EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (the "Agreement") dated as of January 8,
2001, by and between The Dun & Bradstreet Corporation (the "Company") and Xxxxxx
X. Xxxxxx ("Executive").
WITNESSETH:
WHEREAS, the Company desires to employ Executive and to enter
into an agreement embodying the terms of such employment; and
WHEREAS, Executive desires to accept such employment and enter
into such an agreement.
NOW THEREFORE, in consideration of the premises and mutual
covenants herein and for other good and valuable consideration, the parties
agree as follows:
1. Term of Employment. Except for earlier termination as provided in Section 8
hereof, Executive shall be employed by the Company for an eighteen (18) month
term commencing on January 8, 2001 (the "Commencement Date") and ending on July
8, 2002 (the "Employment Term") on the terms and subject to the conditions set
forth in this Agreement. Executive shall have an option to extend the Employment
Term for up to an additional year upon written notice delivered to the Company
at any time prior to June 8, 2002.
2. Position, Duties and Location.
a. Effective on the Commencement Date, Executive shall serve as a Senior Vice
President of the Company. Executive shall report to the Chief Executive Officer
of the Company and at all times, Executive shall have such duties and authority
as are commensurate with his then position. Executive's responsibilities shall
include, but not be limited to, Global Marketing, Corporate Strategy and on an
interim basis, Technology and Corporate Communications.
b. During the Employment Term, Executive will devote substantially all of
Executive's business time and efforts to the performance of Executive's duties
hereunder and, except as provided in the next sentence, will not engage in any
other business, profession or occupation for compensation or otherwise, without
the prior written consent of the Chief Executive Officer of the Company. Nothing
herein shall preclude Executive from accepting appointment to civic or
charitable directorships or trusteeships, or otherwise being involved in
charitable activities or managing his personal and family passive investments;
provided in each case, and in the aggregate, that such activities do not
materially conflict or interfere with the performance of Executive's duties
hereunder or conflict with Section 9. Executive may continue to serve as a
director, trustee or advisory board member on the organizations in which he
currently serves, or may serve and which he has identified in writing to the
Company prior to or on the date of this Agreement, provided, that, Executive
shall resign from such position, upon notification by the Company, that an
organization became a competitor of the Company.
c. Unless otherwise mutually agreed by the parties, Executive's principal
offices shall be located at the Company's headquarters in Xxxxxx Hill, New
Jersey, or such other location within thirty-five (35) miles of said location as
may be designated by the Company.
3. Base Salary. The Company shall pay Executive a base salary at the annual rate
of $500,000, as may be increased (but not decreased) from time to time (the
"Base Salary"), payable in regular installments in accordance with the Company's
usual payment practices. Executive shall be entitled to such increases in
Executive's Base Salary, if any, as may be determined from time to time in the
sole discretion of the Chief Executive Officer of the Company and/or its Board
of Directors (the "Board"). The Company shall review Executive's Base Salary for
fiscal year 2002 during or before January 2002.
4. Annual Bonus. With respect to each fiscal year during the Employment Term,
pursuant to the Company's Covered Employee Cash Incentive Plan (or any successor
thereto), Executive shall be eligible to earn an annual bonus award (an "Annual
Bonus") based on the achievement of such goals and performance measures
(including financial and employee satisfaction goals) as may be established by
the compensation committee of the Board (the "Committee"). The maximum Annual
Bonus for each fiscal year shall be at least one hundred sixty percent (160%) of
Base Salary and the target Annual Bonus for each fiscal year shall be at least
eighty percent (80%) of Base Salary.
5. Equity Arrangements.
a. Initial Equity Awards. Effective as of the Commencement Date, and subject to
Executive's execution and delivery of a Detrimental Conduct Agreement in the
form attached hereto as Exhibit C (provided, that, the provisions of the
Detrimental Conduct Agreement shall be deemed modified as set forth in Sections
8 and 13 hereof) Executive shall be awarded an initial one-time grant (the
"Initial Grant"), under The Dun & Bradstreet Corporation 2000 Stock Incentive
Plan (the "Incentive Plan"), of (i) a stock option to purchase three hundred
thousand (300,000) shares of common stock of the Company (the "Option") and (ii)
forty thousand (40,000) restricted shares of common stock of the Company (the
"Restricted Stock"). The Option shall vest in three (3) equal installments on
January 8, 2004, January 8, 2005 and January 8, 2006, and the Restricted Stock
shall vest on January 8, 2004. Except as otherwise provided in the Incentive
Plan, the unvested portion of the Initial Grant shall be forfeited upon
Executive's termination of employment. The exercise price of the Option shall be
the Fair Market Value (as defined in the Incentive Plan) of the shares of common
stock of the Company (the "Shares") on the Commencement Date and shall have a
ten (10) year term, subject to the provisions of the Incentive Plan.
b. Additional Equity Awards. Beginning in fiscal year 2002, Executive may be
entitled to annual equity-based awards as determined in the sole discretion of
the Committee.
6. Employee Benefits and Vacation.
a. Employee Benefits. During the Employment Term, Executive shall be entitled to
participate in the Company's employee benefit plans as in effect from time to
time (other than the Executive Transition Plan and the Career Transition Plan)
(collectively, "Employee Benefits"), on the same basis as those benefits are
generally made available to other senior executives of the Company at a level
commensurate with Executive's then position, including, but not limited to,
participation in The Profit Participation Plan of The Dun & Bradstreet
Corporation, The Dun & Bradstreet Corporation Retirement Account, the Pension
Benefit Equalization Plan of The Dun & Bradstreet Corporation and the
Supplemental Executive Benefit Plan of The Dun & Bradstreet Corporation ("SEBP")
and any successor plans thereto. Notwithstanding the foregoing, in the event
Executive's employment terminates for any reason except by the Company for Cause
or by Executive without Good Reason prior to the time he has completed five (5)
"Years of Credited Service" (as such term is defined for purposes of the SEBP),
Executive will be deemed fully vested in his accrued benefit under the SEBP as
of his date of termination, provided, however, if Executive's employment
terminates for any reason (other than for Cause), voluntarily or involuntarily,
on or after July 8, 2002 Executive will be fully vested in his accrued benefit
under the SEBP as of his date of termination.
b. Vacation. During the Employment Term, Executive shall be entitled to vacation
each year in accordance with Company policy for senior level executives.
7. Business and Travel Expenses and Perquisites.
a. Expenses. During the Employment Term, reasonable business expenses incurred
by Executive in the performance of Executive's duties hereunder shall be paid by
the Company in accordance with Company policies.
b. Perquisites. During the Employment Term, the Executive shall be entitled to
participate in fringe benefit and perquisite programs generally provided to
senior executives of the Company at a level commensurate with his position.
8. Termination.
a. By the Company for Cause, Death or Disability or By Executive's Voluntary
Resignation Without Good Reason.
(i) The Employment Term and Executive's employment hereunder may be terminated
by the Company for Cause, death or Disability and shall terminate automatically
upon Executive's resignation without Good Reason.
(ii) For purposes of this Agreement and any Detrimental Conduct Agreement,
"Cause" shall mean (A) willful malfeasance or willful misconduct by Executive in
connection with his employment, resulting, in either case, in a significant and
demonstrable injury to the Company, (B) willful continuing failure of Executive
to perform his material duties under this Agreement after written notice of his
failure to so perform (other than as a result of physical or mental incapacity);
provided that clause (B) is intended to be based on the efforts of Executive,
not the quality of the services performed, (C) Executive's conviction of, or
pleading nolo contendere to, a felony (other than a traffic infraction or as a
result of vicarious liability) or (D) Executive's material willful and knowing
breach of the Agreement that remains uncured for a period of ten (10) business
days following Executive's receipt of written notice from the Company describing
such breach. For the purposes of this Agreement, no act, or failure to act, on
Executive's part shall be considered "willful" unless done or omitted to be
done, by him not in good faith and without reasonable belief that his action or
omission was in the best interests of the Company. If someone other than the
Chairman as of the Commencement Date is the Chief Executive Officer of the
Company, Notice of Termination for Cause shall be required to include a copy of
a resolution duly adopted by at least two-thirds (2/3) of the entire membership
of the Board (other than Executive) at a meeting of the Board which was called
for the purpose of considering such termination and which Executive and his
representative had the right to attend and address the Board, finding that, in
the good faith determination of the Board, Executive engaged in conduct set
forth in the definition of Cause herein and specifying the particulars thereof
in reasonable detail. The date of termination for a termination for Cause shall
be the date indicated in the Notice of Termination. Any purported termination
for Cause which is held by a court not to have been based on the grounds set
forth in this Agreement or not to have followed the procedures set forth in this
Agreement shall be deemed a termination by the Company without Cause. No event
described in this Section 8(a)(ii) shall constitute Cause under this Agreement
if the Company has not provided Executive with a Notice of Termination within
ninety (90) days following the date the chairman of the audit committee of the
Company first becomes aware of Executive engaging in conduct constituting Cause.
(iii) For purposes of this Agreement, "Disability" shall mean Executive's
inability to perform his material duties for a period of at least six (6)
consecutive months or an aggregate of nine (9) months in any twenty-four (24)
month period as a result of a physical or mental incapacity. The Company may
terminate Executive due to Disability on thirty (30) days prior written notice
given during the period Executive is unable to perform his material duties as a
result of a physical or mental incapacity; provided, that Executive has not
returned to the performance of his material duties prior to the end of the
applicable six (6) month or nine (9) month period described above.
(iv) For purposes of the Agreement, "Good Reason" shall mean (A) diminution of
Executive's then title, (B) material diminution of Executive's then duties,
responsibilities, authority or reporting lines (provided, however, that changes
with respect to Executive's duties, responsibilities, authority or reporting
lines with respect to Technology and Communications shall not be considered),
(C) the assignment to Executive of duties not commensurate with his then
position, (D) failure of the Company and the Executive to agree in writing prior
to the expiration of the Employment Term (as may be extended by Executive
pursuant to the last sentence of Section 1), to an extension of the Employment
Term for any reason whatsoever (with neither party having any obligation to
extend the Employment Term), (E) relocation of Executive's principal office by
more than thirty-five (35) miles and (F) any material willful and knowing breach
of the Agreement by the Company (including but not limited to under Section
14(e) hereof) or Section 5(i) of Executive's Change in Control Agreement;
provided that none of the events described in clauses (B), (C) or (F) shall
constitute Good Reason unless Executive shall have notified the Company in
writing describing the events which constitute Good Reason and then only if the
Company shall have failed to cure such event within ten (10) business days after
the Company's receipt of such written notice. No event described in this Section
8(a)(iv) (other than as described in (D)) shall constitute Good Reason under
this Agreement if Executive has not provided the Company with a Notice of
Termination within ninety (90) days following the date Executive first becomes
aware of such event constituting Good Reason. If at the end of the Employment
Term (as may be extended by Executive pursuant to the last sentence of Section
1) Good Reason exists by virtue of subpart (D) of this Section, then the
Executive shall be treated as if his employment was terminated for Good Reason
as of such date.
(v) If Executive's employment is terminated by the Company for Cause, death or
Disability or if Executive resigns without Good Reason after giving the Company
ten (10) business days advance written notice of such resignation, Executive
shall be entitled to receive the following benefits:
(A) the Base Salary through the date of termination;
(B) any Annual Bonus earned but unpaid as of the date of termination for any
previously completed fiscal year;
(C) reimbursement for any unreimbursed business expenses incurred by Executive
in accordance with Company policy prior to the date of Executive's
termination; and
(D) such amounts and benefits, if any, as to which Executive may be legally
entitled under the employee benefit plans, incentive plans and equity plans
of the Company (the amounts described in clauses (A) through (D) hereof
being referred to as the "Accrued Rights").
Following such termination of Executive's employment by the Company for
Cause, death or Disability or resignation by Executive without Good Reason,
except as set forth in this Section 8(a)(v), Executive shall have no further
rights to any compensation or any other benefits under this Agreement or any
other severance plan, severance policy or severance arrangement of the Company
or its affiliates, except as provided in this Agreement.
b. By the Company Without Cause or Resignation by Executive for Good Reason.
(i) The Employment Term and Executive's employment hereunder may be terminated
by the Company without Cause or by Executive's resignation for Good Reason.
(ii) If Executive's employment is terminated by the Company without Cause (other
than by reason of death or Disability) or pursuant to a resignation by Executive
for Good Reason, Executive shall be entitled to:
(A) receive the Accrued Rights;
(B) receive, subject to Executive's continued compliance with the provisions of
Sections 9 and 10 and execution and delivery of a release substantially in
the form attached hereto as Exhibit B, an amount aggregating two (2) times
the sum of Executive's Base Salary and target Annual Bonus in effect at the
time of Executive's termination, payable in a lump sum as soon as
practicable; and
(C) a benefit in the SEBP determined in accordance with Section 6 hereof.
Following Executive's termination of employment by the Company without
Cause (other than by reason of Executive's death or Disability) or by
Executive's resignation for Good Reason, except as set forth in this Section
8(b)(ii), Executive shall have no further rights to any compensation or any
other benefits under this Agreement or any other severance plan, severance
policy or severance arrangement of the Company or its affiliates, except as
provided in this Agreement.
c. Termination Following a Change in Control. Notwithstanding Section 8(a) and
8(b), Executive and the Company shall execute a Change in Control Agreement,
attached hereto as Exhibit A, which shall provide, pursuant to the terms of the
Change in Control Agreement, Executive severance benefits in the event Executive
is terminated by the Company without Cause (as defined in the Change in Control
Agreement) or Executive resigns with Good Reason (as defined in the Change in
Control Agreement) following, or in connection with, a Change in Control (as
defined in the Change in Control Agreement) of the Company.
d. Notice of Termination. Any purported termination of employment by the Company
or by Executive (other than due to Executive's death) before the expiration of
the Employment Term shall be communicated by written Notice of Termination to
the other party hereto in accordance with Section 14(g) hereof. For purposes of
this Agreement, a "Notice of Termination" shall mean a notice which shall
indicate the specific termination provision relied upon and shall set forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of employment under the provision so indicated.
e. Resignation. Upon termination of Executive's employment for any reason,
Executive agrees to resign, as of the date of such termination and to the extent
applicable, from any officerships or Board memberships with the Company and its
affiliates.
f. No Mitigation. Executive shall not be required to mitigate any severance
payments due hereunder and the severance shall not be reduced by any amounts
otherwise earned by Executive. The amounts due hereunder shall be paid without
offset, counterclaim, or defense.
9. Non-Competition.
a. Executive acknowledges and recognizes the highly competitive nature of the
businesses of the Company and its subsidiaries and accordingly agrees as
follows:
(1) During the Employment Term and, for a period of one (1) year following the
date Executive ceases to be employed by the Company (the "Restricted Period"),
Executive will not directly or indirectly, (i) engage in any business that
materially competes with the business of the Company (including, without
limitation, businesses which the Company have specific plans to conduct in the
future and as to which Executive is aware of such planning), (ii) enter the
employ of, or render any services to, any person or entity engaged in any
business that materially competes with the business of the Company in the
portions of the business so competing, (iii) acquire a financial interest in, or
otherwise become actively involved with, any person or entity engaged in any
business that materially competes with the business of the Company, directly or
indirectly, as an individual, partner, shareholder, officer, director,
principal, agent, trustee or consultant, or (iv) interfere with, or attempt to
interfere with, business relationships (whether formed before or after the date
of this Agreement) between the Company and customers, clients, suppliers,
partners, members or investors of the Company.
(2) Notwithstanding anything to the contrary in this Agreement, Executive may
directly or indirectly own, solely as an investment, securities of any person or
entity engaged in the business of the Company which are publicly traded on a
national or regional stock exchange or on the over-the-counter market or are
owned through a mutual fund, private equity fund or other pooled account if
Executive (i) is not a controlling person of, or a member of a group which
controls, such person or entity and (ii) does not, directly or indirectly, own
three percent (3%) or more of any class of securities of such person or entity.
Furthermore, the limitations in (1) shall not apply to either American Express
nor to serving as a director of an entity if less than ten percent (10%) of such
entity's revenues (measured by the last fiscal year of the entity ending prior
to the date Executive accepts such a role) are from materially competitive
activities, subject to the Company's Chief Executive Officer approval during the
Employment Term as provided in Section 2(b) hereof.
(3) During the Restricted Period, except in performance of his duties hereunder,
Executive will not, directly or indirectly, (i) solicit or encourage any
employee of the Company to leave the employment of the Company, or (ii) hire any
such employee who was employed by the Company as of the date of Executive's
termination of employment with the Company or who left the employment of the
Company within one (1) year prior to or after the termination of Executive's
employment hereunder. This restriction shall not be violated by general
advertising or by serving as a reference.
(4) During the Restricted Period, Executive will not, directly or indirectly,
solicit or encourage to cease to work with the Company any consultant then under
contract with the Company. This restriction shall not be violated by general
advertising or by serving as a reference.
b. It is expressly understood and agreed that although Executive and the Company
consider the restrictions contained in this Section 9 to be reasonable, if a
final judicial determination is made by a court of competent jurisdiction that
the time or territory or any other restriction contained in this Agreement is an
unenforceable restriction against Executive, the provisions of this Agreement
shall not be rendered void but shall be deemed amended to apply as to such
maximum time and territory and to such maximum extent as such court may
judicially determine or indicate to be enforceable. Alternatively, if any court
of competent jurisdiction finds that any restriction contained in this Agreement
is unenforceable, and such restriction cannot be amended so as to make it
enforceable, such finding shall not affect the enforceability of any of the
other restrictions contained herein.
10. Confidentiality. Executive will not at any time (whether during or after
Executive's employment with the Company) disclose or use for Executive's own
benefit or purposes or the benefit or purposes of any other person, firm,
partnership, joint venture, association, corporation or other business
organization, entity or enterprise other than the Company and any of its
subsidiaries or affiliates, any trade secrets, information, data, or other
confidential information relating to customers, development programs, costs,
marketing, trading, investment, sales activities, promotion, credit and
financial data, manufacturing processes, financing methods, plans, or the
business and affairs of the Company generally, or of any subsidiary or affiliate
of the Company, except in the performance of his duties hereunder or in
compliance with legal process; provided that the foregoing shall not apply to
information which is not unique to the Company or which is generally known to
the industry or the public other than as a result of Executive's breach of this
covenant. In the event that Executive is compelled by legal process to disclose
confidential information, he shall give prompt written notice to the Company to
allow the Company the opportunity to object to or otherwise resist such order.
Executive agrees that upon termination of Executive's employment with the
Company for any reason, he will return to the Company immediately all memoranda,
books, papers, plans, information, letters and other data, and all copies
thereof or therefrom, in any way relating to the business of the Company and its
affiliates, except that he may retain personal notes, notebooks and diaries that
do not contain confidential information of the type described in the preceding
sentence. Notwithstanding the foregoing, Executive may also retain his personal
Rolodex and similar telephone directories and address book; provided, that, to
the extent such personal items contain confidential information, Executive shall
be bound by the nondisclosure provisions of this Section 10. Executive further
agrees that he will not retain or use for Executive's account at any time any
trade names, trademark or other proprietary business designation used or owned
in connection with the business of the Company or its affiliates.
11. Indemnification. The Company shall indemnify and hold harmless Executive to
the fullest extent permitted by law for any action or inaction of Executive
while serving as an officer or director of the Company or, at the Company s
request, as an officer or director of any other entity or as a fiduciary of any
benefit plan. The Company shall cover Executive under directors and officers
liability insurance both during and, while potential liability exists, after the
Employment Term in the same amount and to the same extent as the Company covers
its other officers and directors.
12. Specific Performance. Executive acknowledges and agrees that the Company's
remedies at law for a breach or threatened breach of any of the provisions of
Section 9 or Section 10 would be inadequate and, in recognition of this fact,
Executive agrees that, in the event of such a breach or threatened breach, in
addition to any remedies at law, the Company, without posting any bond, shall be
entitled to obtain equitable relief in the form of specific performance,
temporary restraining order, temporary or permanent injunction or any other
equitable remedy which may then be available.
13. Detrimental Conduct Agreement. The Detrimental Conduct Agreement which is to
be executed in the form annexed hereto as Exhibit C, as it applies to Executive
shall be deemed modified as follows:
a. The "Cause" definition in this Agreement shall apply in lieu of the "cause"
definition therein.
b. A termination by the Executive for Good Reason, as defined herein, shall be
treated as an involuntary termination of the Executive (other than for Cause).
c. It shall not be considered "Detrimental Conduct" if Executive commences
employment with an entity and such entity subsequently acquires a competing
company provided Executive was not hired for the purpose of the acquisition.
14. Miscellaneous.
a. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without regard to conflicts
of laws principles thereof.
b. Entire Agreement/Amendments. This Agreement, the Change in Control Agreement
annexed as Exhibit A and the Detrimental Conduct Agreement annexed as Exhibit C
hereto (as modified by Sections 8 and 13 hereof) contains the entire
understanding of the parties with respect to the employment of Executive by the
Company. There are no restrictions, agreements, promises, warranties, covenants
or undertaking between the parties with respect to the subject matter herein
other than those expressly set forth herein. This Agreement may not be altered,
modified, or amended except by written instrument signed by the parties hereto.
The parties agree that this Agreement, including all Exhibits annexed hereto,
shall supercede all prior agreements, whether written or oral, relating to the
subject matter hereof.
c. No Waiver. The failure of a party to insist upon strict adherence to any term
of this Agreement on any occasion shall not be considered a waiver of such
party's rights or deprive such party of the right thereafter to insist upon
strict adherence to that term or any other term of this Agreement.
d. Severability. In the event that any one or more of the provisions of this
Agreement shall be or become invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of the remaining provisions of this
Agreement shall not be affected thereby.
e. Assignment. This Agreement shall not be assignable by Executive or the
Company, except as provided herein. This Agreement shall be assigned by the
Company to an entity which is a successor in interest to all or substantially
all of the business operations of the Company. Upon such assignment, the rights
and obligations of the Company hereunder shall become the rights and obligations
of such successor entity, but, the assignor shall not be released hereunder and
any such assignee shall promptly deliver to Executive a written assumption in a
form reasonably acceptable to Executive.
f. Successors; Binding Agreement. This Agreement shall inure to the benefit of
and be binding upon personal or legal representatives, executors,
administrators, successors, heirs, distributes, devises and legatees.
g. Notice. For the purpose of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when delivered by hand or overnight courier or
three days after it has been mailed by United States registered mail, return
receipt requested, postage prepaid, addressed to the respective addresses set
forth below, or to such other address as either party may have furnished to the
other in writing in accordance herewith, except that notice of change of address
shall be effective only upon receipt.
If to the Company:
The Dun & Bradstreet Corporation
Xxx Xxxxxxx Xxxx Xxxx
Xxxxxx Xxxx, XX 00000-0000
Attention: Senior Vice President - Human Resources
If to Executive:
To the most recent address of Executive set forth in the
personnel records of the Company.
h. Legal Fees. The Company shall pay Executive's reasonable legal fees and costs
associated with entering into this Agreement.
i. Disputes. All disputes and controversies arising under or in connection with
this Agreement, other than the seeking of injunctive or other equitable relief
pursuant to Section 9 or Section 10 hereof, shall be settled by arbitration
conducted before one arbitrator sitting in New York City, New York, or such
other location agreed by the parties hereto, in accordance with the rules for
expedited resolution of commercial disputes of the American Arbitration
Association then in effect. The determination of the arbitrator shall be final
and binding on the parties. Judgment may be entered on the award of the
arbitrator in any court having proper jurisdiction. All expenses of such
arbitration shall be borne by each party; provided, that the fees and expenses
of Executive shall be borne by the Company if Executive prevails on the merits
as determined by the arbitrator. 15. Executive Representation. Executive hereby
represents to the Company that the execution and delivery of this Agreement by
Executive and the Company and the performance by Executive of Executive's duties
hereunder shall not constitute a breach of, or otherwise contravene, the terms
of any employment agreement or other agreement or policy to which Executive is a
party or otherwise bound.
16. Withholding Taxes. The Company may withhold from any amounts payable under
this Agreement such Federal, state and local taxes as may be required to be
withheld pursuant to any applicable law or regulation.
17. Counterparts. This Agreement may be signed in counterparts, each of which
shall be an original, with the same effect as if the signatures thereto and
hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
THE DUN & BRADSTREET /s/ XXXXXX X. XXXXXX
CORPORATION
By: /s/ Xxxxx X. Xxxxx
Title: Chairman, Chief Executive Officer and
President
Exhibit A
[INTENTIONALLY OMITTED]
Exhibit B
RELEASE
1. Executive, for Executive, Executive's family, representatives, successors
and assigns releases and forever discharges the Company and its successors,
assigns, subsidiaries, affiliates, directors, officers, executives,
attorneys, agents and trustees or administrators of any Company plan from
any and all claims, demands, debts, damages, injuries, actions or rights of
action of any nature whatsoever, whether known or unknown, which Executive
had, now has or may have against the Company, its successors, assigns,
subsidiaries, affiliates, directors, officers, executives, attorneys,
agents and trustees or administrators of any Company plan, from the
beginning of Executive's employment to and including the date of this
Release relating to or arising out of Executive's employment with the
Company or the termination of such employment other than a claim with
respect to a vested right Executive may have to receive benefits under any
plan maintained by the Company or to which Executive may be entitled
pursuant to his employment agreement (the "Employment Agreement") or change
in control agreement (the "Change in Control Agreement"). Executive
represents that Executive will discontinue any action, complaint, charge,
grievance or arbitration filed against the Company or any of its
successors, assigns, subsidiaries, affiliates, directors, officers,
executives, attorneys, agents and trustees or administrators of any Company
plan.
2. Executive covenants that neither Executive, nor any of Executive's
respective heirs, representatives, successors or assigns, will commence,
prosecute or cause to be commenced or prosecuted against the Company or any
of its successors, assigns, subsidiaries, affiliates, directors, officers,
executives, attorneys, agents and trustees or administrators of any Company
plan any action or other proceeding based upon any claims, demands, causes
of action, obligations, damages or liabilities which are being released by
this Release, nor will Executive seek to challenge the validity of this
Release, except that this covenant not to xxx does not affect Executive's
future right to enforce appropriately the terms of the Employment Agreement
or Change in Control Agreement in a court of competent jurisdiction.
3. Notwithstanding anything herein, nothing in this release shall be a release
of (i) any rights to indemnification that Executive has under the
Employment Agreement, the Company's Certificate of Incorporation or By-Laws
or otherwise with regard to Executive's services as an employee of the
Company; or (ii) any amounts or benefits due under the Employment Agreement
or Change in Control Agreement.
4. Executive acknowledges that (a) Executive has been advised to consult with
an attorney at Executive's own expense before executing this Release and
that Executive has been advised by an attorney or has knowingly waived
Executive's right to do so, (b) Executive has had a period of at least
forty-five (45) days within which to consider this Release, (c) Executive
has a period of seven (7) days from the date that Executive signs this
Release within which to revoke it and that this Release will not become
effective or enforceable until the expiration of this seven (7) day
revocation period, (d) Executive fully understands the terms and contents
of this Release and freely, voluntarily, knowingly and without coercion
enters into this Release, (e) Executive is receiving greater consideration
than Executive would receive had Executive not signed this Release and (f)
the waiver or release by Executive of rights or claims Executive may have
under Title VII of the Civil Rights Act of 1964, The Executive Retirement
Income Security Act of 1974, the Age Discrimination in Employment Act of
1967, the Older Workers Benefit Protection Act, the Fair Labor Standards
Act, the Americans with Disabilities Act, the Rehabilitation Act, the
Worker Adjustment and Retraining Act (all as amended) and/or any other
local, state or federal law dealing with employment or the termination
thereof is knowing and voluntary.
Exhibit C
[INTENTIONALLY OMITTED]
