
agreement between the Executive and the Company with respect to the subject
matter hereof. Any modification of this Agreement must be made in writing and
signed by the Executive and an officer specifically authorized to do so by the
Board of Directors of the Company.
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IN WITNESS WHEREOF, the undersigned has executed this Agreement on the date
first written above.
___________________________
Xxxx Xxxxxxxx
