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EXHIBIT 10.1
EMPLOYMENT AGREEMENT
This Employment Agreement is dated September 7, 1999, and is
entered into between Silver Cinemas International, Inc. (the "Company"), and
Xxxxx Xxxx ("Executive").
WHEREAS, the Company desires to employ Executive and
Executive desires to be employed by the Company, and Executive and the Company
desire to embody in this Agreement the terms and conditions under which
Executive shall be employed.
NOW, THEREFORE, the parties hereby agree:
I.
EMPLOYMENT, DUTIES AND RESPONSIBILITIES
Section 1.01 Position. Executive shall serve as President and Chief
Executive Officer of the Company. Executive hereby accepts such employment.
Executive agrees to devote his full time and efforts to promote the interests
of the Company. It is intended that Executive shall also serve as a director of
the Company and, to such end, the Company shall include Executive on its slate
of nominees and recommend the election of Executive as a director to its
stockholders.
Section 1.02 Duties and Responsibilities. Executive shall have such
duties and responsibilities as are consistent with his position. Executive
shall report to the Chairman of the Board of Directors and the Board of
Directors of the Company.
Section 1.03 Location. Executive's principal location for the
performance of his duties and responsibilities under this Agreement shall be
the offices of the Company in Dallas, Texas; provided, however, that Executive
shall undertake reasonable business travel consistent with his position, and
Executive in his discretion, may move the offices of the Company to Los
Angeles, California.
II.
COMPENSATION AND EXPENSES
Section 2.01 Salary, Bonus and Benefits. As full compensation and
consideration for the performance by Executive of his obligations under this
Agreement, Executive shall be entitled to the following (subject, in each case,
to the provisions of Article IV hereof):
(a) Salary. The Company shall pay Executive a base salary
during the term of his employment, payable in accordance with the normal
payment procedures of the Company and subject to such withholding and other
normal employee deductions as may be required by law, at the rate of $350,000
per year. Executive's base salary shall be reviewed by
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the Board of Directors and subject to adjustment on an annual basis, provided,
however, that Executive's base salary shall not be reduced below $350,000.
(b) Performance Bonus. Commencing in 2000, Executive shall be
eligible for an annual performance bonus based upon the attainment of mutually
agreed upon performance goals established by the Executive and the Board of
Directors prior to the beginning of each calendar year. Executive's annual
target bonus amount shall be $175,000, subject to adjustment for performance
above and below the established performance goals.
(c) Management Preferred Stock. Executive shall be entitled
to receive 3,000 shares of Convertible Preferred Stock of the Company (the
"Management Preferred Stock") with the preferences and designations contained
in the Certificate of Amendment of Restated Certificate of Incorporation of
Silver Cinemas International, Inc. in the form attached hereto as Exhibit I
(the "Certificate"). The Management Preferred Stock shall be convertible into
common stock of the Company at the Executive's option upon a Liquidation Event
(as defined below) in accordance with the terms of the Certificate. A
"Liquidation Event" shall mean (i) the sale of all or substantially all of the
assets of the Company, (ii) the sale of the majority of the voting stock of the
Company for cash to a person other than the Investors or any of their
affiliates, (iii) a merger of the Company with or into another person which
results in the stockholders of the Company receiving cash consideration for
their shares of common stock or (iv) a liquidation of the Company for cash.
(d) Management Common Stock Option. Pursuant to the terms and
conditions and restrictions set forth in the Stock Purchase Agreement attached
hereto as Exhibit II (the "Stock Purchase Agreement"), Executive shall have the
right to purchase 10,000 shares of the Company's common stock at a price of
$1.00 per share.
(e) Special Bonus. In the event that (i) there is a
Liquidation Event prior to June 30, 2001 and (ii) the Enterprise Value of the
Company at the time of the Liquidation Event is greater than $90,000,000, but
less than the Liquidation Preference (as defined in the Certificate) of the
Management Preferred Stock as of the Liquidation Event plus the principal and
accrued interest on the outstanding long-term debt of the Company as of such
Liquidation Event , then Executive shall be entitled to a Special Bonus in the
amount set forth on Exhibit III. "Enterprise Value" means the total purchase
price, including assumed debt being paid by all buyers in the Liquidation
Event. The Company shall use its best efforts to satisfy its obligations and
commitments under this Paragraph in the event of a liquidation of the Company.
(f) Signing Bonus. Executive shall be entitled to a signing
bonus of $320,000 upon commencement of his employment with the Company.
(g) Benefits. Executive shall be eligible to participate in
such life insurance, health, disability and major medical insurance benefits,
and in such other employee benefit plans and programs generally available for
the benefit of the executive employees of the Company, as may be maintained
from time to time, in each case to the extent and in the manner generally
available to other such executives and subject to the terms and provisions of
such plan or program.
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(h) Vacation. Executive shall be entitled to 4 weeks paid
vacation annually, in accordance with Company policy.
(i) Expenses. The Company will reimburse Executive for
reasonable business-related expenses incurred by him in connection with the
performance of his duties hereunder upon presentation of written documentation,
subject, however, to the Company's reasonable policies relating to
business-related expenses as then in effect from time to time.
(j) Automobile Allowance. Executive shall be entitled to $500
per month for the costs associated with the lease or purchase of an automobile
and the insurance and maintenance related thereto.
(k) Accounting and Reimbursement. As soon as practicable
following completion of Executive's relocation to Dallas, Texas, Executive
shall provide Company with appropriate documentation of Executive's actual
expenses incurred in such relocation (the "Relocation Expenses"). The
Relocation Expenses may include but are not limited to reasonable household
moving expenses, housing closing costs, real estate commissions, temporary
living expenses, travel costs associated with house-hunting trips and any
appropriate tax gross-ups thereon. The amount of Executive's salary payable as
of the payroll next following the submission of the Relocation Expenses to the
Company, otherwise payable under Section 2.01(a) shall be reduced by the
difference, if any, between $200,000 and the sum of the Relocation Expenses.
III.
EXCLUSIVITY, ETC.
Section 3.01 Exclusivity; Non-Competition. Executive agrees to perform
his duties, responsibilities and obligations hereunder efficiently and to the
best of his ability. Executive agrees that he will devote his entire working
time, care and attention and best efforts to such duties, responsibilities and
obligations. Executive also agrees that during the term of his employment with
the Company he will not engage in any business activities that are competitive
with the business activities of the Company or any of its divisions,
subsidiaries or affiliates. Executive agrees that all of his activities as an
employee of the Company shall be in conformity with all present and future
policies, rules, regulations and directions of the Company not inconsistent
with this Agreement.
Section 3.02 Other Business Ventures. Executive agrees that during the
term of his employment with the Company, he will not own, directly or
indirectly, any controlling or substantial stock or other beneficial interest
in any business enterprise which is engaged in business activities that are
competitive with the business activities of the Company or any of its
divisions, subsidiaries or affiliates. Notwithstanding the foregoing, Executive
may own, directly or indirectly, up to 5% of the outstanding capital stock of
any business having a class of capital stock that is traded on any major stock
exchange or in the over-the-counter market.
Section 3.03 Properties; Business Secrets; and Non-Solicitation. All
right, title and interest of every kind and nature whatsoever, in and to
inventions, patents, trademarks, copyrights, films, scripts, ideas, literary
works, creations and properties furnished to the
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Company or any of its divisions, subsidiaries or affiliates, or used in or in
connection with any of the productions or other activities of any of such
companies with which Executive is in any way connected in the performance of
his duties and obligations hereunder, whether the same were invented, created,
written, developed, furnished, produced or disclosed by Executive or by any
other party since the inception of Executive's employment with the Company,
shall, as between the parties hereto, be, become and remain the sole exclusive
property of the Company or such division, subsidiary or affiliate (as the case
may be) for any and all purposes and uses whatsoever, and Executive shall have
no right, title or interest of any kind or nature therein. Executive hereby
fully releases and discharges the Company and all of its divisions,
subsidiaries, affiliates, successors, licensees and assigns (if any), and their
respective officers, directors and employees, from and against any and all
claims, demands, damages, liabilities, costs and expenses arising out of or
relating to any such inventions, patents, trademarks, copyrights, films,
scripts, ideas, literary works, creations and properties furnished to or used
by any of such companies with which Executive may be connected in the
performance of Executive's duties and obligations hereunder. This release and
discharge shall not apply to any obligations of the Company to indemnify the
Executive for claims arising out of Executive's conduct within the course and
scope of Executive's employment.
(b) Executive agrees that he will not, at any time, make use
of or divulge to any other person, firm or corporation any trade or business
secret, process, method or means, or any other confidential information
concerning the business or policies of the Company or any of its divisions,
subsidiaries or affiliates, which he may have learned in connection with his
employment by the Company. For purposes of this Agreement, a "trade or business
secret, process, method or means, or any other confidential information" shall
mean and include written information treated as confidential or as a trade
secret by the Company. Executive's obligation under this Section 3.03(b) shall
not apply to any information which (i) is known publicly; (ii) is in the public
domain or hereafter enters the public domain without the fault of Executive;
(iii) is known to Executive prior to his receipt of such information from the
Company, as evidenced by written records of Executive or (iv) is hereafter
disclosed to Executive by a third party not under an obligation of confidence
to the Company. Executive agrees not to remove from the premises of the
Company, except as an employee of the Company in pursuit of the business of the
Company or except as specifically permitted in writing by the Company, any
document or other object containing or reflecting any such confidential
information. Executive recognizes that all such documents and objects, whether
developed by him or by someone else, will be the sole exclusive property of the
Company. Upon termination of his employment hereunder, Executive shall
forthwith deliver to the Company all such confidential information, including
without limitation all lists of customers, correspondence, accounts, records
and any other documents or property made or held by him or under his control in
relation to the business or affairs of the Company or its subsidiaries or
affiliates, and no copy of any such confidential information shall be retained
by him.
(c) Executive shall not, for a period of two years after
termination of his employment with the Company, directly or indirectly, whether
as an employee, consultant, independent contractor, partner, joint venturer or
otherwise, on behalf of any person or entity engaged in business activities
competitive with the business activities of the Company or any of its
divisions, subsidiaries or affiliates, solicit or induce, or in any manner
attempt to solicit or induce, any person employed by, or as agent of, the
Company or any of its divisions, subsidiaries
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or affiliates to terminate such person's contract of employment or agency, as
the case may be, with the Company or with any such division, subsidiary or
affiliate.
(d) Executive agrees that, at any time and from time-to-time,
he will execute any and all documents that the Company may deem reasonably
necessary or appropriate to effectuate the provisions of this Section 3.03. It
is also agreed that the provisions of this Section 3.03 shall survive the
termination, for any reason, of this Agreement or Executive's employment,
except that the provisions of Section 3.03(c) shall survive such termination
only to the extent provided in that Section.
Section 3.04 Injunctive Relief. Executive acknowledges that (i) the
provisions of Section 3.01, 3.02 and 3.03 are reasonable and necessary to
protect the legitimate interests of the Company, and (b) any violation of
Section 3.01, 3.02 or 3.03 will result in irreparable injury to the Company,
the exact amount of which will be difficult to ascertain, and that the remedies
at law for any such violation would not be reasonable or adequate compensation
to the Company for such a violation. Accordingly, Executive agrees that if he
violates the provisions of Section 3.01, 3.02 or 3.03, in addition to any other
remedy which may be available at law or in equity, the Company shall be
entitled to specific performance and injunctive relief without the necessity of
proving actual damages.
IV.
TERMINATION
Section 4.01 Termination by the Company. The Company shall have the
right to terminate Executive's employment at any time with or without "Cause,"
subject to the provisions of Section 4.05. For purposes of this Agreement,
"Cause" shall mean (a) Executive's failure, neglect or refusal to fully perform
his material duties under this Agreement, (b) Executive's willful and continued
failure or refusal to follow material directions of the Chairman of the Board
or of the Board of Directors or any other act of insubordination on the part of
Executive, (c) the engaging by Executive in willful misconduct which is
injurious to the Company or any of its divisions, subsidiaries or affiliates,
monetarily or otherwise, (d) the commission by Executive of an act of fraud or
embezzlement against the Company or any of its divisions, subsidiaries or
affiliates, (e) the conviction of Executive of a felony, or (f) Executive's
material breach of the provisions of any of Section 3.01, 3.02 or any other
material provision of this Agreement; provided, however, that except in the
case of acts described in clauses (c), (d) and (e) of this sentence, Executive
shall have a period of 30 days to cure any acts which would otherwise give the
Company the right to terminate his employment for Cause. Such 30 day period
shall commence as of the date of receipt by Executive of written notice from
the Company of its intentions to terminate Executive's employment for Cause,
which notice shall state in reasonable detail the acts which the Company
considers to be grounds for such termination.
Section 4.02 Death. In the event of Executive's death, this Agreement
shall automatically terminate, such termination to be effective on the date of
Executive's death.
Section 4.03 Disability. In the event that Executive suffers a
disability which prevents him from substantially performing his duties under
this Agreement for a period of at
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least 60 consecutive days, or 90 non-consecutive days within any 365-day period
except as otherwise prohibited by law, the Company shall have the right to
terminate this Agreement, such termination to be effective upon the giving of
notice of Executive in accordance with Section 5.02 of this Agreement.
Section 4.04 Termination by Executive for Good Reason. Executive may
terminate his employment with the Company for "Good Reason" by giving 30 days
advance written notice to the Company of his intent to so terminate. For
purposes of this Agreement, the following circumstances shall constitute "Good
Reason":
(a) the assignment to Executive of any duties materially
inconsistent with his authority, duties or responsibilities, or any other
action by the Company which results in a material diminution or material
adverse change in such authority, duties or responsibilities, excluding for
this purpose an isolated action not taken in bad faith and which is remedied
prior to the expiration of the 30-day period after receipt of notice thereof
given by Executive; or
(b) any material breach of this Agreement by the Company,
other than an isolated failure not occurring in bad faith and which is remedied
prior to the expiration of the 30-day period after receipt of written notice
thereof given by Executive.
(c) any material reduction in Executive's bonus opportunities
which is not related to any failure by Executive to satisfy mutually agreed
upon performance goals; or
(d) without Executive's consent, relocation of the Company's
corporate offices to a location more than 20 miles from Dallas, Texas.
Section 4.05 Effect of Termination.
(a) For Cause; Without Good Reason; Death; Disability. In the
event of termination of this Agreement (i) by the Company for Cause, (ii) by
Executive without Good Reason, or (iii) by reason of Executive's death or
disability, the Company's sole obligation under this Agreement shall be to pay
to Executive (or his beneficiary in the event of his death) any base salary or
other compensation, or incentives earned and reimbursement of business expenses
incurred in accordance with Company policy, but not paid to Executive prior to
the effective date of such termination. In addition, Executive's rights and
vesting in the Management Common Stock will be determined under the Stock
Purchase Agreement.
(b) Without Cause within 2 Years or for Good Reason. In the
event of termination of this Agreement by the Company other than for Cause
prior to the second anniversary of the date hereof, or by Executive at any time
for Good Reason, and conditioned upon the Executive's execution of and the
effectiveness of a release of all claims, substantially in the form attached
hereto as Exhibit IV (the "Release"), Executive shall be eligible for the
following as severance: (i) payment of all base salary and other compensation
or incentive earned and reimbursement of business expenses incurred in
accordance with Company policy, but not paid to Executive prior to the
effective date of such termination, (ii) 18 months base salary taking into
account any scheduled salary increases, (iii) the product of Executive's target
performance bonus under Section 2.01(b) for the year in which such termination
occurs and 1.5; and (iv) Executive's rights and vesting in the Management
Common Stock will be determined
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under the Stock Purchase Agreement. In the event the Release is not effective
or Executive violates the provisions of Sections 3.01, 3.02 or 3.03, Executive
shall forfeit all rights to any severance otherwise payable under this Section
4.05(b).
(c) Without Cause after 2 Years. In the event of termination
of this Agreement by the Company other than for Cause after the second
anniversary of the date of this Agreement, and conditioned upon the Executive's
execution of the Release, Executive shall be eligible for the following as
severance: (i) payment of all base salary and other compensation or incentive
earned and reimbursement of business expenses incurred in accordance with
Company policy, but not paid to Executive prior to the effective date of such
termination, (ii) 12 months base salary taking into account any scheduled
salary increases, (iii) performance bonus under Section 2.01(b) for the year in
which such termination occurs based upon the annualized performance of the
Company through the date of termination; and (iv) Executive's rights and
vesting in the Management Common Stock will be determined under the Stock
Purchase Agreement. In the event the Release is not effective or Executive
violates the provisions of Sections 3.01, 3.02 or 3.03, Executive shall forfeit
all rights to any severance otherwise payable under this Section 4.05(c).
(d) Upon a Change in Control. Notwithstanding the provisions
of paragraph (c) in the event of termination of this Agreement by the Company
other than for Cause, or by Executive for Good Reason following a Change in
Control of the Company, and conditioned upon the Executive's execution of and
the effectiveness of the Release, Executive shall be eligible for the following
as severance: (i) payment of all base salary and other compensation or
incentive earned and reimbursement of business expenses incurred in accordance
with Company policy, but not paid to Executive prior to the effective date of
such termination, (ii) 18 months base salary taking into account any scheduled
salary increases, (iii) the product of Executive's target performance bonus
under Section 2.01(b) for the year in which such termination occurs and 1.5;
and (iv) Executive's rights and vesting in the Management Common Stock will be
determined under the Stock Purchase Agreement. In the event the Release is not
effective or Executive violates the provisions of Sections 3.01, 3.02 or 3.03,
Executive shall forfeit all rights to any severance otherwise payable under
this Section 4.05. For this purpose "Change in Control" shall mean (i) the sale
of all or substantially all of the assets of the Company, (ii) the sale of the
majority of the voting stock of the Company to a person other than the
stockholders of the Company on the date hereof or any of their affiliates,
(iii) a merger of the Company with or into another person which results in the
stockholders of the Company not being the majority of the stockholders of the
Company or any surviving entity or (iv) a liquidation of the Company; provided,
however, that in no event shall a Change in Control be deemed to have occurred
(i) due to an initial public offering of the Company's equity securities or
(ii) if the holders of the outstanding long-term debt of the Company acquire a
majority of the voting or equity securities of the Company and the majority of
the directors of the Company immediately prior to such event continue to
constitute a majority of the directors after such event.
V.
MISCELLANEOUS
Section 5.01 Benefit of Agreement; Assignment; Beneficiary. (a) This
Agreement shall inure to the benefit of and be binding upon the Company and its
successors and
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assigns, including, without limitation, any corporation or person which may
acquire all or substantially all of the Company's assets or business or with or
into which the Company may be consolidated or merged. This Agreement shall also
inure to the benefit of, and be enforceable by, Executive and his personal or
legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees. If Executive should die while any amount
would still be payable to Executive hereunder if he had continued to live, all
such amounts shall be paid in accordance with the terms of this Agreement to
Executive's beneficiary, devisee, legatee or other designee, or if there is no
such designee, to Executive's estate.
(b) The Company shall require any successor (whether direct
or indirect, by operation of law, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of the
Company to expressly assume and agree to perform this Agreement and to the
extent provided therein, the related plans, in the same manner and to the same
extent that the Company would be required to perform it if no such succession
had taken place.
Section 5.02 Notices. Any notice required or permitted hereunder shall
be in writing and shall be sufficiently given if personally delivered or if
sent by telegram or telex or by registered or certified mail, postage prepaid,
with return receipt requested, addressed: (a) in the case of the Company, to
Silver Cinemas International, Inc., C/O Brentwood Associates, 00000 Xxxxx
Xxxxxx Xxxxxxxxx, Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxxx, 00000, Attention: Xxxxx
Xxxx, or to such other addresses and/or to the attention of such other persons
as the Company shall designate by written notice to Executive; and (b) in the
case of Executive, to Xxxxx Xxxx, to such other address as Executive shall
designate by written notice to the Company. Any notice hereunder shall be
deemed to have been given at the time of receipt thereof by the person to whom
such notice is given.
Section 5.03 Entire Agreement; Amendment. This Agreement and any
agreements entered into with respect to the Management Preferred Stock, and
Management Common Stock, contain the entire agreement of the parties hereto
with respect to the terms and conditions of Executive's employment during the
term and supersedes any and all prior agreements and understandings, whether
written or oral, between the parties hereto with respect to compensation due
for services rendered hereunder. This Agreement may not be changed or modified
except by an instrument in writing signed by both of the parties hereto.
Section 5.04 Waiver. The waiver by either party of a breach of any
provision of this Agreement shall not operate or be construed as a continuing
waiver or as a consent to or waiver of any subsequent breach hereof.
Section 5.05 Headings. The Article and Section headings herein are for
convenience of reference only do not constitute a part of this Agreement and
shall not be deemed to limit or affect any provision hereof.
Section 5.06 Attorneys Fees; Enforcement. The prevailing party will be
responsible for reasonable costs and expenses incurred in connection with any
dispute or legal proceeding between the parties arising out of the subject
matter of this Agreement, including any proceeding to enforce any right or
provision under this Agreement. Executive shall have no right
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to enforce any of his rights hereunder by seeking or obtaining injunctive or
other equitable relief and acknowledges that damages are an adequate remedy for
any breach by the Company of this Agreement.
Section 5.07 Governing Law. This Agreement shall be governed by, and
construed and interpreted in accordance with, the internal laws of the State of
Delaware without reference to the principles of conflict of laws.
Section 5.08 Agreement to Take Actions. Each party to this Agreement
shall executive and deliver such documents, certificates, agreements and other
instruments, and shall take such other actions, as may be reasonably necessary
or desirable in order to perform his or its obligations under this Agreement or
to effectuate the purposes hereof.
Section 5.09 Survivorship. The respective rights and obligations of
the parties under this Agreement shall survive any termination of this
Agreement to the extent necessary to the intended preservation of such rights
and obligations.
Section 5.10 Validity. The invalidity or unenforceability of any
provision or provisions of this Agreement shall not affect the validity or
enforceability of any other provision or provisions of this Agreement, which
shall remain in full force and effect.
Section 5.11 Other Agreements. Executive represents and warrants to
the Company that to the best of his knowledge, neither the execution and
delivery of this Agreement nor the performance of his duties hereunder violates
or will violate the provisions of any other agreement to which he is a party or
by which he is bound.
Section 5.12 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.
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IN WITNESS WHEREOF, the Company and Executive have duly
executed this Agreement as of the date first above written.
SILVER CINEMAS INTERNATIONAL, INC.
By: /s/ Xxxx X. Xxxxxxxx
--------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Chairman of the Board
By: /s/ Xxxxx X. Xxxx
--------------------------------
Name: Xxxxx X. Xxxx
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EXHIBIT III
Value
Created in Millions % to Executive $ to Executive
------------------- -------------- --------------
Up to 10.0 12.5% 1.3
Less than 12.5 11.5% 1.4
Less than 15.0 10.5% 1.6
Less than 17.5 9.5% 1.7
Less than
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EXHIBIT IV
RELEASE
For valuable consideration, the receipt and adequacy of which
are hereby acknowledged, the undersigned ("Employee"), on behalf of himself and
his spouse, dependents, predecessors, successors, heirs, assigns,
representatives, and agents, and each of them, does hereby release and forever
discharge Silver Cinemas International, Inc. ("Employer") and its parents,
subsidiaries, and affiliates, past and present, and each of them, as well as
its and their directors, officers, associates, employees, servants, owners,
stockholders, partners, trustees, predecessors, successors, heirs, assigns,
representatives, agents, attorneys, and all persons acting by, through, under,
or in concert with them, past or present, and each of them, of and from any and
all manner of action or actions, cause or causes of action, in law or in
equity, suits, debts, liens, contracts, agreements, promises, liabilities,
claims, demands, damages, losses, costs, or expenses, of any nature whatsoever,
known or unknown, fixed or contingent (hereinafter called "Claims"), which
Employee now has or may hereafter have against them, or any of them, by reason
of any and all acts, omissions, events or facts occurring or existing prior to
the date hereof. The Claims released hereunder include, without limitation, any
Claims arising out of, based upon, or relating to the hire, employment, or
remuneration of Employee by Employer or arising out of, based upon, or relating
to Employee's termination of employment with Employer; any Claims arising out
of, based upon, or relating to any alleged breach of any employment agreement
between Employee and Employer; any Claims arising out of, based upon, or
relating to any alleged breach of any covenant of good faith and fair dealing,
express or implied; any Claims arising out of, based upon, or relating to any
alleged torts or other alleged legal restrictions on Employer's right to
terminate Employee's employment; and any Claims arising out of, based upon, or
relating to any alleged violation of any federal, state, or local statute or
ordinance pertaining to or governing Employee's employment with Employer or the
payment of wages, including, without limitation, Title VII of the Civil Rights
Act of 1964, as amended, the Age Discrimination in Employment Act of 1967, as
amended, the Americans with Disabilities Act, as amended, the Equal Pay Act, as
amended, the Fair Labor Standards Act, as amended, the Employee Retirement
income and Security Act of 1974, as amended.
IN ACCORDANCE WITH THE OLDER WORKERS BENEFIT PROTECTION ACT
OF 1990, EMPLOYEE IS HEREBY ADVISED AS FOLLOWS:
(A) EMPLOYEE HAS THE RIGHT TO CONSULT WITH AN ATTORNEY BEFORE
SIGNING THIS RELEASE;
(B) EMPLOYEE HAS TWENTY-ONE (21) DAYS FROM THE EXECUTION OF
THIS RELEASE TO CONSIDER THIS RELEASE BEFORE THIS RELEASE BECOMES EFFECTIVE;
AND
(C) EMPLOYEE HAS SEVEN (7) DAYS AFTER SIGNING THIS RELEASE TO
REVOKE IT; OTHERWISE, THIS RELEASE WILL BECOME EFFECTIVE UPON THE EXPIRATION OF
THAT REVOCATION PERIOD.
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Employee represents and warrants that there has been no
assignment or other transfer of any interest in any Claim that Employee may
have against Employer. Employee agrees to indemnify and hold Employer harmless
from any liability, claims, demands, damages, costs, expenses, and attorneys'
fees incurred as a result of any person asserting any such assignment or
transfer of any rights or Claims under any such assignment or transfer. It is
the intention of the Employee and Employer that this indemnity does not require
payment as a condition precedent to recovery by Employer from the Employee
under this indemnity.
Employee agrees that if he hereafter commences, joins in, or
in any manner seeks relief through any suit arising out of, based upon, or
relating to any of the Claims released hereunder or in any manner asserts
against Employer any of the Claims released hereunder, then Employee will pay
to Employer, in addition to any other damages caused thereby, all attorneys'
fees incurred by Employer in defending or otherwise responding to said suit or
Claim.
Employee and Employer further understand and agree that
neither the payment of money nor execution of this Release shall constitute or
be construed as an admission of any liability whatsoever by either Employer or
Employee.
Date: , 19
--------- ------ -------------------------
Xxxxx X. Xxxx
