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EXHIBIT 10.2
EMPLOYMENT AGREEMENT
This Agreement ("Agreement") is made and entered into effective the 1st
day of March, 1999, by and between Park `N View, Inc., a Delaware corporation
(the "Company") and Xxxxxx X. May (the "Executive").
WHEREAS, the Company is engaged in the business of developing and
providing telecommunications, data transmission, internet, cable television and
other services to truckstops, truckdrivers and truck fleet owners; and
WHEREAS, the Executive desires to be employed by the Company in a
position of trust and confidence; and
WHEREAS, the Executive acknowledges that this Agreement and the
benefits described herein are valuable consideration to which he is not
otherwise entitled.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Executive and the Company agree as follows:
1. Term of Agreement. The term of this Agreement shall commence
as of the date and year first above written (the "Effective Date") and shall
remain in effect for the duration of the Executive's employment with the Company
(hereinafter "Term of Agreement"). The Executive's employment with the Company
and the Term of Agreement shall continue until terminated with or without cause
by either party immediately upon giving the other party written notice thereof,
or upon verbal notice confirmed thereafter in writing. Nothing herein shall be
understood as modifying or otherwise altering the Executive's at-will
relationship or in any other way creating a contract of employment with the
Executive for any stated term.
2. Position and Responsibilities. The Executive shall be employed
as Chief Executive Officer of the Company and shall be nominated to serve as
member of the Board of Directors of the Company (the "Board"). The Executive
agrees that the performance of the obligations of his position shall include,
without limitation, direction of the day-to-day operations of the Company as
well as the performance of those duties and responsibilities, commensurate with
Executive's position as Chief Executive Officer, as the Board shall from time to
time delegate to Executive on such terms and conditions, and subject to such
restrictions, as the Board reasonably may from time to time impose. While so
employed, the Executive agrees to devote his full working time and attention to
carrying out his duties and responsibilities under this Agreement and shall use
his best efforts, skills and abilities to further the interests of the Company.
While employed by the Company,
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the Executive may not work for any other entity, in any capacity, without the
prior express written consent of the Company. The Executive agrees to comply
with all policies, standards and regulations of the Company now existing or
hereafter promulgated.
3. Compensation and Related Matters.
(a) Salary. During the Term of Agreement, the Company
shall pay to the Executive a salary at a rate of Two Hundred Seventy-Five
Thousand Dollars ($275,000.00) per annum in equal installments on the fifteenth
and last day of each month in arrears. This salary may be increased from time to
time by the Company in accordance with normal business practices of the Company.
The Compensation Committee of the Board shall review the Executive's salary and
bonus compensation on an annual basis.
(b) Bonus. For each fiscal year during the Term of
Agreement, the Executive shall be eligible for an incentive bonus for such
fiscal year (a "Bonus") upon satisfaction (as determined by the Compensation
Committee of the Board in its discretion) of the goals and objectives specified
by the Board for this purpose pursuant to Section 3(c). The Executive's Bonus
shall be targeted at fifty percent (50%) of his Base Salary (as defined in
Section 4(f) below) but may be increased or decreased by the Compensation
Committee based upon Executive's achievements relative to the established goals
and objectives. For the period beginning on the Effective Date and ending June
30, 1999, the Executive shall be eligible for such Bonus as may be recommended
by the Compensation Committee of the Board and approved by the Board.
(c) Periodic Reviews. Within ninety (90) days of the
Effective Date, the Board shall meet with the Executive to set goals and
objectives for the Executive's performance under this Agreement, including for
the remainder of the fiscal year ending June 30, 1999. Thereafter, the Board
shall conduct annual performance reviews with Executive, to be scheduled within
thirty (30) days of the Company's receipt of audited fiscal year end financial
statements, to set goals and objectives for the performance of the Executive
under this Agreement for the ensuing fiscal year.
(d) Stock Options. The Company shall grant a nonqualified
stock option to the Executive substantially in the form of the nonqualified
stock option award agreement of even date herewith.
(e) Temporary Living and Moving Expenses. The parties
acknowledge that the Executive may continue to maintain his home and family in
New York for some time after the Executive commences performance under this
Agreement; however, he shall relocate to South Florida no later than September
1, 2000. To assist the Executive with this transition, the Company shall
reimburse the Executive for reasonable temporary living expenses for the
Executive in Florida for up to six (6) months after the Effective Date, provided
that such expenses are incurred and accounted for in accordance with the
policies and procedures established by the
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Company and do not exceed, on average, $3,500 per month. The Company shall also
reimburse the Executive for air travel to visit his family in New York during
the period, up to six (6) months, that the Executive maintains his home in New
York. Upon relocation, the Company will reimburse the Executive for reasonable
moving expenses, closing costs on the sale of Executive's home in New York, and
closing costs associated with the purchase of a home in South Florida. All such
reimbursements shall be grossed up as necessary to compensate the Executive for
any adverse tax consequence to the Executive.
(f) Business Expenses. During the Term of Agreement, the
Executive shall be entitled to receive prompt reimbursement for all reasonable
business expenses incurred by the Executive in performing services hereunder,
including travel expenses while away from home on business, provided that such
expenses are incurred and accounted for in accordance with the policies and
procedures established by the Company.
(g) Split Dollar Life Insurance Arrangement. During the
Term of Agreement, the Company shall make premium payments of up to $2,083.33
per month under the split dollar insurance policy maintained by Executive.
(h) Stock Purchase. The Executive shall purchase 23,000
shares of Series C 7% Cumulative Convertible Preferred Stock of the Company (the
"Shares") at $8.00 per share for an aggregate purchase price of $184,000.
Executive shall pay the purchase price for the Shares as follows: (i) $92,000
pursuant to a full recourse promissory note, having a term of four (4) years,
bearing interest at the rate of 6% per annum compounded annually, allowing for
prepayment without penalty and requiring payment of the full principal balance
and all accrued interest in one lump sum on the last day of such four (4) year
term; and (ii) $92,000 pursuant to monthly payments by Executive to the Company
of $13,000 at the end of each month for the first seven (7) months of the Term
of Agreement with a final payment of $1,000 at the end of the eighth month. If
Executive's employment is terminated for any reason prior to payment in full of
amounts due to the Company pursuant to Section 3(h)(ii) above, Executive shall
pay the outstanding balance to the Company within thirty (30) days of
termination.
(i) Vacation. The Executive shall be entitled to up to
twenty (20) business days paid vacation in each full calendar year and accrued
in accordance with Company policy. Any vacation days accrued, but not used, in
any calendar year shall be forfeited without payment therefor. The Executive
shall be entitled to a pro rata portion of his vacation entitlement for the
calendar year 1999.
(j) Deferred Compensation Plan. The Company shall
establish and maintain a nonqualified deferred compensation plan pursuant which
Executive may elect to defer amounts in excess of his permissible contributions
to the Company's 401(k) plan.
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(k) Life Insurance. Within sixty (60) days of the
Effective Date, the Company shall purchase a life insurance policy on the life
of the Executive with benefits payable to the Company. The Company shall pay for
a physical examination of the Executive in connection with this policy.
(l) Other Benefits. The Executive shall be eligible to
participate in the Company's retirement and welfare benefit plans under the
terms and conditions established by the applicable plan documents.
4. Payment to the Executive Upon Termination of Employment.
(a) Termination With and Without Cause. The Company shall
have the right to terminate the Executive's employment at any time with Cause
(as defined in Section 4(f) below) or without Cause (as defined in Section 4(f)
below).
(b) Termination without Cause - General. If the Company
terminates the employment of the Executive without Cause (as defined in Section
4(f) below) other than as described in subsection (c) below, the Term of
Agreement shall terminate immediately thereafter and:
(i) the Company shall pay the Executive the
portion of his Base Salary (as defined in Section 4(f) below) in effect at the
time of termination as he may be entitled to receive for services rendered prior
to the date of such termination;
(ii) the Company shall pay the Executive for any
accrued but unused vacation;
(iii) subject to Section 5, the Company shall pay
the Executive, at the end of each month for the first six (6) months following
the date on which the Executive executes the release described in Section 5
below (the "Release Date"), an amount equal to one-twelfth (1/12) of his Base
Salary (as defined in Section 4(f) below), provided, however, nothing herein
shall be construed to entitle the Executive to more than one payment pursuant to
Sections 4(b)(iii) and 4(c)(iii); and
(iv) subject to Section 5, the Company shall make
premium payments of up to $2,083.33 per month, under the split dollar insurance
policy maintained by Executive, for the first six (6) months following the
Release Date.
(c) Termination Without Cause - Change in Control. If the
Company terminates the employment of the Executive without Cause (as defined in
Section 4(f) below) within eighteen (18) months following a Change of Control
(as defined in Section 4(f) below), the Term of Agreement shall terminate
immediately thereafter and:
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(i) the Company shall pay the Executive the
portion of his Base Salary (as defined in Section 4(f) below) in effect at the
time of termination as he may be entitled to receive for services rendered prior
to the date of such termination;
(ii) the Company shall pay the Executive for any
accrued but unused vacation;
(iii) subject to Section 5, the Company shall pay
the Executive, at the end of each month for the first eighteen (18) months
following the Release Date, an amount equal to one-twelfth (1/12) of his Base
Salary (as defined in Section 4(f) below), and, on the first regularly-scheduled
payroll date following the Release Date, an amount equal to any bonus paid to
the Executive in the previous year; provided, however, nothing herein shall be
construed to entitle the Executive to more than one payment pursuant to Sections
4(b)(iii) and 4(c)(iii); and
(iv) subject to Section 5, the Company shall make
premium payments of up to $2,083.33 per month, under the split dollar insurance
policy maintained by Executive, for the first eighteen (18) months following the
Release Date.
(d) Termination for Death, Retirement or Disability. If
the Executive's employment is terminated by the death, Disability or Retirement
(as hereinafter defined) of the Executive, the Term of Agreement shall terminate
immediately thereafter and the Company shall pay the Executive or his
beneficiary such compensation as is set forth in Sections 4(b)(i) and 4(b)(ii)
herein. In addition, in the event the Executive's employment is terminated by
the death or Disability of the Executive, the Company shall pay the Executive or
his beneficiary an amount equal to the Bonus paid to the Executive in the
preceding fiscal year, prorated by a fraction, the numerator of which is the
number of days of the fiscal year until termination by death or Disability and
the denominator of which is 365.
(e) Voluntary Termination by the Executive or Termination
for Cause. If the Executive voluntarily terminates his employment and this
Agreement, or the Company terminates the Executive's employment for Cause (as
defined in Section 4(f) below), the Term of Agreement shall terminate
immediately thereafter and the Company shall pay the Executive or his
beneficiary such compensation as is set forth in Sections 4(b)(i) and 4(b)(ii)
herein.
(f) Definitions.
(i) Base Salary. For purposes of this Agreement,
the term "Base Salary" shall mean the Executive's annualized rate of base pay,
excluding bonuses, stock options or any other sums.
(ii) Cause. For purposes of this Agreement, the
term "Cause" shall be limited to the following events: (i) theft, embezzlement
or other similar act by the Executive of any tangible or intangible asset of the
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Company or any customer, supplier or investor of the Company if, in the good
faith determination of the Board, such act causes or is likely to cause material
damage to the business or reputation of the Company; (ii) commission of any
other criminal act by the Executive (whether or not the Executive is prosecuted
and convicted) if, in the good faith determination of the Board, such act causes
or is likely to cause material damage to the business or reputation of the
Company; or (iii) willful failure by the Executive to follow the instructions of
the Board, to the extent such instructions are reasonably related to the
business of the Company, are given in good faith to promote the interest of the
Company, would not require the Executive to commit any illegal act and are not
given to provide the Company with cause for terminating the Executive, and if
such failure has continued for thirty (30) days after Executive has been
notified in writing by the Company of the nature of Executive's failure to
follow such instructions. This definition of Cause shall not create in the
Executive any right to employment or cause of action on account of termination
of the Executive's employment with the Company without Cause.
(iii) Change in Control. For purposes of this
Agreement, the term "Change in Control" shall be deemed to have occurred if:
(i) Tender Offer or Acquisition. Any
"person" as defined in section 3(a)(9) of the Securities Exchange Act of 1934
(the "Act"), including a "group" (as that term is used in sections 13(d)(3) and
14(d)(2) of the Act), but excluding the Company and any employee benefit plan
sponsored or maintained by the Company, including any trustee of such plan
acting as trustee, who:
(A) makes a tender or exchange
offer for any shares of the Company's stock pursuant to which at least fifty
percent (50%) of the Company's stock is purchased; or
(B) together with its
"affiliates" and "associates" (as those terms are defined in Rule 12b-2 under
the Act) becomes the "beneficial owner" (within the meaning of Rule 13d-3 under
the Act) of at least fifty percent (50%) of the Company's stock; or
(ii) Merger or Consolidation. The
happening of any one (1) of the following events: (i) the dissolution or
liquidation of the Company; (ii) a reorganization, recapitalization, merger or
consolidation involving the Company, unless (A) the transaction involves only
the Company and one or more of the Company's parent corporation and wholly-owned
(excluding interests held by employees, officers and directors) subsidiaries; or
(B) the shareholders who had the power to elect a majority of the board of
directors of the Company immediately prior to the transaction have the power to
elect a majority of the board of directors of the surviving entity immediately
following the transaction; (iii) the sale of all or substantially all of the
assets of the Company to another company, person or business entity; or (iv) an
acquisition of Company stock, unless the shareholders who had the power to elect
a majority of the board of directors of the Company immediately prior to the
acquisition have the power to elect a majority of the board of directors of the
Company immediately following the transaction.
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(iv) Disability. For purposes of this Agreement,
the Executive's employment with the Company shall be deemed to have terminated
on account of "Disability" on the date on which the Executive is eligible to
receive, and commences receipt of, benefits under the Company's program of
long-term disability insurance.
(v) Retirement. For purposes of this Agreement,
the term "Retirement" means the Executive's election to separate from service
with the Company upon or after having attained the normal retirement age
specified in the Company's tax-qualified retirement plan.
5. Condition on Payment of Benefits: The Executive agrees that he
shall be entitled to payments and benefits under the terms of Sections
4(b)(iii), 4(b)(iv), 4(c)(iii) and 4(c)(iv) above, as applicable, only if he
executes a complete and general release in a form substantially comparable to
the release set forth in Exhibit A hereto and incorporated herein by reference
or in such other form as is determined to be necessary or desirable by the
Company in its discretion, which release shall at least contain a release by the
Executive and any beneficiary of the Executive entitled to receive all or any
portion of the benefits specified in such Sections of any claims arising from
the Executive's employment or associations with the Company or otherwise
existing against the Company and its officers, directors, agents, employees,
shareholders, and representatives at the time of execution of the release.
Notwithstanding any other provision set forth herein, if the Executive elects
not to execute such a general release, then the Executive's benefits under
Sections 4(b)(iii) and 4(c)(iii) above, as applicable, shall consist solely of
an amount equal to one-twelfth (1/12) of the Executive's Base Salary (excluding
commissions) in effect at the time of the termination.
6. Representations.
(a) The Executive warrants and represents that the
Executive's performance of all of the terms of this Agreement and as an employee
does not and will not breach any agreement to keep in confidence proprietary
information acquired by the Executive in confidence or in trust prior to the
Executive's employment by the Company. The Executive represents that the
Executive has not entered into, and agrees not to enter into, any agreement
either oral or written in conflict herewith.
(b) The Executive warrants and represents that the
Executive has not brought and will not bring with the Executive to the Company,
or use in the performance of the Executive's responsibilities for the Company,
any materials or documents of a former employer which are not generally
available to the public, unless the Executive has obtained written authorization
from the former employer or other owner for their possession and use and
provided the Company with a copy of such authorization.
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(c) The Executive understands that during the Executive's
employment for the Company the Executive is not to breach any obligation of
confidentiality that the Executive has to a former employer or any other person
or entity.
7. Other Agreements. This Agreement supersedes all prior
agreements and understandings, oral or written, between the Company and the
Executive with respect to the subject matter hereof.
8. Amendment. No change, modification, termination or attempted
waiver of any of the provisions of this Agreement shall be binding upon any
party hereto unless reduced to writing and signed by the party against whom
enforcement is sought.
9. Assignment. The Company shall have the right to assign this
contract to a successor or surviving entity, and all covenants and agreements
hereunder shall inure to the benefit of and be enforceable by or against its
successors and assigns. The Executive's obligations under this Agreement shall
not be transferable by assignment or otherwise by the Executive and any attempt
to do any of the foregoing shall be null and void.
10. Counterparts. Any number of counterparts of this Agreement may
be signed and delivered, each of which shall be considered an original and all
of which, together, shall constitute one and the same instrument.
11. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida, without reference
to its conflict of law provisions.
12. Venue. Any litigation under this Agreement may be brought by
the Company in the State of Florida, notwithstanding that the Executive is not
at that time a resident of the State of Florida and cannot be served process
within that state. The Executive hereby irrevocably consents to the jurisdiction
of the courts of Florida (whether federal or state courts) over his or her
person.
13. Binding Effect. The provisions of this Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
heirs, assigns and successors in interest.
14. Withholding of Taxes. The Company may withhold from any
payments made under this Agreement all federal, state, city, or other taxes as
shall be required pursuant to any law, regulation or ruling.
15. Headings. The headings contained in this Agreement are for
reference purposes only and shall not be deemed interpretation of this
Agreement.
16. Representation. The Executive represents and warrants that the
performance of the Executive's duties under this Agreement, and the execution of
this Agreement by him, will not
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violate any agreement between the Executive and any other person, firm,
partnership, Company or any other organization. The Executive represents and
warrants that he has consulted with and received advice from his own counsel in
electing to enter into this Agreement.
17. Notices. Any notice given to either party hereto shall be in
writing and shall be deemed to have been given when delivered personally or sent
by certified or registered mail, postage prepaid, return receipt requested, duly
and properly addressed to the party concerned at the address indicated below or
to such changed address as party may subsequently give notice of:
If to the Company:
00000 XX 00xx Xxxxxx
Xxxxx Xxxxxxx, Xxxxxxx 00000
If to the Executive:
to Executive's last known address as shown on the Company's
records.
18. Survival. The Executive and the Company agree that the
provisions of Sections 4-18 herein shall survive the termination of this
Agreement and the termination of the Executive's employment hereunder.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date and year first above written.
THE EXECUTIVE:
XXXXXX X. MAY
/s/ Xxxxxx X. May (Seal)
---------------------------
THE COMPANY:
PARK `N VIEW, INC.
By: /s/ Xxx Xxxxxxxx
------------------------
Xxx Xxxxxxxx
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EXHIBIT A
T0 EMPLOYMENT AGREEMENT
CONFIDENTIAL SETTLEMENT AGREEMENT AND GENERAL RELEASE
This Confidential Settlement Agreement and General Release is entered
into by and between Xxxxxx Xxx, a resident of ______________ , _____________
(the "Executive") and Park `N View, Inc., a Delaware corporation (the
"Company").
W I T N E S S E T H:
WHEREAS, Executive was employed by the Company from March 1, 1999 until
_______________;
WHEREAS, Executive's employment with the Company terminated on
___________;
WHEREAS, the parties desire to set forth the terms and conditions of
Executive's separation from the Company; and
WHEREAS, the parties desire to settle fully, finally and on a
confidential basis all matters in dispute between them and relating to the
employment and termination of Executive, without any admission of liability.
NOW, THEREFORE, in consideration of the premises and mutual promises
herein contained in this Agreement, and other valuable consideration to which
Executive is not otherwise entitled, the receipt and sufficiency of which is
hereby acknowledged, it is agreed by the parties as follows:
1. Termination of Employment. Executive agrees that his
employment with the Company ended or will end on ______________ (the
"Termination Date"), and waives all rights to reemployment or reinstatement from
or after that date.
2. Consideration. Once this Agreement is executed by Executive,
returned to the Company and becomes effective, and subject to the restrictions
set forth in Section 8 of this Agreement, the Company shall pay the Executive in
exchange for this release [insert description of specific payments and/or
benefits to be provided]. All payments will be made less all FICA and other
required withholdings. Executive warrants that all monies and/or benefits
payable under this Agreement are monies and/or benefits to which Executive is
not otherwise entitled.
3. No Other Entitlements. Except for the compensation and monies
expressly set forth in Section 2 above, Executive acknowledges that he is not
entitled to any other compensation, monies or benefits from the Company, and
Executive hereby releases the Company
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of and from any obligations to make any other payment or provide any other
benefit, and Executive waives all rights to said payments or benefits.
4. Relationship to Other Agreements. Executive will adhere to and
honor all obligations to the Company set forth in that certain Confidentiality
Agreement dated March 1, 1999. Executive warrants that the Company has satisfied
in full all of its obligations set forth in the Employment Agreement dated March
1, 1999 and that the Company has no further obligations thereunder.
5. Confidentiality. Except with the Company's express prior
written consent or as required by law, Executive shall keep any information
relating to the negotiations leading up to this Agreement, the terms of this
Agreement, and the existence of this Agreement strictly confidential, and shall
not disclose this information to any person other than Executive's immediate
family and legal and financial advisors who will agree to keep such matters
confidential.
6. Covenant Not to Xxx and Release.
(a) Executive agrees that he will not file any claims,
complaints, charges or lawsuits against the Released Parties (as defined below)
about anything which has occurred up to and including the date he executes this
Agreement. In addition, except for any vested tax-qualified retirement plan
benefits Executive may have (which are not released by this Agreement) and in
further consideration of the benefits the Company has agreed to provide
Executive hereunder, Executive, for himself and on behalf of his heirs,
representatives, administrators, executors, successors and assigns, hereby
irrevocably and unconditionally releases, acquits, and forever discharges the
Company and each of its present and former divisions, parent companies,
subsidiaries, affiliates, predecessors, successors and assigns, together with
all present and former agents, shareholders, directors, officers, employees,
owners, representatives and attorneys of all such entities or persons and all
persons acting by, through, under or in concert with any of them (hereinafter
collectively referred to as the "Released Parties"), from any and all charges,
complaints, claims, lawsuits, defenses, liabilities, obligations, promises,
agreements, controversies, damages, actions, causes of action, suits, rights,
demands, costs, losses, debts and expenses (including attorney's fees and costs
actually incurred), of any nature whatsoever, known or unknown (hereinafter
"Claim" or "Claims"), which Executive now has, has had, or may hereafter claim
to have had against each or any of the Released Parties for personal injuries,
back pay, losses or damage to real or personal property, economic loss or damage
of any kind, breach of contract (express or implied), defamation, breach of any
covenant of good faith (express or implied), tortious interference with
contract, wrongful termination, business or personal tort, misrepresentation, or
any other losses or expenses of any kind (whether arising in tort, contract or
by statute) resulting from or arising out of any matter, act, omission, cause or
event whatever that has previously occurred. Executive understands that by
signing this Agreement and accepting the consideration hereunder, he is waiving
any right to pursue any claim against any of the Released Parties in any state
or federal court or before any state or federal agency including, for example,
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the Equal Employment Opportunity Commission or the Department of Labor, for back
pay, severance pay, liquidated damages, compensatory damages, punitive damages,
or any other losses or other damages to Executive or his property resulting from
any claimed violation of state or federal law, including, for example (but not
limited to), claims arising under Title VII of the Civil Rights Act of 1964, the
Age Discrimination In Employment Act of 1967, as amended, the Equal Pay Act, the
Civil Rights Act of 1991, the Americans With Disabilities Act, the Employee
Retirement Income Security Act of 1974, as amended, the Consolidated Omnibus
Budget Reconciliation Act of 1985, as amended, the Family and Medical Leave Act
of 1993, and claims under any other federal, state and local laws. This
Agreement does not, however, waive rights or claims that may arise after the
date Executive signs it below.
(b) Executive acknowledges that this release applies both
to known and unknown claims that may exist between Executive and the Released
Parties. Executive expressly waives and relinquishes all rights and benefits
which he may have under any state or federal statute or common law principle
that would otherwise limit the effect of this Agreement to claims known or
suspected prior to the date Executive executes this Agreement, and does so
understanding and acknowledging the significance and consequences of such
specific waiver.
(c) Thus, for the purpose of implementing a full and
complete release and discharge of the Released Parties, Executive expressly
acknowledges that this Agreement is intended to include in its effect, without
limitation, all Claims which Executive does not know or suspect to exist in his
favor at the time of execution hereof, and that this Agreement contemplates the
extinguishment of any such Claim or Claims.
(d) Executive agrees to execute at the Company's request,
such additional waivers, releases, indemnities or other instruments as the
Company shall deem necessary to effectuate the intent of this Section.
(e) Executive specifically agrees that if he files or
asserts any claim against the Released Parties for anything either occurring
before or existing as of the date of execution of this Agreement, for any reason
other than claims for vested pension benefits or for the Company's violation of
this Agreement, Executive will repay all compensation and monies Executive has
received pursuant to this Agreement.
7. Representations and Indemnification.
(a) Executive represents that, as of the date of
execution of this Agreement, he has not filed with any agency or court any
complaints or lawsuits against any of the Released Parties.
(b) Executive agrees that he will not, directly or
indirectly, institute, be a party to, or participate in, any action, lawsuit or
administrative proceeding against any of the Released Parties, arising from any
claim of any type or nature either occurring before or existing as of the date
of execution of this Agreement.
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(c) Executive agrees to indemnify the Released Parties
from all claims, including all attorneys' fees, costs and expenses arising out
of his breach of this Agreement or any misrepresentation of fact made by
Executive which is contained in or made the basis of this Agreement.
8. Nondisparagement. Executive understands that his entitlement
to the payments agreed to above in Section 2 are conditioned on Executive's
continued support of the Company. The Company and the Employee each agree not to
contact or communicate with any media, nor will the Company (except in the
ordinary course of business) or the Employee contact any of the Company's
employees (former or current), regarding the Employee's employment or separation
from the Company. Furthermore, the Company and the Executive each agree not to
make any oral or written statement or take any other action which (i) disparages
or criticizes the other or, in the case of statements by the Employee, the
Company's employees, agents, directors, representatives or officers, including
their management or practices, (ii) damages the good reputation of the other, or
(iii) in the case of statements by the Employee, impairs the Company's normal
operations.
9. Cooperation. Executive agrees to reasonably cooperate with the
Company at a mutually convenient time and place, in assisting in the defense of
any existing or future charges, claims, demands, complaints or lawsuits filed
against the Company, any of its related companies or subsidiaries or parent
company, that involve facts or decisions in which Executive had input or
knowledge.
10. Return of Company Property. Prior to any payment becoming due
under this Agreement, Executive will return all property of the Company,
including, without limitation, all reports, files, memoranda, records, software,
credit cards, card-key passes, door, file, vehicle and other keys, computers,
computer access codes, disks and instructional manuals, calculators and other
physical or personal property which have been provided for his use in connection
with his employment with the Company or he has in his possession, control or
custody.
11. Notice to Consult with an Attorney. Executive is advised by
the Company that this Agreement affects important rights, and includes a release
of any and all claims arising out of any alleged violation of Executive's rights
while employed with the Company, including, but not limited to, any claims
Executive may have under the Age Discrimination in Employment Act of 1967, as
amended, 29 U.S.C. ss. 621, et seq. Because this Agreement affects important
rights, Executive is advised to consult with an attorney prior to executing this
Agreement.
12. Time for Review. Executive is advised that he has twenty-one
(21) days [or 45 days, as applicable] to fully review and consider whether or
not he wishes to agree to all the terms and conditions of this Agreement and to
advise the Company of the same. Executive is advised that should Executive wish
to enter into this Agreement, the Agreement may not be executed until the
Termination Date.
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13. Revocation. Executive is advised that should he sign this
Agreement, accepting its terms and conditions, he will have a period of seven
(7) days from the date of his acceptance to change his mind and revoke this
Agreement. If Executive decides to revoke this Agreement, then he should give
written notice to the Company. The other terms and conditions contained herein
will not be enforceable by the parties hereto until the expiration of this seven
(7) day period.
14. No Admission of Liability or Wrongdoing. This Agreement will
not be used or construed by any person or entity as an admission of liability or
finding that Executive's rights were in any way violated by the Company and this
Agreement may not be offered or received in evidence in any action or proceeding
as an admission of liability or wrongdoing on the part of the Company. Executive
understands and agrees that the consideration received herein is accepted by him
as full and complete settlement and compromise of any and all claims, asserted
or unasserted, and the payment of such consideration is not an admission of
liability by the Company.
15. Entire Agreement. This Agreement contains and comprises the
entire agreement, and understanding of the parties with respect to the subject
matter, and there are no agreements or understandings other than those contained
herein. Further, this Agreement is intended to be a binding contract among the
parties hereto and shall not be modified, except by writing and signed by both
Executive and the Company.
16. Severability. The provisions of this Agreement shall be deemed
severable, and the invalidity or unenforceability of any provision (or part
thereof) of this Agreement shall in no way affect the validity or enforceability
of any other provisions (or remaining part thereof).
17. Successors. This Agreement shall be binding upon and inure to
the benefit of Executive, his assigns, heirs, executors, administrators,
representatives, as well as the predecessors, successors, purchasers and assigns
of the Company. Executive may not assign any of his rights or delegate any of
his duties under the Agreement.
18. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida, without reference
to its conflict of law provisions.
19. Venue. Any litigation under this Agreement may be brought by
the Company in the State of Florida, notwithstanding that the Executive is not
at that time a resident of the State of Florida and cannot be served process
within that state. The Executive hereby irrevocably consents to the jurisdiction
of the courts of Florida (whether federal or state courts) over his or her
person.
20. KNOWING AND VOLUNTARY AGREEMENT. EXECUTIVE ACKNOWLEDGES THAT
EXECUTIVE FULLY AND COMPLETELY UNDERSTANDS THE TERMS AND CONDITIONS OF THIS
AGREEMENT AND HAS VOLUNTARILY AND KNOWINGLY AGREED TO SUCH TERMS AND CONDITIONS,
INCLUDING ALL
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RELEASES OF CLAIMS EXECUTIVE MAY HAVE AGAINST THE COMPANY, IN EXCHANGE FOR
VALUABLE CONSIDERATION THAT EXECUTIVE IS NOT OTHERWISE ENTITLED TO RECEIVE.
IN WITNESS WHEREOF, the parties have hereto executed this Confidential
Settlement Agreement and General Release, this the _____ day of__________.
The Executive:
(SEAL)
----------------------------
The Company:
PARK `N VIEW, INC.
By:
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