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EXHIBIT 10.55
AGREEMENT
This Agreement ("Agreement") is dated as of January 1, 2001, and is entered into
by and between ___________________ ("Employee") and Xxxxxxx Xxxxxxx, Inc., a
Delaware corporation ("Xxxxxxx"). Employee and Xxxxxxx hereby agree to the
following terms and
conditions:
1. Purpose of Agreement. The purpose of this Agreement is to provide that,
in the event of a "Change in Control," Employee may become entitled to
receive additional benefits in the event of his termination. It is
believed that the existence of these potential benefits will benefit
Xxxxxxx by discouraging turnover among Employees with Agreements and
causing such Employees to be more able to respond to the possibility of a
Change in Control without being influenced by the potential effect of a
Change in Control on their job security.
2. Change in Control. As used in this Agreement, the phrase "Change in
Control" shall mean the following and shall be deemed to occur if any of
the following events occur:
(a) Any "person," as such term is used in Sections 13(d) and 14(d) of
the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), is or becomes the "beneficial owner" (as defined in Rule
13d-3 under the Exchange Act), directly or indirectly, of
securities of Xxxxxxx representing 15% or more of the combined
voting power of Xxxxxxx'x then outstanding voting securities,
provided that, no Change in Control shall be deemed to occur
solely because a corporation (the "seller") owns 15% or more of
Xxxxxxx voting securities if such ownership is only a transitory
step in a reorganization whereby Xxxxxxx purchases the assets of
the seller for Xxxxxxx voting securities and the seller liquidates
shortly thereafter; or if the "person" described above is an
underwriter or underwriting syndicate that has acquired ownership
of the Company's securities solely in connection with a public
offering of the Company's securities or is an employee benefit
plan maintained by the Company or any of its subsidiaries.
(b) Individuals who, as of the date hereof, constitute the Board of
Directors of Xxxxxxx (the "Incumbent Board"), cease for any reason
to constitute at least a majority of the Board of Directors,
provided that any person becoming a director subsequent to the
date hereof whose election, or nomination for election by
Xxxxxxx'x stockholders, was approved by a vote of at least a
majority of the directors then comprising the Incumbent Board
(other than an election or nomination of an individual whose
initial assumption of office is in connection with an actual or
threatened election contest relating to the election of the
directors of Xxxxxxx, as such terms are used in Rule 14a-11 of
Regulation 14A promulgated under the Exchange Act) shall be deemed
to be a member of the Incumbent Board of Xxxxxxx;
(c) The consummation of a merger or consolidation with any other
corporation, other than
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(1) a merger or consolidation which would result in the voting
securities of Xxxxxxx outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or
by being converted into voting securities of another
entity) more than 85% of the combined voting power of the
voting securities of Xxxxxxx or such other entity
outstanding immediately after such merger or consolidation,
(2) a merger or consolidation affected to implement a
recapitalization of Xxxxxxx (or similar transaction) in
which no person acquires 15% or more of the combined voting
power of Xxxxxxx'x then outstanding voting securities; or
(d) The stockholders of Xxxxxxx approve a plan of complete liquidation
of Xxxxxxx or an agreement for the sale or disposition by Xxxxxxx
of all or substantially all of Xxxxxxx'x assets.
Furthermore, even though a transaction meets the definition of a Change
in Control set forth in clause (a) of the first sentence of this section,
such transaction shall not constitute a Change in Control under this
Agreement if subsequent to the transaction and at all times thereafter at
least 70% of the voting power of Xxxxxxx'x then outstanding voting
securities remain widely held by members of the general public.
In addition, the merger or consolidation which would constitute a Change
in Control under clause (c) of the first sentence of this section shall
not be treated as a Change in Control if three criteria are met: (1)
after the merger or consolidation, persons who owned Xxxxxxx voting
securities prior to the merger or consolidation own at least 60% of the
voting securities of the surviving entity; (2) the voting securities not
owned by former Xxxxxxx shareholders are widely held by the general
public; and (3) the Organization and Compensation Committee ("the
Committee") resolves, prior to the approval that would otherwise
constitute a Change in Control under clause (c), that no Change in
Control shall be treated as having occurred. For the purpose of this
paragraph, the former Xxxxxxx shareholders shall be treated as owning the
shares owned by the entity into which their shares are converted so that,
for example, if the reorganization causes Xxxxxxx to become a wholly
owned subsidiary of another entity and the former Xxxxxxx shareholders
own at least 60% of that entity, then the share ownership requirement
shall be considered to have been satisfied.
3. Rights and Obligations Prior to a Change in Control. Prior to a Change in
Control the rights and obligations of Employee with respect to his
employment by Xxxxxxx shall be whatever rights and obligations are
negotiated between Xxxxxxx and Employee from time to time. The existence
of this Agreement, which deals with such rights and obligations
subsequent to a Change in Control, shall not be treated as raising any
inference with respect to what rights and obligations exist prior to a
Change in Control unless specifically stated elsewhere in this Agreement.
4. Effect of a Change in Control. In the event of a Change in Control,
Sections 6 through 9 of this Agreement shall become applicable to
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Employee if his Qualifying Termination occurs on or prior to the second
anniversary of the date upon which the Change in Control occurred. If a
Qualifying Termination has occurred by that date, this Agreement shall
remain in effect until Employee receives the various benefits to which he
has become entitled under the terms of this Agreement; otherwise, upon
such date this Agreement shall be of no further force or effect.
5. Qualifying Termination. If, subsequent to a Change in Control Employee's
employment terminates, such termination shall be considered a Qualifying
Termination unless:
(a) Employee voluntarily terminates employment. It shall not be
considered, however, a voluntary termination of employment if,
following the Change in Control, Employee's compensation or duties
are changed in any material respect from what they were
immediately prior to a Change in Control, and subsequent to such
change Employee elects to terminate employment. A "change in any
material respect" shall encompass any substantial diminishment or
modification in Employee's overall compensation (as measured by
the overall value of such compensation, including fringe benefits,
to Employee), position, duties, responsibilities, or reporting
relationship, and shall also include the transfer of Employee's
job location to a site more than 50 miles away from his place of
employment prior to the Change in Control.
(b) The termination is on account of Employee's death or disability.
As used herein, "disability" refers to an illness or accident that
causes Employee to be unable to perform the duties of his or her
job for six months or more consecutive months.
(c) Employee is involuntarily terminated for "cause." For this purpose
"cause" shall mean:
(i) any material act of misconduct against Xxxxxxx or any
of its affiliates, such as fraud, misappropriation, or
embezzlement;
(ii) conviction of a felony involving a crime of moral
turpitude;
(iii) willful and knowing significant violation of rules or
regulations of any governmental or regulatory body which has a
material impact to the business of Xxxxxxx; or
(iv) substantial and willful failure to render services in
accordance with the job description of Employee's position (other
than as a result of illness, accident or other physical or mental
incapacity), provided that (A) a demand for performance of
services has been delivered to the Employee in writing by or on
behalf of the Chief Executive Officer (CEO) of Xxxxxxx at least 60
days prior to termination identifying the manner in which such CEO
believes that the Employee has failed to perform and (B) the
Employee has thereafter failed to remedy such failure to perform.
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6. Constructive Qualifying Termination. If within six months prior to a
change in control the Employee's employment terminates other than by
causes listed in paragraph 5(a)(b) & (c), Employee may submit to an
arbitration proceeding under paragraph 17 the determination of whether
said termination within six month prior to a change in control was a
constructive Qualifying Termination, entitling the Employee to
Compensation and other benefits that would have been granted if said
termination had occurred after a change in control.
7. Date and Notice of Termination. Any termination of the Employee's
employment by Xxxxxxx or by the Employee shall be communicated by a
written notice of termination to the other party (the "Notice of
Termination"). Where applicable, the Notice of Termination shall indicate
the specific termination provision in this Agreement relied upon and
shall set forth in reasonable detail the facts and circumstances claimed
to provide a basis for termination of the Employee's employment under the
provision so indicated. The date of the Employee's termination of
employment with Xxxxxxx (the "Date of Termination") shall be determined
as follows: (i) if the Employee's employment is terminated by Xxxxxxx,
either with or without Cause, the Date of Termination shall be the date
specified in the Notice of Termination (which, in the case of a
termination by Xxxxxxx other than for Cause, shall not be less than two
(2) weeks from the date such Notice of Termination is given unless
Xxxxxxx elects to pay the Employee, in addition to any other amounts
payable hereunder, an amount equal to two (2) weeks of the Employee's
base salary in effect on the Date of Termination), and (ii) if the basis
for the Employee's Termination is a Qualifying Termination, the Date of
Termination shall be determined by Xxxxxxx, but shall not in any event be
less than fifteen (15) days nor more than sixty (60) days from the date
such Notice of Termination is given.
8. Severance Payment. If Employee is terminated as a result of a Qualifying
Termination, Xxxxxxx shall pay Employee within 30 days of said Qualifying
Termination a cash lump sum equal to __________ ( ) times Employee's
"Compensation" as a severance payment ("Severance Payment").
(a) "Compensation" shall equal the sum of the Employee's highest
annual salary rate (i.e., the highest rate of annual salary that
Employee has been entitled to while an employee of Xxxxxxx) plus a
"Management Bonus Increment." The Management Bonus Increment
equals the "applicable percentage" of the highest annual salary
rate. The "applicable percentage" is determined by looking at the
management bonus plan that is applicable to Employee at the time
of the Qualifying Termination and calculating the total award
guideline percentage that would be applicable if the target
performance were achieved. The total award guideline percentage
(at target) shall not be adjusted either up or down by any
individual performance rating under the plan. If subsequent to
this Agreement the Xxxxxxx Management Bonus Plan is redesigned or
replaced, the applicable percentage shall be equitably adjusted to
reflect the percentage of salary that Employee could reasonably
expect to receive as a bonus if his performance had been excellent
and profit objectives had been met for the year of the Qualifying
Termination. If at the time of the Qualifying Termination neither
the Xxxxxxx Management
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Bonus Plan nor a successor plan with a substantially similar bonus
potential is in place and applicable to Employee, the calculation
of the applicable percentage shall be based on the terms of the
Xxxxxxx Management Bonus Plan that applied to Employee at the time
that this Agreement was executed.
(b) In lieu of a cash lump sum, Employee may elect in writing to
receive the Severance Payment provided by this Section in equal
monthly installments over ________ ( ) years (depending on the
applicable multiple discussed in this Section 8). Such election
may only be made prior to the occurrence of the events which
constitute the Change in Control in question and such election is
irrevocable once made.
(c) The Severance Payment hereunder is in lieu of any severance
payments that Employee might otherwise be entitled to from Xxxxxxx
under the terms of any severance pay arrangement not referred to
in this Agreement.
(d) If a Qualifying Termination occurs during a calendar year,
Employee shall receive a prorata Management Bonus for that portion
of the year before the Qualifying Termination occurred. The
prorata Management Bonus shall be calculated to the nearest month
based on a twelve month year. Further, the prorata Management
Bonus shall be based on the total award guideline percentage
applicable to Employee if the target performance were achieved.
The total award guideline percentage (at target) shall not be
adjusted either up or down by any individual performance rating
under the plan.
9. Stock Option Grants and Other Forms of Employee Compensation.
(a) Employee may have received or will receive stock option grants or
restricted stock under the Xxxxxxx Incentive Compensation Plan, or
other stock option plans of Xxxxxxx. In the event of a Qualifying
Termination, Xxxxxxx agrees (1) that all such stock options shall
be immediately exercisable and shall remain exercisable for the
length of the option period, and (2) that all such restricted
stock shall have the restrictions removed.
(b) Xxxxxxx acknowledges that it may establish new Employee
compensation programs subsequent to the date of this Agreement in
addition to the ones described in this Agreement. If such a
program is established, Employee becomes a participant in such a
program, and the receipt by Employee of the benefits to which he
is potentially entitled under the program is conditioned upon the
satisfaction of a vesting requirement, then such vesting
requirement shall be treated as completely satisfied in the event
of a Qualifying Termination.
10. Pension Plan for Employees of Xxxxxxx (the "Pension Plan"). In addition
to any retirement benefits that might otherwise be due Employee under the
Pension Plan or any successor plan, Employee shall receive additional
payments from Xxxxxxx calculated as set forth in this section if Employee
is terminated on account of a Qualifying Termination.
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(a) At the time that Employee (or Employee's beneficiary) first begins
to receive benefits under the Pension Plan there shall be
calculated the difference between the benefit that Employee or
Employee's beneficiary has begun to receive under the Pension Plan
and the benefit that would have been received if Employee had
worked for another ________ ( ) years (depending on the
compensation multiple discussed in Section 8 used to calculate the
Employee's Severance Payment) subsequent to the date of the
Qualifying Termination. For the purpose of the preceding sentence,
Employee shall be deemed to have received "Earnings" under the
Pension Plan for the period subsequent to the Qualifying
Termination at an annual rate equal to his Compensation, as
calculated under Section 8(a) of this Agreement. This difference
shall be paid by Xxxxxxx as a supplemental payment to Employee or
Employee's beneficiary for the period of time that he is entitled
to the payment that is being supplemented.
(b) To the extent that Employee's pension benefit is provided by a
different tax-qualified defined benefit pension plan for Xxxxxxx
employees, the calculation of the obligation under this section
shall be calculated with regard to such successor plan's benefit
formula and other relevant features. This section shall be applied
with regard to the new plan in a manner designed to provide
Employee with the additional benefits he would have received if he
had remained employed for another ____________ ( ) years, as the
case may be. If Employee is not participating in a tax-qualified
defined benefit pension plan at the time of the Qualifying
Termination, the benefit under this section shall be calculated
with regard to the terms of the Pension Plan at the time of this
Agreement.
11. Additional Benefits. In the event of a Qualifying Termination, Employee
shall be entitled to continue to participate in the following employee
benefit programs which had been made available to Employee before the
Qualifying Termination: group medical insurance, group dental insurance,
group-term life insurance, disability insurance, automobile allowance,
financial planning services, outplacement services, continuation of D&O
insurance, and indemnification. These programs shall be continued at no
additional cost to Employee; provided that, Employee acknowledges that
tax rules may require the inclusion of the value of such benefits in
Employee's income. The programs shall be continued in the same way and at
the same level as immediately prior to the Qualifying Termination. The
programs shall continue for __________ ( ) years, depending on Employee's
compensation multiple under Section 8.
12. Funding of SERP Obligations Upon Change of Control and a Qualifying
Termination. Upon the occurrence of a Change in Control and a Qualifying
Termination of the Employee, Xxxxxxx shall fund that portion, if any, of
the obligations of Xxxxxxx to the Employee, under any supplemental
executive retirement plan ("SERP") and other non qualified plans that may
then cover the Employee, that are not then irrevocably funded by
establishing and irrevocably funding a trust for the benefit of the
Employee. The amount of such fund shall include the obligations of
Xxxxxxx to Employee under any non qualified plan as well as the then
present value of the supplemental pension obligation due as
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determined by a nationally recognized firm qualified to provide actuarial
services which has not rendered services to Xxxxxxx during the two years
preceding such determination. The actuary shall be selected by Xxxxxxx,
subject to approval by the Employee (which approval shall not
unreasonably be withheld), and paid by Xxxxxxx. The establishment and
funding of such trust shall not affect the obligation of Xxxxxxx to pay
any non qualified benefits, including, but not limited to supplemental
pension payments under the terms of the applicable SERP.
13. Section 280G
(a) Gross-Up. Notwithstanding any other provisions of this Agreement,
in the event that any payment or benefit received or to be
received by the Employee or the acceleration of any payment or
benefit (all such payments and benefits, and accelerations thereof
including the Change in Control Severance Payments, being
hereinafter called the "Total Payments") would be subject (in
whole or in part) to the tax (the "Excise Tax") imposed under
Section 4999 of the Code, Xxxxxxx shall pay to the Employee such
additional amounts (the "Gross-Up Payment") such that the net
amount retained by the Employee, after deduction of any Excise Tax
on the Total Payments and any federal, state and local income and
employment taxes and Excise Tax upon the Gross-Up Payment, shall
be equal to the Total Payments. For purposes of determining the
amount of the Gross-Up Payment, the Employee shall be deemed to
pay federal income tax at the highest marginal rate of federal
income taxation in the calendar year in which the Gross-Up Payment
is calculated for purposes of this section, net of the maximum
reduction in federal income taxes which could be obtained from
deduction of such state and local taxes. In the event that the
Excise Tax is subsequently determined to be less than the amount
taken into account hereunder, the Employee shall repay to Xxxxxxx,
at the time that the amount of such reduction in Excise Tax is
finally determined, the portion of the Gross-Up Payment
attributable to such reduction (plus that portion of the Gross-Up
Payment attributable to the Excise Tax and federal, state and
local income tax imposed on the Gross-Up Payment being repaid by
the Employee to the extent that such repayment results in a
reduction in Excise Tax and/or a federal, state or local income
tax deduction) plus interest on the amount of such repayment at
the rate provided in Section 1274(b)(2)(B) of the Code. In the
event that the Excise Tax is determined to exceed the amount taken
into account hereunder (including by reason of any payment the
existence or amount of which cannot be determined at the time of
the Gross-Up Payment), Xxxxxxx shall make an additional Gross-Up
Payment in respect of such excess (plus any interest, penalties or
additions payable by the Employee with respect to such excess) at
the time that the amount of such excess is finally determined. The
Employee and Xxxxxxx shall each reasonably cooperate with the
other in connection with any administrative or judicial
proceedings concerning the existence or amount of liability for
Excise Tax with respect to the Total Payments.
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(b) Accounting Firm. All determinations to be made with respect to
this Section 13 shall be made by Xxxxxxx'x independent accounting
firm (or, in the case of a payment following a Change in Control,
the accounting firm that was, immediately prior to the Change in
Control, Xxxxxxx'x independent auditor). The accounting firm shall
be paid by Xxxxxxx for its services performed hereunder.
14. Term of Agreement. This Agreement shall be effective from January 1, 2001
through December 31, 2010. Xxxxxxx may, in its sole discretion and for
any reason, provide written notice of termination (effective as of the
then applicable expiration date) to Employee no later than 60 days before
expiration date of this Agreement. If written notice is not so provided,
this Agreement shall be automatically extended for an additional period
of 12 months past the expiration date. This Agreement shall continue to
be automatically extended for an additional 12 months at the end of such
12-month period and each succeeding 12-month period unless notice is
given in the manner described in this section.
15. Governing Law. Except to the extent that federal law is applicable, this
Agreement is made and entered into in the State of California, and the
laws of California shall govern its validity and interpretation in the
performance by the parties hereto of their respective duties and
obligations hereunder.
16. Entire Agreement. This Agreement constitutes the entire agreement between
the parties respecting the benefits due Employee in the event of a Change
in Control followed by a Qualifying Termination, and there are no
representations, warranties or commitments, other than those set forth
herein, which relate to such benefits. This Agreement may be amended or
modified only by an instrument in writing executed by all of the parties
hereto. This is an integrated agreement.
17. Dispute Resolution. Any disagreement, dispute, controversy or claim
arising out of or relating to this Agreement or the interpretation of
this Agreement or any arrangements relating to this Agreement or
contemplated in this Agreement or the breach, termination or invalidity
thereof shall be settled by final and binding arbitration administered by
JAMS/Endispute in Orange County, California in accordance with the then
existing JAMS/Endispute Arbitration Rules and Procedures for Employment
Disputes. In the event of such an arbitration proceeding, the Employee
and Xxxxxxx shall select a mutually acceptable neutral arbitrator from
among the JAMS/Endispute panel of arbitrators. In the event the Employee
and Xxxxxxx cannot agree on an arbitrator, the Administrator of
JAMS/Endispute will appoint an arbitrator. Neither the Employee nor
Xxxxxxx nor the arbitrator shall disclose the existence, content, or
results of any arbitration hereunder without the prior written consent of
all parties. Except as provided herein, the Federal Arbitration Act shall
govern the interpretation, enforcement and all proceedings. The
arbitrator shall apply the substantive law (and the law of remedies, if
applicable), of the State of California, or federal law, or both, as
applicable and the arbitrator is without jurisdiction to apply any
different substantive law. The arbitrator shall have the authority to
entertain a motion to dismiss and/or a motion for summary judgement by
any party and shall apply the standards governing such motions under the
Federal Rules of Civil Procedure. The
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arbitrator shall render an award and a written, reasoned opinion in
support thereof. Judgement upon the award may be entered in any court
having jurisdiction thereof. The Employee and Xxxxxxx shall generally
each be responsible for payment of one-half the amount of the
arbitrator's fee, provided, however, that Xxxxxxx shall pay to the
Employee all legal fees and expenses (including but not limited to fees
and expenses in connection with any arbitration) incurred by the Employee
in disputing in good faith any issue arising under this Agreement
relating to the termination of the Employee's employment in connection
with a Change in Control or in seeking in good faith to obtain or enforce
any benefit or right provided by this Agreement on account of a Change in
Control.
In the case of a termination for cause, and Employee files for
arbitration under the dispute resolution paragraph 17, the Company shall
continue to pay Employee his salary from the time of said termination for
cause for a period of six (6) months. The arbitrator in the dispute
resolution proceeding shall have the authority to direct the Company of
the Employee (taking into account the good faith claim and the needs of
the Employee) to continue payment of Employee's salary beyond said six
months. If Employee is successful in the arbitration proceeding with a
finding of a Qualifying Termination and receives his Compensation under
this Agreement, the payment of salary subsequent to the alleged
termination for cause will be deducted from any payment of Compensation
to the Employee.
18. Tax Withholding. All amounts paid under this Agreement shall be subject
to all applicable federal, state and local wage and employment tax
withholding.
19. Release. Notwithstanding anything herein to the contrary, Xxxxxxx'x
obligation to make the payments provided for in this Agreement is
expressly made subject to and conditioned upon (i) the Employee's prior
execution of a release substantially in the form attached hereto as
Exhibit A within forty-five days after the applicable Date of Termination
and (ii) the Employee's non-revocation of such release in accordance with
the terms thereof.
20. Successors: Binding Agreement.
(a) Assumption by Successor. Xxxxxxx 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 Xxxxxxx expressly to assume and to agree to perform its
obligations under this Agreement in the same manner and to the
same extent that Xxxxxxx would be required to perform such
obligations if no such succession had taken place; provided,
however, that no such assumption shall relieve Xxxxxxx of its
obligations hereunder. As used herein, Xxxxxxx shall mean any
successor to its business and/or assets as aforesaid that assumes
and agrees to perform its obligations by operation of law or
otherwise.
(b) Enforceability Beneficiaries. This Agreement shall be binding upon
and inure to the benefit of the Employee (and the Employee's
personal representatives and heirs) and Xxxxxxx and any
organization which succeeds to substantially all of the
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business or assets of Xxxxxxx, whether by means of merger,
consolidation, acquisition of all or substantially all of the
assets of Xxxxxxx or otherwise, including, without limitation, as
a result of a Change in Control or by operation of law. This
Agreement shall inure to the benefit of and be enforceable by the
Employee's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and
legatees. If the Employee should die while any amount would still
be payable to such Employee hereunder if he had continued to live,
all such amounts, unless otherwise provided herein, shall be paid
in accordance with the terms of this Agreement to his devisee,
legatee or other designee or, if there is no such designee, to his
estate.
21. Confidentiality: Non Solicitation.
(a) Confidentiality. The Employee acknowledges that in the course of
his employment within Xxxxxxx, he has acquired non-public
privileged or confidential information and trade secrets
concerning the operations, future plans and methods of doing
business ("Proprietary Information") of Xxxxxxx, and the Employee
agrees that it would be extremely damaging to Xxxxxxx if such
Proprietary Information were disclosed to a competitor of Xxxxxxx
or to any other person or corporation. The Employee understands
and agrees that all Proprietary Information the Employee has
acquired during the course of such employment has been divulged to
the Employee in confidence and further understands and agrees to
keep all Proprietary Information secret and confidential (except
for such information which is or becomes publicly available other
than as a result of a breach by the Employee of this provision)
without limitation in time. In view of the nature of the
Employee's employment and the Proprietary Information the Employee
has acquired during the course of such employment, the Employee
likewise agrees that Xxxxxxx would be irreparably harmed by any
disclosure of Proprietary Information in violation of the terms of
this paragraph and that Xxxxxxx shall therefore be entitled to
preliminary and/or permanent injunctive relief prohibiting the
Employee from engaging in any activity or threatened activity in
violation of the terms of this paragraph and to any other judicial
relief available to it. Inquires regarding whether specific
information constitutes Proprietary Information shall be directed
to Xxxxxxx'x General Counsel (or, if such position is vacant,
Xxxxxxx'x Chief Executive Officer); provided, however, that
Xxxxxxx shall not unreasonably classify information as Proprietary
Information.
(b) Non-Solicitation of Employees. The Employee recognizes that he
possesses and will possess confidential information about other
employees of Xxxxxxx, relating to their education, experience,
skills, abilities, compensation and benefits, and interpersonal
relationships with customers of Xxxxxxx. The Employee recognizes
that the information he possesses and will possess about these
other employees is not generally known, is of substantial value to
Xxxxxxx in developing their business and in securing and retaining
customers, and has been and will be acquired by him because of his
business position within Xxxxxxx.
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The Employee agrees that for a period of one (1) year following
the Date of Termination, he will not, directly or indirectly,
solicit recruit any employee of Xxxxxxx for the purpose of being
employed by him or by any other competitor of Xxxxxxx on whose
behalf he is acting as an agent, representative or employee and
that he will not convey any such confidential information or trade
secrets about other employees of Xxxxxxx to any other person;
provided, however, that it shall not constitute a solicitation or
recruitment of employment in violation of this paragraph to
discuss employment opportunities with any employee of Xxxxxxx who
has either first contacted the Employee or regarding whose
employment the Employee has discussed with and received written
approval of Xxxxxxx'x Vice President, Human Resources (or, if such
position is vacant, Xxxxxxx Chief Executive Officer), prior to
making such solicitation or recruitment. In view of the nature of
the Employee's employment with Xxxxxxx, the Employee likewise
agrees that Xxxxxxx would irreparably harmed by any solicitation
or recruitment in violation of the terms of this paragraph and
that Xxxxxxx shall therefore be entitled to preliminary and/or
permanent injunction relief prohibiting the Employee from engaging
in any activity or threatened activity in violation of the terms
of this paragraph and to any other judicial relief available to
it.
22. Notices. Any notice or communications required or permitted to be given
to the parties hereto shall be delivered personally or be sent by United
States registered or certified mail, postage prepaid and return receipt
requested, and addressed or delivered as follows, or to such other
addresses the party addressed may have substituted by notice pursuant to
this section:
(a) If to Xxxxxxx Xxxxxxx, Inc.:
Xxxxxxx Xxxxxxx, Inc.
0000 X. Xxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Vice President, General Counsel and Secretary
(b) If to Employee:
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23. Captions. The captions of this Agreement are inserted for convenience and
do not constitute a part hereof.
24. Severability. In case any one or more of the provisions contained in this
Agreement shall for any reason be held to be invalid, illegal or
unenforceable in other respect, such invalidity, illegality or
unenforceability shall not affect any other provision of this Agreement,
but this Agreement shall be construed as if such invalid, illegal or
unenforceable provision had never been contained herein and there shall
be deemed substituted for such other provision as will most nearly
accomplish the intent of the parties to the extent permitted by the
applicable law. In case this Agreement, or any one or more of the
provisions hereof, shall be held to be invalid, illegal or
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unenforceable within any governmental jurisdiction or subdivision
thereof, this Agreement or any such provision thereof shall not as a
consequence thereof be deemed to be invalid, illegal or unenforceable in
any other governmental jurisdiction or subdivision thereof.
25. 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 Agreement.
IN WITNESS HEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the day and year first written above in
Fullerton, California.
XXXXXXX XXXXXXX, INC.
By
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Xxxx X. Xxxxxxx, Chairman
President and Chief Executive Officer
EMPLOYEE
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Exhibit A
RELEASE OF ALL CLAIMS
1.0 This Release of all Claims ("Release") serves to conclude
__________________________'s (name) employment at Xxxxxxx Xxxxxxx, Inc.
("Company") pursuant to a change in control Agreement dated ___________________
and a Qualifying Termination thereunder.
2.0 Consideration of the full and final settlement of any and all claims that
______________________ (name) may have or have made against the Company, or any
of its agents at any time through and including, the effective date of this
Release and for the execution and delivery of this Release is the Company's
obligations under the Agreement between _______________________ (name) and the
Company dated _____________________.
3.0 __________________________ (name) and (his/her) heirs, executors and
administrators, if any, hereby forever release and discharge the Company, any of
its past, present or future parent companies, subsidiaries, affiliates,
divisions, successors, assigns, trust fiduciaries, stockholders, agents,
directors, officers, employees, representatives, heirs, attorneys, and all
persons acting by, through, under or in concert with them, or any of them
(hereinafter collectively known as "Releasees") of and from any and all manner
of claims, causes of action, or complaints, in law or in equity, of any nature
whatsoever, known or unknown, fixed or contingent (hereinafter called "Claims"),
which _______________________ (name) now has or may have against the Releasees,
or any of them, arising out of (his/her) employment or separation from Company,
and any other claim of any nature whatsoever based upon any fact or event
occurring prior to the date of this Release.
4.0 Without limiting the generality of paragraph 3, _________________ (name)
ALSO SPECIFICALLY AGREES TO WAIVE ANY RIGHT TO RECOVERY BASED ON LOCAL, STATE OR
FEDERAL AGE, SEX, SEXUAL ORIENTATION, PREGNANCY, RACE, COLOR, NATIONAL ORIGIN,
MARITAL STATUS, RELIGION, PHYSICAL DISABILITY, MENTAL CONDITION OR MENTAL
DISABILITY DISCRIMINATION LAWS, INCLUDING WITHOUT LIMITATION, TITLE VII OF THE
CIVIL RIGHTS ACT OF 1964, THE AGE DISCRIMINATION IN EMPLOYMENT ACT, THE
AMERICANS WITH DISABILITIES ACT, THE FEDERAL FAMILY MEDICAL LEAVE ACT OF 1993,
THE CALIFORNIA FAMILY RIGHTS ACT OF 1991 AND THE FAIR EMPLOYMENT AND HOUSING
ACT, WHETHER SUCH CLAIM OR CLAIMS MAY BE BASED ON AN ACTION FILED BY YOU OR BY A
GOVERNMENTAL AGENCY.
5.0 ____________________(name) is aware that after the effective date of this
Release ____________________ (name) may discover facts different from, or in
addition, those ____________________(name) now knows or believes to be true with
respect to the Claims released in paragraphs 3 and 4 above and agrees that this
Release shall be and remain in effect in all respects as a complete and general
release as to all matters released, notwithstanding any different or additional
facts.
6.0 It is _____________________'s (name) intention in executing this Release
that it shall be effective as a bar to each and every Claim of any nature
whatsoever. In furtherance of this intention,
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____________________(name) specifically waives the benefit of SECTION 1542 OF
THE CIVIL CODE OF THE STATE OF CALIFORNIA, which states the following:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN ITS FAVOR AT
THE TIME OF EXECUTING THIS RELEASE, WHICH IF KNOWN BY HIM
MUST HAVE MATERIALLY EFFECTED HIS SETTLEMENT WITH THE
DEBTOR.
7.0 This Release shall be construed and interpreted in accordance with the laws
of the State of California.
8.0 I, _____________________, (name) understand, acknowledge and represent that:
(a) I have carefully read and understand this Release and its final
and binding effect;
(b) This Release constitutes a voluntary waiver of any and all rights
and claims I have against Company as of the date of the execution
of this Release;
(c) I have waived rights or claims pursuant to this Release in
exchange for consideration, the value of which exceeds payment or
remuneration to which I was already entitled;
(d) I was advised to consult and have had the opportunity to fully
discuss the contents and consequences of this Release with any
attorney of my choice prior to executing it;
(e) I have a period of at least 21 days to consider the terms of this
Release. I may revoke this Release at any time during the seven
(7) days following the date I execute this Release, and this
Release shall not become effective or enforceable until such
revocation period has expired;
(f) I have voluntarily and knowingly signed this Release.
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Name
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Date
