EXECUTIVE EMPLOYMENT AGREEMENT
Exhibit 10.1
THIS EXECUTIVE EMPLOYMENT AGREEMENT (the “Agreement”) is entered into as of February 15,
2007 (the “Effective Date”), by and among Calamos Asset Management, Inc., a Delaware corporation
(“CAM”), Calamos Financial Services LLC, a Delaware limited liability company (“CFS”) and a
wholly-owned subsidiary of its sole managing member, Calamos Holdings LLC (“Holdings”) (together
with each of its successors and assigns permitted under this Agreement sometimes referred to herein
as the “Company”), and Xxxxxx X. (Xxxxxx) Xxxxxxxx, II (“Executive”).
RECITALS
WHEREAS, the Executive currently serves as Executive Vice President – Head of
Distribution and Business Development of the Company; and
WHEREAS, the Company and Executive each desire to enter into this Agreement.
NOW THEREFORE, the parties agree as follows:
1. Term. Subject to earlier termination as provided herein, the Company hereby
agrees to continue Executive in its employ, and Executive hereby agrees to remain in the employ of
the Company, for the period commencing on the Effective Date and ending on December 31, 2009;
provided, however, that commencing on January 1, 2009, and on each January 1 thereafter, the term
of Executive’s employment under this Agreement shall be extended automatically for one (1)
additional year, creating a new two (2)-year term commencing as of such January 1 until such date
on which either the Board of Directors of CAM (the “Board”), on behalf of Holdings, or Executive
gives written notice to the other, in accordance with Section 15(d), below, that such automatic
extension of Executive’s employment under this Agreement shall cease, in which event, as of the
effective date of such notice, the term of employment shall become a fixed term ending on the
December 31 of the calendar year in which the first anniversary of the date of such notice falls.
Any such notice shall be effective immediately upon delivery. The term of Executive’s employment
as provided in this Section 1 shall be hereinafter referred to as the “Term.”
2. Duties.
(a) Executive’s Positions and Titles. Executive’s positions and titles shall be
President of CFS. Executive shall also serve as Executive Vice President – Head of
Distribution and Business Development of CAM and Holdings, and in such positions with
Holdings’ subsidiaries (“Subsidiaries”), to which Executive may be appointed.
(b) Executive’s Duties. Executive shall have such power and authority to act for
and in the name of the Company, as provided in the operating agreement of CFS, the By-laws
of CAM or resolutions of the manager of CFS (the “Manager”) or the Board. The duties and
responsibilities of Executive are and shall continue to be of an executive nature as shall
be required by the Company in the conduct of its business and shall include the performance
of such lawful and reasonable duties and responsibilities as the Board or the Manager may
from time to time assign to
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Executive not inconsistent with Executive’s position(s).
Executive recognizes that during the period of Executive’s employment hereunder, Executive
owes an undivided duty of loyalty to the Company, and Executive will use Executive’s good
faith efforts to promote and develop the business of the
Company. However, the Company recognizes that during the period of Executive’s employment
hereunder, Executive may provide certain services to Calamos Family Partners, Inc. and its
affiliates and related entities, and the Company acknowledges and agrees that Executive’s
provision of such services shall not be in breach of this Agreement so long as the provision
of such services does not (i) interfere with Executive’s primary duties and responsibilities
hereunder and (ii) involve Executive providing investment advisory services except as may be
approved by the Compensation Committee of CAM (the “Compensation Committee”) (each such
services a “Permitted Activity”). Recognizing and acknowledging that it is essential for
the protection and enhancement of the name and business of the Company and the goodwill
pertaining thereto, Executive shall perform his duties under this Agreement professionally,
in accordance with the applicable laws, rules and regulations and such standards, policies
and procedures established by Employer and the industry from time to time. Executive will
not perform any duties for any other business, other than a Permitted Activity without the
prior written consent of the Compensation Committee, but may engage in charitable, civic or
community activities, provided that such duties or activities do not materially interfere
with the proper performance of Executive’s duties under this Agreement.
(c) Board Service. If so elected, Executive agrees that he will serve as a member
of the Board and/or the board of directors or managers, as applicable, of any of its
subsidiaries and affiliates, as well as to serve as a member of any committee of any of
said boards, to which Executive may be elected or appointed.
3. Compensation and Benefits.
(a) Base Salary. During the Term, Executive shall receive a base salary (“Base
Salary”), paid in accordance with the normal payroll practices of the Company, at an annual
rate of $400,000. The Base Salary shall be reviewed from time to time in accordance with
the Company’s policies and practices, but no less frequently than once annually and may be
increased, but not decreased (other than as part of an across-the-board reduction
applicable to the Company’s senior executive officers), at any time and from time to time
by action of the Board or the Compensation Committee. The term “Base Salary” shall include
any such increases or any permitted decreases to the Base Salary from time to time.
(b) Annual Bonus Programs. In addition to the Base Salary, Executive shall be
eligible to participate throughout the Term in such annual bonus plans and programs
(“Annual Bonus Programs”), as may be in effect from time to time in accordance with the
Company’s compensation practices and the terms and provisions of any such plans or
programs; provided that Executive’s eligibility for and participation in each Annual Bonus
Program shall be at a level and on terms and conditions no less favorable than those for
other senior executives, excluding the Portfolio Managers Incentive Plan applicable to
senior executives of the Company with portfolio management responsibilities. If Executive
achieves his target performance goals, as determined by the Compensation Committee on an
annual basis, Executive shall have a target annual bonus (“Target
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Bonus”) under such Annual
Bonus Programs equal to not less than 300% of his Base Salary and a maximum annual bonus
opportunity equal to not less than 150% of such Target Bonus.
(c) Long Term Incentive Programs. In addition to the Base Salary and participation
in the Annual Bonus Programs, Executive shall be eligible to participate throughout the
Term in such long term bonus plans and programs including stock option, restricted stock
unit, restricted shares,
performance stock unit and other similar programs (“Long Term Incentive Programs”), as may
be in effect from time to time in accordance with the Company’s compensation practices and
the terms and provisions of any such plans or programs; provided that Executive’s
participation in each Long Term Incentive Program shall be at a level and on terms and
conditions no less favorable than participation by other senior executives of the Company;
and, provided further that subject to the discretion of the Compensation Committee based
upon the performance of the Company and the Executive and competitive pay practices, it is
expected that the Executive shall receive annually Long Term Incentive Program awards with a
value equal to 200% of Base Salary.
(d) Other Incentive Plans. During the Term, Executive shall be eligible to
participate, subject to the terms and conditions thereof, in all other incentive plans and
programs, including such cash and deferred bonus programs as may be in effect from time to
time with respect to senior executives employed by the Company on as favorable a basis as
provided to other similarly situated senior executives so as to reflect Executive’s
responsibilities.
(e) Pension and Welfare Benefit Plans. During the Term, Executive and Executive’s
dependents, as the case may be, shall be eligible to participate in all pension and similar
benefit plans (qualified, non-qualified and supplemental), profit sharing, 401(k), as well
as all medical and dental, disability, group and executive life, accidental death and
travel accident insurance, and other similar welfare benefit plans and programs of the
Company, subject to the terms and conditions thereof, as in effect from time to time with
respect to senior executives employed by the Company so as to reflect Executive’s
responsibilities.
(f) Perquisites. During the Term, Executive shall be entitled to participate in
perquisite programs, as such are made available to senior executives of the Company.
(g) Expenses. During the Term, Executive shall be entitled to receive prompt
reimbursement for all reasonable expenses incurred by him in accordance with the policies
and practices of the Company as in effect from time to time.
(h) Vacation. During the Term, Executive shall be entitled to paid vacation in
accordance with the policies and practices of the Company as in effect from time to time
with respect to senior executives employed by the Company, but in no event shall such
vacation time be less than four (4) weeks per calendar year.
(i) Certain Amendments. Nothing herein shall be construed to prevent the Company
from amending, altering, eliminating or reducing any plans, benefits or programs so long as
Executive continues to receive compensation and benefits consistent with Sections 3(a)
through (i).
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4. Termination.
(a) Permanent Disability. Either Executive or the Company may terminate Executive’s
employment, after having established Executive’s Permanent Disability, by giving notice of his or
its intention to terminate Executive’s employment. For purposes of this Agreement, Executive shall
be deemed to have a “Permanent Disability” for purposes of this Agreement if Executive has any
medically determinable physical or mental impairment that has lasted for a period of not less than
six (6) months in any twelve (12)-month period and that renders Executive unable to perform the
duties required under the Agreement. Such determination shall be made by written certification
(“Certificate”) of Executive’s Permanent Disability by a physician jointly selected by the Company
and the Executive; provided that if the Company and Executive cannot reach agreement on the
physician, the Certification shall be by a panel of physicians consisting of one physician selected
by the Company, one physician selected by the Executive and a third physician jointly selected by
those two physicians.
(b) Cause.
(i) The Company may terminate Executive’s employment at any time for Cause, if Cause as
defined below exists.
(ii) For purposes of this Agreement, “Cause” means with respect to Executive the
occurrence of any of the following events:
(A) Executive’s conviction of any felony or other serious crimes;
(B) Executive’s material breach of any of the terms of the Agreement or any
other written agreement or material Company policy to which Executive and the
Company are parties or are bound, if such breach shall be willful and shall continue
beyond a period of twenty (20) days immediately after written notice thereof by the
Company to Executive;
(C) wrongful misappropriation by Executive of any money, assets, or other
property of the Company or a client of the Company;
(D) willful actions of failure to act by the Executive which subject the
Executive or the Company to censure by the Securities and Exchange Commission as
described in and pursuant to Section 203(e) or 203(f) of the Investment Advisers Act
of 1940 or Section 9(b) of the Investment Company Act of 1940 or to censure by a
state securities administrator pursuant to applicable state securities laws or
regulations;
(E) Executive’s commission of fraud or gross moral turpitude; or
(F) Executive’s continued willful failure to substantially perform Executive’s
duties under this Agreement after receipt of written notice thereof and an
opportunity to so perform.
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(iii) Cause shall be determined by the affirmative vote of at least seventy five
percent (75%) of the members of the Board (excluding the Executive, if a Board member, and
excluding any member of the Board involved in events leading to the Board’s consideration of
terminating Executive for Cause). Executive shall be given twenty (20) days written notice
of the Board meeting at which Cause shall be decided (which notice shall be deemed to be
notice of the existence of Cause if Cause is found to exist by the Board), and shall be
given an opportunity prior to the vote on Cause to appear before the Board, with or without
counsel, at Executive’s election, to present arguments on his own behalf. The notice to
Executive of the Board meeting shall include a description of the specific reasons for such
consideration of Cause. The pendency of the notice period described herein shall not
prevent or delay the Company’s ability to enforce the Restrictive Covenants contained
herein.
(iv) For purposes of this Section 4(b), no act or failure to act, on the part of
Executive, shall be considered willful if it is done, or omitted to be done, by him in good
faith and with a reasonable belief that his action or omission was in the best interests of
the Company.
(c) Good Reason.
(i) Executive may terminate Executive’s employment at any time for Good Reason, if:
(A) (1) An event or condition occurs which constitutes any of (B)(1) through
(B)(5) below; (2) Executive provides the Company with written notice pursuant to
Section 15(d) that he intends to resign for Good Reason and such written notice
includes (I) a designation of at least one of (B)(1) through (B)(5) below (the
“Designated Section”) and (II) specifically describes the events or conditions
Executive is relying upon to satisfy the requirements of the Designated Section(s);
(3) as of the twentieth (20th) day following the date notice is given by Executive
to the Company, such events or conditions have not been corrected in all material
respects; and (4) Executive’s resignation is effective within ninety (90) days of
the date Executive first has actual knowledge of the occurrence of the first event
or condition upon which Executive relies upon to satisfy any of the Designated
Section(s).
(B) “Good Reason” shall mean the occurrence of any of the following without the
express written consent of Executive:
(1) any material breach by the Company of the Agreement (including any
reduction in Executive’s Base Salary, Target Bonus opportunity or maximum
bonus opportunity);
(2) any material adverse change in the status, position or
responsibilities of Executive, including a change in Executive’s reporting
relationship;
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(3) assignment of duties to Executive that are materially inconsistent
with Executive’s position and responsibilities described in this Agreement;
(4) the failure of the Company to assign this Agreement to a successor
to the Company or failure of a successor to the Company to explicitly assume
and agree to be bound by this Agreement;
(5) requiring Executive to be principally based at any office or
location more than forty (40) miles from the current offices of the Company
in Naperville, Illinois; or
(6) delivery by the Company of written notice to Executive to cease the
automatic extension provision set forth in Section 1 above.
(d) Termination by Executive Without Good Reason. Executive may, at any time without
Good Reason, by at least thirty (30) days’ prior notice, voluntarily terminate this Agreement
without liability.
(e) Termination by the Company Without Cause. The Company may terminate Executive’s
employment at any time without Cause.
(f) Notice of Termination. Any termination of Executive’s employment by the Company
for Permanent Disability or for or without Cause, or by Executive for Disability or for or without
Good Reason, shall be communicated by a Notice of Termination to the other party hereto given in
accordance with Section 15(d). For purposes of this Agreement, a “Notice of Termination” means a
written notice which (i) indicates the specific termination provision in this Agreement relied
upon; (ii) sets forth in reasonable detail the facts and circumstances claimed to provide a basis
for termination of Executive’s employment under the provision so indicated; and (iii) specifies the
Date of Termination (defined below); provided, such Notice of Termination may be conditional if
coupled with a notice of the Board’s consideration of “Cause” or Executive’s intention to resign
for “Good Reason,” as the case may be, as provided above.
(g) Date of Termination. “Date of Termination” means the date Notice of Termination
is given pursuant to Section 15(d) or any later date specified therein; provided, (i) any Notice of
Termination pursuant to Section 4(a) shall be effective ninety (90) days after the date given, (ii)
any Notice of Termination pursuant to Section 4(b) or Section 4(c) shall be effective not less than
twenty (20) days after the date given, (iii) any Notice of Termination pursuant to Section 4(d)
shall be effective not less than thirty (30) days after the date given, and (iv) in every other
case any Notice of Termination shall be effective not more than fifteen (15) days after the date
given. Executive’s Date of Termination shall be the date of his death if applicable.
5. Obligations of the Company upon Termination. Executive’s entitlements upon
termination of employment are set forth below. Except to the extent otherwise provided in this
Agreement, all benefits, including stock option grants, restricted shares, restricted stock units
and awards under the Long Term Incentive Programs, shall be subject to the terms and conditions of
the
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plan or arrangement under which such benefits accrue, are granted or are awarded. For
purposes of this Section 5, the term “Accrued Obligations” shall mean, as of the Date of
Termination, (i) Executive’s full Base Salary through the Date of Termination, at the rate in
effect at the time Notice of Termination is given (disregarding any reduction constituting Good
Reason), to the extent not theretofore paid, (ii) the amount of any bonus, incentive compensation,
deferred compensation and other cash compensation earned (and not forfeited hereunder) by Executive
as of the Date of Termination to the extent not theretofore paid, and (iii) any vacation pay,
expense reimbursements and other cash entitlements accrued by Executive as of the Date of
Termination to the extent not theretofore paid. For purposes of determining an Accrued Obligation
under this Section 5, amounts shall be deemed to accrue ratably over the period during which they
are earned (and not forfeited hereunder), but no discretionary compensation shall be deemed earned
or accrued until it is specifically approved by the Board or the Compensation Committee in
accordance with the applicable plan, program or policy.
(a) Death. If Executive’s employment is terminated by reason of Executive’s death,
then this Agreement shall terminate without further obligations by the Company to Executive’s legal
representatives under this Agreement, except as set forth in this Section 5(a) or as contained in
an applicable Company plan or program which takes effect at the date of his death, but in no event
shall the Company’s obligations be less than those provided by this Agreement.
(i) Executive’s Accrued Obligations not theretofore paid;
(ii) from and after the Date of Termination, Executive’s surviving spouse, other named
beneficiaries or other legal representatives, as the case may be, shall be entitled to
receive those benefits payable to them under the provisions of any plan or program described
in Section 3 above;
(iii) Executive’s eligible dependents shall receive continuation of medical benefits
upon the same terms as exist immediately prior to the termination of employment for the
eighteen (18)-month period immediately following the Date of Termination; and
(iv) all unexercised stock options and all unpaid restricted shares, restricted stock
units and other equity-incentive compensation awards theretofore granted to Executive shall
be vested or forfeited, as the case may be, and any vested stock options shall be
exercisable, in accordance with the provisions of the applicable agreement or award.
(b) Permanent Disability. If Executive’s employment is terminated by reason of
Executive’s Disability, then Executive shall be entitled to receive as of the Date of Termination:
(i) Executive’s Accrued Obligations not theretofore paid;
(ii) disability benefits, if any, at least equal to those then provided by the Company
to disabled executives and their families;
(iii) Executive and Executive’s eligible dependents shall be entitled to receive those
benefits payable to them under the provisions of any applicable plan or program described in
Section 3 and above and shall receive continuation of medical benefits
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upon the same terms as exist immediately prior to the termination of employment for the
eighteen (18) month period immediately following the Date of Termination; and
(iv) all unexercised stock options and all unpaid restricted shares, restricted stock
units and other equity-incentive compensation awards theretofore granted to Executive shall
be vested or forfeited, as the case may be, and any vested stock options shall be
exercisable, in accordance with the provisions of the applicable agreement or award.
(c) Cause/Other Than for Good Reason. If Executive’s employment is terminated for
Cause by the Company or if Executive terminates Executive’s employment without Good Reason, then
the Company shall pay Executive all Accrued Obligations. All unexercised stock options and all
unpaid restricted shares, restricted stock units and other equity-incentive compensation awards
theretofore awarded to Executive shall be vested or forfeited, as the case may be, and any vested
stock options shall be exercisable, in accordance with the provisions of the applicable agreement
or award.
(d) Other Than for Cause, Death or Permanent Disability; For Good Reason. If the
Company terminates Executive’s employment other than for Cause or Permanent Disability or if
Executive terminates; Executive’s employment for Good Reason, then:
(i) The Company shall pay to Executive the following amounts:
(A) Executive’s Accrued Obligations not theretofore paid; and
(B) an amount (subject to reduction as provided in Section 5(b)(iv)) equal to
one and one-half (1.5) times the Executive’s Base Salary at the highest annual rate
in effect at any time during the twenty-four (24)-month period ending on the date
the Notice of Termination is given, which amount shall be payable in eighteen (18)
monthly installments commencing with the month following the Date of Termination
(such eighteen (18)-month period, the “Salary Continuation Period”);
(C) a pro-rated Target Bonus for the year of termination (which Target Bonus is
to be based on the Base Salary used under paragraph (i)(B) above), payable at the
time bonuses are paid to other senior executives;
(ii) the Company shall provide to Executive the health and welfare benefits (or, if
such benefits are not available, the value thereof in cash) specified in Section 3(e) to
which Executive is entitled as of the Date of Termination during the Salary Continuation
Period, provided that the amount of the monthly payments pursuant to Section 5(d)(i)(B)
above shall be reduced by the employee’s portion of the cost of such benefits, which
Executive would be required to pay if he were actually employed during such period; provided
that, such benefits will cease when such Salary Continuation Period ends, at which time a
COBRA qualifying event shall be deemed to occur;
(iii) all unexercised stock options and all unpaid restricted shares, restricted stock
units and other equity-incentive compensation awards theretofore granted to
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Executive shall be vested or forfeited, as the case may be, and any vested stock options shall be
exercisable, in accordance with the provisions of the applicable agreement or award.
(iv) in the event the Executive shall commence employment with or otherwise provide
compensated services on a full-time basis during the Salary Continuation Period to any
person or entity, other than the Company or CAM or in connection with any Permitted
Activity, then the Executive shall notify the Company in writing and the monthly payments
described in paragraph (i)(B) above shall cease, and in lieu of monthly payments then
remaining to be paid, the Company shall pay a lump sum cash payment within ten (10) business
days to Executive equal to fifty percent (50%) of the aggregate amount of such remaining
payments; and
(v) the compensation and benefits described in this Section 5(d) shall be in lieu of
compensation and benefits provided under any severance plan or agreement of the Company.
(e) Qualified Change of Control.
(i) If (I) Executive is terminated by the Company without Cause or Executive resigns
for Good Reason during the period commencing on a Qualified Change of Control and ending on
the second (2nd) anniversary of the Qualified Change of Control (such two (2) year period
being the “Protection Period” hereunder) or (II) Executive reasonably demonstrates that such
termination of employment (or event constituting Good Reason) prior to a Qualified Change of
Control was at the request of a third party who was taking steps reasonably calculated to
effect a Qualified Change of Control and a Qualified Change of Control actually occurs (each
a “Qualifying Termination”), then Executive shall be entitled to receive:
(A) a pro-rata annual bonus for the year of termination based on the bonus
amount determined under Section 5(e)(i)(B)(II) below;
(B) an amount in cash equal to three (3) times the sum of (I) Executive’s
annual Base Salary (at the highest annual rate in effect at any time during the
twenty-four (24)-month period ending on the date the Notice of Termination is given
and (II) annual Target Bonus (which Target Bonus is to be based on such Base Salary)
or if greater, the actual bonus earned with respect to the fiscal year immediately
preceding the Change in Control, and
(C) continuation of medical benefits and dental until the second anniversary of
the Date of Termination upon the same terms as exist for Executive immediately prior
to the Date of Termination.
(ii) The Company shall continue to have all other rights available hereunder (including
all rights under the Restrictive Covenants and any restrictive covenants set forth in any
plan, award and agreement applicable to Executive, at law or in equity).
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(iii) The amounts described in Section 5(e)(i)(A) and (B) shall be paid in a lump sum
within ten (10) days after the Date of Termination. Such amounts or benefits shall not be
subject to mitigation or offset, except that medical benefits may be offset by comparable
benefits obtained by Executive in connection with subsequent employment.
(iv) Anything set forth in any equity plan, equity award or any other provision of this
Agreement between the Company and Executive to the contrary notwithstanding, all of
Executive’s outstanding equity grants shall fully vest upon the occurrence of a Qualified
Change of Control (to the extent not previously vested). In addition, on the Date of
Termination, all options theretofore granted to Executive and not exercised by Executive
shall become fully vested and all other equity-based compensation (including restricted
shares and restricted stock units) granted to Executive prior to the Date of Termination
which had not vested shall become fully vested and non-forfeitable, and shall be exercisable
or payable in accordance with the terms of the applicable award or agreement.
(v) “Qualified Change of Control” shall be deemed to have occurred in the event that
any person, entity or group shall become the beneficial owner of such number of shares of
Class A and/or Class B Common Stock, and/or any other class of stock of CAM, then
outstanding that is entitled to vote in the election of directors (or is convertible into
shares so entitled to vote) as together possess more than fifty percent (50%) of the voting
power of all of the then outstanding shares of all such classes of voting stock of CAM so
entitled to vote. For purposes of the preceding sentence, “person, entity or group” shall
not include (i) any employee benefit plan of the Company or (ii) the Calamos Family; and for
purposes of this paragraph (v) “group” shall mean persons who act in concert as described in
Section 14(d)(2) of the 1934 Act and “Calamos Family” shall mean Xxxx X. Xxxxxxx, Xx., Xxxx
X. Calamos and/or Xxxx X. Xxxxxxx, Xx., and their respective spouses and lineal descendants,
and each corporation, trust or other entity controlled by any of the foregoing individuals.
(vi) The compensation and benefits described in Section 5(e) shall be in lieu of
compensation and benefits provided otherwise for a termination under Section 5(d) of this
Agreement and any other severance plan or agreement of the Company.
(f) General Release. Executive acknowledges and agrees that Executive’s right to
receive severance pay and other benefits pursuant to Section 5(d) or (e) of this Agreement (other
than his Accrued Obligations) is contingent upon Executive’s compliance with the Restrictive
Covenants set forth in Section 11 of this Agreement and Executive’s execution and acceptance of the
terms and conditions of, and the effectiveness of, a general release in a form substantially
similar to that attached hereto as Exhibit A with such changes as may be necessary under
then-existing law (the “Release”). If Executive fails to comply with the covenants set forth in
Section 11 or if Executive fails to execute the Release or revokes the Release during the seven
(7)-day period following his execution of the Release, then Executive shall not be entitled to any
severance payments or other benefits to which Executive would otherwise be entitled under Section
5(d) or (e).
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6. Additional Payments. If it is determined that any amount, right or benefit paid or
payable (or otherwise provided or to be provided) to Executive by the Company or any of its
affiliates under this Agreement or any other plan, program or arrangement under which
Executive participates or is a party (collectively, the “Payments”), would constitute an “excess
parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as
amended from time to time (the “Code”), subject to the excise tax imposed by Section 4999 of the
Code, as amended from time to time (the “Excise Tax”), then Executive shall be entitled to receive
an additional payment from the Company (a “Gross-Up Payment”) in an amount such that, after payment
by Executive of all taxes (including any interest or penalties imposed with respect to such taxes),
including any income and employment taxes (and any interest and penalties imposed with respect
thereto) and Excise Tax imposed upon the Gross-Up Payment (and any interest and penalties imposed
with respect thereto), Executive retains an amount of the Gross-Up Payment equal to the Excise Tax
(including any interest and penalties imposed with respect thereto) imposed upon the Payments. All
determinations required to be made under this Section 6, including whether and when a Gross-Up
Payment is required, the amount of such Gross-Up Payment and the assumptions to be utilized in
arriving at such determination, shall be made by an independent, nationally recognized accounting
firm mutually acceptable to the Company and Executive (the “Auditor”). The Auditor shall provide
detailed supporting calculations to both the Company and Executive within fifteen (15) business
days of the receipt of notice from Executive or the Company that there has been a Payment, or such
earlier time as is requested by the Company. All fees and expenses of the Auditor shall be paid by
the Company. Any Gross-Up Payment, as determined pursuant to this Section 6, shall be paid by the
Company to Executive within five (5) days of the receipt of the Auditor’s determination. All
determinations made by the Auditor shall be binding upon the Company and Executive; provided that
if, notwithstanding the Auditor’s initial determination, the Internal Revenue Service (or other
applicable taxing authority) determines that an additional Excise Tax is due with respect to the
Payments, then the Auditor shall recalculate the amount of the Gross-Up Payment based upon the
determinations made by the Internal Revenue Service (or other applicable taxing authority) after
taking into account any additional interest and penalties (the “Recalculated Amount”) and the
Company shall pay to Executive the excess of the Recalculated Amount over the Gross-Up Payment
initially paid to Executive within five (5) days of the receipt of the Auditor’s recalculation of
the Gross-Up Payment.
7. Non-exclusivity of Rights. Nothing in this Agreement shall prevent or limit
Executive’s continuing or future participation in any benefit, bonus, incentive or other plan or
program provided by the Company and for which Executive may qualify, nor shall anything herein
limit or otherwise affect such rights as Executive may have under any stock option, restricted
shares or other agreement with the Company or any of its affiliated companies. Except as otherwise
provided herein, amounts and benefits which are vested benefits or which Executive is otherwise
entitled to receive under any plan, program, agreement or arrangement of the Company at or
subsequent to the Date of Termination shall be payable in accordance with such plan or program.
8. No Set-Off; No Mitigation. Except as provided herein, the Company’s obligation to
make the payments provided for in this Agreement and otherwise to perform its obligations hereunder
shall not be affected by any circumstances, including any set-off, counterclaim, recoupment,
defense or other right which the Company may have against Executive or others. In no event shall
Executive be obligated to seek other employment or take any other action by way of
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mitigation of
the amounts payable to Executive under any of the provisions of this Agreement, and
such amounts shall not be reduced whether or not Executive obtains other employment except as
provided in Section 5(d)(iv).
9. Arbitration of Disputes. Except as set forth in Section 11(g), any controversy or
claim arising out of or related to (A) this Agreement, (B) the breach thereof or (C) Executive’s
employment with the Company or the termination of such employment shall be settled by arbitration
in Chicago, Illinois, before a single arbitrator administered by the American Arbitration
Association (“AAA”) under its National Rules for the Resolution of Employment Disputes, effective
as of January 1, 2004 (the “Employment Rules”), and judgment on the award rendered by the
arbitrator may be entered in any court having jurisdiction thereof. Notwithstanding the foregoing,
Rule R-34 of the AAA’s Commercial Arbitration Rules amended and restated as of July 1, 2003
(instead of Rule 27 of the Employment Rules), shall apply to interim measures. References herein
to any arbitration rule(s) shall be construed as referring to such rule(s) as amended or renumbered
from time to time and to any successor rules. References to the AAA include any successor
organization.
10. Entire Agreement. Executive acknowledges and agrees that this Agreement includes
the entire agreement and understanding between the parties and supercedes any prior agreements,
written or oral, with respect to the subject matter hereof, including the termination of
Executive’s employment during the Term and all amounts to which Executive shall be entitled whether
during the Term or thereafter and any restrictive covenants to which Executive may be subject.
Executive also acknowledges and agrees that Executive’s right to receive severance pay and other
benefits pursuant to Section 5(d)(i)(B), Section 5(d)(ii), Section 5(d)(iv), and Section 5(e)(i)(B)
and (C) of this Agreement is contingent upon Executive’s compliance with the Restrictive Covenants
set forth in Section 11 of this Agreement.
11. Executive’s Covenants.
(a) Executive’s Acknowledgment. Executive agrees and acknowledges that in order to
assure the Company that it will retain its value and that of the Business as a going concern, it is
necessary that Executive not utilize special knowledge of the Business and its relationships with
customers to compete with the Company. For purposes of this Agreement, “Business” means the
provision of investment management, investment advisory, portfolio management, financial analysis,
research or similar services relating to the investment of international or domestic equity or debt
securities or other activities or services of the type provided by the Company or its affiliates to
its clients on a worldwide basis including, without limitation, open-end and closed-end, registered
and unregistered, investment companies (“Funds”), and the direct and indirect sale and/or
distribution of equity interests in the Funds; and “Competing Activity” or “Competing Activities”
means engaging in the Business. Executive further acknowledges that:
(i) the Company is and will be engaged in the Business during the Term and thereafter;
(ii) Executive will occupy a position of trust and confidence with the Company, and
during the Term, Executive will become familiar with the Company’s trade secrets and with
other proprietary and Confidential Information concerning the Company and the Business;
-12-
(iii) the agreements and covenants contained in this Section 11 are essential to
protect the Company, the near permanent client relationships and the goodwill of the
Business and compliance with such agreements and covenants will not impair Executive’s
ability to procure subsequent and comparable employment; and
(iv) Executive’s employment with the Company has special, unique and extraordinary
value to the Company and the Company would be irreparably damaged if Executive were to
provide services to any person or entity in violation of the provisions of this Agreement.
(b) Confidential Information. For purposes of this Agreement, “Confidential
Information” shall mean trade secrets and other proprietary information concerning the products,
processes or services of the Company or any of its affiliates, which information (i) has not been
made generally available to the public, and is useful or of value to Company’s current or
anticipated business activities or of those of any affiliate or client of Company or (ii) has been
identified to Executive as confidential, either orally or in writing, including but not limited to,
computer programs; research and other statistical data and analyses; marketing, organizational or
other research and development, or business plans; personnel information, including the identity of
other Executives of the Company, their responsibilities, competence, abilities, and compensation;
financial, accounting and similar records of Company, its affiliates and/or any Fund or account
managed by the Company or its affiliates (such Funds or accounts referred to herein as “Company
Funds”); current and prospective client lists and information on clients and their Executives;
client investment objectives, the nature of their investment portfolios and contractual agreements
with the Company or its affiliates; information concerning planned or pending investment products,
acquisitions or divestitures; and information concerning the marketing and/or sale or distribution
of equity interests in the Funds. Confidential Information shall not include information which:
(a) is in or hereafter enters the public domain through no fault of Executive; (b) is obtained by
Executive from a third party having the legal right to use and disclose the same; or (c) is in the
possession of Executive prior to receipt from the Company (as evidenced by Executive’s written
records pre-dating the date of employment). All notes, reports, plans, published memoranda or
other documents created, developed, generated or held by Executive during employment, concerning or
related to the Company’s or its affiliates business, and whether containing or relating to
Confidential Information or not, and all tangible personal property of the Company or its
affiliates entrusted to Executive or in Executive’s direct or indirect possession or control, are
the property of the Company, and will be promptly delivered to the Company and not thereafter used
by Executive upon termination of Executive’s employment for any reason whatsoever.
(c) Non-Disclosure. Executive agrees that during employment with the Company
(including any employment following the Term) and at all times thereafter, Executive shall not
reveal to any competitor or other person or entity (other than current employees of the Company)
any Confidential Information regarding Clients (as defined herein) that Executive obtains while
performing services for the Company, except as may be required in Executive’s reasonable judgment
to fulfill his duties hereunder.
(d) Non-Compete. Except as otherwise provided below or approved by the Compensation
Committee in writing, during the term of Executive’s employment with the Company
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and, after such termination of employment, for a period after such termination ending upon the
eighteen (18)-month anniversary of the Date of Termination (such period the “Post-Termination
Non-Compete Period”), Employee shall not engage in, or own or control any interest in, or act as an
officer, director or employee of, or consultant, advisor or lender to any firm, corporation,
institution, business or entity (each an “Entity”) directly or indirectly engaged in the Business.
(e) “Calamos” Name. Employee understands that Company’s name, the name of any Funds
and accounts managed by the Company (such proprietary Funds, accounts and any other client account
managed by the Company, the “Company Accounts”) and the investment performance of any Company
Account and Company’s relationships with its clients and employees are extremely valuable and are
the result of the expenditure of substantial time, effort and resources by the Company. Therefore,
during the period of Executive’s employment and the Post-Termination Non-Compete Period, Employee
agrees that he will not, directly or indirectly, on his or her behalf or another’s behalf:
(i) solicit the Company’s or its affiliates’ clients to provide, offer to provide, or
provide to any such clients, services or products of the kind generally offered or provided
by Company or its affiliates; or
(ii) solicit, induce or encourage any person who is then in the employ of the Company
to leave his or her employment, agency or office with Company, or employ or be employed with
any such person or persons, for the purpose of providing or offering to provide, services or
products of the kind generally offered by Company or its affiliates; or
(iii) refer to the Company, “Calamos”, “Calamos Investments” or “Calamos Asset
Management” or any other name used by the Company, any Company Account or the investment
performance thereof, or Executive’s prior association with the Company or its affiliates or
any Company Account in any public filing or in any advertisement or marketing of any service
or product which is a Competing Activity; or
(iv) maintain a relationship of the type described in paragraph (d) above with any
Entity which refers to the Company, any Company Account or the investment performance
thereof, or Executive’s prior association with Company or any Company Account in any public
filing or in any advertisement or marketing of any service or product which is a Competing
Activity.
(f) Notwithstanding the foregoing, nothing in paragraph (d) or (e) of this Section 11 shall
prohibit Executive from engaging in Permitted Activities or prohibit Executiveor any other person
or Entity from referring to information described in said paragraphs, provided such reference is
not made in advertising or marketing in newspapers, magazines, trade journals or other public
media, or direct advertising or marketing materials, and such information is limited to the extent
that (i) such information is contained in any SEC filings previously made by the Company or (ii)
reference to such information is otherwise required by law. The Company and Employee agree that,
based on applicable rules, regulations and court decisions in effect as of the date this Agreement
is entered into, information relating to the investment performance of any Company Account is not
information reference to which “is otherwise required by law” within the meaning of said clause
(ii). During the Post-Termination Non-Compete Period, nothing in paragraph (d) of this
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Section 11
shall prohibit Executive from directly or indirectly owning or controlling any interest in, or
acting as an officer, director, employee, consultant or advisor of, or otherwise rendering services
to any Entity which is directly or indirectly involved in Competing Activities, if, prior to
commencing such relationship, Executive has delivered to such Entity a copy of Section 11 of this
Agreement and then, for only for so long as Executive (A) complies with his other obligations under
this Agreement; (B) does not directly or indirectly take or otherwise participate in or assist such
Entity with respect to any acts or actions described in Section 11(e); and (C) upon request of the
Company, provides the Company with a written representation of his compliance with his obligations
and restrictions set forth in this Agreement and such other information as is reasonably requested
by the Company to demonstrate such compliance by Executive. In addition, Section 11 shall not
prohibit Executive from being a passive owner of not more than an aggregate of two percent (2%) of
the outstanding shares of any class of securities of an Entity which is publicly traded, so long as
Executive does not have any active participation in the business of such Entity.
(g) Non-Exclusive Remedy for Restrictive Covenants. Executive acknowledges and agrees
that the covenants set forth in this Section 11 (collectively, the “Restrictive Covenants”) are
reasonable and necessary for the protection of the Company’s business interests, that irreparable
injury will result to the Company if Executive breaches any of the terms of the Restrictive
Covenants, and that in the event of Executive’s actual or threatened breach of any such Restrictive
Covenants, the Company will have no adequate remedy at law. Executive accordingly agrees that in
the event of any actual or threatened breach by him of any of the Restrictive Covenants, the
Company shall be entitled to immediate temporary injunctive and other equitable relief, without the
necessity of showing actual monetary damages or the posting of bond. Nothing contained herein
shall be construed as prohibiting the Company from pursuing any other remedies available to it for
such breach or threatened breach, including the recovery of damages. The duration of a Restrictive
Covenant shall be extended by such time during which such breach or threatened breach continues
without cure by Executive.
12. Indemnification.
(a) The Company agrees that if Executive is made a party to or involved in, or is threatened
to be made a party to or otherwise to be involved in, any action, suit or proceeding, whether
civil, criminal, administrative or investigative (a “Proceeding”), by reason of the fact that he is
or was a director, officer or employee of the Company or is or was serving at the request of the
Company as a director, officer, member, employee or agent of another corporation, limited liability
corporation, partnership, joint venture, trust or other enterprise, including service with respect
to employee benefit plans, whether or not the basis of such Proceeding is Executive’s alleged
action in an official capacity while serving as a director, officer, member, employee or agent,
Executive shall be indemnified and held harmless by the Company against any and all liabilities,
losses, expenses, judgments, penalties, fines and amounts reasonably paid in settlement in
connection therewith, and shall be advanced reasonable expenses (including attorneys’ fees) as and
when incurred in connection therewith, to the fullest extent legally permitted or authorized by the
Company’s By-laws or, if greater, by the laws of the State of Delaware, as may be in effect from
time to time. The rights conferred on Executive by this Section 12(a) shall not be exclusive of
any other rights which Executive may have or hereafter acquire under any statute, the By-laws,
agreement, vote of
stockholders or disinterested directors, or otherwise. The indemnification and advancement of
-15-
expenses provided for by this Section 12 shall continue as to Executive after he ceases to be a
director, officer or employee and shall inure to the benefit of his heirs, executors and
administrators.
(b) During the Term and thereafter for the duration of any statute of limitations or other
period during which a claim might be successfully brought against Executive, Executive shall be
covered to the same extent as directors by any directors’ and officers’ liability insurance policy
maintained by the Company from time to time.
13. Successors.
(a) This Agreement is personal to Executive and, without the prior written consent of the
Company, shall not be assignable by Executive otherwise than by will or the laws of descent and
distribution. This Agreement shall inure to the benefit of and be enforceable by Executive’s legal
representatives.
(b) This Agreement shall inure to the benefit of and be binding upon the Company and its
successors. It shall not be assignable by the Company or its successors except in connection with
the sale or other disposition of all or substantially all the assets or business of the Company.
The Company shall require any successor to all or substantially all of the business or assets of
the Company, whether direct or indirect, by purchase, merger, consolidation, acquisition of stock,
or otherwise, by an agreement in form and substance reasonably satisfactory to Executive, expressly
to assume and agree to perform this Agreement in the same manner and to the same extent as the
Company would be required to perform if no such succession had taken place.
14. Amendment; Waiver. This Agreement contains the entire agreement between the
parties with respect to the subject matter hereof and may be amended, modified or changed only by a
written instrument executed by Executive and the Company. No provision of this Agreement may be
waived except by a writing executed and delivered by the party sought to be charged. Any such
written waiver will be effective only with respect to the event or circumstance described therein
and not with respect to any other event or circumstance, unless such waiver expressly provides to
the contrary.
15. Miscellaneous.
(a) The provisions of Section 5 (Obligations of the Company upon Termination), Section 8 (No
Set-Off; No Mitigation), Section 9 (Arbitration of Disputes), Section 11 (Executive’s Covenants),
Section 12 (Indemnification), Section 13 (Successors), Section 14 (Amendment; Waiver) and this
Section 15(a) shall survive the termination Executive’s employment with the Company for any reason,
or the expiration of the Term of the Agreement pursuant to Section 1, and shall thereafter remain
in full force and effect.
(b) In the event of any inconsistency between this Agreement and any other agreement, plan,
program, policy or practice (collectively, “Other Provision”) of the Company, the terms of this
Agreement shall control unless such Other Provision provides otherwise by a specific reference to
this Section 15(b).
- 16 -
(c) This Agreement shall be governed by and construed in accordance with the laws of the State
of Illinois (except Section 12 which shall be governed by the laws of the State of Delaware),
without reference to principles of conflict of laws. The captions of this Agreement are not part
of the provisions hereof and shall have no force or effect.
(d) All notices, demands or other communications to be given or delivered under or by reason
of the provisions of this Agreement shall be in writing and shall be deemed to have been duly given
(i) the following business day after deposit from within the United States with a reputable express
courier service (charges prepaid), (ii) three (3) days after mailing by certified or registered
mail, return receipt requested and postage prepaid, or (iii) upon receipt in all other cases. Such
notices, demands and other communications shall be sent to the addresses indicated below:
If to the Company:
Calamos Financial Services LLC
Calamos Asset Management, Inc.
0000 Xxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attn: General Counsel
Calamos Asset Management, Inc.
0000 Xxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attn: General Counsel
If to Executive:
Address per the Company records
or to 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.
(e) Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction
will, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability
without invalidating the remaining provisions hereof, and any such prohibition or unenforceability
in any jurisdiction will not invalidate or render unenforceable such provision in any other
jurisdiction.
(f) All compensation payable to Executive from the Company shall be subject to all applicable
withholding taxes, normal payroll withholding and any other amounts required by law to be withheld.
(g) This Agreement may be executed in multiple counterparts, each of which shall be deemed an
original, but all of which taken together shall constitute one and the same Agreement.
(h) The descriptive headings in this Agreement are inserted for convenience of reference only
and are not intended to be part of or to affect the meaning or interpretation of this Agreement.
The use of the word “including” in this Agreement shall be by way of example rather than by
limitation.
(i) The language used in this Agreement will be deemed to be the language chosen by the
parties hereto to express their mutual intent, and no rule of strict construction will be
- 17 -
applied against any party hereto. Neither Executive nor the Company shall be entitled to any
presumption in connection with any determination made hereunder in connection with any arbitration,
judicial or administrative proceeding relating to or arising under this Agreement.
[Signature Page Follows]
- 18 -
IN WITNESS WHEREOF, each of the parties hereto has duly executed this Executive Employment
Agreement as of the date and year first set forth above.
| CALAMOS FINANCIAL SERVICES LLC | ||||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||||
| Its: | ||||||
| CALAMOS ASSET MANAGEMENT, INC. | ||||||
| By: | /s/ Xxxx X. Xxxxxxx, Xx. | |||||
| Its: | ||||||
| EXECUTIVE | ||||||
| XXXXXX X. (XXXXXX) XXXXXXXX, II | ||||||
| /s/ Xxxxxx X. Xxxxxxxx, XX |
||||||
| |
||||||
- 19 -
Exhibit A
GENERAL RELEASE OF ALL CLAIMS
1. For valuable consideration, the adequacy of which is hereby acknowledged, the
undersigned (“Executive”), for himself, his spouse, heirs, administrators, children,
representatives, executors, successors, assigns, and all other persons claiming through
Executive, if any (collectively, “Releasers”), does hereby release, waive, and forever
discharge Calamos Asset Management, Inc., Calamos Holdings LLC and Calamos Financial
Services LLC (collectively, “Company”), Company’s Subsidiaries, parents, affiliates, related
organizations, employees, officers, directors, attorneys, successors, and assigns
(collectively, the “Releasees”) from, and does fully waive any obligations of Releasees to
Releasers for, any and all liability, actions, charges, causes of action, demands, damages,
or claims for relief, remuneration, sums of money, accounts or expenses (including
attorneys’ fees and costs) of any kind whatsoever, whether known or unknown or contingent or
absolute, which heretofore has been or which hereafter may be suffered or sustained,
directly or indirectly, by Releasers in consequence of, arising out of, or in any way
relating to Executive’s employment with Company or any of its affiliates and the termination
of Executive’s employment. The foregoing release and discharge, waiver and covenant not to
xxx includes, but is not limited to, all claims and any obligations or causes of action
arising from such claims, under common law including wrongful or retaliatory discharge,
breach of contract (including but not limited to any claims under the Executive Employment
Agreement between the Company and Executive, dated , as amended from time to
time (the “Employment Agreement”) and any claims
under any stock option and restricted shares agreements between Executive and the Company) and any action arising in tort
including libel, slander, defamation or intentional infliction of emotional distress, and
claims under any federal, state or local statute including Title VII of the Civil Rights Act
of 1964, the Civil Rights Act of 1866 and 1871 (42 U.S.C. § 1981), the National Labor
Relations Act, the Age Discrimination in Employment Act (ADEA), the Fair Labor Standards
Act, the Americans with Disabilities Act of 1990, the Rehabilitation Act of 1973, the
Illinois Human Rights Act, or the discrimination or employment laws of any state or
municipality, and/or any claims under any express or implied contract which Releasers may
claim existed with Releasees. This also includes a release by Executive of any claims for
breach of contract, wrongful discharge and all claims for alleged physical or personal
injury, emotional distress relating to or arising out of Executive’s employment with Company
or the termination of that employment; and any claims under the WARN Act or any similar law,
which requires, among other things, that advance notice be given of certain work force
reductions. This release and waiver does not apply to any claims or rights that may arise
after the date Executive signs this General Release. The foregoing release does not apply
to (a) any claims or rights for severance pay, benefits, indemnification and any other
surviving rights now existing under the Employment Agreement, the organization documents of
the Company or any other agreement providing for indemnification regardless of when any
claim is filed, (b) any claims or rights under directors and officers liability insurance.
2. Excluded from this release and waiver are any claims which cannot be waived by law,
including but not limited to the right to participate in an investigation conducted by
A-1
certain government agencies. Executive does, however, waive Executive’s right to any
monetary recovery should any agency (such as the Equal Employment Opportunity Commission)
pursue any claims on Executive’s behalf. Executive represents and warrants that Executive
has not filed any complaint, charge, or lawsuit against the Releasees with any government
agency or any court.
3. Executive agrees never to xxx Releasees in any forum for any claim covered by the
above waiver and release language, except that Executive may bring a claim under the ADEA to
challenge this General Release. If Executive violates this General Release by suing
Releasees, other than under the ADEA or as otherwise set forth in Section 1 hereof,
Executive shall be liable to the Company for its reasonable attorneys’ fees and other
litigation costs incurred in defending against such a suit. Nothing in this General Release
is intended to reflect any party’s belief that Executive’s waiver of claims under ADEA is
invalid or unenforceable, it being the interest of the parties that such claims are waived.
4. Executive acknowledges and recites that:
(a) Executive has executed this General Release knowingly and voluntarily;
(b) Executive has read and understands this General Release in its entirety;
(c) Executive has been advised and directed orally and in writing (and this
subparagraph (c) constitutes such written direction) to seek legal counsel and any
other advice he wishes with respect to the terms of this General Release before
executing it;
(d) Executive’s execution of this General Release has not been forced by any
employee or agent of the Company, and Executive has had an opportunity to negotiate
about the terms of this General Release; and
(e) Executive has been offered twenty-one (21) calendar days after receipt of
this General Release to consider its terms before executing it.
5. This General Release shall be governed by the internal laws (and not the choice of
laws) of the State of Illinois, except for the application of pre-emptive Federal law.
6. Executive shall have seven (7) days from the date hereof to revoke this General
Release by providing written notice of the revocation to the Company, as provided in Section
15(d) of the Employment Agreement, in which event this General Release shall be
unenforceable and null and void.
A-2
PLEASE READ THIS AGREEMENT CAREFULLY. IT CONTAINS A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS.
Date: Executive:
A-3
