EMPLOYMENT AGREEMENT
Exhibit 10.7
Parties:
|
GSI Commerce, Inc., | |
| a Delaware corporation (“Employer”) | ||
| 000 Xxxxx Xxxxxx | ||
| Xxxx xx Xxxxxxx, XX 00000 | ||
| Xxxxxxxxxxx Xxxxxxxxx (“Executive”) | ||
Date:
|
23 March 2010 |
Background: Employer, through its Global Marketing Services business, is a provider of
interactive marketing services, including brand development and strategic account planning, user
experience and creative design, interactive marketing, e-mail marketing and data services,
affiliate marketing, studio services (photography and content development) and traditional media
services. (the “Business”). Employer desires to employ Executive, and Executive desires to accept
such employment, on the terms and conditions stated below (the “Agreement”).
intending to be legally bound, and in consideration of the mutual agreements stated
below, Executive and Employer agree as follows:
1. Employment and Term. Employer hereby employs Executive, and Executive accepts
such employment, subject to all of the terms and conditions of this Agreement, for a term
beginning on Executive’s start date of actual employment with Employer (“Start Date”) (which shall
not be later than May 17, 2010) and ending on the fifth annual anniversary of the Start Date,
unless extended in writing by Employer and Executive or sooner terminated in accordance with other
provisions hereof (the “Term”). Each period of 365 days (or 366 days in the case of a leap year)
beginning on the Start Date and each annual anniversary thereafter during the Term shall be
referred to as a “Term Year”.
2. Position and Duties.
2.1. Title and Responsibilities. During the Term, Executive will serve as Chief
Executive Officer, Global Marketing Services. In that capacity, Executive will have supervision
and control over, and responsibility for, the overall business, affairs and management of the
Business, and shall have such other duties and responsibilities consistent with his position as may
from time to time be prescribed by Employer’s Chief Executive Officer, President and/or Chairman or
Employer’s Board of Directors.
2.2. Loyalty. Executive will devote all of his working time, energy, skill and best
efforts to the performance of his duties hereunder in a manner which will faithfully and diligently
further the business and interests of Employer; provided, however, that Executive may devote a
reasonable amount of time and energy for industry organizations and activities and civic and
charitable activities.
2.3. Reporting. Executive will report to, and be subject to the direction of,
Employer’s Chief Executive Officer or such other senior officer as Employer’s Board of Directors or
Chief Executive Officer may designate.
2.4. Policies and Practices. The employment relationship between the Parties shall be
governed by the policies and practices established by Employer and its Board of Directors.
Executive acknowledges that he has received and carefully read and understood Employer’s Code of
Business Conduct and other governing policies, which will govern the terms and conditions of his
employment with Employer, along with this Agreement. In the event that the terms of this Agreement
differ from or are in conflict with Employer’s policies or practices or Employer’s Code of Business
Conduct, this Agreement shall control.
2.5. Location. Unless the Parties otherwise agree in writing, during the term of this
Agreement, Executive shall perform the services Executive is required to perform pursuant to this
Agreement at Employer’s principal executive offices, which currently are located in King of
Prussia, Pennsylvania; provided, however, that Employer may from time to time require Executive to
travel temporarily to other locations in connection with Employer’s business.
3. Compensation, Benefits and Expenses.
3.1. Base Salary. Employer shall pay to Executive an annual base salary (“Base
Salary”) of Five Hundred Thousand Dollars ($500,000). Executive’s Base Salary will be payable in
accordance with Employer’s normal payroll practices, subject to payroll deductions and required
withholdings. The Base Salary shall be prorated for any partial year of employment on the basis of
a 365-day fiscal year. During the Term, Executive shall not be eligible for annual salary
adjustments.
3.2. Annual Bonus. Executive shall be eligible to earn an annual bonus (“Bonus”)
equal to 100% of his Base Salary (“Target”) under Employer’s Leadership Team Incentive Plan as set
forth on the attached Exhibit A. The Target shall be prorated for any partial year of employment
on the basis of a 365-day fiscal year.
3.3. Initial Stock Award. Upon commencement of the Term, Executive shall be granted,
under Employer’s 2005 Equity Incentive Plan (the “2005 Plan”) a restricted stock unit award (the
“Initial Stock Award”) having a fair market value of $2,500,000 on the later of the Start Date or
the date Employer’s Board of Directors or Compensation Committee approves the Initial Stock Award.
The Initial Stock Award shall be governed by the terms and provisions of the 2005 Plan and shall be
subject to similar restrictions as are contained in the stock awards granted to other executives of
Employer and as are set forth in Executive’s Initial Stock Award agreement. The restricted stock
units (“RSUs”) subject to the Initial Stock Award will vest in accordance with the following
schedule; provided that the vesting will cease upon the termination of Executive’s continuous
service (as defined in the 2005 Plan) with Employer; and, provided, further, that
such vesting will be subject to acceleration as provided in Section 4.6
hereof: twenty percent (20%) of the total number of RSUs subject to the Initial Stock Award
shall vest on each annual anniversary of the date of grant of the Initial Stock Award, with all of
the RSUs subject to the Initial Stock Award becoming fully vested on the fifth annual anniversary
of the date of grant of the Initial Stock Award.
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3.4. Annual Stock Award. For each Term Year (excluding the First Term Year), Executive
shall be granted, under Employer’s 2010 Equity Incentive Plan (the “2010 Plan”), a restricted stock
unit or other equity award (the “Annual Stock Award”). The Annual Stock Award shall represent
shares of Employer’s common stock equal to the lesser of (i) shares having a fair market value of
at least $500,000 on the date of grant, and (ii) 20,000 shares of Employer’s common stock. The
Annual Stock Award shall be governed by the terms and provisions of the 2010 Plan and shall be
subject to similar restrictions as are contained in the stock awards granted to other executives of
Employer and as are set forth in Executive’s Annual Stock Award agreement. The Annual Stock Award
will vest in accordance with the following schedule; provided that the vesting will cease upon the
termination of Executive’s continuous service (as defined in the 2010 Plan) with Employer; and,
provided, further, that such vesting will be subject to acceleration as provided in
Section 4.6 hereof: twenty-five percent (25%) of the Annual Stock Award shall vest within 90 days
before or after each annual anniversary of the date of grant of such Annual Stock Award, with each
Annual Stock Award becoming fully vested within 90 days before or after the fourth annual
anniversary of the date of grant of such Annual Stock Award as may be determined by Employer’s
Board of Directors or Compensation Committee.
3.5. Long-Term Incentive Opportunity. Executive shall be eligible to earn long-term
incentive compensation under the Global Marketing Services Value Appreciation Plan as summarized on
the attached Exhibit B. The Global Marketing Services Value Appreciation Plan will be issued under
and be governed by the terms and provisions of the 2010 Plan and will be documented promptly after
this Agreement is signed by both parties (as documented, the “Value Appreciation Plan”).
3.6. Other Benefits. Executive shall be eligible to participate in any deferred
compensation, savings, health insurance, life insurance, group insurance, disability insurance,
pension, retirement and other benefit plans or programs of Employer now existing, or established
hereafter, and offered to similarly situated employees of Employer, subject to the terms and
provisions thereof. Executive acknowledges that Executive’s participation in the employee benefit
plans or programs of Employer are subject to the terms and conditions of such plan or programs and
that Employer may change its plans or programs. Notwithstanding the foregoing, Executive shall not
be entitled to participate in any equity incentive, stock option, or bonus plans or programs of
Employer now existing, or established hereafter, other than to the extent provided for in Section
3.2 through Section 3.5 hereof.
3.7. Personal Time-off. Executive will be eligible for paid personal time-off in
accordance with Employer’s policy as in effect from time to time.
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3.8. Expenses. Employer shall reimburse Executive for all actual, ordinary,
necessary and reasonable expenses incurred by Executive in the course of his performance of
services hereunder. Executive will properly account for all such expenses. Such reimbursement
payments shall be made promptly, but in no event later than December 31 of the calendar year
following the year in which such expense was incurred.
4. Termination. Executive’s employment with Employer shall be on an at-will basis, such
that either party may terminate the employment relationship at any time, subject to the provisions
set forth in this Section 4.
4.1. Termination by Death. If Executive dies, then this Agreement will terminate
immediately, and Executive’s rights to compensation and benefits hereunder will terminate as of the
date of death, except that Executive’s heirs, personal representatives or estate will be entitled
to (i) payment, within sixty (60) days after Executive’s death, of any earned but unpaid portion of
Executive’s Base Salary and any other benefits accrued by Executive pursuant to the benefit plans
and programs of Employer up to the date of termination (collectively, the “Accrued Obligations”),
(ii) any benefits which are to be continued or paid after the date of termination in accordance
with the terms of the benefit plans or programs of Employer, (iii) the portions of Executive’s
Initial Stock Award and Annual Stock Awards that have vested in accordance with the terms of those
awards and the 2005 Plan or the 2010 Plan, as applicable, as of the date of Executive’s termination
(the “Vested Stock Awards”), (iv) the portions of the Value Appreciation Plan award that have
vested in accordance with the terms of that plan due to the passage of time (the “Time Vested Value
Appreciation Award”) and (v) the portions of the Value Appreciation Plan award that have vested in
accordance with the terms of that plan due to the satisfaction of applicable performance goals, as
of the date of Executive’s termination (the “Performance Vested Value Appreciation Award”).
Anything in this Agreement or the Value Appreciation Plan to the contrary notwithstanding, if
termination occurs during the first twelve (12) months of the Term pursuant to this Section 4.1,
Executive shall forfeit his entire award under the Value Appreciation Plan. In the event of a
termination of Executive’s employment pursuant to this paragraph, any right that Executive’s estate
may have to compensation and benefits under this Agreement shall terminate, except that Executive’s
estate shall be entitled to receive the payments and benefits payable as set forth in this Section
4.1.
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4.2. Termination by Disability. If, as a result of disability (as defined in
Employer’s group long-term disability insurance policy then in force), Executive is unable to
perform the essential duties of his employment on a full-time basis, Executive will continue to
receive his Base Salary and the benefits and personal time-off provided for in Sections 3.1, 3.6
and 3.7(to the extent Executive continues to be eligible therefor under the terms of such benefit
plans or programs) for a period of one hundred eighty (180) days following the Onset of Disability
(as defined in this Section 4.2). Any amounts due to Executive under this Section 4.2 will be
reduced, dollar-for-dollar, by any amounts received by Executive in lieu of compensation under any
disability insurance policy or plan provided to Executive and paid for by Employer. If Executive’s
inability to perform the essential duties of his employment on a full-time basis
continues for more than one hundred eighty (180) days after the Onset of Disability or for
periods aggregating more than one hundred eighty (180) days during any twelve (12) month period,
then Employer may, upon ten (10) days prior written notice to Executive, terminate Executive’s
employment. In the event of a termination of Executive’s employment pursuant to this paragraph,
Executive’s right to compensation and benefits under this Agreement shall terminate, except that
Executive shall be entitled to (i) payment of the Accrued Obligations within sixty (60) days after
Executive’s termination of employment, (ii) any benefits which are to be continued or paid after
the date of termination in accordance with the terms of the benefit plans or programs of Employer,
(iii) the Vested Stock Awards, (iv) the Time Vested Value Appreciation Award and (v) the
Performance Vested Value Appreciation Award. Anything in this Agreement or the Value
Appreciation Plan to the contrary notwithstanding, if termination occurs during the first twelve
(12) months of the Term pursuant to this Section 4.2, Executive shall forfeit his entire award
under the Value Appreciation Plan. “Onset of Disability” means the first day on which Executive
is unable to perform the essential duties of his employment on a full-time basis by reason of such
disability.
4.3. Termination for Cause. Employer may, at any time, upon written notice to
Executive, terminate Executive’s employment, and Executive’s rights to compensation and benefits
hereunder, for Cause (as defined in this Section 4.3), except that Executive will be entitled to
(i) payment of the Accrued Obligations within sixty (60) days after Executive’s termination of
employment, (ii) any benefits which are to be continued or paid after the date of termination in
accordance with the terms of the benefit plans or programs of Employer, and (iii) the Vested Stock
Awards. Anything in this Agreement or the Value Appreciation Plan to the contrary notwithstanding,
if Executive is terminated pursuant to this Section 4.3, Executive shall forfeit his entire award
under the Value Appreciation Plan, including the Time Vested Value Appreciation Award and the
Performance Vested Value Appreciation Award.
“Cause” will exist if Employer’s Board of Directors or Compensation Committee in good faith
determines that (i) Executive is grossly negligent or engaged in willful misconduct in the
performance of his duties under this Agreement, (ii) Executive is convicted of, or enters a plea of
guilty or nolo contendere to, a crime constituting a felony or any criminal offense involving
fraud, dishonesty or moral turpitude under the laws of the United States or any state thereof other
than an automobile offense, or (iii) Executive breaches, in a material respect, this Agreement or
any written material agreement between Executive and Employer or violates, in a material respect,
Employer’s Code of Business Conduct or any of Employer’s material policy statements.
Notwithstanding the foregoing, Cause shall only exist after (A) Employer delivers written notice to
Executive of its intention to terminate for Cause within thirty (30) days after Employer has actual
knowledge of the facts and circumstances upon which Employer seeks to rely as a basis for its right
to terminate for Cause, (B) such notice sets forth in reasonable detail such facts and
circumstances and (C) in the case of clauses (i) or (iii), Executive has failed to correct the
acts, omissions or events set forth in Employer’s notice, if such acts, omissions or events are
reasonably capable of being corrected, within thirty (30) days following delivery of Employer’s
written notice of its intention to terminate for Cause.
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4.4. Termination Without Cause. Employer may, upon thirty (30) days prior written
notice to Executive, terminate Executive’s employment, and Executive’s rights to compensation and
benefits hereunder, for any reason or no reason. If Executive is terminated pursuant to this
Section 4.4 within the first twenty-four (24) months of the Term, Employer shall (i) continue to
pay to Executive his Base Salary in effect at the time of such termination, in accordance with
Employer’s normal payroll practices, for a period of twenty-four (24) months, (ii) pay to
Executive, at such time as bonuses are paid under Employer’s Leadership Team Incentive Plan, a
portion of his Bonus, if any, for the year in which such termination occurs equal to the amount of
that Bonus that is determined by Employer’s Compensation Committee to be earned for the year
multiplied by a fraction in which the numerator is the number of days Executive was employed by
Employer during that year and the denominator is 365, (iii) the Vested Stock Awards, (iv) the Time
Vested Value Appreciation Award, (v) the Performance Vested Value Appreciation Award, (vi)
Executive shall be entitled to continue to receive health and dental benefits under Employer’s
health and dental plans for a period of eighteen (18) following the date of termination at the
level in effect immediately prior to Executive’s date of termination, (vii) payment of the Accrued
Obligations within sixty (60) days following Executive’s termination of employment, and (viii) any
benefits which are to be continued or paid after the date of termination in accordance with the
terms of the benefit plans or programs of Employer. If Executive is terminated pursuant to this
Section 4.4 after the first twenty-four (24) months of the Term, Employer shall pay or provide to
Executive the severance benefits set forth in the immediately preceding sentence, except that the
time periods set forth in clause (i) shall be reduced to twelve (12) months. Subject to the
provisions of Section 4.9, such severance payments shall commence with the first payroll period
following the end of the maximum consideration and revocation period under the Release required by
Section 4.8 of this Agreement.
4.5. Resignation. Executive may, upon thirty (30) days prior written notice to
Employer, resign or terminate Executive’s employment with Employer, for any reason Executive deems
appropriate, in which case Executive will be entitled to (i) payment of the Accrued Obligations
within sixty (60) days after Executive’s termination of employment,(ii) any benefits which are to
be continued or paid after the date of termination in accordance with the terms of the benefit
plans or programs of Employer, (iii) the Vested Stock Awards, (iv) if, but only if, such
termination occurs after the first thirty-six (36) months of the Term, the Time Vested Value
Appreciation Award, and (v) the Performance Vested Value Appreciation Award. Anything in this
Agreement or the Value Appreciation Plan to the contrary notwithstanding, if such termination
occurs during the first thirty-six (36) months of the Term, Executive shall forfeit the Time Vested
Value Appreciation Award.
4.6. Termination By Employer Without Cause Following a Change in Control; Resignation by
Executive for Good Reason Following a Change in Control. If within ninety (90) days before or
seven hundred thirty (730) days following a Change in Control (as defined below), Employer
terminates Executive’s employment without Cause or, upon written notice to Employer, Executive
resigns for Good Reason (as defined below), then (i) Executive will be entitled to the payments
and benefits described in Section 4.4 upon such termination or
resignation, and (ii) notwithstanding any contrary provision contained in any of Executive’s
outstanding Equity Awards (as defined below) or in any of Employer’s Equity Plans (as defined
below), all Equity Awards held by Executive shall immediately become fully vested, all restrictions
set forth in such Equity Awards related to the passage of time and/or continued employment shall
immediately lapse, all option shares and other rights exercisable under such Equity Awards shall
immediately become fully exercisable, and Executive shall have continued exercisability of each
stock option and stock appreciation right held by Executive (if any) for the remaining term of each
such Equity Award.
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4.7. Definitions. For purposes of this Agreement, the following definitions shall
apply:
(a) “Change in Control,” means the occurrence, in a single transaction or in a series of
related transactions, of any one or more of the following events:
(i) any Exchange Act Person becomes the Owner, directly or indirectly, of securities of
Employer representing more than fifty percent (50%) of the combined voting power of Employer’s then
outstanding securities other than by virtue of a merger, consolidation or similar transaction,
covered by subsection (ii) below. Notwithstanding the foregoing, a Change in Control shall not be
deemed to occur (A) on account of the acquisition of securities of Employer from Employer by an
investor, any Affiliate (as such term is defined in Rule 405 of the Securities Act of 1933, as
amended) thereof or any other Exchange Act Person in a transaction or series of related
transactions the primary purpose of which is to obtain financing for Employer through the issuance
of equity securities or (B) solely because the level of Ownership held by any Exchange Act Person
(the “Subject Person”) exceeds the designated percentage threshold of the outstanding voting
securities as a result of a repurchase or other acquisition of voting securities by Employer
reducing the number of shares outstanding, provided that if a Change in Control would occur (but
for the operation of this sentence) as a result of the acquisition of voting securities by
Employer, and after such share acquisition, the Subject Person becomes the Owner of any additional
voting securities that, assuming the repurchase or other acquisition had not occurred, increases
the percentage of the then outstanding voting securities Owned by the Subject Person over the
designated percentage threshold, then a Change in Control shall be deemed to occur;
(ii) there is consummated a merger, consolidation or similar transaction involving (directly
or indirectly) Employer and, immediately after the consummation of such merger, consolidation or
similar transaction, the stockholders of Employer immediately prior thereto do not Own, directly or
indirectly, either (A) outstanding voting securities representing more than fifty percent (50%) of
the combined outstanding voting power of the surviving corporation, partnership, limited liability
company or other entity (each an “Entity”) in such merger, consolidation or similar transaction or
(B) more than fifty percent (50%) of the combined outstanding voting power of the parent of the
surviving Entity in such merger, consolidation or similar transaction, in each case in
substantially the same proportions as their Ownership of the outstanding voting securities of
Employer immediately prior to such transaction;
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(iii) the stockholders of Employer approve or Employer’s Board of Directors approves a plan of
complete dissolution or liquidation of Employer, or a complete dissolution or liquidation of
Employer shall otherwise occur;
(iv) there is consummated a sale, lease, exclusive license or other disposition of all or
substantially all of the consolidated assets of Employer and its subsidiaries, other than a sale,
lease, license or other disposition of all or substantially all of the consolidated assets of
Employer and its subsidiaries to an Entity, more than fifty percent (50%) of the combined voting
power of the voting securities of which are Owned by stockholders of Employer in substantially the
same proportions as their Ownership of the outstanding voting securities of Employer immediately
prior to such sale, lease, license or other disposition; or
(v) individuals who, on the date of this Agreement, are directors (the “Incumbent Board”)
cease for any reason to constitute at least a majority of the directors; provided,
however, that if the appointment or election (or nomination for election) of any new
director was approved or recommended by a majority vote of the Incumbent Board, such new director
shall be considered a member of the Incumbent Board, unless such new director’s initial assumption
of office occurs as a result of or in connection with either an actual or threatened election
contest (as such terms are used in Rule 14a-11 of Regulation 14A promulgated under the Securities
Exchange Act of 1934, as amended) or other actual or threatened solicitation of proxies or consents
by or on behalf of an Entity other than the Incumbent Board.
(b) “Equity Award” means any stock option, restricted stock award, restricted stock unit or
other equity incentive award of any type granted by Employer to Executive, whether granted before,
on or after the date of this Agreement, as the same may be adjusted or converted as a result of any
recapitalization, stock dividend, spin-off or similar event; provided, however, that Equity Award
shall not include the Value Appreciation Plan or any equity or equity incentive award or other
award issued pursuant to that plan.
(c) “Equity Plan” means any stock option plan, restricted stock plan or other equity incentive
or equity compensation plan of Employer; provided, however, that Equity Plan shall not include the
Value Appreciation Plan.
(d) “Exchange Act Person” means any natural person, Entity or “group” (within the meaning of
Section 13(d) or 14(d) of the Exchange Act), except that “Exchange Act Person” shall not include
(i) Employer or any Affiliate, (ii) any employee benefit plan of Employer or any Affiliate or any
trustee or other fiduciary holding securities under an employee benefit plan of Employer or any
Affiliate, (iii) an underwriter temporarily holding securities pursuant to an offering of such
securities, (iv) an Entity Owned, directly or indirectly, by the stockholders of Employer in
substantially the same proportions as their Ownership of stock of Employer or (v) any natural
person, Entity or “group” (within the meaning of Section 13(d) or 14(d) of the Securities Exchange
Act of 1934, as amended) that, as of the date of this Agreement, is the Owner, directly or
indirectly, of securities of Employer representing more than fifty percent (50%) of the combined
voting power of Employer’s then outstanding securities.
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(e) “Own,” “Owned,” “Owner,” “Ownership” means that in relation to certain securities, a
person or Entity, directly or indirectly, through any contract, arrangement, understanding,
relationship or otherwise, has or shares voting power, which includes the power to vote or to
direct the voting, with respect to such securities.
(f) “Good Reason” means the occurrence of one or more of the following events or conditions,
without Executive’s express prior written consent, provided that following the occurrence of any
such event or condition, Executive shall have given Employer notice that he is resigning his
employment with Employer due to the occurrence of such event or condition and Employer shall not
have corrected the situation within ten (10) days after Executive gives such notice:
(i) a material reduction in Executive’s duties, positions, titles, offices, authority or
responsibilities relative to the duties, position, titles, offices, authority or responsibilities
in effect immediately prior to the Change in Control; the assignment to Executive of any duties or
responsibilities that are substantially inconsistent with Executive’s duties, positions, titles,
offices, authority or responsibilities as in effect immediately before the Change in Control; or
any removal of Executive from or failure to reappoint or reelect Executive to any of such
positions, titles or offices in effect immediately prior to the Change in Control; provided that
any of the foregoing that result solely from the fact that Employer is no longer a publicly traded
and listed company shall not by itself constitute Good Reason under this clause (i);
(ii) a material reduction in Executive’s Base Salary as in effect immediately prior to the
Change in Control;
(iii) a material reduction in Executive’s bonus or other cash incentive compensation
opportunity as in effect immediately prior to the Change in Control; a material reduction or
material negative change in Executive’s equity award or other long-term non-cash incentive
opportunities (the value of which is measured as of the date of grant using a reasonable valuation
methodology consistently applied); or a material reduction or material negative change in
Executive’s benefits other than Base Salary, bonus or other cash and non-cash incentive
compensation as in effect immediately prior to the Change in Control; provided that Good Reason
shall not exist under this clause (iii) if, after a Change in Control, Employer offers Executive a
range of cash and non-cash bonus and incentive opportunities and other benefits which, taken as a
whole, are comparable to the cash and non-cash bonus and incentive opportunities and other benefits
provided to Executive immediately prior to the Change in Control;
(iv) the failure of Employer to timely pay or provide to Executive any portion of Executive’s
compensation or benefits then due to Executive;
(v) a relocation of Executive’s principal place of employment that will result in an increase
of more than thirty (30) miles in Executive’s one-way commute as compared to Executive’s one-way
commute, prior to the Change in Control;
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(vi) any material breach by Employer of this Agreement or any material agreement between
Employer and Executive, including any indemnification agreement or agreement relating to any Equity
Award; or
(vii) the failure by Employer to obtain, before a Change in Control occurs, an agreement in
writing from any successors and assigns to all or substantially all of the business or assets of
Employer to assume and agree to perform this Agreement unless otherwise assumed by such successors
and assigns by operation of law.
4.8. Release. Notwithstanding the foregoing, Executive will not receive any of the
payments set forth under Section 4, unless upon Executive’s termination of employment Executive
furnishes Employer with an effective waiver and release of claims (the “Release”) in the form
attached hereto as Exhibit “C” (or such other form of Release as may be required by Employer)
within the time period set forth therein, but in no event later than forty-five (45) days following
termination of Executive’s employment.
4.9. Application of Section 409A. This Agreement shall be interpreted to avoid any
penalty sanctions under Section 409A of the Code. If any payment or benefit cannot be provided or
made at the time specified herein without incurring sanctions under Section 409A, then such benefit
or payment shall be provided in full at the earliest time thereafter when such sanctions will not
be imposed. For purposes of Section 409A of the Code, all payments to be made upon a termination of
employment under this Agreement may only be made upon a “separation from service” within the
meaning of such term under Section 409A of the Code, each payment made under this Agreement shall
be treated as a separate payment and the right to a series of installment payments under this
Agreement is to be treated as a right to a series of separate payments. In no event shall
Executive, directly or indirectly, designate the calendar year of payment. All reimbursements and
in-kind benefits provided under this Agreement shall be made or provided in accordance with the
requirements of Section 409A, including, where applicable, the requirement that (i) any
reimbursement is for expenses incurred during Executive’s lifetime (or during a shorter period of
time specified in this Agreement), (ii) the amount of expenses eligible for reimbursement, or
in-kind benefits provided, during a calendar year may not affect the expenses eligible for
reimbursement, or in-kind benefits to be provided, in any other calendar year, (iii) the
reimbursement of an eligible expense will be made on or before the last day of the calendar year
following the year in which the expense is incurred, and (iv) the right to reimbursement or in-kind
benefits is not subject to liquidation or exchange for another benefit. Benefits payable under this
Agreement will be subject to the distribution requirements of Section 409A(a)(2)(A) of the Code,
including, without limitation, the requirement of Section 409A(a)(2)(B)(i) of the Code that payment
to Executive be delayed until six (6) months after separation from service if Executive is a
“specified employee” within the meaning of the aforesaid Section of the Code at the time of such
separation from service. If Executive dies during the postponement period prior to the payment of
postponed amount, the amounts withheld on account of Section 409A of the Code shall be paid to the
personal representative of Executive’s estate within sixty (60) days after the date of Executive’s
death.
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4.10. Offset. To the extent permitted by law, Employer may deduct any amounts
Executive owes Employer at the time of Executive’s termination of employment from any severance
payments.
4.11. Parachute Payments. Anything in this Agreement to the contrary notwithstanding,
if any payment or benefit Executive would receive from Employer pursuant to this Agreement or
otherwise (a “Payment”) would (i) constitute a “parachute payment” within the meaning of Section
280G of the Code, and (ii) but for this sentence, be subject to the excise tax imposed by Section
4999 of the Code (the “Excise Tax”), then such Payment shall be equal to the Reduced Amount. The
“Reduced Amount” shall be either (x) the largest portion of the Payment that would result in no
portion of the Payment being subject to the Excise Tax or (y) the largest portion of the Payment,
up to and including the total Payment, whichever amount, after taking into account all applicable
federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the
highest applicable marginal rate), results in Executive’s receipt, on an after-tax basis, of the
greater amount of the Payment notwithstanding that all or some portion of the Payment may be
subject to the Excise Tax. If a reduction in payments or benefits constituting “parachute payments”
is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following
order: reduction of cash payments; cancellation of accelerated vesting of Equity Awards; reduction
of employee benefits. If acceleration of vesting of Equity Award compensation is to be reduced,
such acceleration of vesting shall be cancelled in the reverse order of the date of grant of
Executive’s Equity Awards.
Employer shall appoint a nationally recognized independent accounting firm to make the
determinations required hereunder, which accounting firm shall not then be serving as accountant or
auditor for the individual, entity or group that effected the Change in Control. Employer shall
bear all expenses with respect to the determinations by such accounting firm required to be made
hereunder.
The accounting firm engaged to make the determinations hereunder shall provide its
calculations, together with detailed supporting documentation, to Employer and Executive within
fifteen (15) calendar days after the date on which Executive’s right to a Payment is triggered (if
requested at that time by Employer or Executive) or such other time as requested by Employer or
Executive. If the accounting firm determines that no Excise Tax is payable with respect to a
Payment, either before or after the application of the Reduced Amount, it shall furnish Employer
and Executive with an opinion reasonably acceptable to Executive that no Excise Tax will be imposed
with respect to such Payment. Employer shall be entitled to rely upon the accounting firm’s
determinations, which shall be final and binding on all persons.
5. Procedure Upon Termination. As a condition to receiving any benefits under this
Agreement, upon termination of his employment, Executive must promptly return to Employer all
documents (including copies) and other materials and property belonging to Employer, or pertaining
to its business, including without limitation client, customer and prospect lists, contracts,
files, manuals, letters, reports and records in his possession or control, no matter from whom or
in what manner acquired.
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6. Inventions. Executive will promptly and fully communicate to Employer, in
writing, all trade secrets, inventions, mask works, ideas, processes, formulas, source and object
codes, data, programs, other works of authorship, know-how, improvements, discoveries,
developments, designs and techniques (collectively referred to as “Inventions”), whether or not
patentable or registrable under copyright or similar statutes, which are made, conceived, reduced
to practice or learned by Executive, whether alone or jointly with others, at any time during the
term of Executive’s employment with Employer, which relate to the business or operations of the
Business or which relate to methods, designs, products or systems sold, leased, licensed or under
development by the Business (such concepts, ideas and designs are referred to as “Employer
Inventions”). Executive acknowledges that Employer owns all right, title and interest in and to
any and all Employer Inventions (and all Proprietary Rights with respect thereto) and hereby
assigns and agrees to assign in the future (when any such Inventions or Proprietary Rights are
first reduced to practice or first fixed in a tangible medium, as applicable) to Employer (or to
such third party as Employer may direct) all of Executive’s right, title and interest in and to any
and all Employer Inventions (and all Proprietary Rights with respect thereto). Executive
acknowledges that all original works of authorship which are made by Executive (solely or jointly
with others) within the scope of Executive’s employment and which are protectable by copyright are
“works made for hire,” pursuant to United States Copyright Act (17 U.S.C., Section 101). Executive
will, at Employer’s expense, sign all documents and take such other actions as Employer may
reasonably request to confirm its ownership in Employer Inventions.
“Proprietary Rights” means all trade secret, patent, copyright, mask work and other
intellectual property rights throughout the world.
7. Nondisclosure. At all times during Executive’s employment with Employer and
thereafter, except with the express prior written consent of an executive officer of Employer other
than Executive or in connection with the proper performance of services under this Agreement,
Executive will not, directly or indirectly, communicate, disclose or divulge to any Person, or use
for the benefit of any Person, any Proprietary Information or any Third Party Information.
“Proprietary Information” means any and all confidential and/or proprietary knowledge, data or
information of the Business or Employer or its other businesses, no matter when or how acquired.
By way of illustration, but not limitation, Proprietary Information includes (i) trade secrets,
inventions, mask works, ideas, processes, formulas, source and object codes, data, programs, other
works of authorship, know-how, improvements, discoveries, developments, designs and techniques
(collectively referred to as “Inventions”); (ii) the terms and details of contracts and
arrangements with and proposals to clients of the Business or Employer’s other businesses
(“Clients”) and prospective Clients; (iii) personal, financial and other information obtained from
Clients’ customers (“Customers”); (iv) non-public pricing information, vendor prices, buying and
pricing strategies and merchandise plans, including the terms of contracts and arrangements with
vendors; (v) promotional, marketing and advertising strategies and plans, including the terms of
contracts and arrangements relating to promotions, marketing and advertising; (vi) non-public
financial and statistical information relating to the
Business or Employer or its other businesses, including budgets, financial and business forecasts,
expansion plans and business strategies; and (vii) information regarding the skills and
compensation of other employees of the Business or Employer or its other businesses. For purposes
of this Section 7, confidential information will not include any information which was known to
Executive prior to his employment by Employer, which is now known by the general public or
generally in the industry, which becomes known by the general public or generally in the industry
other than as a result of a breach of this Agreement by Executive or which is independently
acquired by Executive.
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“Person” means any individual, sole proprietorship, joint venture, partnership, corporation,
association, cooperative, trust, estate, government body, administrative agency, regulatory
authority or other entity of any nature.
“Third Party Information” means any and all confidential or proprietary data, knowledge and
information received from third parties, including Clients, prospective Clients and Customers,
subject to a duty on Employer’s part to maintain the confidentiality of such data, knowledge or
information and to use it only for certain purposes.
8. Non-Competition. Executive acknowledges that the Business is highly competitive.
Accordingly, for the longer of (i) one (1) year after the date of the termination of Executive’s
employment with Employer for any reason or (ii) the period of time with respect to which Employer
is paying Executive severance or separation compensation (the “Restricted Period”), except with
Employer’s express prior written consent, Executive will not, directly or indirectly, in any
capacity, for the benefit of any Person:
(a) Communicate with or solicit any Person who, as of or during the one (1) year prior to the
termination of Executive’s employment with Employer, was an employee, consultant, agent or
representative of Employer or any of its subsidiaries, or who, during the Restricted Period,
becomes an employee, consultant, agent or representative of Employer or any of its subsidiaries, in
any manner which interferes or might interfere with such Person’s relationship with Employer or any
such subsidiary, or in an effort to obtain any such employee, consultant, agent or representative
as an employee, consultant, agent or representative of any other Person;
(b) Communicate with or solicit any Person who, as of or during the one (1) year prior to the
termination of Executive’s employment with Employer, was a client, customer, or prospect of the
Business, or who, during the Restricted Period, becomes a client, customer, or prospect of the
Business, in any manner which interferes or which would be reasonably likely to interfere with such
Person’s relationship with the Business, or in an effort to obtain any such a client, customer, or
prospect as a client, customer, or prospect of any other Person which conducts a business
competitive with all or any material part of the Business ; or
(c) Establish, own, manage, operate or control or invest in, or participate in the
establishment, ownership, management, operation or control of or investment in, or be a director,
officer, employee, agent or representative of, or be a consultant to, any Person which conducts a
business competitive with all or any material part of the Business; provided, however,
that ownership by Executive, as a passive investment, of less than two percent (2%) of the
outstanding shares of capital stock of any corporation with one or more classes of its capital
stock listed on a national securities exchange shall not constitute a breach of this paragraph.
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9. Consideration and Enforcement of Covenants. Executive expressly acknowledges that
the covenants contained in Sections 6, 7 and 8 of this Agreement (“Covenants”) are a material part
of the consideration bargained for by Employer and, without the agreement of Executive to be bound
by the Covenants, Employer would not have agreed to enter into this Agreement. Executive
acknowledges that any breach by Executive of any of the Covenants will result in irreparable injury
to Employer for which money damages could not adequately compensate. If there is such a breach,
Employer will be entitled, in addition to all other rights and remedies which Employer may have at
law or in equity, to have an injunction issued by any competent court enjoining and restraining
Executive and all other Persons involved therein from continuing such breach. The existence of any
claim or cause of action which Executive or any such other Person may have against Employer will
not constitute a defense or bar to the enforcement of any of the Covenants. If Employer must
resort to litigation to enforce any of the Covenants which has a fixed term, then such term will be
extended for a period of time equal to the period during which a breach of such Covenant was
occurring, beginning on the date of a final court order (without further right of appeal) holding
that such a material breach occurred or, if later, the last day of the original fixed term of such
Covenant. If any portion of any Covenant or its application is construed to be invalid, illegal or
unenforceable, then the other portions and their application will not be affected thereby and will
be enforceable without regard thereto. If any of the Covenants is determined to be unenforceable
because of its scope, duration, geographical area or similar factor, then the court making such
determination will have the power to reduce or limit such scope, duration, area or other factor,
and such Covenant will then be enforceable in its reduced or limited form. Any breach of the
Covenants contained herein shall constitute a material breach of this Agreement and shall
discharge, to the extent not prohibited by applicable law, Employer from any and all of its
obligations to make payments or provide benefits under any provision of this Agreement including
Section 4 hereof.
10. Clawback. In the event that Employer’s Board of Directors or Compensation
Committee determines in good faith that the earlier determination as to the valuation of the
Business or the achievement of any performance targets applicable to the payment of Executive’s
Bonus or long-term incentive compensation or awards under the Value Appreciation Plan (“VAP
Compensation”) under Section 3.2 or 3.5 hereof (the “Performance Targets”) was based on materially
incorrect data, and that in fact the Performance Targets had not been achieved or had been achieved
to a lesser extent than originally determined and any Bonus (or portion thereof) or VAP
Compensation (or portion thereof) paid or issued would not have been paid or issued, given the
correct data, then in each such instance, Executive shall, at the request of Employer’s Board of
Directors or Compensation Committee, return or forfeit, as applicable, all or a portion (but no
more than one-hundred percent (100%) of any Bonus or VAP Compensation paid to Executive based on
such incorrect data. The amount to be recovered from Executive shall be the amount determined by
Employer’s Board of Directors or Compensation Committee, by which the Bonus or VAP Compensation
paid or issued to Executive exceeded the
amount that would have been paid or issued to Executive based on the correct data. Any
Employer common stock that was issued in connection with VAP Compensation shall be forfeited and
cancelled as provided by Employer’s Board of Directors or Compensation Committee. However, if
Executive has disposed of such shares, the cash equivalent value of such shares on the date
Employer calculated the number shares owed shall be paid by Executive to Employer upon notice from
Employer as provided by Employer’s Board of Directors or Compensation Committee.
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In the event that Employer’s Board of Directors or Compensation Committee determines that
Executive has, during the Term, committed an act or omission that would have constituted Cause
under this Agreement, Employer’s Board of Directors or Compensation Committee, whether or not
Executive was terminated because of such act or omission, may require Executive to return or
forfeit, as applicable, any Bonus or VAP Compensation paid to Executive pursuant to Sections 3.2 or
3.5 hereof. Any Employer common stock that was issued in connection with VAP Compensation shall be
forfeited and cancelled as provided by Employer’s Board of Directors or Compensation Committee. If
Executive has disposed of shares issued to him in connection with VAP Compensation, the cash
equivalent value of such shares on the date Employer calculated the number shares owed shall be
paid by Executive to Employer upon notice from Employer as provided by Employer’s Board of
Directors or Compensation Committee.
11. No Mitigation. Executive shall not be required to mitigate the amount of any
payments and/or benefits under this Agreement by seeking other employment or otherwise. The
payments and/or benefits to be provided pursuant to Section 4 hereof shall not be reduced by any
compensation or benefits payable or provided to Executive as a result of employment by another
employer after the date of termination or otherwise[, except as set forth in Section 4.4 above].
The specific arrangements referred to in this Agreement are not intended to exclude any other
payments and/or benefits which may be available to Executive upon a termination of employment with
Employer pursuant to any other agreement between Employer and Executive.
12. Survival of Obligations. Notwithstanding anything to the contrary contained
herein, Section 3.8, Section 4.8 through Section 4.11, Section 5 through Section 20, Section 22 and
Section 23 of this Agreement shall survive any termination of this Agreement and the termination of
the Term. Payments and benefits owed to Executive under Section 4 hereof shall survive the
termination of this Agreement to the extent provided for in Section 4.
13. Applicable Law. This Agreement will be governed by and construed in accordance
with the substantive laws (and not the choice of laws rules) of the Commonwealth of Pennsylvania
applicable to contracts made and to be performed entirely therein. Each of the parties irrevocably
consents to service of process by certified mail, return receipt requested, postage prepaid, to the
address at which such party is to receive notice in accordance herewith. Each of the parties
irrevocably consents to the jurisdiction of the state courts in Xxxxxxxxxx County, Pennsylvania and
the federal courts in the Eastern District of Pennsylvania in any and all actions between the
parties arising hereunder.
15
14. Notices. All notices, consents or other communications required or permitted to
be given under this Agreement must be in writing and will be deemed to have been duly given (i)
when delivered personally, (ii) three (3) business days after being mailed by first class certified
mail, return receipt requested, postage prepaid, or (iii) one (1) business day after being sent by
a nationally recognized express courier service designated for next day delivery, postage or
delivery charges prepaid, to the parties at their respective addresses stated on the first page of
this Agreement. Notices may also be given by prepaid telegram, facsimile or electronic mail and
will be effective on the date transmitted if confirmed within twenty-four (24) hours thereafter by
a signed original sent in the manner provided in the preceding sentence or if actual receipt is
acknowledged by the addressee. Either party may change its address for notice and the address to
which copies must be sent by giving notice of the new address to the other party in accordance with
this Section 14, provided that any such change of address notice will not be effective unless and
until received.
15. Prior Agreements. Executive represents to Employer (i) that there are no
restrictions, agreements or understandings whatsoever to which Executive is a party which would
prevent or make unlawful his execution of this Agreement or his employment hereunder, (ii) that
Executive’s execution of this Agreement and Executive’s employment hereunder do not constitute a
breach of any contract, agreement or understanding, oral or written, to which Executive is a party
or which Executive is bound, and (iii) that Executive has full legal right and capacity to execute
this Agreement and to enter into employment by Employer.
16. Parties in Interest. This Agreement is for the personal services of Executive
and will not be assignable by either party without the express prior written consent of the other
party; provided, however, that Employer shall require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the
business or assets of Employer to assume and agree to perform this Agreement in the same manner and
to the same extent that Employer would be required to perform if no such succession had taken
place; provided, further, that no such assumption or agreement by such successor shall relieve
Employer of any of its obligations under this Agreement. Subject to the provisions of Section 4 and
this Section 16, this Agreement will inure to the benefit of and bind each of the parties hereto
and the successors and assigns of Employer and the personal representatives, estate and heirs of
Executive. Because of the unique and personal nature of Executive’s duties under this Agreement,
neither this Agreement nor any rights or obligations under this Agreement shall be assignable by
Executive.
17. Trade Secrets Of Others. It is the understanding of both Employer and Executive
that Executive shall not divulge to Employer and/or its subsidiaries any confidential information
or trade secrets belonging to others, including Executive’s former employers, nor shall Employer
and/or its affiliates seek to elicit from Executive any such information. Consistent with the
foregoing, Executive shall not provide to Employer and/or its affiliates, and Employer and/or its
affiliates shall not request, any documents or copies of documents containing such information.
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18. Advertising Waiver. Executive agrees to permit Employer and/or its affiliates,
and persons or other organizations authorized by Employer and/or its affiliates, to use, publish
and distribute advertising or sales promotional literature concerning the products and/or services
of Employer and/or its affiliates, or the machinery and equipment used in the provision thereof, in
which Executive’s name and/or pictures of Executive taken in the course of Executive’s provision of
services to Employer and/or its affiliates, appear. Executive hereby waives and releases any claim
or right Executive may otherwise have arising out of such use, publication or distribution.
19. Entire Understanding. This Agreement sets forth the entire understanding of the
parties hereto with respect to the subject matter hereof and supersedes all prior and
contemporaneous, oral or written, express or implied, agreements and understandings.
20. Amendment and Waiver. This Agreement may not be amended, modified or terminated
unless in writing and signed by Executive and a duly authorized representative of Employer other
than Executive. No waiver with respect to this Agreement will be enforceable unless in writing and
signed by the party against which enforcement is sought (which, in the case of Employer, must be a
duly authorized representative of Employer other than Executive). Neither the failure nor any
delay on the part of either party to exercise any right, remedy, power or privilege under this
Agreement will operate as a waiver thereof, nor will any single or partial exercise of any right,
remedy, power or privilege preclude any other or further exercise of the same or of any other
right, remedy, power or privilege, nor will any waiver of any right, remedy, power or privilege
with respect to any occurrence be construed as a waiver of such right, remedy, power or privilege
with respect to any other occurrence.
21. Counterparts. This Agreement may be executed in two counterparts, each of which
shall be deemed an original, all of which together shall contribute one and the same instrument.
22. Severability. The finding by a court of competent jurisdiction of the
unenforceability, invalidity or illegality of any provision of this Agreement shall not render any
other provision of this Agreement unenforceable, invalid or illegal. Such court shall have the
authority to modify or replace the invalid or unenforceable term or provision with a valid and
enforceable term or provision which most accurately represents the Parties’ intention with respect
to the invalid or unenforceable term or provision.
23. Section Headings, Interpretation, Construction. Any headings preceding the text
of any of the Sections or Subsections of this Agreement are inserted for convenience of reference
only, and will neither constitute a part of this Agreement nor affect its construction, meaning, or
effect. This Agreement has been drafted by legal counsel representing Employer, but Executive has
been encouraged to consult with, and has consulted with, Executive’s own independent counsel and
tax advisors with respect to the terms of this Agreement. The Parties acknowledge that each Party
and its counsel has reviewed and revised, or had an opportunity to review and revise, this
Agreement, and that any rule of construction to the effect that any ambiguities are to
be resolved against the drafting party shall not be employed in the interpretation of this
Agreement.
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IN WITNESS WHEREOF, the parties have duly executed and delivered this Agreement as of the date
first stated above.
| GSI COMMERCE, INC. | ||||||
By:
|
/s/ Xxxxxxx X. Xxxxx | /s/ Xxxxx Xxxxxxxxx | ||||
| Chairman and Chief Executive Officer | ||||||
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EXHIBIT A
Bonus Plan
Bonus Plan
The GSI Commerce Leadership Team Incentive Plan was filed as Exhibit B to GSI Commerce, Inc.’s
Definitive Proxy Statement on Schedule 14A filed with the Securities and Exchange Commission on
April 25, 2008, and is incorporated herein by reference.
1
EXHIBIT B
Long-Term Incentive Plan
Long-Term Incentive Plan
A written exhibit summarizing the Global Marketing Services Value Appreciation Plan is not attached
to this agreement. The Global Marketing Services Value Appreciation Plan will include the following
terms:
| • | Xx. Xxxxxxxxx will receive a performance award under the GSI Commerce, Inc. 2010 Equity
Incentive Plan. |
| • | The value of the award will be determined based on the change in value of the GSI
Commerce Marketing Services Business at the end of a 5 year performance period. Award
vesting will be contingent upon the Marketing Services Business’ achievement of bonus plan
targets and upon Xx. Xxxxxxxxx’ continued employment during the performance period. The
maximum value of the award is $30 million. |
| • | To the extent earned, GSI Commerce will have the option to settle the award in cash
and/or common stock. |
2
EXHIBIT C
RELEASE AND WAIVER OF CLAIMS
RELEASE AND WAIVER OF CLAIMS
In consideration of the benefits and mutual agreements set forth in the Employment Agreement,
dated March 23, 2010 (the “Agreement”), between GSI Commerce, Inc, (“Employer”) and Xxxxxxxxxxx
Xxxxxxxxx (“Executive”), to which this form is attached, Executive, intending to be legally bound,
agrees to the following release and waiver (“Release and Waiver”):
In exchange for the consideration provided to Executive by the Agreement that Executive is not
otherwise entitled to receive and the other commitments of Employer in the Agreement, Executive and
his or her heirs, representatives, agents and attorneys hereby generally and completely releases
Employer and its directors, officers, employees, shareholders, partners, agents, attorneys,
predecessors, successors, parent and subsidiary entities, insurers, affiliates and assigns from any
and all claims, liabilities and obligations, both known and unknown, that arise out of or are in
any way related to events, acts, conduct or omissions occurring prior to Executive signing this
Release and Waiver. This general release includes, but is not limited to: (1) all claims arising
out of or in any way related to Executive’s employment with Employer or the termination of that
employment; (2) all claims related to Executive’s compensation or benefits from Employer,
including, but not limited to, salary, bonuses, commissions, vacation pay, expense reimbursements,
severance pay, fringe benefits, stock, stock options, or any other ownership interests in Employer;
(3) all claims for breach of contract, wrongful termination, and breach of the implied covenant of
good faith and fair dealing; (4) all tort claims, including, but not limited to, claims for fraud,
defamation, emotional distress, and discharge in violation of public policy; and (5) all federal,
state, and local statutory claims, including, but not limited to, claims for discrimination,
harassment, retaliation, attorneys’ fees, or other claims arising under the federal Civil Rights
Act of 1964 (as amended), the federal Americans with Disabilities Act of 1990, the federal Age
Discrimination in Employment Act of 1967 (as amended) (“ADEA”), and the Pennsylvania Human
Relations Law and Religious Freedom Protection Act. Notwithstanding the foregoing, this general
release specifically excludes any and all claims that Executive may have in regard to (a) any
ongoing severance or employment obligations of Employer to Executive under the Agreement or any
other written agreement or arrangement between Employer and Executive, including any bonus plan,
benefit plan and other agreement or arrangement, (b) any ongoing obligations of Employer to
Executive under any written stock option agreement, restricted stock award agreement, restricted
stock unit award agreement or other equity award agreement evidencing an option or other equity
award granted or awarded by Employer to Executive, (c) any indemnification obligations of Employer
to Executive as a former director, officer and/or employee of Employer or any of its subsidiaries
pursuant to Employer’s certificate of incorporation or bylaws or any indemnification or other
written agreement, (d) any rights Executive may have under any directors and officers liability
insurance policy of Employer, and (e) any rights Executive may have arising by virtue of his status
as a stockholder of Employer.
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Executive acknowledges that, among other rights, he or she is waiving and releasing any rights
he or she may have under ADEA, that this Release and Waiver is knowing and voluntary,
and that the consideration given for this Release and Waiver is in addition to anything of
value to which he or she was already entitled as an executive of Employer. Executive further
acknowledges that he or she has been advised, as required by the Older Workers Benefit Protection
Act, that: (a) the release and waiver granted herein does not relate to claims under the ADEA
which may arise after this Release and Waiver is executed; (b) he or she should consult with an
attorney prior to executing this Release and Waiver; (c) he or she has twenty-one (21) days in
which to consider this Release and Waiver (although he or she may choose voluntarily to execute
this Release and Waiver earlier); (d) he or she has seven (7) days following the execution of this
Release and Waiver to revoke his or her consent to this Release and Waiver; and (e) this Release
and Waiver shall not be effective until the eighth day after he or she executes this Release and
Waiver and the revocation period has expired (the “Effective Date”).
This Release and Waiver, including any referenced documents, constitutes the complete, final
and exclusive embodiment of the entire agreement between Employer and Executive with regard to the
subject matter hereof. Executive is not relying on any promise or representation by Employer that
is not expressly stated herein. This Release and Waiver may only be modified by a writing signed
by both Executive and a duly authorized officer of Employer.
Date:
|
By: | |||||||
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