EXHIBIT 10.25
MATTRESS HOLDING CORPORATION
MATTRESS DISCOUNTERS CORPORATION
EMPLOYMENT AGREEMENT
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THIS AGREEMENT is made as of December 6, 1999, by and among Mattress
Discounters Corporation, a Delaware corporation (the "Company"), Mattress
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Holding Corporation, a Virginia corporation ("Holdings"), and Xxxxxxx X. Xxxxxx
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("Executive").
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In consideration of the mutual covenants contained herein and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Employment. The Holdings and the Company agree to employ Executive, and
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Executive hereby accepts employment with Holdings and the Company, upon the
terms and conditions set forth in this Agreement for the period beginning on the
date hereof and ending as provided in Section 5 hereof (the "Employment
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Period").
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2. Position and Duties.
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(a) During the Employment Period, Executive shall serve as the Chief
Executive Officer of Holdings and of the Company and shall have the normal
duties, responsibilities and authority of the Chief Executive Officer, subject
to the general supervisory power of Holdings' board of directors (the "Board")
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under applicable Corporate law.
(b) During the Employment Period, Executive shall report to the Board and
shall devote his best efforts and his full business time and attention (except
for permitted vacation periods and reasonable periods of illness or other
incapacity other than Disability) to the business and affairs of Holdings, the
Company and the Subsidiaries; provided, however, that Executive may spend an
average of one to two days per month to serve as a member of the board of
directors of [ ]. Executive shall perform his duties and responsibilities to
Holdings, the Company and the Subsidiaries hereunder to the best of his
abilities in a diligent, trustworthy, businesslike and efficient manner.
(c) For purposes of this Agreement, "Subsidiaries" shall mean any
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corporation or other entity of which the securities or other ownership interests
having the voting power to elect a majority of the board of directors or other
governing body are, at the time of determination, owned by Holdings or the
Company, directly or through one or more Subsidiaries. For purposes hereof,
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Holdings or the Company shall be deemed to have a majority ownership interest in
a partnership, limited liability company (without voting securities),
association or other business entity if Holdings or the Company, directly or
through one or more Subsidiaries, shall be allocated a majority of partnership,
limited liability company, association or other business entity gains or losses
or shall be or control the managing director or general partner of such
partnership, limited liability company, association or other business entity.
For purposes of this Agreement, "Disability" means the inability, due to
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illness, accident, injury, physical or mental incapacity or other disability, of
the Executive to carry out effectively his duties and obligations to Holdings or
the Company or to participate effectively and actively in the management of
Holdings, the Company or a Subsidiary for a period or periods aggregating at
least 90 days (whether or not consecutive) during any twelve-month period, as
determined in the reasonable judgment of the Board.
3. Compensation and Benefits.
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(a) During the Employment Period, Executive's base salary shall be
$300,000 per annum or such higher rate as the Board may designate from time to
time (the "Base Salary"), which salary shall be payable by the Company in
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regular installments in accordance with the Company's general payroll practices.
In addition, during the Employment Period, Executive shall be entitled to
participate in applicable Company employee compensatory and benefit programs for
which senior executive employees of the Company are generally eligible.
(b) During the Employment Period, the Company shall reimburse
Executive for all reasonable expenses incurred by him in the course of
performing his duties and responsibilities under this Agreement which are
consistent with the Company's policies in effect from time to time with respect
to travel, entertainment and other business expenses, subject to the Company's
requirements with respect to reporting and documentation of such expenses.
(c) In addition to the Base Salary, the Board will award (and the
Company will pay) a bonus to Executive of up to 67% of the Base Salary following
the end of each fiscal year during the Employment Period based upon Executive's
performance and Holdings' consolidated operating results during such year, with
certain financial targets to be mutually agreed upon by Holdings and Executive.
(d) The Company will provide Executive with the following amounts
(the "Relocation Payments") to reimburse Executive for his relocation expenses
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(i) the cost of no more than two trips to the Washington, D.C./Baltimore, MD
area for Executive and his spouse for the purpose of searching for a house (such
cost to include travel, lodging and automobile), (ii) an amount equal to the
real estate broker's fee Executive actually pays in connection with the sale of
his Marietta, GA home (such amount not to exceed 6% of the sale price of such
home), (iii) up to $30,000 for moving expenses which Executive actually incurs
and for which Executive provides the Company with itemized receipts, and (iv) a
miscellaneous payment of $10,000. The Company will pay Executive the Relocation
Payments referenced in subsection (i) above at the time Executive submits such
expenses for reimbursement and in subsections (ii) through (iv) above within two
business days after Executive actually relocates to the Washington,
D.C./Baltimore, MD area. Until
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the earlier of such relocation and 120 days from the date of this Agreement, the
Company will (i) reimburse Executive for travel expenses and coach airline
tickets between his Marietta, GA home and Mattress Discounters Corporation's
executive offices for one round trip per week (Executive will attempt to obtain
the most economical fares available) and (ii) provide Executive with an
automobile and temporary furnished lodging in the Washington, D.C./Baltimore, MD
area. The Company shall pay Executive an additional amount equal to the marginal
increase in Executive's income taxes which results from the payments referred to
in this Section 3(d), including the payment referred to in this sentence.
(e) Holdings will grant to Executive options pursuant to an option
agreement dated the date of this Agreement in the form attached hereto as
Exhibit B.
(f) All amounts payable to Executive as compensation hereunder shall
be subject to customary withholding by the Company.
4. Board Membership. With respect to all regular elections of
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directors during the Employment Period, Holdings shall nominate, and use its
reasonable efforts to cause the election of, Executive to serve as a member of
the Board. Upon the termination of the Employment Period, Executive shall resign
as a director of Holdings and its Subsidiaries, as the case may be.
5. Term.
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(a) The initial Employment Period shall end on December 6, 2000 and
will thereafter be automatically extended for consecutive 12 month periods
unless notice of termination is delivered by either party to the other at least
90 days prior to the end of such period; provided that (i) the Employment Period
shall terminate prior to such date immediately upon Executive's resignation,
death or Disability and (ii) the Employment Period may be terminated by Holdings
at any time prior to such date for Cause (as defined below) or without Cause.
Except as otherwise provided herein, any termination of the Employment Period by
Holdings shall be effective as specified in a written notice from Holdings to
Executive.
(b) If the Employment Period is terminated by Holdings or its
successors in interest without Cause, Executive shall be entitled to continue to
receive from the Company (i) his Base Salary payable in regular installments for
a period of 12 months from the date of termination (the "Severance Period"), and
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(ii) for the duration of the Severance Period or until such time as Executive
obtains health benefits from another employer, whichever comes first, the health
benefits to which he was entitled at the time of termination, and in either
case, if and only if Executive has executed and delivered to Holdings a General
Release in the form of Exhibit A attached hereto and only so long as Executive
has not breached the provisions of Sections 6, 7 and 8 hereof. The amounts
payable pursuant to Section 5(b)(i) may be payable, at the Company's discretion,
in one lump sum payment within 30 days following termination of the Employment
Period.
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(c) If the Employment Period is terminated by Holdings for Cause or
is terminated pursuant to clause (a)(i) above or expires and is not renewed
hereunder, Executive shall only be entitled to receive his Base Salary through
the date of termination or expiration.
(d) Except as otherwise expressly provided herein, all of Executive's
rights to salary, bonuses, fringe benefits and other compensation hereunder
which accrue or become payable after the termination or expiration of the
Employment Period shall cease upon such termination or expiration. Holdings and
the Company may offset any amounts Executive owes it or its Subsidiaries against
any amounts it owes Executive hereunder.
(e) For purposes of this Agreement, "Cause" shall mean (i) the
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commission of a felony or other crime involving moral turpitude or the
commission of any other act or omission involving dishonesty, disloyalty or
fraud with respect to Holdings, the Company or any Subsidiary or any of their
customers or suppliers, (ii) chronic drug or alcohol abuse or other repeated
conduct causing Holdings, the Company or any Subsidiary substantial public
disgrace or disrepute or economic harm, (iii) substantial and repeated failure
to perform duties as reasonably directed by the Board, which is not cured,
if curable, to the Board's reasonable satisfaction in all material respects
within thirty (30) days after the Board or the designee thereof gives written
notice thereof to Executive or (iv) any other material breach of this Agreement
which is not cured, if curable, to the Board's reasonable satisfaction within 15
days after written notice thereof to Executive (provided, that a breach
of Sections 6, 7 or 8 shall be material and the applicable cure period shall be
3 days).
6. Confidential Information. Executive acknowledges that the
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information, observations and data (including trade secrets) obtained by him
while employed by Holdings, the Company and the Subsidiaries concerning the
business or affairs of Holdings, the Company or any Subsidiary ("Confidential
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Information") are the property of Holdings, the Company or such Subsidiary.
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Therefore, Executive agrees that he shall not disclose to any unauthorized
person or use for his own purposes any Confidential Information without the
prior written consent of the Board, unless and to the extent that the
Confidential Information becomes generally known to and available for use by the
public other than as a result of Executive's acts or omissions. Executive shall
deliver to Holdings at the termination or expiration of the Employment Period,
or at any other time Holdings may request, all memoranda, notes, plans,
records, reports, computer tapes, printouts and software and other documents and
data (and copies thereof) embodying or relating to the Confidential Information,
Work Product (as defined below) or the business of Holdings, the Company or any
Subsidiaries which he may then possess or have under his control.
7. Inventions and Patents. Executive acknowledges that all
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inventions, innovations, improvements, developments, methods, designs, analyses,
drawings, reports and all similar or related information (whether or not
patentable) which relate to Holdings', the Company's or any Subsidiary's actual
or anticipated business, research and development or existing or future products
or services and which are conceived, developed or made by Executive while
employed by Holdings, the Company or any Subsidiary ("Work Product") belong to
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Holdings, the Company or such Subsidiary. Executive shall promptly disclose such
Work Product to the Board and, at the Company's expense, perform all actions
reasonably requested by the Board (whether during or after
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the Employment Period) to establish and confirm such ownership (including,
without limitation, assignments, consents, powers of attorney and other
instruments).
8. Non-Compete, Non-Solicitation.
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(a) In further consideration of the compensation to be paid to
Executive hereunder, Executive acknowledges that in the course of his employment
with Holdings, the Company and the Subsidiaries he shall become familiar, and he
has become familiar, with Holdings and the Company's trade secrets and with
other Confidential Information and that his services have been and shall be of
special, unique and extraordinary value to Holdings, the Company and the
Subsidiaries. Therefore, Executive agrees that, during the Employment Period and
for 18 months thereafter (the "Noncompete Period"), he shall not directly or
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indirectly own any interest in, operate, manage, control, participate in,
consult with, advise, render services for, or in any manner engage in any
business (including by himself or in association with any person, firm,
corporate or other business organization or through any other entity) in
competition with, or potential competition with, the businesses of Holdings, the
Company or the Subsidiaries as such businesses exist or are in process on the
date of the termination or expiration of the Employment Period, within the
United States. Nothing herein shall prohibit Executive from being a passive
owner of not more than 2% of the outstanding stock of any class of a corporation
which is publicly traded, so long as Executive has no active participation in
the business of such corporation.
(b) During the Noncompete Period, Executive shall not directly or
indirectly through another entity (i) induce or attempt to induce any employee
of Holdings, the Company or any Subsidiary to leave the employ of Holdings, the
Company or such Subsidiary, or in any way interfere with the relationship
between Holdings, the Company or any Subsidiary and any employee thereof, (ii)
hire any person who was an employee of Holdings, the Company or any Subsidiary
at any time during the year prior to the termination of the Employment Period or
(iii) induce or attempt to induce any customer, supplier, licensee, licensor,
franchisee or other business relation of Holdings, the Company or any Subsidiary
to cease doing business with Holdings, the Company or such Subsidiary, or in any
way interfere with the relationship between any such customer, supplier,
licensee, licensor, franchisee or business relation and Holdings, the Company or
any Subsidiary (including, without limitation, making any negative or
disparaging statements or communications regarding Holdings, the Company or any
Subsidiary).
(c) Executive agrees that: (i) the covenants set forth in this
Section 8 are reasonable in geographical and temporal scope and in all other
respects and that he has reviewed the provisions of this Agreement with his
legal counsel, (ii) neither Holdings nor the Company would have entered into
this Agreement but for the covenants of Executive contained herein, and (iii)
the covenants contained herein have been made in order to induce Holdings and
the Company to enter into this Agreement.
(d) If, at the time of enforcement of this Section 8, a court shall
hold that the duration, scope or area restrictions stated herein are
unreasonable under circumstances then existing, the parties agree that the
maximum duration, scope or area reasonable under such circumstances
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shall be substituted for the stated duration, scope or area and that the court
shall be allowed to revise the restrictions contained herein to cover the
maximum period, scope and area permitted by law.
(e) Executive recognizes and affirms that in the event of his breach
of any provision of this Section 8, money damages would be inadequate and
Holdings and the Company would have no adequate remedy at law. Accordingly, the
Executive agrees that in the event of the breach or a threatened breach by
Executive of any of the provisions of this Section 8, Holdings or the Company,
in addition and supplementary to other rights and remedies existing in its
favor, shall be entitled to specific performance and/or injunctive or other
equitable relief from a court of competent jurisdiction in order to enforce or
prevent any violations of the provisions hereof (without posting a bond or other
security). In addition, in the event of an alleged breach or violation by
Executive of this Section 8, the Noncompete Period shall be tolled until such
breach or violation has been duly cured.
9. Executive's Representations. Executive hereby represents and
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warrants to Holdings and the Company that (i) the execution, delivery and
performance of this Agreement by Executive do not and shall not conflict with,
breach, violate or cause a default under any contract, agreement, instrument,
order, judgment or decree to which Executive is a party or by which he is bound,
(ii) Executive is not a party to or bound by any employment agreement,
noncompete agreement or confidentiality agreement with any other person or
entity and (iii) upon the execution and delivery of this Agreement by Holdings
and the Company, this Agreement shall be the valid and binding obligation of
Executive, enforceable in accordance with its terms. Executive hereby
acknowledges and represents that he has consulted with independent legal counsel
regarding his rights and obligations under this Agreement and that he fully
understands the terms and conditions contained herein.
10. Survival. Sections 6 through 19 shall survive and continue in
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full force in accordance with their terms notwithstanding the expiration or
termination of the Employment Period.
11. Notices. All notices, demands or other communications to be given
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or delivered under or by reason of the provisions of this Agreement will be in
writing and will be deemed to have been given when delivered personally, mailed
by certified or registered mail, return receipt requested and postage prepaid,
or sent via a nationally recognized overnight courier, or sent via fascimile to
the recipient with telephonic confirmation by the sending party. Such notices,
demands and other communications will be sent to the address indicated below:
To Executive:
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0000 Xxxxxxxxx Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Telecopy No.:
Telephone.: (000)000-0000
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To Holdings or the Company:
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Mattress Holding Corporation
c/o Bain Capital, Inc.
Two Xxxxxx Place
Boston, MA 02116
Attention: Xxxxxxx Xxxxxx
Telecopy No.: (000) 000-0000
Telephone No.: (000) 000-0000
With copies to:
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Xxxxxxxx & Xxxxx
Citicorp Center
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxx, Esq.
Telecopy No.: (000) 000-0000
Telephone No.: (000) 000-0000
or such other address or to the attention of such other person as the recipient
party shall have specified by prior written notice to the sending party. Any
notice under this Agreement shall be deemed to have been given when so
delivered, sent or mailed.
12. Severability. Whenever possible, each provision of this Agreement
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shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or any action in any other jurisdiction, but this Agreement
shall be reformed, construed and enforced in such jurisdiction as if such
invalid, illegal or unenforceable provision had never been contained herein.
13. Complete Agreement. This Agreement embodies the complete
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agreement and understanding among the parties and supersedes and preempts any
prior understandings, agreements or representations by or among the parties,
written or oral, which may have related to the subject matter hereof in any way,
but excluding any breaches thereof by either party prior to the date hereof.
14. No Strict Construction. The language used in this Agreement shall
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be deemed to be the language chosen by the parties hereto to express their
mutual intent, and no rule of strict construction shall be applied against any
party.
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15. Counterparts. This Agreement may be executed in separate counterparts,
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each of which is deemed to be an original and all of which taken together
constitute one and the same agreement.
16. Successors and Assigns. This Agreement is intended to bind and inure
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to the benefit of and be enforceable by Executive, Holdings, the Company and
their respective heirs, successors and assigns; provided that the rights and
obligations of Executive under this Agreement shall not be assignable.
17. Governing Law. All issues and questions concerning the construction,
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validity, enforcement and interpretation of this Agreement and the exhibits and
schedules hereto shall be governed by, and construed in accordance with, the
laws of the State of New York, without giving effect to any choice of law or
conflict of law rules or provisions (whether of the State of New York or any
other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of New York.
18. Amendment and Waiver. The provisions of this Agreement may be amended
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or waived only with the prior written consent of Holdings, the Company and
Executive, and no course of conduct or failure or delay in enforcing the
provisions of this Agreement shall affect the validity, binding effect or
enforceability of this Agreement.
19. Remedies. Each of the parties to this Agreement will be entitled to
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enforce its rights under this Agreement specifically, to recover damages and
costs (including reasonable attorneys' fees) caused by any breach of any
provision of this Agreement and to exercise all other rights existing in its
favor. The parties hereto agree and acknowledge that money damages may not be an
adequate remedy for any breach of the provisions of this Agreement and that any
party may in its sole discretion apply to any court of law or equity of
competent jurisdiction (without posting any bond or deposit) for specific
performance and/or other injunctive relief in order to enforce or prevent any
violations of the provisions of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
MATTRESS HOLDING CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
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Its: ___________________________________
MATTRESS DISCOUNTERS CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
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Its: ___________________________________
/s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
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Exhibit A
GENERAL RELEASE
I, Xxxxxxx X. Xxxxxx, in consideration of and subject to the performance by
Mattress Holding Corporation, a Virginia corporation ("Holdings"), and Mattress
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Discounters Corporation, a Delaware corporation (together with Holdings and its
subsidiaries, the "Company"), of its material obligations under the Employment
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Agreement, dated as of December 6, 1999 (the "Agreement"), do hereby release and
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forever discharge as of the date hereof the Company and all present and former
directors, officers, agents, representatives, employees, successors and assigns
of the Company and its direct or indirect owners (collectively, the "Released
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Parties") to the extent provided below.
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1. I understand that any payments or benefits paid or granted to me under
Section 5(b) of the Agreement represent, in part, consideration for signing
this General Release and are not salary, wages or benefits to which I was
already entitled. I understand and agree that I will not receive the
payments and benefits specified in Section 5(b) of the Agreement unless I
execute this General Release and do not revoke this General Release within
the time period permitted hereafter or breach this General Release.
2. Except as provided in Section 4 below, I knowingly and voluntarily release
and forever discharge the Company and the other Released Parties from any
and all claims, controversies, actions, causes of action, cross-claims,
counter-claims, demands, debts, compensatory damages, liquidated damages,
punitive or exemplary damages, other damages, claims for costs and
attorneys' fees, or liabilities of any nature whatsoever in law and in
equity, both past and present (through the date of this General Release)
and whether known or unknown, suspected, or claimed against the Company or
any of the Released Parties which I, my spouse, or any of my heirs,
executors, administrators or assigns, may have, which arise out of or are
connected with my employment with, or my separation from, the Company
(including, but not limited to, any allegation, claim or violation, arising
under: Title VII of the Civil Rights Act of 1964, as amended; the Civil
Rights Act of 1991; the Age Discrimination in Employment Act of 1967, as
amended (including the Older Workers Benefit Protection Act); the Equal Pay
Act of 1963, as amended; the Americans with Disabilities Act of 1990; the
Family and Medical Leave Act of 1993; the Civil Rights Act of 1866, as
amended; the Worker Adjustment Retraining and Notification Act; the
Employee Retirement Income Security Act of 1974; any applicable Executive
Order Programs; the Fair Labor Standards Act; or their state or local
counterparts; or under any other federal, state or local civil or human
rights law, or under any other local, state, or federal law, regulation or
ordinance; or under any public policy, contract or tort, or under common
law; or arising under any policies, practices or procedures of the Company;
or any claim for wrongful discharge, breach of contract, infliction of
emotional distress, defamation; or any claim for costs, fees, or other
expenses, including attorneys' fees incurred in these matters) (all of the
foregoing collectively referred to herein as the "Claims").
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3. I represent that I have made no assignment or transfer of any right, claim,
demand, cause of action, or other matter covered by Section 2 above.
4. I agree that this General Release does not waive or release any rights or
claims that I may have under the Age Discrimination in Employment Act of
1967 which arise after the date I execute this General Release. I
acknowledge and agree that my separation from employment with the Company
in compliance with the terms of the Agreement shall not serve as the basis
for any claim or action (including, without limitation, any claim under the
Age Discrimination in Employment Act of 1967).
5. In signing this General Release, I acknowledge and intend that it shall be
effective as a bar to each and every one of the Claims hereinabove
mentioned or implied. I expressly consent that this General Release shall
be given full force and effect according to each and all of its express
terms and provisions, including those relating to unknown and unsuspected
Claims (notwithstanding any state statute that expressly limits the
effectiveness of a general release of unknown, unsuspected and
unanticipated Claims), if any, as well as those relating to any other
Claims hereinabove mentioned or implied. I acknowledge and agree that this
waiver is an essential and material term of this General Release and that
without such waiver the Company would not have agreed to the terms of the
Agreement. I further agree that in the event I should bring a Claim seeking
damages against the Company, or in the event I should seek to recover
against the Company in any Claim brought by a governmental agency on my
behalf, this General Release shall serve as a complete defense to such
Claims. I further agree that I am not aware of any pending charge or
complaint of the type described in Section 2 as of the execution of this
General Release.
6. I agree that neither this General Release, nor the furnishing of the
consideration for this General Release, shall be deemed or construed at any
time to be an admission by the Company, any Released Party or myself of any
improper or unlawful conduct.
7. I agree that I will forfeit all amounts payable by the Company pursuant to
the Agreement if I challenge the validity of this General Release. I also
agree that if I violate this General Release by suing the Company or the
other Released Parties, I will pay all costs and expenses of defending
against the suit incurred by the Released Parties, including reasonable
attorneys' fees, and return all payments received by me pursuant to the
Agreement.
8. I agree that this General Release is confidential and agree not to disclose
any information regarding the terms of this General Release, except to my
immediate family and any tax, legal or other counsel I have consulted
regarding the meaning or effect hereof or as required by law, and I will
instruct each of the foregoing not to disclose the same to anyone.
9. Any non-disclosure provision in this General Release does not prohibit or
restrict me (or my attorney) from responding to any inquiry about this
General Release or its underlying facts and circumstances by the Securities
and Exchange Commission (SEC), the National
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Association of Securities Dealers, Inc. (NASD), any other self-regulatory
organization or governmental entity.
10. I agree to reasonably cooperate with the Company in any internal
investigation or administrative, regulatory, or judicial proceeding. I
understand and agree that my cooperation may include, but not be limited
to, making myself available to the Company upon reasonable notice for
interviews and factual investigations; appearing at the Company's request
to give testimony without requiring service of a subpoena or other legal
process; volunteering to the Company pertinent information; and turning
over to the Company all relevant documents which are or may come into my
possession all at times and on schedules that are reasonably consistent
with my other permitted activities and commitments. I understand that in
the event the Company asks for my cooperation in accordance with this
provision, the Company will reimburse me solely for reasonable travel
expenses, including lodging and meals, upon my submission of receipts.
11. Notwithstanding anything in this General Release to the contrary, this
General Release shall not relinquish, diminish, or in any way affect any
rights or claims arising out of any breach by the Company or by any
Released Party of the Agreement.
12. Whenever possible, each provision of this General Release shall be
interpreted in, such manner as to be effective and valid under applicable
law, but if any provision of this General Release is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in
any jurisdiction, such invalidity, illegality or unenforceability shall not
affect any other provision or any other jurisdiction, but this General
Release shall be reformed, construed and enforced in such jurisdiction as
if such invalid, illegal or unenforceable provision had never been
contained herein.
BY SIGNING THIS GENERAL RELEASE, I REPRESENT AND AGREE THAT:
(a) I HAVE READ IT CAREFULLY;
(b) I UNDERSTAND ALL OF ITS TERMS AND KNOW THAT I AM GIVING UP IMPORTANT
RIGHTS, INCLUDING BUT NOT LIMITED TO, RIGHTS UNDER THE AGE DISCRIMINATION
IN EMPLOYMENT ACT OF 1967, AS AMENDED, TITLE VII OF THE CIVIL RIGHTS ACT OF
1964, AS AMENDED; THE EQUAL PAY ACT OF 1963, THE AMERICANS WITH
DISABILITIES ACT OF 1990; AND THE EMPLOYEE RETIREMENT INCOME SECURITY ACT
OF 1974, AS AMENDED;
(c) I VOLUNTARILY CONSENT TO EVERYTHING IN IT;
(d) I HAVE BEEN ADVISED TO CONSULT WITH AN ATTORNEY BEFORE EXECUTING IT AND I
HAVE DONE SO OR, AFTER CAREFUL READING AND CONSIDERATION I HAVE CHOSEN NOT
TO DO SO OF MY OWN VOLITION;
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(e) I HAVE HAD AT LEAST 21 DAYS FROM THE DATE OF MY RECEIPT OF THIS RELEASE
SUBSTANTIALLY IN ITS FINAL FORM ON _______________, _____ TO CONSIDER IT
AND THE CHANGES MADE SINCE THE ____________________, _____ VERSION OF THIS
RELEASE ARE NOT MATERIAL AND WILL NOT RESTART THE REQUIRED 21-DAY PERIOD;
(f) THE CHANGES TO THE AGREEMENT SINCE DECEMBER 6, 1999 EITHER ARE NOT MATERIAL
OR WERE MADE AT MY REQUEST.
(g) I UNDERSTAND THAT I HAVE SEVEN DAYS AFTER THE EXECUTION OF THIS RELEASE TO
REVOKE IT AND THAT THIS RELEASE SHALL NOT BECOME EFFECTIVE OR ENFORCEABLE
UNTIL THE REVOCATION PERIOD HAS EXPIRED;
(h) I HAVE SIGNED THIS GENERAL RELEASE KNOWINGLY AND VOLUNTARILY AND WITH THE
ADVICE OF ANY COUNSEL RETAINED TO ADVISE ME WITH RESPECT TO IT; AND
(i) I AGREE THAT THE PROVISIONS OF THIS GENERAL RELEASE MAY NOT BE AMENDED,
WAIVED, CHANGED OR MODIFIED EXCEPT BY AN INSTRUMENT IN WRITING SIGNED BY AN
AUTHORIZED REPRESENTATIVE OF THE COMPANY AND BY ME.
DATE: DEC 6, 1999. /s/ Xxxxxxx Xxxxxx
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