EXHIBIT 10.42
NATIONSRENT, INC.
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made as of
August 19, 2002 (the "Start Date"), by and between NationsRent, Inc., a Delaware
corporation (the "Company"), and D. Xxxxx Xxxx ("Executive"). If not otherwise
defined herein, all initially capitalized words and phrases shall have the
meanings ascribed to them in Section 10 of this Agreement.
AGREEMENT
The Company and Executive desire to enter into this Agreement
pursuant to which the Company shall employ Executive on the terms and subject to
the conditions set forth in this Agreement. In consideration of the mutual
covenants contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Employment. The Company shall employ Executive, and
Executive hereby accepts employment with the Company, upon the terms
and conditions set forth in this Agreement for the Employment Period.
2. Position and Duties.
(a) During the Employment Period, Executive shall serve
as the Chief Executive Officer and, subject to the management
of the business and affairs of the Company at the direction of
the Board of Directors of the Company (the "Board"), shall
have such authority and responsibility and shall perform such
duties as may be assigned to him from time to time by the
Board or the Chairman of the Board and, in the absence of such
assignment, shall have responsibility for managing and
implementing the Company's restructuring initiatives, in
addition to the normal duties, responsibilities, functions,
and authority of an executive serving in such position.
Notwithstanding the foregoing, Executive shall obtain prior
Board approval for all matters outside the ordinary course of
business, including but not limited to, (i) material changes
to the Company's business plan or proposed plan of
reorganization, as filed with the Bankruptcy Court in June
2002 (the "Plan") and (ii) changes in the Company's executive
management or its restructuring advisors. In addition,
Executive shall confirm the designation and amount of all key
employee retention bonuses previously granted by the Company
pursuant to the NationsRent, Inc. Retention Bonus Plan within
thirty (30) days of the Start Date.
(b) During the Employment Period, Executive shall report
to the Board and devote his best efforts and his full business
time and attention (except for permitted vacation periods and
reasonable periods of illness or other incapacity) to the
business and affairs of the Company and shall perform his
duties,
responsibilities, and functions to the Company hereunder to
the best of his abilities.
(c) Executive shall perform his duties hereunder at the
Company's principal place of business in Ft. Lauderdale,
Florida.
3. Compensation and Benefits.
(a) Salary. During the Employment Period, Executive's
base salary shall be $600,000 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, pro-rated for any partial years.
(b) Emergence Bonus. Upon the occurrence of the
Emergence Date, Executive will receive a one-time bonus equal
to 100% of his Base Salary as in effect on the such date (the
"Emergence Bonus").
(c) Performance Bonus. Executive shall participate in the
senior management incentive compensation plan being developed
by the Company and the Board for the fiscal year ended
December 31, 2002, as well as any senior management incentive
compensation plan developed by the Company and the Board for
any other fiscal year during the Employment Period.
(d) Benefits. In addition to the Base Salary and any
bonuses payable to Executive pursuant to Section 3, Executive
shall be entitled to those benefits for which senior
executives of the Company are generally eligible pursuant to
the Company's policies as in effect from time to time
including coverage under D&O Insurance (collectively, the
"Employee Benefits").
Notwithstanding the above, Executive is, as of the Start Date,
participating in a health plan maintained by an unrelated third party ("Third
Party Health Plan") and will not elect to be covered by the Company's health
benefits plan. However, in the event, for any reason, Executive ceases during
the Employment Period to participate in the Third Party Health Plan, Executive
may immediately elect coverage and participate in all health benefits plans
maintained by the Company.
(e) Expense Reimbursement.
(i) During the Employment Period, the Company
shall reimburse Executive for all reasonable expenses
incurred by him in the course of performing his
duties and responsibilities under this Agreement that
are consistent with the Company's policies in effect
from time to time with respect to travel (including
related travel insurance), entertainment, and other
business expenses, subject to the Company's
requirements with respect to reporting and
documentation of such expenses.
(ii) Executive shall be entitled to reimbursement
for his reasonable and documented expenses, including
temporary lodging in Ft. Lauderdale for a
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period not to exceed one year and relocation expenses
not to exceed $50,000.
(f) Withholding. All amounts payable to Executive as
compensation hereunder shall be taxable and subject to all
required withholding by the Company.
4. Termination of Employment Period.
(a) The Employment Period may be terminated by the
Company at any time for any reason. Except as otherwise
provided herein, any termination of the Employment Period by
the Company shall be effective as specified in a written
notice from the Company to Executive.
(b) The Employment Period shall terminate immediately
upon Executive's resignation, death, or mental or physical
disability or incapacity (as determined by the Board in its
good faith judgment) that prevents Executive from performing a
substantial portion of his duties for a period exceeding (i)
60 consecutive days or (ii) 100 days in any twelve (12) month
period.
5. Severance Benefits.
(a) Subject to Executive's completion of all eligibility
requirements set forth in this Section 5, if Executive suffers
an Employment Loss during the Employment Period, Executive
will be entitled to receive the following severance award
benefits (collectively, the "Severance Benefits"):
(i) a lump-sum payment equal to two (2) times
Executive's annual Base Salary in effect at the time
Executive suffers the Employment Loss (which payment
will be subject to all applicable federal, state, and
local tax withholdings and required contributions for
the continuation of health and welfare Employee
Benefits during the Employee Benefits Period (defined
below)), payable on first (1st) business day after
the expiration of the seven (7)-day revocation period
referred to in Section 12(g) of the General Release
attached hereto as Exhibit A (the "General Release");
(ii) continuation of all health and welfare
Employee Benefits for a period of two (2) years (or
such longer period, without duplication, as required
by the Consolidated Omnibus Budget Reconciliation Act
of 1986 ("COBRA")) commencing on the date of his
Employment Loss (the "Employee Benefits Period") or,
in the event Executive is covered by a Third Party
Health Plan on the date of his Employment Loss, the
ability to elect coverage and participate in the
Company's health benefits plan for a period beginning
upon the loss of coverage under the Third Party
Health Plan and ending two (2) years after the
Employment Loss Date;
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(iii) a one-time Emergence Bonus in accordance
with Section 3(b) hereof if the Emergence Date occurs
within 180 days following the date of the Executive's
Employment Loss;
(iv) continuation of Executive's coverage under
the Company's D&O Insurance policy, or the Company
shall provide Executive with similar coverage, in
either case, on substantially the same terms and
conditions until the third (3rd) anniversary of the
date of Executive's Employment Loss; and
(v) payment of any accrued unpaid Base Salary
and any accrued unused vacation through the date of
his Employment Loss.
(b) To receive the Severance Benefits described under
Section 5(a), Executive must have executed and delivered to
the Company the General Release, which release shall include,
without limitation, the resignation of Executive from all
positions as a director or officer of the Company, any
subsidiary thereof, and any other entity that Executive is
serving in such capacity at the request of the Company. If
Executive fails or refuses to execute the General Release, or
revokes the General Release prior to the expiration of the
seven (7)-day revocation period referred to in Section 12(g)
of the General Release, Executive shall not be entitled to
receive the Severance Benefits described under Section 5(a).
In the event Executive executes the General Release, the
Company shall execute a release in favor of Executive with
respect to those claims which the Company would have the power
to indemnify Executive in accordance with Section 145 of the
General Corporation Law of the State of Delaware.
(c) Executive shall not be required to mitigate the
amount of the Severance Benefits by seeking other employment
or otherwise, nor shall such amount be reduced by any
compensation received from other employment.
(d) If Executive dies after he suffers an Employment Loss
but before he receives payment of the Severance Benefits
described in Section 5(a)(i), 5(a)(iii) and 5(a)(v), the
Company will pay such benefits to Executive's estate;
provided, however, that, Executive or Executive's estate, as
the case may be, has complied with the terms of Section 5
(including, without limitation, execution of the General
Release).
(e) Notwithstanding any provision of this Agreement to
the contrary, Executive shall automatically forfeit any and
all rights to any and all Severance Benefits and any and all
other benefits under this Agreement, other than payment of
accrued unpaid Base Salary and accrued unused vacation through
the date of termination of Executive's employment, if, prior
to the Due Date: (i) Executive's employment is terminated with
Cause; (ii) Executive voluntarily resigns without Good Reason;
or (iii) Executive is part of a Group that is formed for the
purpose of consummating a Management Buyout and such
Management Buyout is consummated.
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6. Extension of Health and Welfare Employee Benefits.
After the termination of health and welfare Employee Benefits at the
expiration of the Employment Period or the Employee Benefits Period, as
the case may be, Executive shall receive a monthly reimbursement (the
"Benefit Premium Reimbursement") of the difference between (a) the
actual premium paid by Executive for continuation of health insurance
coverage through COBRA and (b) the employee portion of the fixed
premium for health and welfare Employee Benefits for an employee and
spouse under the Company's then existing Employee Benefit plans and
arrangements. Executive will be eligible to receive Benefit Premium
Reimbursements only for such time as Executive is eligible for coverage
under COBRA.
7. Confidential Information. Executive acknowledges that
the information, observations, and data (including, without limitation,
trade secrets, business, sales, or marketing plans and strategies,
expansion plans and strategies, and customer lists) obtained by him
while employed by the Company and its subsidiaries (including those
obtained by him prior to the date of this Agreement) concerning the
business or affairs of the Company or any other subsidiary, whether
written or oral, tangible or intangible (the "Confidential
Information") is the property of the Company or such subsidiary.
Therefore, Executive agrees that he shall not disclose to any
unauthorized person or use for his own purposes any Confidential
Information without the prior written consent of the Board, unless and
to the extent that the Confidential Information becomes generally known
to and available for use by the public other than as a result of
Executive's acts or omissions; provided, however, that, the foregoing
notwithstanding, in the event that Executive is requested or becomes
legally compelled (by oral questions, interrogatories, request for
information or documents, subpoena, civil investigative demands, or
similar process) to disclose any Confidential Information or take any
other action prohibited by this Agreement, Executive shall provide the
Company with prompt written notice thereof (in reasonable detail) so
that the Company may seek a protective order or other appropriate
remedy and/or waive, in writing, compliance with the provisions of this
Agreement. In the event that such protective order or other remedy is
not obtained, or that the Company waives compliance with the provisions
of this Agreement, Executive shall furnish only that portion of the
Confidential Information or take only such action as is legally
required by law or binding order and shall exercise its reasonable
efforts to obtain reliable assurance that confidential treatment shall
be accorded any Confidential Information so furnished. Executive shall
deliver to the Company at the termination or expiration of the
Employment Period, or at any other time that 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 or the
business of the Company or any other subsidiaries that he may then
possess or have under his control.
8. Non-Compete, Non-Solicitation.
(a) In further consideration of the compensation to be
paid to Executive hereunder, Executive acknowledges that in
the course of his employment with the Company and its
affiliates and subsidiaries he has, and will continue to,
become familiar with the Company's trade secrets and with
other Confidential
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Information concerning the Company and its subsidiaries and
that his services have been and shall continue to be of
special, unique, and extraordinary value to the Company and
its subsidiaries. Therefore, Executive agrees that, during the
term of his employment plus a period of two years following
the date of termination of his employment with the Company for
any reason (the "Noncompete Period"), he shall not directly or
indirectly own any interest in, manage, control, participate
in, consult with, render services for, or in any manner engage
in any business competing with the businesses of the Company
or its subsidiaries in the United States, as such businesses
exist or are in process during the Employment Period. Nothing
herein shall prohibit Executive from being a passive owner of
not more than two percent (2%) of the outstanding stock of any
class of a corporation that is publicly traded, so long as
Executive has no active participation in the business of such
corporation.
(b) During the Noncompete Period, Executive shall not
directly or indirectly through another person or entity (i)
induce or attempt to induce any employee of the Company or any
subsidiary to leave the employ of the Company or such
subsidiary, or in any way interfere with the relationship
between the Company or any subsidiary and any employee thereof
or (ii) 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 Section 8, a court
shall hold that the duration or scope restrictions stated
herein are unreasonable under circumstances then existing, the
parties agree that the maximum duration or scope reasonable
under such circumstances shall be substituted for the stated
duration or scope and that the court shall be allowed to
revise the restrictions contained herein to cover the maximum
period and scope permitted by law. Executive acknowledges that
the restrictions contained in Section 8 are reasonable and
that he has reviewed the provisions of this Agreement with his
legal counsel.
(d) In the event of the breach or a threatened breach by
Executive of any of the provisions of Section 8, the Company,
in addition and supplementary to other rights and remedies
existing in its 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).
9. Executive's Representations. Executive hereby
represents and warrants to the Company that (a) the execution, delivery
and performance of this Agreement by Executive do not and shall not
conflict with, breach, violate, or cause a default under any contract,
agreement, instrument, order, judgment, or decree to which Executive is
a party or by which he is bound, (b) Executive is not a party to or
bound by any employment
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agreement, noncompete agreement, or confidentiality agreement with any
other person or entity that would be violated by the terms of this
Agreement, and (c) upon the execution and delivery of this Agreement by
the Company and Executive, this Agreement shall be the valid and
binding obligation of Executive, enforceable in accordance with its
terms. Executive hereby acknowledges and represents that he has
consulted with independent legal counsel regarding his rights and
obligations under this Agreement and that he fully understands the
terms and conditions contained herein.
10. Definitions. If not otherwise defined herein, the
following words and phrases shall have the following meanings:
(a) "Bankruptcy Court" means the United States Bankruptcy
Court for the District of Delaware in Wilmington, Delaware.
(b) "Cause" means: (i) Executive's commission of a felony
or other crime that is manifestly injurious to the Company or
its affiliates or Executive's commission of any act or
omission involving dishonesty, disloyalty, or fraud with
respect to the Company or any of its affiliates or any of
their customers or suppliers; (ii) Executive's reporting to
work under the influence of alcohol or illegal drugs, the use
of illegal drugs (whether or not at the workplace), or other
repeated conduct causing the Company or any of its affiliates
public disgrace or disrepute or economic harm; (iii)
Executive's repeated failure to perform duties as reasonably
directed by the Board or Chairman of the Board; or (iv)
Executive's gross negligence or willful misconduct with
respect to the Company or any of its affiliates.
(c) "D&O Insurance" means insurance that insures persons
serving as corporate directors and officers of the Company (or
any of its subsidiaries) against claims asserted against such
persons and incurred by such persons in their capacity, or
arising out of such persons' status, as corporate directors or
officers of the Company (or any of its subsidiaries).
(d) "Emergence Date" means the earliest to occur of (i)
the effective date of a confirmed Plan; (ii) the date of
consummation of the sale of substantially all of the assets of
the Company; (iii) the date that the Company is merged,
consolidated, or reorganized into or with any other entity; or
(iv) the date of consummation of a transaction that is a
change in control transaction of the type required to be
reported under Item 1 of Form 8-K (or any successor schedule,
form, or report or item therein) with the Securities and
Exchange Commission (the "SEC").
(e) "Employment Loss" means: (i) any actual termination
by the Company of Executive's employment during the Employment
Period which is without Cause; or (ii) if Executive
voluntarily terminates his employment during the Employment
Period for Good Reason.
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(f) "Employment Period" means the period beginning on the
Start Date and, subject to earlier termination in accordance
with Section 4 hereof, ending on the second (2nd) anniversary
of the Start Date.
(g) "Good Reason" means: (i) any material and substantial
diminution by the Board of Executive's position, duties, or
responsibilities or (ii) any material reduction in Executive's
Base Salary or any material reduction in Executive's Employee
Benefits.
(h) "Management Buyout" means a transaction or series of
related transactions pursuant to which any "group" (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities
Exchange Act of 1934, as amended (a "Group")), acquires,
directly or indirectly, combined voting power of
then-outstanding voting securities of the Company in an amount
sufficient to cause a change of control, as required to be
disclosed in any form of report filed with the SEC pursuant to
Form 8-K or Schedule 14A (or any successor schedule, form or
report or item therein).
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11. Survival. Sections 6 through 19 shall survive and continue in
full force in accordance with their terms notwithstanding the
expiration or termination of the Employment Period.
12. 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, (a) if to the Company, addressed to Xxxxxx X.
Xxxxxxxx, General Counsel, NationsRent, Inc., 000 Xxxx Xxx Xxxx Xxxx.
Xx. Xxxxxxxxxx, Xxxxxxx 00000 or (b) if to the Executive, to the
address set forth on the signature page of this Agreement, 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.
13. 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 jurisdictions as if such
invalid, illegal, or unenforceable provision had never been contained
herein.
14. Complete Agreement. This Agreement and those documents
expressly referred to herein 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.
15. 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.
16. 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.
17. Successors and Assigns. This Agreement will bind and inure to
the benefit of and be enforceable by, Executive, the Company, and their
respective heirs, successors, and assigns (in the case of the Company,
whether direct or indirect, by purchase, merger, consolidation, or
otherwise, to all or substantially all of the business and/or assets of
the Company, by a written agreement that is part of such transaction),
except that Executive may not assign his rights or delegate his duties
or obligations hereunder without the prior written consent of the
Company.
18. Choice of Law. All issues and questions concerning the
construction, validity, enforcement, and interpretation of this
Agreement and the exhibits and
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schedules hereto shall be governed by, and construed in accordance
with, the laws of the State of Florida, without giving effect to any
choice of law or conflict of law rules or provisions (whether of the
State of Florida or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the State of
Florida.
19. 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 Executive, 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 (including,
without limitation, the Company's right to terminate the Employment
Period at any time for any reason) 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.
20. Bankruptcy Court Approval. The Company has filed a voluntary
petition under Chapter 11 of the United States Bankruptcy Code. The
parties understand and agree that this Agreement is subject to, and
shall be effective only upon, approval of the Bankruptcy Court.
[REMAINDER OF PAGE BLANK--SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first written above.
NATIONSRENT, INC.
By:
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Name:
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Title:
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EXECUTIVE
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D. Xxxxx Xxxx
Address:
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EXHIBIT A
General Release
I, D. Xxxxx Xxxx, in consideration of and subject to the
performance by NationsRent, Inc., a Delaware corporation (together with its
affiliates, the "Company"), of its obligations under Section 5 of the Employment
Agreement (including the release of Executive referred to in Section 5(b)
thereof), dated as of August 19, 2002 (the "Agreement"), between myself and the
Company, do hereby release and forever discharge as of the date hereof the
Company and all present and former directors, officers, agents, representatives,
employees, successors and assigns of the Company and its direct or indirect
owners (collectively, the "Released Parties") to the extent provided below.
1. I understand that any payments or benefits paid or granted to me under
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 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.
2. Except as provided in Section 4 of this General Release, I knowingly
and voluntarily release and forever discharge the Company and the other
Released Parties from any and all claims, 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 of this General Release) and whether
known or unknown, suspected, or claimed against the Company or any of
the Released Parties that 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 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
Civil Rights Act of 1866, as amended; 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"); provided,
however, that, except as provided in Section 4, the term "Claims" shall
not include any rights: (i) arising under Section 5 of the Agreement;
(ii) for indemnification or reimbursement arising under
A-1
Section 145 of the Delaware General Corporation Law (or any similar
applicable statutes of any other states) or the Company's Certificate
of Incorporation or Bylaws, or (iii) relating to any action or Claim
against the Company by Executive for gross or willful fraud committed
by the Company.
3. I represent that I have made no assignment or transfer of any right,
claim, demand, cause of action, or other matter covered by Section 2 of
this General Release.
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, as amended, that 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, as amended).
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
Section 2 of this General Release 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.
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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, the National Association of
Securities Dealers, Inc., 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
that 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. Whenever possible, each provision of this General Release shall be
interpreted in such a 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.
12. I hereby resign any and all positions that I might hold as a director
or officer of the Company, any subsidiary thereof, and any other entity
where I am serving in such capacity at the request of the Company.
13. 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;
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(e) I HAVE HAD AT LEAST 21 DAYS FROM THE DATE OF MY RECEIPT OF
THIS RELEASE SUBSTANTIALLY IN ITS FINAL FORM ON THE START DATE
(AS DEFINED IN THE AGREEMENT) TO CONSIDER IT AND THE CHANGES
MADE SINCE THE START DATE VERSION OF THIS RELEASE ARE NOT
MATERIAL AND WILL NOT RESTART THE REQUIRED 21-DAY PERIOD;
(f) THE CHANGES TO THE AGREEMENT SINCE THE START DATE EITHER ARE
NOT MATERIAL OR WERE MADE AT MY REQUEST;
(g) I UNDERSTAND THAT I HAVE SEVEN (7) 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: __________________, 200__ BY:
--------------------------------
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