Exhibit 10.8 - Employment Agreement dated June 27, 2003, by and between the
Company and Xxxxxxx X. Xxxxxx.
Exhibit G
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is entered into on this 27
day of June 2003, by and between One Price Clothing Stores, Inc., a Delaware
corporation (the "Company"), and Xxxxxxx Xxxxxx ("Employee").
WHEREAS, Sun One Price, LLC, a Delaware limited liability company
("Purchaser"), purchased certain shares of the Company's common stock pursuant
to a Stock Purchase Agreement, dated as of June 18, 2003, by and between
Purchaser and the Company;
WHEREAS, except as set forth herein, Employee and the Company have
agreed that, upon the execution and delivery of this Agreement, any and all
employment and compensation agreements, arrangements and understandings (of any
kind or nature) between them, whether written and oral, shall terminate and be
of no further force or effect; and
WHEREAS, the Company and Employee have agreed upon, and set forth
herein, the terms and conditions of Employee's continued employment with the
Company.
NOW, THEREFORE, in consideration of the premises and mutual covenants
set forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Employment. The Company shall employ Employee, and Employee
hereby accepts employment with the Company, upon the terms and conditions set
forth in this Agreement for the period beginning on the date hereof and ending
as provided in paragraph 4 hereof (the "Employment Period").
2. Position and Duties.
(a) During the Employment Period, Employee shall serve as the
chief executive officer and president of the Company and shall have the normal
duties, responsibilities, functions and authority of the chief executive officer
and president, subject to the power of the Company's board of directors (the
"Board") to reasonably expand or limit such duties, responsibilities, functions
and authority and to override actions of officers of the Company, provided,
however, the Board may not materially alter Employee's duties or position.
(b) During the Employment Period, Employee shall report to the
Board and shall devote his best efforts and his full business time and attention
(except for permitted vacation periods and reasonable periods of illness or
other incapacity) for least three full business weeks per month (including at
least ten business days per month at the headquarters office of the Company in
Duncan, South Carolina) to the business and affairs of the Company and its
Subsidiaries. Employee shall perform his duties, responsibilities and functions
to the Company and its Subsidiaries hereunder to the best of his abilities in a
diligent, trustworthy, businesslike and efficient manner. The Company hereby
acknowledges that Employee currently serves as a member of the board of
directors of Paper Calmenson & Company and of Harold's Stores, Inc. and agrees
that, so long as such service does not interfere with Employee's obligations
hereunder, Employee may continue to serve as a member of such boards of
directors.
(c) For purposes of this Agreement, "Subsidiaries" shall mean
any corporation or other entity of which the securities or other ownership
interests having the voting power to elect a majority of the board of directors
or other governing body are, at the time of determination, owned by the Company,
directly or through one or more Subsidiaries.
3. Compensation and Benefits.
(a) During the Employment Period, Employee's base salary shall
be $500,000 per annum (the "Base Salary"), which salary shall be payable by the
Company in regular installments in accordance with the Company's general payroll
practices. In addition, during the Employment Period, Employee shall be entitled
to participate in all of the Company's employee benefit programs (including
perquisite programs and vacation programs) for which senior executives of the
Company and its Subsidiaries are generally eligible.
(b) During the Employment Period, the Company shall reimburse
Employee for all reasonable expenses incurred by him in the course of performing
his duties and responsibilities under this Agreement which are consistent with
the Company's policies in effect from time to time with respect to travel,
entertainment and other business expenses for the Company's senior executives,
subject to the Company's requirements with respect to reporting and
documentation of such expenses.
(c) During the Employment Period, Employer shall (i) reimburse
(up to $30,000 per year payable at approximately $2,500 per month) Employee for
the reasonable cost of travel and living expenses (including expenses relating
to an automobile) of Employee incurred by him in connection with commuting to
Greenville, South Carolina from his permanent residence in Tucson, Arizona
(provided that Employee shall be reimbursed only in an amount equal to the
amount of a full fare economy class round-trip ticket) and (ii) at the Company's
election, (A) allow Employee to use of the Company's villa, located at 1201
Heritage Club Drive, Greenville, South Carolina, or (B) reimburse Employee for
the reasonable cost of leasing an apartment comparable to the Company's villa in
Greenville, South Carolina. Employer shall pay Employee an additional amount
each year equal to the applicable federal, state, and local income taxes (taking
into account the deductibility of state and local taxes for federal income tax
purposes) actually imposed on Employee solely as a result of this paragraph 3(c)
(including payments received pursuant to this sentence).
(d) All amounts payable to Employee as compensation hereunder
shall be subject such federal, state and local taxes as may be required to be
withheld pursuant to any applicable law or regulation.
4. Term.
(a) The Employment Period shall continue until Employee's
resignation, death or Disability (as determined by the Board in its good faith
judgment consistent with paragraph 4(f)) or until the Board determines in its
good faith judgment that termination of Employee's employment is in the best
interests of the Company.
(b) If Employee's employment with the Company is terminated by
the Company or its successors in interest without Cause, or by Employee due to
material breach of this Agreement by the Company without a cure of such breach
within twenty (20) business days of the date Employee provides the Company with
written notice of such breach, or if Employee resigns or terminates his
employment with the Company after the first anniversary of the date hereof,
Employee shall be entitled to receive, as special severance payments, (i)
$250,000 payable in equal monthly installments from the date of termination
through the one year anniversary thereof (the "Severance Period"), and (ii) if
Employee elects continuation health coverage pursuant to "COBRA", the Company
shall, for the duration of the Severance Period, contribute an amount of the
Employee's "COBRA" premium equal to the amount that the Company contributed to
the Company's health plan on behalf of the Employee immediately prior to the
termination of the Employment Period; provided, however, the Company shall only
have obligations under this paragraph 4(b), if and only if Employee has executed
and delivered to the Company the General Release substantially in form and
substance as set forth in Exhibit A attached hereto and only so long as Employee
has not revoked or breached the provisions of the General Release or breached
the provisions of paragraphs 5, 6 and 7 hereof and does not apply for
unemployment compensation chargeable to the Company during the Severance Period,
and Employee shall not be entitled to any other salary, compensation or benefits
after termination of the Employment Period, except as expressly required by
applicable law.
(c) If Employee's employment with the Company is terminated by
the Company for Cause, or if Employee resigns or terminates his employment with
the Company before the first anniversary of the date hereof, Employee shall only
be entitled to receive his Base Salary plus any accrued but unused vacation
through the date of termination or expiration and shall not be entitled to any
other salary, compensation or benefits from the Company or its Subsidiaries
thereafter, except as expressly required by applicable law.
(d) Except as otherwise expressly provided herein, all of
Employee's rights to salary, bonuses, employee benefits and other compensation
hereunder which would have accrued or become payable after the termination or
expiration of the Employment Period shall cease upon such termination or
expiration, other than those expressly required under applicable law (such as
COBRA). The Company may offset any amounts Employee owes it or its Subsidiaries
against any amounts it or its Subsidiaries owes Employee hereunder.
(e) For purposes of this Agreement, "Cause" shall mean any of
(i) a breach by Employee of paragraphs 5, 6, or 7 of this Agreement, (ii) the
commission by Employee of, or the pleading by Employee of guilty or no contest
to, (x) any felony or (y) any crime involving moral turpitude on his part which
the Board reasonably determines would have an adverse effect on (A) the
reputation of any member of the Group (as defined below) or its relationships
with suppliers, customers, employees or others, (B) Employee's ability to
effectively perform his duties as an officer or employee of the Company or in
accordance with this Agreement, or (C) the business, operations or financial
condition of any member of the Group, (iii) the commission of fraud or
embezzlement on the part of Employee, (iv) a failure by Employee to comply with
the lawful written directives and policies of the Board, (v) gross negligence or
reckless activity in the conduct of the business of the Company (including,
without limitation, a material breach of any Company employee manual now
existing or hereinafter instituted), (vi) material abandonment of duties, and/or
(vii) willful action taken for the purpose of harming the Company or its
Subsidiaries or Purchaser.
(f) For purposes of this Agreement, "Disability" shall mean
Employee's inability to perform the essential duties, responsibilities and
functions of his position with the Company and its Subsidiaries as a result of
any mental or physical disability or incapacity even with reasonable
accommodations of such disability or incapacity provided by the Company and its
Subsidiaries or if providing such accommodations would be unreasonable, all as
determined by the Board in its reasonable good faith judgment. Employee shall
cooperate in all respects with the Company if a question arises as to whether he
has become disabled (including, without limitation, submitting to an examination
by a medical doctor or other health care specialists selected by the Company and
authorizing such medical doctor or such other health care specialist to discuss
Employee's condition with the Company). If Employee has disability insurance,
the Board shall not declare employee disabled unless Employee's disability
insurance carrier agrees that Employee is disabled within the meaning of its
policy.
5. Confidential Information.
(a) Employee acknowledges that the information, observations
and data (including, without limitation, trade secrets, business strategies,
operating plans, acquisition strategies (including the identities of (and any
other information concerning) possible acquisition candidates)), pro forma
financial information, market analysis, acquisition terms and conditions,
personnel information, product information, sources of leads and methods of
obtaining new business, know-how, customer lists and relationships, supplier
lists and relationships, manufacturing and distribution methods or any other
methods of doing and operating the business of the Group, and other proprietary,
trade secret and confidential information relating to the Group) obtained by him
while employed by the Company and its Subsidiaries (including those obtained by
him while employed by the Company prior to the date of this Agreement)
concerning the business or affairs of the Group ("Confidential Information") are
the property of the Company, its Subsidiaries, Purchaser, and any entities
formed by the Company, Purchaser or their respective Subsidiaries (the "Group").
Therefore, Employee covenants and agrees that he will not disclose, directly or
indirectly, or make available to any individual, corporation, partnership,
limited liability company or any other person, firm or entity, or in any manner
use for his own benefit, (i) at any time (either during or after the Employment
Period), any Trade Secret (as defined below), or (ii) at any time during the
Employment Period and the Noncompete Period (as defined below), any other
Confidential Information (which is not a Trade Secret and covered by subsection
(i) immedicable above), except to the extent that Employee can show that such
disclosure (i) is made with the Board's written consent, (ii) consists solely of
information that is or has become generally known by the public other than as a
result of a breach hereof, or (iii) is required to be disclosed by law or
judicial or administrative process; provided that, in the case of clause (iii),
Employee shall provide the Company with prompt prior written notice of such
requirement and the terms of and circumstances surrounding such requirement so
that the Company may seek an appropriate protective order or other remedy, or
waive compliance with the terms of this Agreement, and that Employee shall
provide such cooperation with respect to obtaining a protective order or other
remedy as the Company shall reasonably request. If a protective order or other
remedy is not obtained, or if the Company is required to waive compliance with
the provisions hereof, Employee will furnish only that portion of such Trade
Secret or other Confidential Information which, as he is advised in a written
opinion by his counsel, he is legally required to furnish. Employee shall
deliver to the Company at the termination or expiration of the Employment
Period, or at any other time the Company may request, all memoranda, notes,
plans, records, reports, computer tapes, printouts and software and other
documents and data (and copies thereof) embodying or relating to the
Confidential Information, Work Product (as defined below) or the business of the
Group which he may then possess or have under his control.
(b) For purposes of this Agreement, "Trade Secret" shall mean
any information including, but not limited to, a formula, pattern, compilation,
program, device, method, technique, product, system, or process, design,
prototype, procedure, or code that: (i) derives independent economic value,
actual or potential, from not being generally known to, and not being readily
ascertainable by proper means by the public or any other person who can obtain
economic value from its disclosure or use, and (ii) is the subject of efforts
that are reasonable under the circumstances to maintain its secrecy. For
avoidance of doubt, a Trade Secret may consist of a simple fact, item, or
procedure, or series of sequence of items or procedures which, although
individually could be perceived as relatively minor or simple, collectively can
make a substantial difference in the efficiency of a process or the production
of a product, or may be the basis of a marketing to commercial strategy.
6. Inventions and Patents. Employee acknowledges that all
inventions, innovations, improvements, developments, methods, designs, analyses,
drawings, reports and all similar or related information (whether or not
patentable) which relate to the Group's actual or anticipated business, research
and development or existing or future products or services and which are
conceived, developed or made by Employee while employed by the Company and its
Subsidiaries ("Work Product") belong to the Group. Employee shall promptly
disclose such Work Product to the Board and, at the Company's expense, perform
all actions reasonably requested by the Board (whether during or after the
Employment Period) to establish and confirm such ownership (including, without
limitation, executing and delivering assignments, consents, powers of attorney
and other instruments).
7. Non-Compete, Non-Solicitation.
(a) In further consideration of the compensation to be paid to
Employee hereunder and as an essential inducement to the Company to enter into
this Agreement, Employee acknowledges that in the course of his employment with
the Company and its Subsidiaries he shall become familiar, and during his
employment with the Company he has become familiar, with the Company's trade
secrets and with other Confidential Information concerning the Company and that
his services have been and shall be of special, unique and extraordinary value
to the Company. Therefore, Employee agrees that, during the Employment Period
and for two years thereafter (the "Noncompete Period"), he shall not directly or
indirectly own any interest in, manage, control, finance, participate in,
consult with, render services for, or in any manner engage in any retail apparel
business focusing on lower income or minority consumers (including, without
limitation, Rainbow Apparel Companies Inc. and Dots Stores Ltd.) competing with,
or reasonably related to, the businesses of the Company, as such businesses
exist or are in process during the Employment Period on the date of the
termination or expiration of the Employment Period, within any geographical area
in which the Company engages or plans to engage in such businesses. Nothing
herein shall prohibit Employee from being a passive owner of not more than 5% of
the outstanding stock of any class of a corporation which is publicly traded, so
long as Employee has no active participation in the business of such
corporation.
(b) During the Noncompete Period, Employee shall not directly
or indirectly through another person or entity (i) induce or attempt to induce
any employee of, or consultant to, the Company or any Subsidiary to leave the
employ of, or stop rendering services to, the Company or such Subsidiary, or in
any way interfere with the relationship between the Company or any Subsidiary
and any employee or consultant thereof, (ii) hire any person who was an employee
of, or consultant to, the Company or any Subsidiary at any time during the
Employment Period or (iii) induce or attempt to induce any customer, supplier,
licensee, licensor, franchisee or other business relation of the Company or any
Subsidiary to cease doing business with the Company or such Subsidiary, or in
any way interfere with the relationship between any such customer, supplier,
licensee or business relation and the Company or any Subsidiary (including,
without limitation, making any negative or disparaging statements or
communications regarding the Company or its Subsidiaries).
(c) If, at the time of enforcement of paragraphs 5, 6 or 7 of
this Agreement, a court holds that the restrictions stated herein are
unreasonable under circumstances then existing, the parties hereto agree that
the maximum period, scope or geographical area reasonable under such
circumstances shall be substituted for the stated period, scope or area.
Employee acknowledges that the services to be rendered under the provisions of
this Agreement are of a unique nature, that it would be difficult or impossible
to replace such services and that that money damages would not be an adequate
remedy for any breach of this Agreement. Therefore, in the event of a breach or
threatened breach of this Agreement, the Company or its successors or assigns,
in addition to other rights and remedies existing in their favor, shall be
entitled to specific performance and/or injunctive or other equitable relief
from a court of competent jurisdiction in order to enforce, or prevent any
violations of, the provisions hereof (without posting a bond or other security).
In addition, in the event of an alleged breach or violation by Employee of
paragraph 7, the Noncompete Period shall be tolled until such breach or
violation has been duly cured. Employee acknowledges that the restrictions
contained in paragraph 7 are reasonable and that he has reviewed the provisions
of this Agreement with his legal counsel.
8. Employee's Representations. Employee hereby represents and
warrants to the Company that (i) the execution, delivery and performance of this
Agreement by Employee do not and shall not conflict with, breach, violate or
cause a default under any contract, agreement, instrument, order, judgment or
decree to which Employee is a party or by which he is bound, (ii) Employee is
not a party to or bound by any employment agreement, noncompete agreement or
confidentiality agreement with any other person or entity, (iii) upon the
execution and delivery of this Agreement by the Company, this Agreement shall be
the valid and binding obligation of Employee, enforceable in accordance with its
terms. Employee hereby acknowledges and represents that (i) he has consulted
with independent legal counsel regarding his rights and obligations under this
Agreement, (ii) that he fully understands the terms and conditions contained
herein, and (iii) that the agreements herein are reasonable and necessary for
the protection of the Company and the Group and are an essential inducement to
the Company to enter into this Agreement.
9. Survival. Paragraphs 5 through 18 shall survive and
continue in full force in accordance with their terms notwithstanding the
expiration or termination of the Employment Period.
10. Notices. Any notice provided for in this Agreement shall
be in writing and shall be either personally delivered, sent by reputable
overnight courier service or mailed by first class mail, return receipt
requested, to the recipient at the address below indicated:
In the case of Employee, to him at:
Xxxxxxx Xxxxxx
0000 Xxxxx Xxxxxx Xxxx Xxxx
Xxxxxx, XX 00000
Fax: (000) 000-0000
or at the last known address of Employee contained in
the personnel records of the Company.
In the case of the Company, to it at:
One Price Clothing Stores, Inc.
Xxx. 000 Xxxxxxxx Xxxx
0000 Xxxx Xxxx Xxxxxx
Xxxxxx, XX 00000
Attn: General Counsel
Fax: (000) 000-0000
with copies to:
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Telecopy: (000) 000-0000
and
Sun One Price, LLC
0000 Xxxx Xxxxxx Xxxxxx
Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxx, Xxxxxx X. Xxxxxx
and C. Xxxxx Xxxxx, Esq.
Telecopy: (000) 000-0000
or such other address or to the attention of such other person as the recipient
party shall have specified by prior written notice to the sending party. Any
notice under this Agreement shall be deemed to have been given when so
delivered, sent or mailed.
11. Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or any action in any other jurisdiction, but this Agreement
shall be reformed, construed and enforced in such jurisdiction as if such
invalid, illegal or unenforceable provision had never been contained herein.
12. Complete Agreement. Except for that certain letter
agreement, dated as of June 18, 2003, between Employee and the Company, This
Agreement, those documents expressly referred to herein and other documents of
even date herewith embody the complete agreement and understanding among the
parties and supersede and preempt any prior understandings, agreements or
representations by or among the parties, written or oral, which may have related
to the subject matter hereof in any way. Except for that certain letter
agreement, dated as of June 18, 2003, between Employee and the Company, Employee
agrees that all employment and compensation agreements, arrangements and
understandings (of any kind or nature) between them, whether written and oral,
shall terminate and be of no further force or effect (including, without
limitation, (i) that certain Employment Agreement, dated as of January 15, 2001
by and between Employee and the Company, as amended, (ii) that certain Letter of
Understanding Regarding Non-Executive Chairman Position, dated April 16, 1998,
as amended, and (iii) that certain Letter of Understanding Regarding
Non-Executive Chairman Position, dated February 7, 2001, as amended).
13. No Strict Construction. The language used in this
Agreement shall be deemed to be the language chosen by the parties hereto to
express their mutual intent, and no rule of strict construction shall be applied
against any party.
14. Counterparts. This Agreement may be executed in separate
counterparts, each of which is deemed to be an original and all of which taken
together constitute one and the same agreement. Any counterpart may be executed
by facsimile signature and such facsimile signature shall be deemed an original.
15. Successors and Assigns. Employee may not assign his rights
or delegate his duties or obligations hereunder without the prior written
consent of the Company. The Company shall not have the right to assign its
rights or obligations under this Agreement without the prior written consent of
Employee, provided that this Agreement may be assigned by the Company without
the consent of Employee to another corporation under common control with the
Company, and upon the sale of all or substantially all of the assets, business
and goodwill of the Company to another company, or upon the merger or
consolidation of the Company with another company, this Agreement may be
assigned by the Company to the purchaser of such assets and shall inure to the
benefit of, and be binding upon, both Employee and the company purchasing such
assets, business and goodwill, or surviving such merger or consolidation, as the
case may be, in the same manner and to the same extent as though such other
company were the Company; provided that the successor to the Company shall
expressly assume and agree to perform this Agreement. Subject to the foregoing,
this Agreement is intended to bind and inure to the benefit of and be
enforceable by Employee, the Company and their respective heirs, successors and
assigns.
16. Choice of Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of South Carolina, without
giving effect to South Carolina's rules of conflicts of law, and regardless of
the place or places of its physical execution and performance.
17. Amendment and Waiver. The provisions of this Agreement may
be amended or waived only with the prior written consent of the Company (as
approved by the Board) and Employee, and no course of conduct or course of
dealing or failure or delay by any party hereto in enforcing or exercising any
of the provisions of this Agreement shall affect the validity, binding effect or
enforceability of this Agreement or be deemed to be an implied waiver of any
provision of this Agreement.
18. Cooperation With Regard to Litigation; Waiver of Trial By
Jury.
(a) Employee agrees to cooperate with the Company during the
Employment Period and thereafter (including following termination of Employee's
employment for any reason) by making himself reasonably available to testify on
behalf of the Company or its affiliates, in any action, suit or proceeding,
whether civil, criminal, administrative, or investigative, and to assist the
Company or any of its affiliates in any such action, suit, or proceeding by
providing information and meeting and consulting with its counsel and
representatives. Employee shall be fully reimbursed for any out-of-pocket
expenses reasonably incurred by Employee in the course of such cooperation.
(b) Each of the parties to this Agreement irrevocably and
unconditionally waives the right to a trial by jury in any action, suit or
proceeding arising out of, connected with or relating to this Agreement, the
matters contemplated hereby, or the actions of the parties in the negotiation,
administration, performance or enforcement of this Agreement.
* * * * *
IN WITNESS WHEREOF, the parties hereto have executed this
Employment Agreement as of the date first written above.
/s/Xxxxxxx X. Xxxxxx
--------------------------------------------
XXXXXXX XXXXXX
ONE PRICE CLOTHING STORES, INC.
By: /s/Xxxxx X. Xxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxx
Title: General Counsel, Vice President and
Secretary
Exhibit A
GENERAL RELEASE
I, Xxxxxxx Xxxxxx, in consideration of and subject to the performance
by One Price Clothing Stores, Inc., a Delaware Corporation (together with its
subsidiaries, the "Company"), of its obligations under the Employment Agreement,
dated as of June __, 2003 (the "Agreement"), do hereby release and forever
discharge as of the date hereof the Company and its affiliates and all present
and former directors, officers, agents, representatives, employees, successors
and assigns of the Company and its affiliates and the Company's direct or
indirect owners (including, without limitation, Sun One Price, LLC)
(collectively, the "Released Parties") to the extent provided below.
1. I understand that any payments or benefits paid or granted to me under
paragraph 4(b) of the Agreement represent, in part, consideration for signing
this General Release and are not salary, wages or benefits to which I was
already entitled. I understand and agree that I will not receive the payments
and benefits specified in paragraph 4(b) of the Agreement unless I execute this
General Release and do not revoke this General Release within the time period
permitted hereafter or breach this General Release. I also acknowledge and
represent that I have received all payments and benefits that I am entitled to
receive (as of the date hereof) by virtue of any employment by the Company.
2. Except as provided in paragraph 4 below and except for the provisions of my
Employment Agreement which expressly survive the termination of my employment
with the Company, I knowingly and voluntarily (for myself, my heirs, executors,
administrators and assigns) release and forever discharge the Company and the
other Released Parties from any and all claims, suits, controversies, actions,
causes of action, cross-claims, counter-claims, demands, debts, compensatory
damages, liquidated damages, punitive or exemplary damages, other damages,
claims for costs and attorneys' fees, or liabilities of any nature whatsoever in
law and in equity, both past and present (through the date this General Release
becomes effective and enforceable) and whether known or unknown, suspected, or
claimed against the Company or any of the Released Parties which I, my spouse,
or any of my heirs, executors, administrators or assigns, may have, which arise
out of or are connected with my employment with, or my separation or termination
from, the Company (including, but not limited to, any allegation, claim or
violation, arising under: Title VII of the Civil Rights Act of 1964, as amended;
the Civil Rights Act of 1991; the Age Discrimination in Employment Act of 1967,
as amended (including the Older Workers Benefit Protection Act); the Equal Pay
Act of 1963, as amended; the Americans with Disabilities Act of 1990; the Family
and Medical Leave Act of 1993; the Worker Adjustment Retraining and Notification
Act; the Employee Retirement Income Security Act of 1974; any applicable
Executive Order Programs; the Fair Labor Standards Act; or their state or local
counterparts; or under any other federal, state or local civil or human rights
law, or under any other local, state, or federal law, regulation or ordinance;
or under any public policy, contract or tort, or under common law; or arising
under any policies, practices or procedures of the Company; or any claim for
wrongful discharge, breach of contract, infliction of emotional distress,
defamation; or any claim for costs, fees, or other expenses, including
attorneys' fees incurred in these matters) (all of the foregoing collectively
referred to herein as the "Claims").
3. I represent that I have made no assignment or transfer of any right, claim,
demand, cause of action, or other matter covered by paragraph 2 above.
4. I agree that this General Release does not waive or release any rights or
claims that I may have under the Age Discrimination in Employment Act of 1967
which arise after the date I execute this General Release. I acknowledge and
agree that my separation from employment with the Company in compliance with the
terms of the Agreement shall not serve as the basis for any claim or action
(including, without limitation, any claim under the Age Discrimination in
Employment Act of 1967).
5. In signing this General Release, I acknowledge and intend that it shall be
effective as a bar to each and every one of the Claims hereinabove mentioned or
implied. I expressly consent that this General Release shall be given full force
and effect according to each and all of its express terms and provisions,
including those relating to unknown and unsuspected Claims (notwithstanding any
state statute that expressly limits the effectiveness of a general release of
unknown, unsuspected and unanticipated Claims), if any, as well as those
relating to any other Claims hereinabove mentioned or implied. I acknowledge and
agree that this waiver is an essential and material term of this General Release
and that without such waiver the Company would not have agreed to the terms of
the Agreement. I further agree that in the event I should bring a Claim seeking
damages against the Company, or in the event I should seek to recover against
the Company in any Claim brought by a governmental agency on my behalf, this
General Release shall serve as a complete defense to such Claims. I further
agree that I am not aware of any pending charge or complaint of the type
described in paragraph 2 as of the execution of this General Release.
6. I agree that neither this General Release, nor the furnishing of the
consideration for this General Release, shall be deemed or construed at any time
to be an admission by the Company, any Released Party or myself of any improper
or unlawful conduct.
7. I agree that I will forfeit all amounts payable by the Company pursuant to
the Agreement if I challenge the validity of this General Release. I also agree
that if I violate this General Release by suing the Company or the other
Released Parties, I will pay all costs and expenses of defending against the
suit incurred by the Released Parties, including reasonable attorneys' fees, and
return all payments received by me pursuant to the Agreement.
8. I agree that this General Release is confidential and agree not to disclose
any information regarding the terms of this General Release, except to my
immediate family and any tax, legal or other counsel I have consulted regarding
the meaning or effect hereof or as required by law, and I will instruct each of
the foregoing not to disclose the same to anyone.
9. Any non-disclosure provision in this General Release does not prohibit or
restrict me (or my attorney) from responding to any inquiry about this General
Release or its underlying facts and circumstances by the Securities and Exchange
Commission (SEC), the National Association of Securities Dealers, Inc. (NASD),
any other self-regulatory organization or governmental entity.
10. I agree to reasonably cooperate with the Company in any internal
investigation or administrative, regulatory, or judicial proceeding. I
understand and agree that my cooperation may include, but not be limited to,
making myself available to the Company upon reasonable notice for interviews and
factual investigations; appearing at the Company's request to give testimony
without requiring service of a subpoena or other legal process; volunteering to
the Company pertinent information; and turning over to the Company all relevant
documents which are or may come into my possession all at times and on schedules
that are reasonably consistent with my other permitted activities and
commitments. I understand that in the event the Company asks for my cooperation
in accordance with this provision, the Company will reimburse me solely for
reasonable travel expenses, including lodging and meals, upon my submission of
receipts.
11. I agree not to disparage the Company, its past and present investors,
officers, directors or employees or its affiliates and to keep all confidential
and proprietary information about the past or present business affairs of the
Company and its affiliates confidential unless a prior written release from the
Company is obtained. I further agree that as of the date hereof, I have returned
to the Company any and all property, tangible or intangible, relating to its
business, which I possessed or had control over at any time (including, but not
limited to, company-provided credit cards, building or office access cards,
keys, computer equipment, manuals, files, documents, records, software, customer
data base and other data) and that I shall not retain any copies, compilations,
extracts, excerpts, summaries or other notes of any such manuals, files,
documents, records, software, customer data base or other data.
12. Notwithstanding anything in this General Release to the contrary, this
General Release shall not relinquish, diminish, or in any way affect any rights
or claims arising out of any breach by the Company or by any Released Party of
the Agreement after the date hereof.
13. Whenever possible, each provision of this General Release shall be
interpreted in, such manner as to be effective and valid under applicable law,
but if any provision of this General Release is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or any other jurisdiction, but this General Release shall be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
BY SIGNING THIS GENERAL RELEASE, I REPRESENT AND AGREE THAT:
(a) I HAVE READ IT CAREFULLY;
(b) I UNDERSTAND ALL OF ITS TERMS AND KNOW THAT I AM GIVING UP IMPORTANT RIGHTS,
INCLUDING BUT NOT LIMITED TO, RIGHTS UNDER THE AGE DISCRIMINATION IN EMPLOYMENT
ACT OF 1967, AS AMENDED, TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, AS AMENDED;
THE EQUAL PAY ACT OF 1963, THE AMERICANS WITH DISABILITIES ACT OF 1990; AND THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED;
(c) I VOLUNTARILY CONSENT TO EVERYTHING IN IT;
(d) I HAVE BEEN ADVISED TO CONSULT WITH AN ATTORNEY BEFORE EXECUTING IT AND I
HAVE DONE SO OR, AFTER CAREFUL READING AND CONSIDERATION I HAVE CHOSEN NOT TO DO
SO OF MY OWN VOLITION;
(e) I HAVE HAD AT LEAST 21 DAYS FROM THE DATE OF MY RECEIPT OF THIS RELEASE
SUBSTANTIALLY IN ITS FINAL FORM ON _______________ __, _____ TO CONSIDER IT AND
THE CHANGES MADE SINCE THE _______________ __, _____ VERSION OF THIS RELEASE ARE
NOT MATERIAL AND WILL NOT RESTART THE REQUIRED 21-DAY PERIOD;
(f) THE CHANGES TO THE AGREEMENT SINCE _______________ ___, _____ EITHER ARE NOT
MATERIAL OR WERE MADE AT MY REQUEST.
(g) I UNDERSTAND THAT I HAVE SEVEN DAYS AFTER THE EXECUTION OF THIS RELEASE TO
REVOKE IT AND THAT THIS RELEASE SHALL NOT BECOME EFFECTIVE OR ENFORCEABLE UNTIL
THE REVOCATION PERIOD HAS EXPIRED;
(h) I HAVE SIGNED THIS GENERAL RELEASE KNOWINGLY AND VOLUNTARILY AND WITH THE
ADVICE OF ANY COUNSEL RETAINED TO ADVISE ME WITH RESPECT TO IT; AND
(i) I AGREE THAT THE PROVISIONS OF THIS GENERAL RELEASE MAY NOT BE AMENDED,
WAIVED, CHANGED OR MODIFIED EXCEPT BY AN INSTRUMENT IN WRITING SIGNED BY AN
AUTHORIZED REPRESENTATIVE OF THE COMPANY AND BY ME.
DATE: _____________ ____________________________________
