EMPLOYMENT AGREEMENT
THIS
EMPLOYMENT AGREEMENT (the “Agreement”), is made as of this 6th day of February,
2009 between Xxxxx X. Xxxxxx (“Executive”) and Implant Sciences Corporation (the
“Company”), a Massachusetts corporation.
1. Term of
Employment. The Company hereby agrees to employ Executive, and
Executive hereby accepts employment with the Company, upon the terms set forth
in this Agreement, for the period commencing as of January 1, 2009 (the
“Commencement Date”) and ending on the third anniversary of the Commencement
Date, unless sooner terminated in accordance with the provisions of Section 5 or
extended as hereinafter provided (such period, as it may be extended or
terminated, is the “Agreement Term”). Beginning on the third anniversary of the
Commencement Date, this Agreement shall continue until either party provides the
other with written notice of termination, such notice (except as otherwise
provided in this Agreement) to take effect no less than ninety days after such
notice.
2. Title;
Capacity. The Company will employ Executive, and Executive
agrees to work for the Company, as its President and Chief Executive Officer to
perform the duties and responsibilities inherent in such position and such other
duties and responsibilities as the Company shall from time to time assign to
Executive. Executive shall report to the Company’s Board of Directors
(the “Board”) and shall be subject to the supervision of, and shall have such
authority as is delegated by the Board, which authority shall be sufficient to
perform Executive’s duties hereunder. Executive shall devote
Executive’s full business time and reasonable best efforts in the performance of
the foregoing services, provided that Executive may
accept other board memberships or service with other charitable organizations
that are not in conflict with Executive’s primary responsibilities and
obligations to the Company.
3. Compensation and
Benefits.
3.1 Salary. As
of the Commencement Date, the Company shall pay Executive a base salary of
$10,576.92 every two weeks (i.e., at an annualized rate of $275,000
per year), payable in accordance with the Company’s customary payroll practices
(the “Base Salary”). The Base Salary thereafter shall be subject to
annual review and adjustment, as determined by the Board in its sole discretion
on the anniversary of the Commencement Date each year of the Agreement Term,
provided, however, that the
Base Salary may not be decreased without the Executive’s consent unless the
compensation payable to all executives of the Company is similarly
reduced.
3.2 Annual
Incentive. For fiscal year 2009, Executive will be eligible to
receive an annual cash bonus in an amount up to $137,000 subject to Executive
achieving certain performance milestones established by the Board on February 5,
2009. The performance milestones for fiscal 2010 and subsequent years
shall be reached by mutual agreement no later than 60 days following the end of
each fiscal year. The bonus, if payable, shall be calculated and paid
within 30 days after the end of the fiscal year in which such bonus earned;
provided, however, that the
Company may delay the calculation and payment of any portion of such bonus which
is based on the attainment of a revenue, earnings or similar milestone until the
completion of the audit of the Company’s financial statements for the fiscal
year in question.
3.3 Long-Term
Incentives. On the date Executive executes this Agreement, the
Company shall grant Executive additional equity in the form of an incentive
stock option to purchase 680,000 shares of common stock of the Company at an
exercise price per share equal to the per share fair market value, as determined
in accordance with Section 409A of the Internal Revenue Code of 1986, as
amended, and the Treasury regulations and other applicable guidance issued by
the Treasury Department and/or the Internal Revenue Service thereunder
(collectively, the “Code”), of the Company’s common stock as of the date this
Agreement is executed (the “Option”). The Option shall vest in equal
installments of thirty-three and a third percent (33 1/3%) on the first, second
and third anniversaries of the Commencement Date. The Option shall be
exercisable for a period of ten years from the date of the grant. The
Option shall be governed in all respects by the Company’s 2004 Stock Option
Plan, in effect on the Commencement Date and as amended from time to time (the
“Plan”) and by a stock option agreement containing such terms and conditions as
are generally applicable to other options granted under the Plan. In
the event a Change in Control occurs, as such term is defined in the Plan, the
Option shall accelerate and become fully exercisable.
3.4 Fringe
Benefits. Executive shall be entitled to participate in all
bonus and benefit programs that the Company establishes and makes available to
its executive employees, if any, to the extent that Executive’s position,
tenure, salary, age, health and other qualifications make Executive eligible to
participate, including, but not limited to, health care plans, short and long
term disabilities plans, life insurance plans, retirement plans, and all other
benefit plans from time to time in effect. Executive shall also be
entitled to take four (4) weeks of fully paid vacation in accordance with
Company policy and shall be entitled to a monthly car allowance equal to $600.00
per month. In addition, Executive shall be compensated under the
Company’s standard policies if executive uses his personal vehicle for Company
business where such business is more than 150 miles from the Company’s main
offices or Executive’s home, wherever such trip commences.
3.5 Reimbursement of Certain
Expenses. Executive shall be reimbursed for such reasonable
and necessary business expenses incurred by Executive while Executive is
employed by the Company, which are directly related to the furtherance of
the Company's business. Executive will be furnished with a corporate
credit card for business expenses. The Executive must submit any request for
reimbursement no later than ninety (90) days following the date that such
business expense is incurred in accordance with the Company's reimbursement
policy regarding same and business expenses must be substantiated by appropriate
receipts and documentation. The Company may request additional
documentation or a further explanation to substantiate any business expense
submitted for reimbursement, and retains the discretion to approve or deny a
request for reimbursement. If a business expense reimbursement is not exempt
from Section 409A of the Code, any reimbursement in one calendar year
shall not affect the amount that may be reimbursed in any other calendar
year and a reimbursement (or right thereto) may not be exchanged or
liquidated for another benefit or payment. Any business expense
reimbursements subject to Section 409A of the Code shall be made no later than
the end of the calendar year following the calendar year in which such business
expense is incurred by the Executive.
3.6 Indemnification. The
Company shall indemnify Executive to the fullest extent permitted under
applicable law, the Company’s Articles of Organization and the Company’s
By-laws, each as they may be amended from time to time. The Executive
shall be insured under the Company’s Directors’ & Officers’ liability policy
in the same manner as other senior executives of the Company for as long as
Executive is an officer or director of the Company and as long as the Company
maintains such policy in force. Such indemnity and insurance shall
survive the termination of Executive’s employment by the Company.
3.7 Certain Legal Fees.
The Company shall be responsible for reasonable legal fees in connection with
the negotiation, preparation or amendment of this Agreement.
4. Termination of Employment
Period. The Employment Period shall terminate upon the
occurrence of any of the following:
4.1 Termination
of the Agreement Term. At the expiration of the Agreement
Term, but only if appropriate notice is given pursuant to Section
1.
4.2 Termination
for Cause. At the election of the Company, for “Cause,” upon
written notice by the Company to Executive. For the purposes of this
Section, “Cause” for termination shall be deemed to exist upon the occurrence of
any of the following:
(a) Executive’s
conviction or entry of nolo contendere to any felony or a crime involving moral
turpitude, fraud or embezzlement of Company property; or
(b) Executive’s
dishonesty, gross negligence or gross misconduct that is materially injurious to
the Company or material breach of his duties under this Agreement, which has not
been cured by Executive within 10 days (or longer period as is reasonably
required to cure such breach, negligence or misconduct) after he shall have
received written notice from the Company stating with reasonable specificity the
nature of such breach; or
(c) Executive’s
illegal use or abuse of drugs, alcohol, or other related substances that is
materially injurious to the Company.
4.3 Voluntary
Termination by the Company. At the election of the Company,
without Cause, upon thirty days prior written notice by the Company to the
Executive; provided,
however, that, in lieu of such notice, the Company at its option may
elect to relieve the Executive of his duties immediately and continue to
pay the Executive his regular compensation and benefits during such thirty-day
period.
4.4 Death or
Disability. Thirty days after the death or determination of
disability of Executive. As used in this Agreement, the determination
of “disability” shall occur when Executive, due to a physical or mental
disability, for a period of 90 days in the aggregate whether or not consecutive,
during any 360-day period, is unable to perform the services contemplated under
this Agreement. A determination of disability shall be made by a
physician satisfactory to both Executive and the Company, provided that if Executive and
the Company do not agree on a physician, Executive and the Company shall each
select a physician and these two together shall select a third physician, whose
determination as to disability shall be binding on all
parties. Notwithstanding the foregoing, (i) Executive shall be deemed
to have a “disability” if Executive receives any benefits under any long-term
disability insurance policy, whether such policy is carried by the Company or by
Executive; and (ii) if and only to the extent that Executive’s
disability is a trigger for the payment of deferred compensation, as defined in
Section 409A of the Code, “disability” shall have the meaning set forth in
Section 409A(a)(2)(C) of the Code.
4.5 Termination
for Good Reason. Subject to the notice and cure periods set
forth in Section 5.5, at the election of Executive for Good Reason (as defined
below), upon written notice by the Executive to the Company.
4.6 Voluntary
Termination by Executive. At the election of Executive,
without Good Reason, upon not less than thirty days prior written notice by him
to the Company.
5. Effect of
Termination.
5.1 Termination for Cause, at
the Election of Executive, at Death or Disability, or Upon Expiration of the
Agreement Term. In the event that Executive’s employment is
terminated for Cause, the Company shall have no further obligations under this
Agreement other than to pay to Executive Base Salary and accrued vacation
through the last day of Executive’s actual employment by the
Company. In the event that Executive’s employment is terminated
upon Executive’s death or disability, at the election of Executive, or upon the
expiration of the Agreement Term, the Company shall have no further obligations
under this Agreement other than (i) to pay to Executive Base Salary and accrued
vacation through the last day of Executive’s actual employment by the Company
and (ii) to pay to Executive, in a single lump sum, a pro rata portion of any
bonus (to the extent earned prior to such termination) for the year in which
termination occurs; provided that the Company
shall determine, in its sole discretion, when such payment will be made during
such period.
5.2 Voluntary Termination by the
Company, or for Good Reason. In the event that Executive’s
employment is terminated by the Company without Cause, or by Executive’s
resignation for Good Reason, beginning immediately after the date of such
termination, the Company shall continue to pay to Executive the annual Base
Salary then in effect for twelve (12) months on a regular payroll basis, and
each such payment shall constitute a separate payment for the purposes of
Section 409A of the Code. In addition to the foregoing amounts, the
Company shall pay Executive in a single lump sum, a pro rata portion of any
bonus (to the extent earned prior to such termination) for the year in which
termination occurs; provided that the Company
shall determine, in its sole discretion, when such payment will be made during
such period. In addition, the Company shall continue Executive’s
coverage under and its contributions towards Executive’s health care, dental,
life insurance benefits on the same basis as immediately prior to the date of
termination, except as provided below, for twelve months from the last day of
Executive’s employment. Notwithstanding the foregoing, subject to any overriding
laws, the Company shall not be required to provide any health care, dental,
disability or life insurance benefit otherwise receivable by Executive if
Executive is actually covered or becomes covered by an equivalent benefit (at
the same cost to Executive, if any) from another source. Any such
benefit made available to Executive shall be reported to the Company.
Notwithstanding the foregoing, (i) no salary continuation benefits shall be
payable under this Section 5.2, and the Company shall not be obligated to make
any contributions towards Executive’s health care, dental, disability or life
insurance benefits under this Section 5.2, unless and until (x) Executive
executes a release in favor of the Company substantially in the form annexed
hereto as Exhibit A and (y) the period in which Executive is entitled to revoke
such election has expired without any such revocation; and (ii) and no portion
of any bonus shall be due or payable under this Section 5.2 unless (x) Executive
shall have executed such release on or before the end of the 60-day period
following termination of Executive’s employment and (y) the period in which
Executive is entitled to revoke such election has expired without any such
revocation.
5.3 Notwithstanding
any other provision with respect to the timing of payments under Section 5.2,
if, at the time of the Executive’s termination, the Executive is deemed to be a
“specified employee” of the Company within the meaning of Section
409A(a)(2)(B)(i) of the Code, then only to the extent necessary to comply with
the requirements of Section 409A of the Code, any payments to which the
Executive may become entitled under Section 5.2 which are subject to Section
409A of the Code (and not otherwise exempt from its application) will be
withheld until the first business day of the seventh month following the date of
termination, at which time the Executive shall be paid an aggregate amount equal
to six months of payments otherwise due to the Executive under the terms of
Section 5.2, as applicable. After the first business day of the
seventh month following the date of termination and continuing each month
thereafter, the Executive shall be paid the regular payments otherwise due to
the Executive in accordance with the terms of Section 5.2, as thereafter
applicable.
5.4 Upon
Executive’s termination without Cause other than upon termination at the end of
the Agreement Term, or as a result of Executive’s resignation for Good Reason,
all Options then held by Executive shall be accelerated and become fully vested
and exercisable as of the date of Executive’s termination.
5.5 As used
in this Agreement, “Good Reason” means,
without Executive’s written consent, (a) a “material diminution” (as such term
is used in Section 409A of the Code) of the duties assigned to Executive; (b) a
material reduction in Base Salary or other benefits (other than a reduction or
change in benefits generally applicable to all executive employees of the
Company); (c) relocation to an office more than fifty miles outside the
Company’s current location in the greater Boston area; (d) a “Change of Control”
of the Company, as that term is defined in the Plan; or (e), the acquisition
(other than an acquisition directly from the Company) by any individual, entity
or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”)), of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 50% or
more of the then outstanding shares of voting stock of the Company (the “Voting
Stock”); provided, however, that any
acquisition by the Company or its subsidiaries, or any employee benefit plan (or
related trust) of the Company or its subsidiaries of (i) 50% or more of the then
outstanding Voting Stock, or (ii) Voting Stock which has the effect of
increasing the percentage of Voting Stock owned by any such individual, entity
or group to 50% or more of the then outstanding Voting Stock, shall
not constitute a Change of Control. Notwithstanding the occurrence of
any of the events enumerated in this Section 5.5, no event or condition shall be
deemed to constitute Good Reason unless (i) Executive reports the event or
condition which the Executive believes to be Good Reason to the Board, in
writing, within 45 days of such event or condition occurring and (ii) within 30
days after the Executive provides such written notice of Good Reason, the
Company has failed to fully correct such Good Reason and to make the Executive
whole for any such losses.
5.6 The
provisions of this Section 5 and the payments provided hereunder are intended to
be exempt from or to comply with the requirements of Section 409A of the Code,
and shall be interpreted and administered consistent with such intent. To the
extent required for compliance with Section 409A, references in this Agreement
to a “termination of employment” shall mean a “separation of service” as defined
by Section 409A.
6. Nondisclosure and
Noncompetition.
6.1 Proprietary
Information.
(a) Executive
agrees that all information and know-how, whether or not in writing, of a
private, secret or confidential nature concerning the Company’s business or
financial affairs (collectively, “Proprietary Information”) is and shall be the
exclusive property of the Company. By way of illustration, but not
limitation, Proprietary Information may include inventions, products, processes,
methods, techniques, formulas, designs, drawings, slogans, tests, logos, ideas,
practices, projects, developments, plans, research data, financial data,
personnel data, computer programs and codes, and customer and supplier
lists. Executive will not disclose any Proprietary Information to
others outside the Company except in the performance of his duties or use the
same for any unauthorized purposes without written approval by an officer of the
Company, either during or after his employment, unless and until such
Proprietary Information has become public knowledge or generally known within
the industry without fault by Executive, or unless otherwise required by
law.
(b) Executive
agrees that all files, letters, memoranda, reports, records, data, sketches,
drawings, laboratory notebooks, program listings, or other written,
photographic, electronic or other material containing Proprietary Information,
whether created by Executive or others, which shall come into his custody or
possession, shall be and are the exclusive property of the Company to be used by
Executive only in the performance of his duties for the Company.
(c) Executive
agrees that his obligation not to disclose or use information, know-how and
records of the types set forth in paragraphs (a) and (b) above, also extends to
such types of information, know-how, records and tangible property of
subsidiaries and joint ventures of the Company, customers of the Company or
suppliers to the Company or other third parties who may have disclosed or
entrusted the same to the Company or to Executive in the course of the Company’s
business.
6.2 Inventions
(a) Disclosure. Executive
shall disclose promptly to an officer or to attorneys of the Company in writing
any idea, invention, work of authorship, whether patentable or unpatentable,
copyrightable or uncopyrightable, including, but not limited to, any computer
program, software, command structure, code, documentation, compound, genetic or
biological material, formula, manual, device, improvement, method, process,
discovery, concept, algorithm, development, secret process, machine or
contribution (any of the foregoing items hereinafter referred to as an
"Invention") Executive may conceive, make, develop or work on, in whole or in
part, solely or jointly with others. The disclosure required by this Section
applies (a) to any invention related to the general line of business engaged in
by the Company or to which the Company planned to enter during the period of
Executive’s employment with the Company and for one year thereafter; (b) with
respect to all Inventions whether or not they are conceived, made, developed or
worked on by Executive during Executive’s regular hours of employment with the
Company; (c) whether or not the Invention was made at the suggestion of the
Company; and (d) whether or not the Invention was reduced to drawings, written
description, documentation, models or other tangible form.
(b) Assignment of Inventions to
Company; Exemption of Certain Inventions. Executive hereby assigns to the
Company without royalty or any other further consideration Executive’s entire
right, title and interest in and to all Inventions which Executive conceives,
makes, develops or works on during employment and for one year thereafter,
except as limited by 6.2(a) above and those Inventions that Executive develops
entirely on Executive’s own time after the date of this Agreement without using
the Company's equipment, supplies, facilities or trade secret information unless
those Inventions either (a) relate at the time of conception or reduction to
practice of the Invention to the Company's business, or actual or demonstrably
anticipated research or development of the Company; or (b) result from any work
performed by Executive for the Company.
(c) Records. Executive
will make and maintain adequate and current written records of all Inventions.
These records shall be and remain the property of the Company.
(d) Patents. Executive
will assist the Company in obtaining, maintaining and enforcing patents and
other proprietary rights in connection with any Invention covered by Section
6.2. Executive further agrees that his obligations under this Section
shall continue beyond the termination of his employment with the Company, but if
he is called upon to render such assistance after the termination of such
employment, he shall be entitled to a fair and reasonable rate of compensation
for such assistance. Executive shall, in addition, be entitled to reimbursement
of any expenses incurred at the request of the Company relating to such
assistance.
6.3 Prior Contracts and
Inventions; Information Belonging to Third Parties. Executive
represents that there are no contracts to assign Inventions between any other
person or entity and Executive. Executive further represents that (a)
Executive is not obligated under any consulting, employment or other agreement
which would affect the Company's rights or my duties under this Agreement, (b)
there is no action, investigation, or proceeding pending or threatened, or any
basis therefor known to me involving Executive’s prior employment or any
consultancy or the use of any information or techniques alleged to be
proprietary to any former employer, and (c) the performance of Executive’s
duties as an employee of the Company will not breach, or constitute a default
under any agreement to which Executive is bound, including, without limitation,
any agreement limiting the use or disclosure of proprietary information acquired
in confidence prior to engagement by the Company. Executive will not, in
connection with Executive’s employment by the Company, use or disclose to the
Company any confidential, trade secret or other proprietary information of any
previous employer or other person to which Executive is not lawfully
entitled.
6.4 Noncompetition and
Nonsolicitation.
(a) During
the Employment Period and for a period of twelve (12) months after the
termination of Executive’s employment with the Company for any reason or for no
reason, Executive will not directly or indirectly, absent the Company’s prior
written approval, render services of a business, professional or commercial
nature to any other person or entity in the area of trace explosives detection,
surface modification services to the medical device and semiconductor industries
or such other services or products provided by the Company at the time
employment terminates in any geographical area where the Company does business
at the time this covenant is in effect, whether such services are for
compensation or otherwise, whether alone or in conjunction with others, as an
employee, as a partner, or as a shareholder (other than as the holder of not
more than 1% of the combined voting power of the outstanding stock of a public
company), officer or director of any corporation or other business entity, or as
a trustee, fiduciary or in any other similar representative
capacity.
(b) During
the Employment Period and for a period of twelve (12) months after the
termination of Executive’s employment for any reason or for no reason, Executive
will not, directly or indirectly, recruit, solicit or induce, or attempt to
recruit, solicit or induce any employee or employees of the Company to terminate
their employment with, or otherwise cease their relationship with, the
Company.
(c) During
the Employment Period and for a period of twelve (12) months after termination
of Executive’s employment for any reason or for no reason, Executive will not,
directly or indirectly, contact, solicit, divert or take away, or attempt to
solicit, contact, divert or take away, the business or patronage of any of the
clients, customers or accounts, or prospective clients, customers or accounts,
of the Company.
6.5 If any
restriction set forth in this Section is found by any court of competent
jurisdiction to be unenforceable because it extends for too long a period of
time or over too great a range of activities or in too broad a geographic area,
it shall be interpreted to extend only over the maximum period of time, range of
activities or geographic area as to which it may be enforceable.
6.6 The
restrictions contained in this Section are necessary for the protection of the
business and goodwill of the Company and are considered by Executive to be
reasonable for such purpose. Executive agrees that any breach of this
Section will cause the Company substantial and irrevocable damage and therefore,
in the event of any such breach, in addition to such other remedies which may be
available, the Company shall have the right to seek specific performance and
injunctive relief. The prevailing party shall be entitled to recover
its reasonable attorneys’ fees in such an action. In addition, the
Company’s obligation to pay Executive the amount set fourth in Section 5.2 or
5.3 shall terminate in the event Executive materially breaches any terms and
conditions in Section 6. If the Company breaches its obligation to
pay Executive the amounts due hereunder, Executive's obligations in this Section
6 shall terminate.
7. Entire
Agreement. This Agreement constitutes the entire agreement
between the parties and supersedes all prior agreements and understandings,
whether written or oral relating to the subject matter of this Agreement,
including without limitation the employment agreement dated as of July 31, 2008
between the Company and the Executive.
8. Amendment. This
Agreement may be amended or modified only by a written instrument executed by
both the Company and Executive.
9. Governing Law; Waiver of
Jury Trial. This Agreement shall be construed, interpreted and
enforced in accordance with the laws of the Commonwealth of Massachusetts
without regard to principles of conflicts of laws thereunder. EACH OF THE
PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS
AGREEMENT.
10. Notices. Any
notice or other communication required or permitted by this Agreement to be
given to a party shall be in writing and shall be deemed given if delivered
personally or by commercial messenger or courier service, or mailed by U.S.
registered or certified mail (return receipt requested), or sent via facsimile
(with receipt of confirmation of complete transmission) to the party at the
party’s last known address or facsimile number or at such other address or
facsimile number as the party may have previously specified by like notice. If
by mail, delivery shall be deemed effective 3 business days after mailing in
accordance with this Section.
11. Successors and
Assigns.
11.1 Assumption by
Successors. The Company shall require any successor (whether
direct or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business or assets of the Company to assume in writing
prior to such succession and to agree to perform its obligations under this
Agreement in the same manner and to the same extent that the Company would be
required to perform it if no such succession had taken
place. Successions by virtue of the sale of stock shall be governed
by operation of law.
11.2 Successor
Benefits. This Agreement shall be binding upon and inure to
the benefit of both parties and their respective successors and assigns,
including any corporation into which the Company may be merged or which may
succeed to its assets or business, provided, however, that the
obligations of Executive are personal and shall not be assigned by
him.
12. Miscellaneous.
12.1 No
Waiver. No delay or omission by the Company in exercising any
right under this Agreement shall operate as a waiver of that or any other
right. A waiver or consent given by the Company on any one occasion
shall be effective only in that instance and shall not be construed as a bar or
waiver of any right on any other occasion.
12.2 Severability. In
case any provision of this Agreement shall be invalid, illegal or otherwise
unenforceable, the validity, legality and enforceability of the remaining
provisions shall in no way be affected or impaired thereby.
12.3 Counterparts. This
Agreement may be executed in two or more counterparts, each of which shall be
deemed an original but all of which together shall constitute one and the same
instrument.
12.4 Withholding. All
payments made by the Company under this Agreement shall be net of any tax or
other amounts required to be withheld by the Company pursuant to applicable
law.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day
and year set forth above.
By: /s/ Xxxxx X.
Xxxxxx
XXXXX X.
XXXXXX, EXECUTIVE
Date executed: February 6,
2009
IMPLANT SCIENCES
CORPORATION
By: /s/ Xxxxxxx
Xxxxxxxx
XXXXXXX
XXXXXXXX, DIRECTOR
Date executed:
February 6, 2009
Exhibit
A
1. Your
Release of Claims. By signing this Agreement, you hereby agree
and acknowledge that, for good and valuable consideration, you are waiving your
right to assert any and all forms of legal claims against the Company1/ of any
kind whatsoever, whether known or unknown, arising from the beginning of time
through the date you execute this Agreement (the “Execution
Date”). Except as set forth below, your waiver and release herein is
intended to bar any form of legal claim, complaint or any other form of action
(jointly referred to as “Claims”) against the Company seeking any form of relief
including, without limitation, equitable relief (whether declaratory, injunctive
or otherwise), the recovery of any damages, or any other form of monetary
recovery whatsoever (including, without limitation, back pay, front pay,
compensatory damages, emotional distress damages, punitive damages, attorneys
fees and any other costs) against the Company, for any alleged action, inaction
or circumstance existing or arising through the Execution Date.
Without limiting the foregoing general
waiver and release, you specifically waive and release the Company from any
Claim arising from or related to your prior employment relationship with the
Company or the termination thereof, including, without limitation:
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Claims
under any state or federal discrimination, fair employment practices or
other employment related statute, regulation or executive order (as they
may have been amended through the Execution Date) prohibiting
discrimination or harassment based upon any protected status including,
without limitation, race, national origin, age, gender, marital status,
disability, veteran status or sexual orientation. Without
limitation, specifically included in this paragraph are any Claims arising
under the Age Discrimination in Employment Act, Title VII of the Civil
Rights Act of 1964, the Civil Rights Act of 1991, the Equal Pay Act, the
Americans With Disabilities Act and any similar Federal and state
statute.
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Claims
under any other state or federal employment related statute, regulation or
executive order (as they may have been amended through the Execution Date)
relating to wages, hours or any other terms and conditions of
employment.
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Claims
under any state or federal common law theory including, without
limitation, wrongful discharge, breach of express or implied contract,
promissory estoppel, unjust enrichment, breach of a covenant of good faith
and fair dealing, violation of public policy, defamation, interference
with contractual relations, intentional or negligent infliction of
emotional distress, invasion of privacy, misrepresentation, deceit, fraud
or negligence.
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Any
other Claim arising under state or federal
law.
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You
acknowledge and agree that, but for providing this waiver and release, you would
not be receiving the economic benefits being provided to you under the terms of
this Agreement. You further acknowledge that this release does
not waive any claims you cannot by law waive and does not release any claims
that arise after its execution.
It is the
Company’s desire and intent to make certain that you fully understand the
provisions and effects of this Agreement. To that end, you have been
advised and given the opportunity to consult with legal counsel for the purpose
of reviewing the terms of this Agreement. Also, because you are over
the age of 40, the Age Discrimination in Employment Act (“ADEA”), which
prohibits discrimination on the basis of age, allows you at least twenty-one
(21) days to consider the terms of this Agreement. ADEA also allows
you to rescind your assent to this Agreement if, within seven (7) days after you
sign this Agreement, you deliver by hand or send by mail (certified, return
receipt and postmarked within such 7 day period) a notice of rescission to the
Company. The eighth day following your signing of this Agreement is the
Effective Date.
Also,
consistent with the provisions of Federal law, nothing in this release shall be
deemed to prohibit you from challenging the validity of this release under the
discrimination laws (the “Federal Discrimination Laws”) or from filing a charge
or complaint of employment-related discrimination with the Equal Employment
Opportunity Commission (“EEOC”) or any state fair employment practices agency,
or from participating in any investigation or proceeding conducted by the EEOC
or any state fair employment practices agency. Further, nothing in
this release or Agreement shall be deemed to limit the Company’s right to seek
immediate dismissal of such charge or complaint on the basis that your signing
of this Agreement constitutes a full release of any individual rights under the
Federal Discrimination Laws, or to seek restitution to the extent permitted by
law of the economic benefits provided to you under this Agreement in the event
that you successfully challenge the validity of this release and prevail in any
claim under the Federal Discrimination Laws.
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By:__________________________
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Employee
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Date
signed: _____________
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1/
For purposes of this Agreement, the Company includes the Company and any of its
divisions, affiliates (which means all persons and entities directly or
indirectly controlling, controlled by or under common control with the Company),
subsidiaries and all other related entities, and its and their directors,
officers, employees, trustees, agents, successors and
assigns.
