EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made and entered into this 8th day of July,
2004, but is effective as of the 1st day of May, 2004, by and between CHICO'S
FAS, INC. a Florida corporation (the "Employer"), and XXXXX X. XXXXX (the
"Employee").
W I T N E S S E T H:
1. EMPLOYMENT. The Employer hereby employs the Employee, and the Employee
hereby accepts such employment, upon the terms and subject to the conditions set
forth in this Agreement.
2. TERM.
(a) Subject to the provisions of termination as hereinafter provided,
the term of employment under this Agreement shall begin May 1, 2004 and shall
continue through April 30, 2005; provided, however, that beginning on April 30,
2005 and on each April 30th (each a "Renewal Date") thereafter and provided that
the Employee has not delivered to the Employer a Change Notice (as hereinafter
defined), the term of this Agreement shall automatically be extended for one
additional year unless either party gives the other written notice of
termination at least ninety (90) days prior to any such Renewal Date.
Notwithstanding the foregoing, if the Employee gives such a written notice of
termination to the Employer at least ninety (90) days prior to a Renewal Date
but less than one hundred eighty (180) days prior to such Renewal Date, the term
of this Agreement shall be extended to a date which is one hundred eighty (180)
days after the date on which the Employee gives such written notice of
termination to the Employer. For example, if the Employee were to give such
written notice of termination on December 1, 2004, the term of the Agreement
would not terminate on April 30, 2005 but instead would be extended to, and
would terminate on, June 1, 2005 (i.e, one hundred eighty (180) days following
December 1, 2004).
(b) If at any time on or after October 31, 2004 the Employee delivers
to the Employer a Change Notice, then from and after the date which is six (6)
months after the date of the Change Notice (the "Effective Changeover Date") the
relationship of the Employee with the Employer shall be changed to a terminable
at will consulting arrangement on the terms described elsewhere in this
Agreement.
(c) The period of time from the effective date of this Agreement until
the Effective Changeover Date, subject to any earlier termination of this
Agreement pursuant to the provisions of termination as hereinafter provided,
shall be referred to herein as the "Employment Term." The period of time from
the Effective Changeover Date until the subsequent termination of this Agreement
shall be referred to herein as the "Consulting Term."
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(d) For these purposes, a "Change Notice" shall mean a written notice
given by the Employee to the Employer pursuant to which the Employee elects,
effective as of the date which is six months following the date of delivery of
the Change Notice, to change his status under this Agreement from being a full
time management employee of the Employer to being a terminable at will
consultant.
3. COMPENSATION; REIMBURSEMENT, ETC.
(a) SALARY.
(i) The Employer shall pay to the Employee as compensation for
all services rendered by the Employee during the Employment Term of this
Agreement a basic annualized salary of $400,000 per year (the "Basic Salary"),
or such other sum as the parties may agree on from time to time, payable monthly
or in other more frequent installments, as determined by the Employer. The Board
of Directors of the Employer shall have the right, by action of such Board of
Directors, to increase the Employee's Basic Salary from time to time during the
Employment Term.
(ii) The Employer shall pay to the Employee as compensation for
the services rendered by the Employee during the Consulting Term of this
Agreement compensation computed based on the actual number of full days worked
during each pay period. The compensation shall be based upon an annualized
compensation amount of $450,000 (i.e, a daily compensation amount of $1,731). A
full work day shall be at least seven hours of work for the day. From time to
time, the parties may agree to change the annualized compensation amount and
thus the daily compensation amount. The compensation payable to the Employee
during the Consulting Term shall be payable monthly or in other more frequent
installments, as determined by the Employer.
(iii) The compensation provided for in this Section 3(a) shall be
in addition to any pension or profit sharing payments set aside or allocated for
the benefit of the Employee.
(b) BONUSES.
(i) In addition to the Basic Salary paid pursuant to Section
3(a), the Employer shall pay to the Employee as incentive compensation during
the Employment Term a fiscal year annual bonus based upon the Executive's
performance and computed and paid in accordance with the incentive bonus plan
adopted each year by the Board of Directors of the Employer; provided that
during the first twelve (12) months of the Employment Term and provided that the
Employee remains employed during the entire twelve (12) month period, the
aggregate 2004 fiscal year annual bonus paid to the Employee (which shall be the
sum of the bonus payable with respect to the first 6 months of fiscal year 2004
and the bonus payable with respect the last 6 months of fiscal year 2004) shall
be no less than $400,000.
(ii) The Employee shall not be entitled to any bonus during the
Consulting Term.
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(iii) In consideration for the Employee's particularly successful
and innovative efforts over the past five years in developing and marketing the
brands and merchandise of the Employer, his agreement to execute this Agreement
and his agreement to continue in the employment of the Employer in accordance
with the terms of this Agreement, the Employee shall receive, in a lump sum,
promptly following the execution of this Agreement, a one-time special bonus
equal to $500,000.
(c) REIMBURSEMENTS. The Employer shall reimburse the Employee for all
reasonable expenses incurred by the Employee in the performance of his duties
under this Agreement; provided, however, that the Employee must furnish to the
Employer an itemized account, satisfactory to the Employer, in substantiation of
such expenditures.
(d) OTHER FRINGE BENEFITS. During the Employment Term, the Employee
shall be entitled to such fringe benefits including, but not limited to, medical
and insurance benefits as may be provided from time to time by the Employer to
other management employees of the Employer.
(e) AUTOMOBILE. During the Employment Term, the Employee shall provide
his own automobile for use as an employee hereunder. The Employer shall provide
the Employee with an automobile allowance of $1,000 per month ($12,000 per
year).
4. DUTIES. During the Employment Term, the Employee is engaged as the
Executive Vice President - Chief Marketing Officer; and, in addition, the
Employee shall have such other duties and hold such other offices as may from
time to time be reasonably assigned to him by the Board of Directors of the
Employer. During the Consulting Term, the Employee shall only have such duties
and shall only perform such services as the parties shall agree upon from time
to time.
5. EXTENT OF SERVICES; VACATIONS AND DAYS OFF.
(a) During the Employment Term, the Employee shall devote such time,
energy and attention during regular business hours to the benefit and business
of the Employer as may be reasonably necessary in performing his duties pursuant
to this Agreement. During the Consulting Term, the Employee shall only be
required to perform services for the Employer on days as may be agreed upon from
time to time by the parties.
(b) During the Employment Term, the Employee shall be entitled to
vacations with pay and to such personal and sick leave with pay in accordance
with the policy of the Employer as may be established from time to time by the
Employer. During the Consulting Period, the Employee will not receive pay for
any full days not worked, whether such days are not worked as a result of
vacation, sick leave or personal days off.
6. FACILITIES. During the Employment Term, the Employer shall provide the
Employee with a fully furnished office, and the facilities of the Employer shall
be generally available to the Employee in the performance of his duties pursuant
to this Agreement, it being understood and
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contemplated by the parties that all equipment, supplies and office personnel
required in the performance of the Employee's duties under this Agreement shall
be supplied by the Employer.
7. ILLNESS OR INCAPACITY, TERMINATION ON DEATH, ETC.
(a) If the Employee dies during the Employment Term, the Employer
shall pay to the estate of the Employee such compensation, including any bonus
compensation earned but not yet paid, as would otherwise have been payable to
the Employee up to the end of the month in which his death occurs plus six (6)
month's additional compensation. If the Employee dies during the Consulting
Term, the Employer shall pay to the estate of the Employee such compensation
earned but not yet paid, as would otherwise have been payable to the Employee up
to the end of the month in which his death occurs. The Employer shall have no
additional financial obligation under this Agreement to the Employee or his
estate. After receiving the payments provided in this subparagraph (a), the
Employee and his estate shall have no further rights under this Agreement.
(b) (i) During any period of disability, illness or incapacity during
the Employment Term which renders the Employee at least temporarily unable to
perform the services required under this Agreement for a period which shall not
equal or exceed one hundred and eighty (180) continuous days, or one hundred and
eighty (180) continuous days in any one (1) year period, the Employee shall
receive the compensation payable under Section 3(a)(i) of this Agreement plus
any bonus compensation earned but not yet paid, less any benefits received by
him under any disability insurance carried by or provided by the Employer. All
rights of the Employee under this Agreement (other than rights already accrued)
shall terminate as provided below upon the Employee's permanent disability (as
defined below), although the Employee shall continue to receive any disability
benefits to which he may be entitled under any disability income insurance which
may be carried by or provided by the Employer from time to time.
(ii) The term "permanent disability" as used in this Agreement
shall mean the inability of the Employee, as determined by the Board of
Directors of the Employer, by reason of physical or mental disability to perform
the duties required of him under this Agreement for a period of one hundred and
eighty (180) days in any one-year period. Successive periods of disability,
illness or incapacity will be considered separate periods unless the later
period of disability, illness or incapacity is due to the same or related cause
and commences less than six months from the ending of the previous period of
disability. Upon such determination, the Board of Directors may terminate the
Employee's employment under this Agreement upon ten (10) days' prior written
notice. If any determination of the Board of Directors with respect to permanent
disability is disputed by the Employee, the parties hereto agree to abide by the
decision of a panel of three physicians. The Employee and Employer shall each
appoint one member, and the third member of the panel shall be appointed by the
other two members. The Employee agrees to make himself available for and submit
to examinations by such physicians as may be directed by the Employer. Failure
to submit to any such examination shall constitute a breach of a material part
of this Agreement.
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8. OTHER TERMINATIONS.
(a) (i) The Employee may terminate his employment hereunder during the
Employment Term effective on any date from and after April 30, 2005 upon giving
at least one hundred eighty (180) days' prior written notice and, if on the date
of the giving of such notice of termination, there is less than one hundred
eighty (180) days prior to the next Renewal Date, the term of this Agreement
shall be extended to and shall then terminate on the date which is one hundred
eighty (180) days after the date on which the Employee gives such written notice
of termination to the Employer.
(ii) If the Employee gives notice pursuant to Section 8(a) above,
the Employer shall have the right to relieve the Employee, in whole or in part,
of his duties under this Agreement (without reduction in compensation through
the termination date).
(b) (i) Except as otherwise provided in this Agreement, the Employer
may terminate the employment of the Employee hereunder during the Employment
Term only for good cause and upon written notice; provided, however, that no
breach or default by the Employee shall be deemed to occur hereunder unless the
Employee shall have failed to cure the breach or default within thirty (30) days
after he received written notice thereof indicating that it is a notice of
termination pursuant to this Section of this Agreement.
(ii) As used herein, "good cause" shall include:
(1) the Employee's conviction of either a felony involving
moral turpitude or any crime in connection with his employment by the
Employer which causes the Employer a substantial detriment, but
specifically shall not include traffic offenses;
(2) actions by the Employee which clearly are contrary to
the best interests of the Employer;
(3) the Employee's willful failure to take actions permitted
by law and necessary to implement policies of the Employer's Board of
Directors which the Board of Directors has communicated to him in writing;
(4) the Employee's continued failure to attend to his duties
as an management employee of the Employer; or
(5) any condition which either resulted from the Employee's
substantial dependence, as determined by the Board of Directors of the
Employer, on alcohol, or any narcotic drug or other controlled or illegal
substance. If any determination of substantial dependence is disputed by
the Employee, the parties hereto agree to abide by the decision of a panel
of three physicians appointed in the manner and subject to the same
penalties for noncompliance as specified in Section 7(b)(ii) of this
Agreement.
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decision of a panel of three physicians appointed in the manner and subject
to the same penalties for noncompliance as specified in Section 7(b)(ii) of
this Agreement.
(iii) Termination of the employment of the Employee during the
Employment Term for reasons other than those expressly specified in this
Agreement as good cause shall be deemed to be a termination of employment
"without good cause."
(c) If the Employer shall terminate the Employment Term without good
cause effective on a date earlier than the termination date provided for in
Section 2 (with the effective date of termination as so identified by the
Employer being referred to herein as the "Accelerated Employment Term
Termination Date"), the Employee until the date which is twelve (12) months
after the Accelerated Employment Term Termination Date, shall continue to
receive the Basic Salary and other compensation and employee benefits (including
without limitation the bonus that would otherwise have been payable during such
compensation continuation period under the bonus plan in effect immediately
before the Accelerated Employment Term Termination Date) that the Employer has
heretofore in Section 3 agreed to pay and to provide for the Employee, in each
case in the amount and kind and at the time provided for in Section 3; provided
that, notwithstanding such termination of employment, the Employee's covenants
set forth in Section 10 and Section 11 are intended to and shall remain in full
force and effect.
(iii) The parties agree that, because there can be no exact
measure of the damage that would occur to the Employee as a result of a
termination by the Employer of the Employee's employment during the Employment
Term without good cause, the payments and benefits paid and provided pursuant to
this Section 8(c) shall be deemed to constitute liquidated damages and not a
penalty for the Employer's termination of the Employee's employment without good
cause, and the Employer agrees that the Employee shall not be required to
mitigate his damages.
(d) Rights Upon Change in Control.
(i) If a Change in Control of the Employer, as defined in Section
8(d)(iii) shall occur during the Employment Term and the Employee shall:
(1) voluntarily terminate his employment within one year
following such Change in Control and such termination shall be as a result
of the Employee's good faith determination that as a result of the Change
in Control and a change in circumstances thereafter significantly affecting
his position, he can no longer adequately exercise the authorities, powers,
functions or duties attached to his position as an executive officer of the
Employer; or
(2) voluntarily terminate his employment within one year
following such Change in Control, and such termination shall be as a result
of the Employee's good faith determination that he can no longer perform
his duties as an executive officer of the Employer by reason of a
substantial diminution in his responsibilities, status or position; or
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(3) have his employment terminated by the Employer for
reasons other than those specified in Section 8(b)(ii) within one (1) year
following such Change in Control;
then in any of the above three cases, the Employee shall have, instead of the
further rights described in Section 3(a), the right to immediately terminate
this Agreement and a nonforfeitable right to receive, payable in a lump sum, the
sum of the monthly amounts of his Basic Salary for a period equal to 12 months
plus an amount equal to his most recently set annual target bonus.
(ii) If a Change in Control of the Employer, as defined in
Section 8(d)(iii) shall occur during the Consulting Term, the Employee shall not
be entitled to any special termination rights or any right to receive any
special continuation of compensation.
(iii) For purposes of this Agreement, a "Change in Control" shall
mean:
(1) the obtaining by any party of fifty percent (50%) or
more of the voting shares of the Employer pursuant to a "tender offer" for
such shares as provided under Rule 14d-2 promulgated under the Securities
Exchange Act of 1934, as amended, or any subsequent comparable federal rule
or regulation governing tender offers; or
(2) individuals who were members of the Employer's Board of
Directors immediately prior to any particular meeting of the Employer's
shareholders which involves a contest for the election of directors fail to
constitute a majority of the members of the Employer's Board of Directors
following such election; or
(3) the Employer's executing an agreement concerning the
sale of substantially all of its assets to a purchaser which is not a
subsidiary; or
(4) the Employer's adoption of a plan of dissolution or
liquidation; or
(5) the Employer's executing an agreement concerning a
merger or consolidation involving the Employer in which the Employer is not
the surviving corporation or if, immediately following such merger or
consolidation, less than fifty percent (50%) of the surviving corporation's
outstanding voting stock is held by persons who are stockholders of the
Employer immediately prior to such merger or consolidation.
(iv) The provisions of Section 8(c) and this Section 8(d) are
mutually exclusive, provided, however, that if within one year following
commencement of an 8(c) payout there shall be a Change in Control as defined in
Section 8(d)(iii), then the Employee shall be entitled to the amount payable to
the Employee under Section 8(d)(i) reduced by the amount that the Employee has
received under Section 8(c) up to the date of the Change in Control. The
triggering of the payment requirement of this Section 8(d) shall cause the
provisions of Section 8(c) to become inoperative. The triggering of
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the continuation of payment provisions of Section 8(c) shall cause the
provisions of Section 8(d) to become inoperative except to the extent provided
in this Section 8(d)(iii).
(e) Compensation Payable Upon Termination by Employer for Good Cause
or Voluntarily by Employee Absent Change in Control. If the employment of the
Employee is terminated for good cause under Section 8(b)(ii) of this Agreement,
or if the Employee voluntarily terminates his employment by written notice to
the Employer under Section 8(a) of this Agreement without reliance on Section
8(d), the Employer shall pay to the Employee any compensation earned but not
paid to the Employee prior to the effective date of such termination. In
addition, if the Employee voluntarily terminates his employment by written
notice to the Employer under Section 8(a) of this Agreement without reliance on
Section 8(d), the Employer will provide the Employee and his then eligible
dependents with continued participation in the Employer's medical plans on the
same terms as then offered to other then active employees for a period of up to
twelve (12) months, following which, the Employee will be eligible to elect
continued coverage under the Consolidated Omnibus Budget Reconciliation Act of
1985 ("COBRA"), as amended, by paying the full cost. Under each of such
circumstances, such payment and rights to continuation of benefits shall be in
full and complete discharge of any and all liabilities or obligations of the
Employer to the Employee hereunder, and the Employee shall be entitled to no
further benefits under this Agreement.
(f) Release. Payment of any compensation to the Employee under this
Section 8 following termination of employment shall be conditioned upon the
prior receipt by the Employer of a release executed by the Employee in
substantially the form attached to this Agreement as Exhibit A.
9. DISCLOSURE. The Employee agrees that during the Employment Term and
during the Consulting Term, he will disclose and disclose only to the Employer
all ideas, methods, plans, developments or improvements known by him which
relate directly or indirectly to the business of the Employer, whether acquired
by the Employee before or during his employment by the Employer. Nothing in this
Section 9 shall be construed as requiring any such communication where the idea,
plan, method or development is lawfully protected from disclosure as a trade
secret of a third party or by any other lawful prohibition against such
communication.
10. CONFIDENTIALITY. The Employee agrees to keep in strict secrecy and
confidence any and all information the Employee assimilates or to which he has
access during his employment by the Employer and which has not been publicly
disclosed and is not a matter of common knowledge in the fields of work of the
Employer. The Employee agrees that both during and after the Employment Term and
both during and after the Consulting Term, he will not, without the prior
written consent of the Employer, disclose any such confidential information to
any third person, partnership, joint venture, company, corporation or other
organization.
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11. NONSOLICITATION. The Employee hereby acknowledges that, during and
solely as a result of his employment by the Employer, he has received and shall
continue to receive access to confidential information and business and
professional contacts. In consideration of the special and unique opportunities
afforded to the Employee by the Employer as a result of the Employee's
employment, the Employee hereby agrees as follows:
(a) During his employment with the Employer and, except as may be
otherwise herein provided, for a period of two (2) years following the
termination of his employment with the Employer, regardless of the reason for
such termination, the Employee agrees he will refrain from and will not,
directly or indirectly, as an individual, partner, officer, director,
stockholder, employee, advisor, independent contractor, joint venturer,
consultant, agent, representative, salesman or otherwise solicit any of the
employees of the Employer to terminate their employment.
(b) The period of time during which the Employee is prohibited from
engaging in certain business practices pursuant to Section 11(a) shall be
extended by any length of time during which the Employee is in breach of such
covenants.
(c) It is understood by and between the parties hereto that the
foregoing restrictive covenant as set forth in Sections 11(a) and (b) is an
essential element of this Agreement, and that, but for the agreement of the
Employee to comply with such covenant, the Employer would not have agreed to
enter into this Agreement. Such covenant by the Employee shall be construed as
an agreement independent of any other provision in this Agreement. The existence
of any claim or cause of action of the Employee against the Employer, whether
predicated on this Agreement, or otherwise, shall not constitute a defense to
the enforcement by the Employer of such covenant.
(d) It is agreed by the Employer and Employee that if any portion of
the covenant set forth in this Section 11 is held to be invalid, unreasonable,
arbitrary or against public policy, then such portion of such covenant shall be
considered divisible both as to time and geographical area. The Employer and
Employee agree that, if any court of competent jurisdiction determines the
specified time period or the specified geographical area applicable to this
Section 11 to be invalid, unreasonable, arbitrary or against public policy, a
lesser time period or geographical area which is determined to be reasonable,
non-arbitrary and not against public policy may be enforced against the
Employee. The Employer and the Employee agree that the foregoing covenant is
appropriate and reasonable when considered in light of the nature and extent of
the business conducted by the Employer.
12. SPECIFIC PERFORMANCE. The Employee agrees that damages at law will be
an insufficient remedy to the Employer if the Employee violates the terms of
Sections 9, 10 or 11 of this Agreement and that the Employer would suffer
irreparable damage as a result of such violation. Accordingly, it is agreed that
the Employer shall be entitled, upon application to a court of competent
jurisdiction, to obtain injunctive relief to enforce the provisions of such
Sections, which injunctive relief shall be in addition to any other rights or
remedies available to the Employer. The Employee
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agrees to pay to the Employer all costs and expenses incurred by the Employer
relating to the enforcement of the terms of Sections 9, 10 or 11 of this
Agreement, including reasonable fees and disbursements of counsel (both at trial
and in appellate proceedings).
13. COMPLIANCE WITH OTHER AGREEMENTS. The Employee represents and warrants
that the execution of this Agreement by him and his performance of his
obligations hereunder will not conflict with, result in the breach of any
provision of or the termination of or constitute a default under any Agreement
to which the Employee is a party or by which the Employee is or may be bound.
14. WAIVER OF BREACH. The waiver by the Employer of a breach of any of the
provisions of this Agreement by the Employee shall not be construed as a waiver
of any subsequent breach by the Employee.
15. BINDING EFFECT; ASSIGNMENT. The rights and obligations of the Employer
under this Agreement shall inure to the benefit of and shall be binding upon the
successors and assigns of the Employer. It is expressly acknowledged that the
provisions of Section 11 relating to nonsolicitation and nonacceptance may be
enforced by the Employer's successors and assigns. This Agreement is a personal
employment contract and the rights, obligations and interests of the Employee
hereunder may not be sold, assigned, transferred, pledged or hypothecated.
16. ENTIRE AGREEMENT. This Agreement contains the entire agreement and
supersedes all prior agreements and understandings, oral or written, with
respect to the subject matter hereof. This Agreement may be changed only by an
agreement in writing signed by the party against whom any waiver, change,
amendment, modification or discharge is sought.
17. HEADINGS. The headings contained in this Agreement are for reference
purposes only and shall not affect the meaning or interpretation of this
Agreement.
18. GOVERNING LAW. This Agreement shall be construed and enforced in
accordance with the laws of the State of Florida.
19. NOTICE. All notices which are required or may be given under this
Agreement shall be in writing and shall be deemed to have been duly given when
received if personally delivered; when transmitted if transmitted by telecopy or
similar electronic transmission method; one working day after it is sent, if
sent by recognized expedited delivery service; and five days after it is sent,
if mailed, first class mail, certified mail, return receipt requested, with
postage prepaid. In each case notice shall be sent to:
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If to the Employee: Xxxxx X. Xxxxx
000 Xxxxxxx Xxxxx
Xxxx Xxxxx, XX 00000
If to the Employer: Chico's FAS, Inc.
00000 Xxxxx Xxxxxxx
Xx. Xxxxx, Xxxxxxx 00000
with a copy to: Xxxx X. Xxxxxx, Esquire
Trenam, Kemker, Scharf, Barkin,
Frye, X'Xxxxx & Xxxxxx, P.A.
Xxxx Xxxxxx Xxx 0000
Xxxxx, Xxxxxxx 00000
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day
and year first above written.
CHICO'S FAS, INC.
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
EMPLOYEE:
/s/ Xxxxx X. Xxxxx
----------------------------------------
XXXXX X. XXXXX
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EXHIBIT A
TO
EMPLOYMENT AGREEMENT WITH XXXXX X. XXXXX
DATED AS OF _________, 2004, AS AMENDED
RELEASE
WHEREAS, _______________________________ (the "Executive") is an employee
of Chico's FAS, Inc., (the "Company") and is a party to the Employment Agreement
dated __________________ (the "Agreement");
WHEREAS, the Executive's employment has been terminated in accordance with
Section 8___ of the Agreement; and
WHEREAS, the Executive is required to sign this Release in order to receive
the payment of any compensation under Section 8 of the Agreement following
termination of employment.
NOW, THEREFORE, in consideration of the promises and agreements contained
herein and other good and valuable consideration, the sufficiency and receipt of
which are hereby acknowledged, and intending to be legally bound, the Executive
agrees as follows:
1. This Release is effective on the date hereof and will continue in
effect as provided herein.
2. In consideration of the payments to be made and the benefits to be
received by the Executive pursuant to the Agreement (collectively, the "Release
Consideration"), which the Executive acknowledges are in addition to payments
and benefits to which the Executive would be entitled but for the Agreement, the
Executive, for the Executive and the Executive's dependents, successors,
assigns, heirs, executors and administrators (and the Executive and their legal
representatives of every kind), hereby releases, dismisses, remises and forever
discharges the Company, its predecessors, parents, subsidiaries, divisions,
related or affiliated companies, officers, directors, stockholders, members,
employees, heirs, successors, assigns, representatives, agents and counsel
(collectively the "Released Party") from any and all arbitrations, claims,
including claims for attorney's fees, demands, damages, suits, proceedings,
actions and/or causes of action of any kind and every description, whether known
or unknown, which the Executive now has or may have had for, upon, or by reason
of any cause whatsoever ("claims"), against the Released Party, including but
not limited to:
(a) any and all claims arising out of or relating to Executive's
employment by or service with the Company and the Executive's
termination from the Company.
(b) any and all claims of discrimination, including but not limited to
claims of discrimination on the basis of sex, race, age, national
origin, marital status, religion or handicap, including, specifically,
but without limiting the generality of the foregoing, any claims under
the Age Discrimination in Employment Act, as amended, Title VII of the
Civil Rights Act of 1964, as amended, the Americans with Disabilities
Act; and
(c) any and all claims of wrongful or unjust discharge or breach of any
contract or promise, express or implied.
Notwithstanding the foregoing, nothing herein shall be considered as releasing
the Company from its obligations to pay and/or provide the Release Consideration
or as an agreement by the Executive not to file a lawsuit to enforce the payment
and/or providing of the Release Consideration.
3. The Executive understands and acknowledges that the Company does not
admit any violation of law, liability or invasion of any of the Executive rights
and that any such violation, liability or invasion is expressly denied. The
consideration provided for this Release is made for the purpose of settling and
extinguishing all claims and rights (and every other similar or dissimilar
matter) that the Executive ever had or now may have against the Company to the
extent provided in this Release. The Executive further agrees and acknowledges
that no representations, promises or inducements have been made that the Company
other than as appear in the Agreement.
4. The Executive further agrees and acknowledges that:
(a) The Release provided for herein releases claims to and including the
date of this Release;
(b) The Executive has been advised by the Company to consult with legal
counsel prior to executing this Release, has had an opportunity to
consult with and to be advised by legal counsel of the Executive's
choice, fully understands the terms of this Release, and enters into
this Release freely, voluntarily and intending to be found.
(c) The Executive has been given a period of 21 days to review and
consider the terms of this Release, prior to its execution and that
the Executive may use as much of the 21 day period as the Executive
desires; and
(d) The Executive may, within 7 days after execution, revoke this Release.
Revocation shall be made by delivering a written notice of revocation
to the Chief Financial Officer at the Company. For such revocation to
be effective, written notice must be actually received by the Chief
Financial Officer at the Company no later than the close of business
on the 7th day after the Executive executes this Release. If the
Executive does exercise the Executive's right to revoke this Release,
all of the terms and conditions of the Release shall be of no force
and effect and the Company shall not have any obligation to make
payments or provide benefits to the Executive as set forth in Sections
8 of the Agreement.
5. The Executive agrees that the Executive will never file a lawsuit or
other complaint asserting any claim that is released in this Release.
6. The Executive waives and releases any claim that the Executive has or
may have to reemployment after ________________________ .
IN WITNESS WHEREOF, the Executive has executed and delivered this
Release on the date set forth below.
Dated: ________________________________
Executive
