RETIREMENT AGREEMENT
EXHIBIT 99.1
EMPLOYMENT TRANSITION AND
RETIREMENT AGREEMENT
THIS EMPLOYMENT TRANSITION AND RETIREMENT AGREEMENT (the
“Agreement”), made and entered into on this
13th
day of April, 2005 (the “Effective Date”), by and
between Safeguard Scientifics, Inc. a Pennsylvania corporation
(the “Company”), and Xxxxxxx X. Xxxxx (the
“Executive”), reads as follows:
ARTICLE I
RECITALS
WHEREAS, Executive currently serves on the Company’s
Board of Directors and as its President and Chief Executive
Officer (“CEO”), a position of substantial authority
and responsibility in which he has access to the Company’s
trade secrets, proprietary information, and intellectual
property; and
WHEREAS, the Executive recently notified the Board of his
intention to retire from employment with the Company; and
WHEREAS, the parties desire Executive to continue as
President and CEO of the Company during the period commencing on
the date of this Agreement and ending on the Transition Date
(defined below), during which Executive will continue his duties
and employment and assist the Company in the identification and
recruitment of a successor; and
WHEREAS, on the Transition Date, the Executive shall
resign his office and position as CEO of the Company; and
WHEREAS, following the Transition Date, the parties
desire for the Executive to continue as a part-time employee of
the Company for a period ending on his Retirement Date (defined
below) on mutually agreeable terms; and
WHEREAS, on the Retirement Date, Executive will resign
from his all of his offices and positions with the Company and
its subsidiaries; and
WHEREAS, in appreciation for Executive’s service to
the Company, his leadership of the Company and in exchange for
all of Executive’s undertakings in this Agreement, the
Company and Executive wish to enter into this Agreement to
(i) provide for services to be rendered by Executive prior
to the Transition Date, (ii) provide for part-time
employment to be rendered by Executive during the Transition
Period, (iii) provide mutual releases by the Company of
Executive and by Executive of the Company as to any claims
including, without limitation, claims that might be asserted by
Executive under the Age Discrimination in Employment Act, as
further described herein, and (iv) assuming that Executive
performs the services required by this Agreement and executes
and does not rescind the releases contemplated hereunder,
provide Executive with the benefits and entitlements described
herein.
NOW THEREFORE, in consideration of these premises and
intending to be legally bound hereby, the parties agree as
follows:
ARTICLE II
DEFINITIONS
Section 2.1. “Board” means the Board of
Directors of the Company.
Section 2.2. “Cause” means
(a) Executive’s failure to adhere to any written
Company policy if Executive has been given a reasonable
opportunity to comply with such policy or cure Executive’s
failure to comply (which reasonable opportunity must be granted
during the ten-day period preceding termination of this
Agreement); (b) Executive’s appropriation (or
attempted appropriation) of a material business opportunity of
the Company, including attempting to secure or securing any
personal profit in connection with any transaction entered into
on behalf of the Company; (c) Executive’s
misappropriation (or attempted misappropriation) of any Company
fund or property; or (d) Executive’s conviction of, or
his entering a guilty plea or plea of no contest with respect
to, a felony, the equivalent thereof, or any other crime with
respect to which imprisonment is a possible punishment.
Section 2.3. “Change in Control” shall be
deemed to have occurred if (i) any “person” or
“group” (as such terms are used in Sections 13(d)
and 14(d)(2) of the Securities Exchange Act of 1934, as amended
(the “Exchange Act”)), other than any the Company
employee stock ownership plan or an equivalent retirement plan,
becomes the beneficial owner (as such term is used in
Section 13(d) of the Exchange Act), directly or indirectly,
of securities of the Company representing 50% or more of the
combined voting power of the Company’s then outstanding
voting securities, (ii) the Board ceases to consist of a
majority of Continuing Directors (as defined below),
(iii) the consummation of a sale of all or substantially
all of the Company’s assets or a liquidation (as measured
by the fair value of the assets being sold compared to the fair
value of all of the Company’s assets), or (iv) a
merger or other combination occurs such that a majority of the
equity securities of the resultant entity after the transaction
are not owned by those who owned a majority of the equity
securities of the Company prior to the transaction. A
“Continuing Director” shall mean a member of the Board
of Directors who either (i) was a member of the board of
Directors as of January 1, 2005 or (ii) is nominated
or appointed to serve as a Director by a majority of the then
Continuing Directors.
Section 2.4. “Change in Control
Termination” means termination of Executive’s
employment with the Company during the Executive Period by the
Company without Cause or by Executive for Good Reason within
twenty four (24) months following a Change in Control.
Section 2.5. “Code” means the Internal
Revenue Code of 1986, as amended.
Section 2.6. “Deferred Stock Units” means
those deferred stock awards made to Executive by the Company and
identified on Appendix A.
Section 2.7. “Disability” means a
disability pursuant to which Executive is entitled to receive
payments under the Company’s long-term disability plan, or
if no such plan is then in effect, a permanent and total
disability, as described in Section 22(e)(3) of the Code.
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Section 2.8. “Employment Agreement” means
the letter agreement dated October 12, 2001, as amended by
letter agreements dated January 15, 2002 and
January 1, 2003.
Section 2.9. “Employment Period” means the
period beginning on the Effective Date and ending on the day
that Executive’s employment with the Company terminates for
any reason.
Section 2.10. “Executive Period” means the
period beginning on the Effective Date and ending on the earlier
of (i) the Transition Date or (ii) the day that
Executive’s employment with the Company terminates for any
reason.
Section 2.11. “Good Reason” means except
otherwise set forth or contemplated by this Agreement,
(i) Executive’s assignment (without his consent) to a
position, title, responsibilities, or duties of a materially
lesser status or degree of responsibility than Executive’s
current position, responsibilities, or duties; provided,
however, that a mere change in Executive’s area of
responsibilities shall not constitute a material change if
Executive is reasonably suited by his education and training for
such responsibilities and Executive remains an executive officer
of the Company; (ii) a reduction of Executive’s base
salary or target bonus opportunity (acknowledging that the
payment of any bonus is subject to the discretion of the
Compensation Committee of the Board); (iii) the relocation
of the Company’s principal executive offices to a location
which is more than 30 miles away from the location of the
Company’s principal executive offices on the date of this
Agreement; or (iv) during the Executive Period,
Executive’s assignment (without his consent) to be based
anywhere other than the Company’s principal executive
offices. Notwithstanding the foregoing, good reason shall not
exist if the Company cures such action or failure to act that
constitutes good reason within a reasonable period of time
(which reasonable period of time shall not be longer than
10 days) following the date Executive provides the Company
with notice of his intended resignation for good reason.
Notwithstanding any other provision of this Agreement to the
contrary, neither the execution of this Agreement nor any of the
transactions provided for or contemplated by this Agreement
shall constitute “Good Reason” under this or any other
written agreement by and between the Company and the Executive.
Section 2.12. “Restricted Period” means
the period commencing on the Retirement Date and ending on the
first anniversary thereof.
Section 2.13. “Retirement Date” means the
earlier of (i) the last day of the Transition Period or
(ii) the day that Executive’s employment with the
Company terminates for any reason.
Section 2.14. “Severance Termination”
means termination of Executive’s employment during the
Executive Period for any reason other than by the Company for
Cause or resignation by the Executive without Good Reason.
Notwithstanding any other provision of this Agreement to the
contrary, the termination of Executives’ employment at the
end of the Transition Period shall not constitute a Severance
Termination.
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Section 2.15. “Stock Options” means those
options to purchase shares of the Company’s common stock
granted to Executive by the Company and identified on
Appendix A attached hereto.
Section 2.16. “Transition Date” means the
date immediately prior to the date that the Company’s next
CEO is scheduled to commence his or her duties, as identified in
a written notice from the Board.
Section 2.17. “Transition Period” means
the period commencing on the business day immediately following
the Transition Date and ending 6 months thereafter;
provided, however, that the Transition Period may be
extended on a month to month basis if mutually agreed to by the
Executive and the Board.
ARTICLE III
EMPLOYMENT PERIOD
Section 3.1. Employment Term. The Company and
Executive agree that Executive shall continue in employment and
perform such duties for the Company as set forth in this
Article 3 until the Retirement Date, unless earlier
terminated by the Company or the Executive pursuant to
Section 3.3(e) or Section 3.4(d).
Section 3.2. Duties.
(a) Executive Period. During the Executive
Period, Executive will continue to serve as President and CEO of
the Company (his “Position”) and will report directly
to the Board and its Chairman and will have all duties
customarily associated with the position of a CEO, as are set
forth in the Company’s bylaws for such position and as are
delegated to the CEO from time to time by the Board. During that
period, Executive shall perform his duties faithfully and assist
the Board in the identification and recruitment of, and
transition to, his successor. On the Transition Date, Executive
shall resign from his Position and from membership on the board
of directors of any subsidiary of the Company on which he then
currently serves.
(b) Transition Period.
(i) Employment. Following the resignation
required by Section 3.2(a) and during the Transition
Period, Executive will remain an employee of the Company and
shall make himself available to perform services on a part-time
basis for not less than an average of two (2) full business
days per week at the Company’s headquarters (or such other
locations as reasonably requested by the Board or its delegate).
During the Transition Period, Executive shall assist the
management of the Company in the transition of responsibility to
the Company’s then current CEO and will make himself
available to the management of the Company with respect to
strategic planning, corporate development and other matters, as
determined by the Company’s CEO or by the Board.
(ii) Membership on the Board. Executive will
continue to serve on the Company’s Board during the
Transition Period. Upon the expiration of the
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Transition Period, Executive will not stand for reelection to
the Board; provided, however, that Executive may stand
for reelection to the Board if requested by the then CEO of the
Company and approved by the Board and Executive chooses to serve
as a member of the Board. In light of the compensation paid to
Executive for his continuing employment under this Agreement, he
will not be entitled to any additional compensation for his
service as a member of the Board during the Transition Period.
Following the expiration of the Transition Period, if he is
reelected to the Board, he will be entitled to the same
compensation as is then paid to other members of the Board who
are also non-employee directors.
Section 3.3. Compensation during the Executive
Period. In consideration of agreeing to continue to remain
employed by the Company until the Transition Date and subject to
Section 3.3(e) and Article 4, the Company shall pay or
cause to be paid or provided to Executive during the Executive
Period the following amounts and benefits:
(a) Base Salary. During the Executive Period,
Executive will receive a base salary of $600,000 per annum (the
“Base Salary”).
(b) Bonus. With respect to the 12-month
period ending December 31, 2005, Executive will participate
in the Company’s 2005 Management Incentive Plan (the
“MIP”), subject to the bonus schedule set forth in
Appendix B, attached hereto. If the Transition Date is
after January 1, 2006, Executive shall be eligible to
participate in the Company’s bonus program for executive
officers as may be established by the Board from time to time.
(c) Fringe Benefits. During the Executive
Period, Executive will be paid a car allowance at the rate of
$10,000 per annum, will be reimbursed for country club dues at
the rate of $8,000 per annum, will participate in the
Company’s executive medical plan (pursuant to which up to
$5,000 per annum of reasonable and necessary medical,
healthcare, vision or dental expenses not allowed under normal
health plans are reimbursed), and will receive life insurance
providing up to $1,000,000 in death benefits payable on the
Executive’s death (assuming that Executive meets normal
insurability requirements) paid by the Company. In addition,
Executive will be entitled to participate in all other benefit
programs offered generally by the Company to its other
executives.
(d) Repayment of Club Membership Expenses.
Executive will repay the Company $75,000 in exchange for the
Company’s beneficial interest in the Applebrook Country
Club membership, not later than ten (10) days following the
earlier of the Transition Date or the Retirement Date, unless
otherwise agreed to by the Executive and the Board.
(e) Severance; Severance Payments. Consistent
with the terms and conditions of the Employment Agreement, at
any time during the Executive Period, (1) the Company may
terminate the employment of the Executive with or without Cause
upon written notice to the Executive and (2) the Executive
may terminate his employment with or without Good Reason on
thirty (30) days written notice to the Company. Subject to
the terms and conditions set forth below, in the event that
there is a Change in Control Termination or a Severance
Termination during the Executive Period, the Company shall
provide Executive with the following benefits, which together
with any benefits provided under the applicable terms of any
other plan or program sponsored by the Company, and applicable
to Executive, shall be the
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only severance benefits or other payments in respect of
Executive’s employment with the Company to which Executive
shall be entitled (including those payments contemplated by
Section 3.4). The benefits Executive receives under this
Section 3.3(e) will be in respect of all Base Salary, bonus
or other incentive compensation, accrued vacation and other
rights that Executive may have against the Company or its
affiliates.
(i) Executive will receive a payment in satisfaction
of the requirements set forth in Section 3.3(b) equal to a
pro-rata amount of the amount payable for 2005 under
Section 3.4 (assuming that Executive’s Transition Date
occurs on December 31, 2005).
(ii) Executive will receive a lump sum payment equal
to the product of (i) 3 multiplied by (ii) the sum of
Executive’s Base Salary (of not less than $600,000) plus
the greater of Executive’s bonus at his target bonus (of
not less than $720,000) or the average of his actual bonus as
received for the last three completed fiscal years during which
Executive was President and Chief Executive Officer of the
Company (taking into account the value of any equity grants
received by Executive during such period in lieu of cash
bonuses).
(iii) Except as provided below, Executive will vest
in his interests under and Executive will receive benefits in
accordance with the terms and conditions set forth in the
Company’s various long term incentive plans.
(iv) Executive will receive up to twenty four
(24) months continued coverage under the Company’s
medical and health plans and life insurance plans, which
coverage shall run concurrent with the coverage provided under
section 4980B of the Code; or as an alternative, at the
discretion of the Board, the Board may elect to pay Executive in
lieu of such coverage an amount equal to Executive’s cost
of continuing such coverage. Executive should consult with the
Company’s Manager of Human Resources concerning the process
for assuming ownership of and continued premium payments for any
whole life policy at the end of such twenty four (24) month
period.
(v) Executive will be reimbursed promptly for all
his reasonable and necessary business expenses incurred on
behalf of the Company prior to Executive’s termination date
in accordance with the Company’s customary policies.
(vi) Upon a Change of Control Termination, Executive
will become fully vested in all of Executive’s outstanding
Stock Options and Executive may exercise those Stock Options
during the thirty six (36) month period following his
termination of employment (unless any of the options would by
their terms expire sooner, in which case Executive may exercise
such options at any time before their expiration) and Executive
will become fully vested in all of his outstanding restricted
stock awards and Deferred Stock Units, if any.
(vii) If Executive’s employment with the
Company is terminated during the Executive Period for any
reason, other than Cause or his resignation without Good Reason,
Executive will become fully vested in his outstanding Stock
Options and Executive may exercise those Stock Options during
the 36 month period following his termination of
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employment (unless any of the options would by their terms
expire sooner, in which case Executive may exercise such options
at any time before their expiration). In addition, upon such a
termination, Executive’s restricted stock grants made
before October 1, 2002 will become fully vested and the
Board, in its discretion may accelerate the vesting of any
restricted stock grants and Deferred Stock Units, if any, made
or credited after October 1, 2002.
(viii) Executive will not be required to mitigate
the amount of any payment provided for in this Section 3.3
by seeking other employment or otherwise.
Section 3.4. Compensation During the Transition
Period. In consideration of resigning from his Position (as
required by Section 3.2(a)) and agreeing to remain a
part-time employee during the Transition Period, subject to
Section 3.4(d) and Article 4, the Company shall pay or
cause to be paid or provided to Executive during the Transition
Period the following amounts and benefits:
(a) Salary. The Company will pay to Executive
a monthly salary of $75,000 or, for any partial month, a
pro-rata amount (the “Transition Period Salary”) for
each month during the Transition Period with respect to which
Executive makes himself available to provide services, which
amounts will be paid in accordance with Safeguard’s then
standard payroll practices;
(b) Certain Fringe Benefits. For each month
during the Transition Period with respect to which Executive
makes himself available to provide services, Executive (and, to
the extent covered immediately prior to the date of termination,
his spouse and dependents) will continue to be covered under the
Company’s group health program (which for purposes hereof,
includes medical, executive medical, dental, vision and life
insurance benefits). Such continuation coverage will be provided
at the same cost to Executive during the Transition Period as in
effect immediately prior to the Transition Period. Executive
shall not be entitled to any other fringe benefits during the
Transition Period, including without limitation, the
reimbursement of any country club dues or car allowance; and
(c) No Bonus Payments. During the Transition
Period, Executive shall not be eligible for nor shall he receive
any payment with respect to any (i) annual, short-term or
long-term cash incentive compensation plan or (ii) any
severance plan, policy or program maintained by the Company.
(d) Severance Payments.
(i) Reasons for Termination. At any time
during the Transition Period, (1) the Company may terminate
the employment of the Executive with or without Cause upon
written notice to the Executive and (2) the Executive may
terminate his employment with Good Reason on thirty
(30) days written notice to the Company.
(ii) Severance Upon a Termination Without Cause
or for Good Reason. Subject to Section 3.7, if
Executive’s employment during the Transition Period is
terminated by the Company without Cause or by Executive for Good
Reason, the Company will continue to pay to Executive
(1) the Transition Period Salary through the end of the
then current Transition Period and (2) the benefits
required by Section 3.5.
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(iii) Severance Upon a Termination For Cause or
Without Good Reason. If Executive’s employment during
the Transition Period is terminated by the Company for Cause or
by Executive for any reason other than Good Reason, then
notwithstanding any other provision of this Agreement, he will
not be entitled to any further payments and all his entitlements
under this Section 3.4 and Section 3.5 will cease.
(iv) Termination of the Transition Period.
Executive shall not be entitled to any severance or other
benefits from the Company and the Company shall have no further
obligations to the Executive as a result of the Transition
Period ending because of either party notifying the other party
that the Transition Period will not be extended beyond the
initial six month period or any then current one-month extension.
Section 3.5. Compensation Following the
Transition Period. Following the end of the Transition
Period and subject to Article 4:
(a) During the period Executive is eligible for
COBRA, the Company will pay the COBRA premium for health
insurance coverage for Executive and his spouse. Thereafter,
Executive will receive an annual cash payment from the Company
of up to a maximum of $20,000 per annum as reimbursement for the
actual cost incurred by Executive (from an independent third
party provided as reflected in appropriate documentation) health
insurance coverage for Executive and his spouse, payable until
the earlier of: (1) the date that Executive attains age 65
or (2) the date that Executive dies; and
(b) Notwithstanding the terms of the Company’s
equity incentive plans and any Stock Option award or deferred
stock unit agreement between Executive and the Company, solely
for purposes of the vesting to purchase shares of the
Company’s common stock under any Stock Option award and
Deferred Stock Units held by Executive as of the Retirement
Date, Executive will be treated as continuing in the employment
of the Company until the later of (a) January 1, 2006,
(b) the date six months after the last day of the
Transition Period, or (c) the date six months after the
last day of Executive’s service as a member of the Board
(the “Revised Vesting Period”); provided however, that
any Stock Option held by Executive on the Retirement Date will
terminate on the earlier of (a) the second anniversary of
the last day of the Revised Vesting Period, or (b) the date
such Stock Option expires pursuant to the terms of the
Company’s equity incentive plan and the applicable Stock
Option award agreement. In all other respects, the terms of the
Stock Options and the Deferred Stock Units shall remain
unchanged by this Agreement.
Section 3.6. Effect of Certain Terminations.
In the event that the Employment Period is terminated by the
Company or by the Executive for any reason (a) prior to the
Transition Date, the Transition Period shall not commence and
all of the Company’s obligations under Section 3.4 or
Section 3.5 shall immediately terminate and be of no
further force or effect or (b) after the Transition Date
but prior to the termination of the Transition Period, the
Company’s obligations under Section 3.5 shall
immediately terminate and be of no further force or effect,
except as provided for under Section 3.4. Notwithstanding
the generality of the foregoing, no payments or benefits will
become payable pursuant to this Article 3 following the
date of Executive’s death or the date that his employment
with the Company terminates as a result of his becoming Disabled.
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Section 3.7. Release Requirements. The
Executive shall be required to execute and not to revoke a copy
of the release agreement substantially in the form attached
hereto as Appendix C (each, a “Release”) as
follows: (a) as a condition to this Agreement becoming
effective, a Release must be executed by the Executive prior the
22nd
day following the Effective Date and not revoked by the
Executive during the period provided in such agreement;
(b) as a condition of receiving any benefits under
Sections 3.3(e) and 3.4(d), a Release must be executed by
the Executive prior the
22nd
day following his last date of employment and not revoked by the
Executive during the period provided in such agreement;
(c) as a condition of continuing in the employment of the
Company during the Transition Period and for the benefits set
forth in Section 3.4, a Release must be executed by the
Executive prior the
22nd
day following the Transition Date and not revoked by the
Executive during the period provided in such agreement; and
(d) as a condition to receiving the benefits under Section
3.5, a Release must be executed by the Executive prior the
22nd
day following the Retirement Date and not revoked by the
Executive during the period provided in such agreement.
Section 3.8. Limitation on Payments. Upon
Executive’s termination of employment with the Company in
connection with a Change of Control, as discussed above, if it
is determined that any payment or distribution by the Company of
benefits provided under this Agreement or any other payments or
benefits due upon a Change of Control (the “Change of
Control Benefits”) would constitute an “excess
parachute payment” within the meaning of section 280G of
the Code that would be subject to an excise tax under section
4999 of the Code (the “Excise Tax”) the following
provisions shall apply. If the aggregate present value to
Executive of receiving the Change of Control Benefits and paying
the Excise Tax is not greater than the aggregate present value
to Executive of the Change of Control Benefits reduced to the
safe harbor amount (as defined below), then the Company shall
reduce the Change of Control Benefits such that the aggregate
present value to Executive of receiving the Change of Control
Benefits is equal to the safe harbor amount. Otherwise Executive
shall receive the full amount of the Change of Control Benefits
and Executive shall be responsible for payment of the Excise
Tax. For purposes of this paragraph “present value”
shall be determined in accordance with Section 280G(d)(4) of the
Code and the term “safe harbor amount” shall mean an
amount expressed in the present value that maximizes the
aggregate present value of the Change of Control Benefits
without causing any of the Change of Control Benefits to be
subject to the deduction limitations set forth in
Section 280G of the Code. All determinations made pursuant
to Section 3.9 shall be made by the Company’s
independent public accountant immediately prior to the Change of
Control (the “Accounting Firm”), which firm shall
provide its determinations and any supporting calculations both
to the Company and to Executive within ten days of the
termination date. Any such determination by the Accounting Firm
shall be binding upon Executive and the Company. Executive shall
then, in his sole discretion, determine which and how much of
the Change of Control Benefits shall be eliminated or reduced
consistent with the requirements of the foregoing paragraph. All
of the fees and expenses of the Accounting Firm in performing
the determinations referred to above shall be borne solely by
the Company.
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ARTICLE IV
RESTRICTIVE COVENANTS AND REMEDIES
Section 4.1. Confidential Information. In
consideration of the retention by the Company of Executive and
the consideration outlined in Article 3 of this Agreement,
and as an inducement to the Company to continue to entrust
Executive with its Trade Secrets (as hereinafter defined),
Executive agrees that Executive will not use for himself or
disclose to any person any Trade Secret of the Company obtained
by Executive as a result of his retention by the Company unless
authorized in writing by the Company to do so. For purposes of
this Agreement, Trade Secrets will be deemed to include, but not
be limited to, all confidential information (which will be
deemed to be all information not otherwise available to the
general public), price lists, production techniques, patents,
designs, inventions, copyrighted materials, product lists,
marketing strategies, personnel files, customer lists, and all
other information or material received by Executive in
connection with his employment by the Company. Upon cessation of
Executive’s service to the Company for any reason, all
written or electronic materials evidencing Trade Secrets, and
all copies thereof, in the possession or control of Executive
shall be delivered to the Company.
(a) Executive further agrees, covenants and promises
that he will not in any way communicate the terms of this
Agreement to any person other than his immediate family and his
attorney and financial consultant or when necessary to enforce
this Agreement or to advise a third party of his obligations
under this Agreement until this Agreement becomes a public
document by reason of its disclosure by the Company.
Section 4.2. Restrictive Covenants. In
consideration of the retention by the Company of Executive and
the consideration outlined in Article 3 of this Agreement,
Executive agrees to be bound by this Section 4.2. Executive
will not, directly or indirectly, do any of the following during
the Employment Period and the Restricted Period (as defined
below):
(a) engage or participate in any business activity
substantially similar to an activity from which the Company or
any of its subsidiaries or affiliates derived revenue in the
calendar year preceding the date the Employment Period ends (a
“Competing Business”);
(b) become interested in (as owner, stockholder,
lender, partner, co-venturer, director, officer, employee, agent
or consultant) any person, firm, corporation, association or
other entity engaged in any Competing Business. Notwithstanding
the foregoing, Executive may hold up to 4.9% of the outstanding
securities of any class of any publicly traded securities of any
company;
(c) solicit or call on, either directly or
indirectly, for purposes of selling goods or services
competitive with goods or services sold by the Company or any of
its subsidiaries or affiliates, any customer with whom the
Company shall have dealt or any prospective customer that the
Company shall have identified and solicited at any time during
Executive’s employment by the Company;
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(d) influence or attempt to influence any supplier,
customer or potential customer of the Company to terminate or
modify any written or oral agreement or course of dealing with
the Company;
(e) influence or attempt to influence any person to
terminate or modify any employment, consulting, agency,
distributorship or other arrangement with the Company; or
(f) employ or retain, or arrange to have any other
person or entity employ or retain, any employee, consultant,
agent or distributor of the Company or any of its subsidiaries
or affiliates, or any person or entity who, within the 12 months
preceding the application of this Section 4.2, was employed
or engaged by the Company or any of its subsidiaries or
affiliates as an employee, consultant, agent or distributor.
For purposes of this Agreement, the “Restricted
Period” generally means the one-year period beginning on
the last day of the Executive’s employment with the Company
pursuant to Article 3.
Executive acknowledges that the restrictions contained in
Sections 4.1 and 4.2 are reasonable and necessary to
protect the legitimate interests of the Company and its
subsidiaries and affiliates and that the duration of the
Restricted Period, and the provisions of this Section 4.1
and 4.2, are reasonable given Executive’s position within
the Company and the substantial consideration payable under this
Agreement. Executive further acknowledges that this
Sections 4.1 and 4.2 is included herein in order to induce
the Company to enter into this Agreement and that the Company
would not have entered into this Agreement or in the absence of
these provisions.
Section 4.3. Enforcement.
(a) Specific Enforcement. Executive
acknowledges that any breach by him, willfully or otherwise, of
this Article 4 will cause continuing and irreparable injury
to the Company for which monetary damages would not be an
adequate remedy. Executive will not, in any action or proceeding
to enforce any of the provisions of this Agreement, assert the
claim or defense that such an adequate remedy at law exists. In
the event of any such breach by Executive, the Company will have
the right to enforce this Agreement by seeking injunctive or
other relief in any court and this Agreement will not in any way
limit remedies of law or in equity otherwise available to the
Company.
(b) Restitution. If Executive breaches any
part of Section 4.1 or 4.2, the Company will have the right
and remedy to require Executive to account for and pay over to
the Company all compensation, profits, monies, accruals,
increments or other benefits derived or received by Executive as
the result of such breach. This right and remedy will be in
addition to, and not in lieu of, any other rights and remedies
available to the Company under law or in equity.
(c) Extension of Restricted Period. If
Executive breaches Section 4.1 or 4.2, the Restricted
Period will be extended by an amount of time equal to the period
that Executive was in breach.
-11-
(d) Judicial Modification. If any court
determines that Section 4.1, 4.2, or this Section 4.3
(or any part thereof) is unenforceable because of its duration
or geographic scope, that court will have the power to modify
that section and, in its modified form, that section will then
be enforceable.
(e) Restrictions Enforceable in All
Jurisdictions. If any court holds that Section 4.1,
4.2, or this Section 4.3 (or any part thereof) is
unenforceable by reason of its breadth or scope or otherwise, it
is the intention of the parties hereto that such determination
not bar or in any way affect the right of the Company to the
relief provided above in the courts of any other jurisdiction
within the geographic scope of this section.
(f) Disclosure of Protective Provisions.
Executive agrees to disclose the existence and terms of
Sections 4.1 and 4.2 to any employer for whom Executive
works during the one-year period following the Retirement Date.
Executive also agrees that for a period of one year following
the Retirement Date, Executive will provide, and that at all
times after the date hereof the Company may similarly provide, a
copy of this Section 4 to any business or enterprise
(i) which Executive may directly or indirectly own, manage,
operate, finance, join, control or of which he may participate
in the ownership, management, operation, financing, or control,
or (ii) with which Executive may be connected as an
officer, director, employee, partner, principal, agent,
representative, consultant or otherwise, or in connection with
which Executive may use or permit to be used Executive’s
name.
ARTICLE V
MISCELLANEOUS
Section 5.1. Non-Disparagement. The Company
(meaning, solely for this purpose, Company’s directors and
executive officers and other individuals authorized to make
official communications on Company’s behalf) will not
disparage Executive or Executive’s performance or otherwise
take any action that could reasonably be expected to adversely
affect Executive’s personal or professional reputation.
Similarly, Executive will not disparage the Company or any of
its directors, officers, agents or employees or otherwise take
any action that could reasonably be expected to adversely affect
the reputation of the Company or the personal or professional
reputation of any of the Company’s directors, officers,
agents or employees.
Section 5.2. Cooperation. Executive further
agrees that, subject to reimbursement of his reasonable
expenses, he will cooperate fully with the Company and its
counsel with respect to any matter (including litigation,
investigations, or governmental proceedings) which relates to
matters with which Executive was involved during his employment
with Company. Executive will render such cooperation in a timely
manner on reasonable notice from the Company.
Section 5.3. Ownership of Inventions and
Ideas. Executive acknowledges that the Company shall be the
sole owner of all patents, patent applications, patent rights,
formulas, copyrights, inventions, developments, discoveries,
other improvements, data, documentation, drawings, charts, and
other written, audio and/or visual materials relating to
methods, products, processes, or programs in connection with or
useful to the business of the Company or its
-12-
affiliates (collectively, the “Developments”) which
Executive, by himself or in conjunction with any other person,
conceived, made, acquired, acquired knowledge of, developed or
created during the term of his employment with the Company, free
and clear of any claims by him (or any of his successors or
assignees) of any kind or character whatsoever other than his
rights under this Agreement. Executive acknowledges that all
copyrightable Developments shall be considered works made for
hire under the Federal Copyright Act. Executive hereby assigns
and transfers all of his right, title and interest in and to all
such Developments, and agrees that he shall, at the request of
the Company, execute or cooperate with the Company in any patent
applications, execute such assignments, certificates or other
instruments, and do any and all other acts, as the Company from
time to time reasonably deems necessary or desirable to
evidence, establish, maintain, perfect, protect, enforce or
defend the Company’s rights, title and interest in or to
any such Developments.
Section 5.4. Certain Acknowledgements.
Executive hereby acknowledges that he shall not be entitled to
any severance benefits under any plan, policy or program
maintained by the Company for any of its employees other than as
specifically set forth herein. Executive further acknowledges
that, except as provided herein specifically: (i) he has no
entitlement from the Company or any of its subsidiaries or
affiliates under any employment, change in control, severance or
any similar arrangement, and (ii) the Company does not and
will not have any liability or obligation to him. Executive
further acknowledges that, in the absence of this Agreement, the
payments, rights and benefits specified in Article 3 would
not otherwise be due to him. Executive represents and
acknowledges that (i) Executive has been advised by the
Company to consult Executive’s own legal counsel in respect
of this Agreement, and (ii) that Executive has had full
opportunity, prior to execution of this Agreement, to review
thoroughly this Agreement with Executive’s counsel.
Section 5.5. Superceding Agreement;
Amendments. This Agreement supersedes all prior agreements
including the Employment Agreement, except as specifically set
forth in this Agreement, and sets forth the entire understanding
among the parties hereto with respect to the subject matter
hereof and cannot be changed, modified, extended or terminated
except upon written amendment approved and executed by Executive
and approved by the Board and executed by an authorized officer
on behalf of the Company.
Section 5.6. Payments Subject to Tax
Withholding. All payments and transfers of property
described in this Agreement will be made net of any applicable
tax withholding.
Section 5.7. No Admission of Liability. This
Agreement is not to be construed as an admission of any
violation of any federal, state or local statute, ordinance or
regulation or of any duty owed by the Company to Executive or by
Executive of any duty owed to the Company. There have been no
such violations, and the Company and Executive specifically deny
any such violations.
Section 5.8. Successors and Assigns. This
Agreement will inure to the benefit of and be binding upon the
Company and Executive and their respective successors,
executors, administrators and heirs. Executive may not make any
assignment of this Agreement or any interest herein, by
operation of law or otherwise. The Company may assign this
Agreement to
-13-
any successor to all or substantially all of its assets and
business by means of liquidation, dissolution, merger,
consolidation, transfer of assets, or otherwise.
Section 5.9. Severability. Whenever possible,
each provision of this Agreement will be interpreted in such
manner as to be effective and valid under applicable law.
However, if any provision of this Agreement is held to be
invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability will not affect any
other provision, and this Agreement will be reformed, construed
and enforced as though the invalid, illegal or unenforceable
provision had never been herein contained.
Section 5.10. Notice. Any notice or
communication required or permitted under this Agreement will be
made in writing and (a) sent by overnight courier,
(b) mailed by certified or registered mail, return receipt
requested or (c) sent by telecopier, addressed as follows:
If to Executive:
|
Xxxxxxx X. Xxxxx 0000 Xxxxx Xxxx Xxxxx Xxxxxx Xxxxxxx, XX 00000 |
If to the Company:
|
Safeguard Scientifics, Inc. 800 The Safeguard Building 000 Xxxxx Xxxx Xxxxx Xxxxx, XX 00000 Attn: General Counsel |
Section 5.11. Governing Law/Arbitration.
This agreement will be construed and enforced in accordance with
the law of the Commonwealth of Pennsylvania without regard to
the conflicts of laws rules of any state. Any controversy or
claim arising out of or relating to this agreement, or the
breach thereof, will be settled by arbitration in Philadelphia,
Pennsylvania, in accordance with the National Rules for the
Resolution of Employment Disputes of the American Arbitration
Association, using one arbitrator, and judgment upon the award
rendered by the arbitrator may be entered in any court of
competent jurisdiction.
Section 5.12. Counterparts and Facsimiles.
This Agreement may be executed, including execution by facsimile
signature, in one or more counterparts, each of which will be
deemed an original, and all of which together will be deemed to
be one and the same instrument.
Section 5.13. Compliance with Section 409A
of the Code. Notwithstanding anything herein to the
contrary, if payment of any of the amounts to be made pursuant
to this Agreement is required to be postponed in order to avoid
disadvantageous tax treatment under Section 409A of the
Internal Revenue Code (as added by the American Jobs Creation
Act of 2004), payment of such amounts shall be postponed for up
to six months until payment is permitted under
Section 409A. If payment of any such amount is postponed,
the postponed portion will be paid as soon as payment is
permitted under Section 409A.
-14-
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the day and year first above written.
SAFEGUARD
SCIENTIFICS, INC. |
XXXXXXX X. XXXXX | |||
By: |
/s/ Xxxxxx X. Xxxxx | /s/ Xxxxxxx X. Xxxxx | ||
| Xxxxxx X. Xxxxx Senior Vice President |
||||
| /s/ Xxxxxx X. Xxxxx | ||||
| Witness | ||||
-15-
Appendix A — Stock Options and Deferred Stock
Units
APPENDIX A
Stock Options as of April 11, 2005
| Option | ||||||||||||||||||||||||||||||||||||||||||||
| Number | Date | Plan | Type | Granted | Price | Exercised | Vested | Cancelled | Unvested | Outstanding | Exercisable | |||||||||||||||||||||||||||||||||
|
001782
|
10/12/2001 | 2001 | NQ | 1,000,000 | $ | 2.1150 | 0 | 750,000 | 0 | 250,000 | 1,000,000 | 750,000 | ||||||||||||||||||||||||||||||||
|
002059
|
03/13/2002 | 1999 | ISO | 119,044 | $ | 3.3600 | 0 | 66,962 | 0 | 52,082 | 119,044 | 66,962 | ||||||||||||||||||||||||||||||||
|
002060
|
03/13/2002 | 1999 | NQ | 380,956 | $ | 3.3600 | 0 | 308,038 | 0 | 72,918 | 380,956 | 308,038 | ||||||||||||||||||||||||||||||||
|
002107
|
08/06/2002 | 1999 | NQ | 300,000 | $ | 1.2500 | 0 | 200,000 | 0 | 100,000 | 300,000 | 200,000 | ||||||||||||||||||||||||||||||||
|
002305
|
12/20/2004 | 1999 | ISO | 94,564 | $ | 2.1150 | 0 | 0 | 0 | 94,564 | 94,564 | 0 | ||||||||||||||||||||||||||||||||
|
002306
|
12/20/2004 | 1999 | NQ | 655,436 | $ | 2.1150 | 0 | 0 | 0 | 655,436 | 655,436 | 0 | ||||||||||||||||||||||||||||||||
| 2,550,000 | 0 | 1,325,000 | 0 | 1,225,000 | 2,550,000 | 1,325,000 | ||||||||||||||||||||||||||||||||||||||
APPENDIX A (continued)
Deferred Stock Units
| Number | Award Date | Plan | Shares | Price | Lapse Date | |||||||||||||||
|
002165
|
12/18/2002 | 99DS | 88,750 | $0.0000 | 12/18/2003 | |||||||||||||||
|
002166
|
12/18/2002 | 99DS | 7,396 | $0.0000 | 01/01/2004 | |||||||||||||||
|
002166
|
12/18/2002 | 99DS | 7,396 | $0.0000 | 02/01/2004 | |||||||||||||||
|
002166
|
12/18/2002 | 99DS | 7,396 | $0.0000 | 03/01/2004 | |||||||||||||||
|
002166
|
12/18/2002 | 99DS | 7,396 | $0.0000 | 04/01/2004 | |||||||||||||||
|
002166
|
12/18/2002 | 99DS | 7,396 | $0.0000 | 05/01/2004 | |||||||||||||||
|
002166
|
12/18/2002 | 99DS | 7,396 | $0.0000 | 06/01/2004 | |||||||||||||||
|
002166
|
12/18/2002 | 99DS | 7,396 | $0.0000 | 07/01/2004 | |||||||||||||||
|
002166
|
12/18/2002 | 99DS | 7,396 | $0.0000 | 08/01/2004 | |||||||||||||||
|
002166
|
12/18/2002 | 99DS | 7,395 | $0.0000 | 09/01/2004 | |||||||||||||||
|
002166
|
12/18/2002 | 99DS | 7,395 | $0.0000 | 10/01/2004 | |||||||||||||||
|
002167
|
12/18/2002 | 99DS | 7,396 | $0.0000 | 11/01/2004 | |||||||||||||||
|
002167
|
12/18/2002 | 99DS | 7,396 | $0.0000 | 12/01/2004 | |||||||||||||||
|
002167
|
12/18/2002 | 99DS | 7,396 | $0.0000 | 01/01/2005 | |||||||||||||||
|
002167
|
12/18/2002 | 99DS | 7,396 | $0.0000 | 02/01/2005 | |||||||||||||||
|
002167
|
12/18/2002 | 99DS | 7,396 | $0.0000 | 03/01/2005 | |||||||||||||||
|
002167
|
12/18/2002 | 99DS | 7,396 | $0.0000 | 04/01/2005 | |||||||||||||||
|
002167
|
12/18/2002 | 99DS | 7,396 | $0.0000 | 05/01/2005 | |||||||||||||||
|
002167
|
12/18/2002 | 99DS | 7,396 | $0.0000 | 06/01/2005 | |||||||||||||||
|
002167
|
12/18/2002 | 99DS | 7,395 | $0.0000 | 07/01/2005 | |||||||||||||||
|
002167
|
12/18/2002 | 99DS | 7,395 | $0.0000 | 08/01/2005 | |||||||||||||||
|
002168
|
12/18/2002 | 99DS | 7,396 | $0.0000 | 09/01/2005 | |||||||||||||||
|
002168
|
12/18/2002 | 99DS | 7,396 | $0.0000 | 10/01/2005 | |||||||||||||||
|
002168
|
12/18/2002 | 99DS | 7,396 | $0.0000 | 11/01/2005 | |||||||||||||||
|
002168
|
12/18/2002 | 99DS | 7,396 | $0.0000 | 12/01/2005 | |||||||||||||||
|
002168
|
12/18/2002 | 99DS | 7,396 | $0.0000 | 01/01/2006 | |||||||||||||||
|
002168
|
12/18/2002 | 99DS | 7,396 | $0.0000 | 02/01/2006 | |||||||||||||||
|
002168
|
12/18/2002 | 99DS | 7,396 | $0.0000 | 03/01/2006 | |||||||||||||||
|
002168
|
12/18/2002 | 99DS | 7,396 | $0.0000 | 04/01/2006 | |||||||||||||||
|
002168
|
12/18/2002 | 99DS | 7,395 | $0.0000 | 05/01/2006 | |||||||||||||||
|
002168
|
12/18/2002 | 99DS | 7,395 | $0.0000 | 06/01/2006 | |||||||||||||||
|
002169
|
12/18/2002 | 99DS | 7,396 | $0.0000 | 07/01/2006 | |||||||||||||||
|
002169
|
12/18/2002 | 99DS | 7,396 | $0.0000 | 08/01/2006 | |||||||||||||||
|
002169
|
12/18/2002 | 99DS | 7,396 | $0.0000 | 09/01/2006 | |||||||||||||||
|
002169
|
12/18/2002 | 99DS | 7,396 | $0.0000 | 10/01/2006 | |||||||||||||||
|
002169
|
12/18/2002 | 99DS | 7,396 | $0.0000 | 11/01/2006 | |||||||||||||||
|
002169
|
12/18/2002 | 99DS | 7,396 | $0.0000 | 12/01/2006 | |||||||||||||||
| 12/18/02 Grant | 355,000 | |||||||||||||||||||
APPENDIX A (continued)
Deferred Stock Units
| Number | Award Date | Plan | Shares | Price | Lapse Date | |||||||||||||||
|
002241
|
01/12/2004 | DSPA | 125,000 | $0.0000 | 09/30/2004 | |||||||||||||||
|
002253
|
01/12/2004 | 04DS | 31,250 | $0.0000 | 01/12/2005 | |||||||||||||||
|
002254
|
01/12/2004 | 04DS | 2,605 | $0.0000 | 02/01/2005 | |||||||||||||||
|
002254
|
01/12/2004 | 04DS | 2,605 | $0.0000 | 03/01/2005 | |||||||||||||||
|
002254
|
01/12/2004 | 04DS | 2,604 | $0.0000 | 04/01/2005 | |||||||||||||||
|
002254
|
01/12/2004 | 04DS | 2,604 | $0.0000 | 05/01/2005 | |||||||||||||||
|
002254
|
01/12/2004 | 04DS | 2,604 | $0.0000 | 06/01/2005 | |||||||||||||||
|
002254
|
01/12/2004 | 04DS | 2,604 | $0.0000 | 07/01/2005 | |||||||||||||||
|
002254
|
01/12/2004 | 04DS | 2,604 | $0.0000 | 08/01/2005 | |||||||||||||||
|
002254
|
01/12/2004 | 04DS | 2,604 | $0.0000 | 09/01/2005 | |||||||||||||||
|
002254
|
01/12/2004 | 04DS | 2,604 | $0.0000 | 10/01/2005 | |||||||||||||||
|
002254
|
01/12/2004 | 04DS | 2,604 | $0.0000 | 11/01/2005 | |||||||||||||||
|
002255
|
01/12/2004 | 04DS | 2,605 | $0.0000 | 12/01/2005 | |||||||||||||||
|
002255
|
01/12/2004 | 04DS | 2,605 | $0.0000 | 01/01/2006 | |||||||||||||||
|
002255
|
01/12/2004 | 04DS | 2,604 | $0.0000 | 02/01/2006 | |||||||||||||||
|
002255
|
01/12/2004 | 04DS | 2,604 | $0.0000 | 03/01/2006 | |||||||||||||||
|
002255
|
01/12/2004 | 04DS | 2,604 | $0.0000 | 04/01/2006 | |||||||||||||||
|
002255
|
01/12/2004 | 04DS | 2,604 | $0.0000 | 05/01/2006 | |||||||||||||||
|
002255
|
01/12/2004 | 04DS | 2,604 | $0.0000 | 06/01/2006 | |||||||||||||||
|
002255
|
01/12/2004 | 04DS | 2,604 | $0.0000 | 07/01/2006 | |||||||||||||||
|
002255
|
01/12/2004 | 04DS | 2,604 | $0.0000 | 08/01/2006 | |||||||||||||||
|
002255
|
01/12/2004 | 04DS | 2,604 | $0.0000 | 09/01/2006 | |||||||||||||||
|
002256
|
01/12/2004 | 04DS | 2,605 | $0.0000 | 10/01/2006 | |||||||||||||||
|
002256
|
01/12/2004 | 04DS | 2,605 | $0.0000 | 11/01/2006 | |||||||||||||||
|
002256
|
01/12/2004 | 04DS | 2,604 | $0.0000 | 12/01/2006 | |||||||||||||||
|
002256
|
01/12/2004 | 04DS | 2,604 | $0.0000 | 01/01/2007 | |||||||||||||||
|
002256
|
01/12/2004 | 04DS | 2,604 | $0.0000 | 02/01/2007 | |||||||||||||||
|
002256
|
01/12/2004 | 04DS | 2,604 | $0.0000 | 03/01/2007 | |||||||||||||||
|
002256
|
01/12/2004 | 04DS | 2,604 | $0.0000 | 04/01/2007 | |||||||||||||||
|
002256
|
01/12/2004 | 04DS | 2,604 | $0.0000 | 05/01/2007 | |||||||||||||||
|
002256
|
01/12/2004 | 04DS | 2,604 | $0.0000 | 06/01/2007 | |||||||||||||||
|
002256
|
01/12/2004 | 04DS | 2,604 | $0.0000 | 07/01/2007 | |||||||||||||||
|
002257
|
01/12/2004 | 04DS | 2,605 | $0.0000 | 08/01/2007 | |||||||||||||||
|
002257
|
01/12/2004 | 04DS | 2,605 | $0.0000 | 09/01/2007 | |||||||||||||||
|
002257
|
01/12/2004 | 04DS | 2,605 | $0.0000 | 10/01/2007 | |||||||||||||||
|
002257
|
01/12/2004 | 04DS | 2,604 | $0.0000 | 11/01/2007 | |||||||||||||||
|
002257
|
01/12/2004 | 04DS | 2,604 | $0.0000 | 12/01/2007 | |||||||||||||||
|
002257
|
01/12/2004 | 04DS | 2,601 | $0.0000 | 01/01/2008 | |||||||||||||||
| 1/12/04 Grant | 250,000 | |||||||||||||||||||
| Total | 605,000 | |||||||||||||||||||
Appendix B — Bonus Calculation
With respect to the period ending December 31, 2005,
Executive’s bonus under the Safeguard 2005 Management
Incentive Plan (“MIP”) will be based on two
components, determined as follows:
If the Executive Period ends on or before May 31, 2005,
Executive will receive a bonus payment equal to the product of
(i) $622,800, multiplied by (ii) a fraction, the numerator
of which is the number of days in the Company’s fiscal year
elapsed at the time of the termination and the denominator of
which is 365.
If the Executive Period ends after May 31, 2005 and on or
before December 31, 2005, Executive will receive a pro rata
bonus equal to Component One plus Component Two based on the
following schedule:
| Date Executive Period Ends | Component One | Component Two | |||||||||
|
after May 31, 2005 but on or before June 30, 2005 |
$259,500 | $0 | |||||||||
|
after June 30, 2005 but on or before July 31, 2005 |
$222,429 | 1/7 of 2005 MIP payable bonus | |||||||||
|
after July 31, 2005 but on or before August 31, 2005 |
$185,357 | 2/7 of 2005 MIP payable bonus | |||||||||
|
after August 31, 2005 but on or before September 30, 2005 |
$148,286 | 3/7 of 2005 MIP payable bonus | |||||||||
|
after September 30, 2005 but on or before October 31, 2005 |
$111,214 | 4/7 of 2005 MIP payable bonus | |||||||||
|
after October 31, 2005 but on or before November 30, 2005 |
$74,143 | 5/7 of 2005 MIP payable bonus | |||||||||
|
after November 30, 2005 but on or before December 31, 2005 |
$37,071 | 6/7 of 2005 MIP payable bonus | |||||||||
| after December 31, 2005 | $0 | 100% of 2005 MIP payable bonus | |||||||||
The actual amount of the MIP bonus payment, if any, will be
determined by the Board based upon the attainment of specified
performance targets adopted in connection with the MIP.
Appendix C — Release Agreement
RELEASE OF CLAIMS
FOR AND IN CONSIDERATION OF the benefits to be provided to
Xxxxxxx X. Xxxxx (“Executive”) in connection with
[AS APPLICABLE: [the execution of]
[the termination of the Executive Period, as set forth
and defined within] [the termination of his
employment, as set forthin]] that certain Employment
Transition and Retirement Agreement by and between Safeguard
Scientifics, Inc. (the “Company”) and Executive, dated
as of April 13, 2005 (the “Employment
Agreement”), which are conditioned on Executive signing
this Release of Claims and to which Executive is not otherwise
entitled, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged,
Executive does hereby REMISE, RELEASE, AND FOREVER DISCHARGE the
Company and each of its past or present subsidiaries and
affiliates, its and their past or present officers, directors,
stockholders, employees and agents, their respective successors
and assigns, heirs, executors and administrators, the pension
and employee benefit plans of the Company, or of its past or
present subsidiaries or affiliates, and the past or present
trustees, administrators, agents, or employees of the pension
and employee benefit plans (hereinafter collectively included
within the term the “Company”), acting in any capacity
whatsoever, of and from any and all manner of actions and causes
of actions, suits, debts, claims and demands whatsoever in law
or in equity, which Executive ever had, now have, or hereafter
may have, or which Executive’s heirs, executors or
administrators hereafter may have, by reason of any matter,
cause or thing whatsoever from the beginning of Executive’s
employment with the Company to the date of this Agreement and
particularly, but without limitation of the foregoing general
terms, any claims arising from or relating in any way to
Executive’s employment relationship and/or the termination
of Executive’s employment relationship with the Company,
including but not limited to, any claims which have been
asserted, could have been asserted, or could be asserted now or
in the future under any federal, state or local laws, including
any claims under the Pennsylvania Human Relations Act, 43 PA.
C.S.A. §§ 951 et seq., as amended, the
Rehabilitation Act of 1973, 29 USC §§ 701 et
seq., as amended, Title VII of the Civil Rights Act of 1964, 42
USC §§ 2000e et seq., as amended, the Civil
Rights Act of 1991, 2 USC §§ 60 et seq., as
applicable, the Age Discrimination in Employment Act of 1967, 29
USC §§ 621 et seq., as amended (
“ADEA”), the Americans with Disabilities Act, 29 USC
§§ 706 et seq., and the Employee Retirement
Income Security Act of 1974, 29 USC §§ 301 et
seq., as amended, any contracts between the Company and
Executive and any common law claims now or hereafter recognized
and all claims for counsel fees and costs; provided, however,
that this release shall not apply to any entitlements under the
terms of the Employment Agreement or under any other plans or
programs of the Company in which Executive participated and
under which Executive has accrued and become entitled to a
benefit other than under any Company separation or severance
plan or programs and provided, further, that this release shall
not apply to any claims Executive may have as a stockholder of
the Company so long as Executive is not the moving, initiating
or lead party.
This Release shall not release the Company, its subsidiaries and
affiliated companies or any of their insurance carriers from any
obligation it or they might otherwise have to defend and/or
indemnify Executive and hold harmless Executive in his capacity
as a director and officer of Safeguard and/or a director or
officer of any Safeguard subsidiary or affiliated company, and
Safeguard affirms its obligation to provide indemnification to
Executive in his capacity as a director and officer or former
director or officer of Safeguard and/or a director or officer or
former director or officer of any Safeguard subsidiary or
affiliated company, as set forth in its and their respective
bylaws and charter documents.
In signing this Release of Claims, Executive acknowledges his
understanding that he may not sign it prior to [AS
APPLICABLE: [his execution of the Employment
Agreement] [the termination of the Executive
Period (as defined in the Employment Agreement)]
[the termination of his employment]], but that he
may consider the terms of this Release of Claims for up to
twenty-one (21) days (or such longer period as the Company
may specify) from [AS APPLICABLE: [the execution
of the Employment Agreement] [the date that the
Executive Period terminates] [the date
Executive’s employment with the Company
terminates]]. Executive also acknowledges that he is
advised by the Company and its subsidiaries and other affiliates
to seek the advice of an attorney prior to signing this Release
of Claims; that Executive has had sufficient time to consider
this Release of Claims and to consult with an attorney, if he
wished to do so, or to consult with any other person of his
choosing before signing; and that he is signing this Release of
Claims voluntarily and with a full understanding of its terms.
Executive further acknowledge that, in signing this Release of
Claims, he has not relied on any promises or representations,
express or implied, that are not set forth expressly in the
Employment Agreement. Executive understands that he may revoke
this Release of Claims at any time within seven (7) days of
the date of his signing by written notice to the Company and
that this Release of Claims will take effect only upon the
expiration of such seven-day revocation period and only if
Executive has not timely revoked it.
Intending to be legally bound, Executive has signed this Release
of Claims under seal as of the date written below.
| Signature: |
| Name (please print): | Xxxxxxx X. Xxxxx |
| Date Signed: |
