EXECUTIVE EMPLOYMENT AGREEMENT
Exhibit 10.5
THIS
EXECUTIVE EMPLOYMENT AGREEMENT (this "Agreement") is made as of
February 20, 2009, between Advanced Mineral Technologies, Inc., a Nevada
corporation (together with its successors and assigns, the "Company"), and H. Xxxxxxx
Xxxx ("Executive").
Recitals
A.
The Company and Executive desire to enter into an agreement pursuant to which
the Company will employ Executive as its Chief Executive Officer subject to the
terms and conditions of this Agreement.
Agreement
NOW,
THEREFORE, in consideration of the foregoing and the mutual covenants and
promises contained herein, the parties agree as follows:
1.
Employment.
The
Company hereby engages Executive to serve as the Chief Executive Officer of the
Company, and Executive agrees to serve the Company, during the Service Term (as
defined in Section 4 below)
in the capacities, and subject to the terms and conditions, set forth in this
Agreement.
2.
Duties.
During
the Service Term, Executive, as Chief Executive Officer of the Company, shall
have all the duties and responsibilities customarily rendered by Chief Executive
Officers of companies of similar size and nature and such other duties and
responsibilities as may be delegated from time to time by the Board or the Chief
Executive Officer of the Company in their sole discretion. Executive will
report to the Chief Executive Officer.
Executive
will devote his best efforts and substantially all of his business time and
attention (except for vacation periods and periods of illness or other
incapacity) to the business of the Company and its Subsidiaries. With the
consent of the Chief Executive Officer, Executive will be permitted to serve on
the boards of other companies so long as such service does not unreasonably
interfere with his duties to the Company.
3.
Salary, Bonus and
Benefits.
The Board
shall make all decisions related to Executive's base salary and the payment of
bonuses, if any. Executive's Annual Base Salary and other compensation
will be reviewed by the Board at least annually.
(a)
Base
Salary. During the Service Term, the Company will pay Executive a
base salary (the "Annual Base
Salary") as the Board may designate from time to time. The initial Annual
Base Salary shall be at the rate of $120,000 per annum in accordance with the
Company's customary payroll practices (minus all applicable withholdings).
Executive's Annual Base Salary for any partial year will be prorated based upon
the number of days elapsed in such year. The Annual Base Salary may be
increased (but not decreased) from time to time during the Service Term by the
Board based upon the Company's and Executive's performance.
(b)
Bonus
Plan; Equity Awards. Executive shall be
eligible to receive an annual bonus in accordance with Company bonus policy to
be established by the Board from time to time (the "Annual Bonus"). The Annual Bonus, if
any, will be determined by the Board based upon the Company's annual achievement
of financial performance goals and other annual objectives as determined by the
Board in good faith for each fiscal year of the Company. For 2009, there
will be no bonus.
(c)
Benefits.
(i)
Executive and, to the extent eligible, his dependents, shall be entitled to
participate in and receive all benefits under any welfare or pension benefit
plans and programs made available to the Company's senior level executives or to
its employees generally (including, without limitation, medical, disability and
life insurance programs, accidental death and dismemberment protection, leave
and participation in retirement plans and deferred compensation plans), subject,
however, to the generally applicable eligibility and other provisions of the
various plans and programs and laws and regulations in effect from time to
time.
(ii)
The Company shall reimburse Executive for all reasonable, ordinary and necessary
business, travel or entertainment expenses incurred during the Service Term in
the performance of his services hereunder in accordance with the policies of the
Company as they are from time to time in effect. Executive, as a condition
precedent to obtaining such payment or reimbursement, shall provide to the
Company any and all statements, bills or receipts evidencing the travel or
out-of-pocket expenses for which Executive seeks payment or reimbursement, and
any other information or materials, which the Company may from time to time
reasonably require. The Company shall pay Executive the amount of such an
expense by the last day of Executive's taxable year following the taxable year
in which Executive incurred such expense. The expenses that are subject to
reimbursement pursuant to this Section 3(c)(ii) shall
not be limited as a result of when the expenses are incurred. The amount
of expenses eligible for reimbursement pursuant to this Section 3(c)(ii) during
a given taxable year of Executive shall not affect the amount of expenses
eligible for reimbursement in any other taxable year of Executive. The
right to reimbursement pursuant to this Section 3(c)(ii) is
not subject to liquidation or exchange for another benefit.
(iii)
Executive shall be entitled to paid vacation of up to 20 days per annum (25 days
per annum beginning January 1, 2011) which shall accrue pro rata during the
applicable year and shall be entitled to medical, disability, family and other
leave in accordance with Company policies as in effect from time to time for
senior executives.
(iv)
Notwithstanding anything to the contrary contained above, the Company shall be
entitled to terminate or reduce any employee benefit enjoyed by Executive
pursuant to the provisions of this Section 3(c),
but only if such reduction is part of an across-the-board reduction applicable
to all executives of the Company who are entitled to such benefit.
4.
Employment
Term.
Unless
Executive's employment under this Agreement is sooner terminated as a result of
Executive's resignation or termination in accordance with the provisions of
Section 5
below, Executive's term of employment ("Service Term") under this
Agreement shall commence on the date hereof and shall continue for a period of
one year, and at the end of each day it shall renew and extend automatically for
an additional day so that the remaining Service Term is always one year; provided, however, that either
party may terminate this Agreement pursuant to Section 5 below
for any reason, with or without Cause or with or without Good Reason, as the
case may be, at any time upon thirty (30) days prior written notice to the other
party of its decision to terminate (except in the event of termination for
Cause, whereupon Executive's termination shall be effective immediately upon
written notice thereof except for any required grace periods for "Cause" as
otherwise set forth below).
5.
Termination.
Executive's
employment with the Company shall cease upon the first of the following events
to occur:
(a)
Executive's death.
(b)
Executive's voluntary retirement at age 65 or older.
(c)
Executive's disability, which means his incapacity due to physical or mental
illness such that he is unable to perform the essential functions of his
previously assigned duties where (1) such incapacity has been determined to
exist by either (x) the Company's disability insurance carrier or
(y) by the concurring opinions of two licensed physicians (one selected by
the Company and one by Executive), and (2) the Chief Executive Officer has
determined, based on competent medical advice, that such incapacity will likely
last for a continuous period of at six (6) months. Any such
termination for disability shall be only as expressly permitted by the Americans
with Disabilities Act.
(d)
Termination by the Company by the delivery to Executive of a written notice from
the Chief Executive Officer that Executive has been terminated ("Notice of Termination") with
or without Cause. "Cause" shall mean termination
for any of the following:
(i)
Executive's (A) commission of a felony or a crime involving moral turpitude
or the commission of any other act or omission involving dishonesty in the
performance of his duties to the Company or fraud; (B) substantial and
repeated failure to perform duties of the office held by Executive as reasonably
directed by the Board or the Chief Executive Officer; (C) gross negligence
or willful misconduct with respect to the Company or any of its Subsidiaries;
(D) material breach of this Agreement not cured within ten (10) days
after receipt of written notice thereof from the Company; (E) failure,
within ten (10) days after receipt by Executive of written notice thereof
from the Company, to correct, cease or otherwise alter any failure to comply
with instructions or other action or omission which the Chief Executive Officer
reasonably believes does or may materially or adversely affect its business or
operations; (F) misconduct which is of such a serious or substantial nature
that a reasonable likelihood exists that such misconduct will materially injure
the reputation of the Company or its Subsidiaries if Executive were to remain
employed by the Company; (G) harassing or discriminating against the
Company's employees, customers or vendors in violation of the Company's policies
with respect to such matters; (H) misappropriation of funds or assets of
the Company for personal use or willful violation of Company policies or
standards of business conduct as determined in good faith by the Chief Executive
Officer; and/or (I) failure due to some action or inaction on the part of
Executive to have immigration status that permits Executive to maintain
full-time employment with the Company in the United States in compliance with
all applicable immigration laws.
(e)
Executive's voluntary resignation by the delivery to the Chief Executive Officer
of a written notice from Executive that Executive has resigned with or without
Good Reason. "Good
Reason" shall mean Executive's resignation from employment with the
Company within thirty (30) days after (i) a material diminution in
Executive's annual salary, duties, authority or responsibilities from the annual
salary, duties, authority or responsibilities as in effect at the commencement
of the Service Term, (ii) the Company's failure to perform any material
obligation undertaken by the Company to Executive hereunder after Executive has
provided the Company with written notice of such failure and such failure has
not thereafter been cured within ten (10) days of the delivery of such
written notice or (iii) notice by the Company to Executive that his primary
place of employment is to be relocated to a geographic area more than 50 miles
from Arlington, Virginia, without Executive's consent.
6.
Rights on
Termination.
(a)
If during the Service Term Executive's employment is terminated under Section 5 above
(x) by the Company without Cause or (y) by Executive with Good Reason,
then:
(i)
The Company shall pay to Executive, at the times specified in Section 6(a)(vii) below,
the following amounts (the "Severance
Payments"):
(1)
the Accrued Obligation;
(2)
Executive's Annual Base Salary through the effective date of the termination of
Executive's employment (the "Termination Date") for
periods following his Separation From Service, to the extent not theretofore
paid;
(3)
a lump sum in cash equal to the product of (x) 1/12 of the amount of the
Annual Base Salary in effect immediately prior to the Termination Date and
(y) 12; and
(4)
a lump sum in cash equal to the product of (x) the monthly basic life
insurance premium applicable to Executive's basic life insurance coverage
immediately prior to the Termination Date and (y) 12. Executive may,
at his option, convert his basic life insurance coverage to an individual policy
after the Termination Date by completing the forms required by the Company for
this purpose.
(ii)
The Company will pay, when due and payable under the Annual Bonus plan, the pro
rata portion, if any, of Executive's Annual Bonus earned up until such
Termination Date.
(iii)
Subject to clause (iv), for 12 months following the Termination Date the
Company shall arrange to provide Executive and his dependents medical insurance
benefits substantially similar to those provided to Executive and his dependents
immediately prior to the Termination Date (at no greater cost to Executive than
such cost to Executive in effect immediately prior to the Termination Date, or,
if greater, the cost to similarly situated active employees of the Company under
the applicable group health plan of the Company). Except for any
reimbursements under the applicable group health plan that are subject to a
limitation on reimbursements during a specified period, the amount of expenses
eligible for reimbursement under this Section 6(a)(iii),
or in-kind benefits provided, during Executive's taxable year shall not affect
the expenses eligible for reimbursement, or in-kind benefits to be provided, in
any other taxable year of Executive. Executive's right to reimbursement or
in-kind benefits pursuant to this Section 6(a)(iii) shall
not be subject to liquidation or exchange for another benefit. To the
extent that the payments or reimbursements made pursuant to this Section 6(a)(iii) are
taxable to Executive and are not otherwise exempt from Section 409A, if
Executive is a Specified Employee, any amounts to which Executive would
otherwise be entitled under this Section 6(a)(iii) during
the first six months following the date of Executive's Separation From Service
shall be accumulated and paid to Executive on the date that is six months
following the date of his Separation From Service.
(iv)
Subject to Executive's group health plan coverage continuation rights under the
Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, the benefits
listed in clause
(iii) of this Section 6(a) shall
be reduced to the extent benefits of the same type are received by or made
available to Executive during such period, and provided, further, that Executive
shall have the obligation to notify the Company that he is entitled to or
receiving such benefits.
(v)
Payments and benefits provided to Executive under this Section 6 (other
than Accrued Obligations) are contingent upon Executive's execution of a release
substantially in the form of Exhibit A
hereto.
(vi)
Executive shall not be permitted to specify the taxable year in which a payment
described in this Section 6 shall
be made to him.
(vii)
The Company shall pay Executive the amounts specified in Section 6(a)(i)(1) within
thirty (30) days after the Termination Date. The Company shall pay to
Executive the amounts specified in Sections 6(a)(i)(2),
(3) and (4) on the date that is six months following the date
of Executive's Separation From Service. Further, the Company shall pay to
Executive, on the date that is six months following Executive's Separation From
Service, an additional interest amount equal to the amount of interest that
would be earned on the amounts specified in Sections 6(a)(i)(2),
(3) and (4) and, to the extent subject to a mandatory six-month
delay in payment, the amounts specified in Section 6(a)(iii),
for the period commencing on the date of Executive's Separation From Service
until the date of payment of such amounts, calculated using an interest rate
equal to the six month U.S. Treasury Rate in effect on the date of Executive's
Separation From Service.
(b)
If the Company terminates Executive's employment for Cause, if Executive dies or
is disabled (as defined in Section 5(c) above),
or if Executive resigns without Good Reason, the Company's obligations to pay
any compensation or benefits under this Agreement will cease effective as of the
Termination Date and the Company shall pay to Executive the Accrued Obligation
within thirty (30) days following the Termination Date. The Company shall
pay to Executive his Annual Base Salary for periods following his Separation
From Service, to the extent not theretofore paid, within thirty (30) days
following his Separation From Service if he is not a Specified Employee or on
the date that is six months following his Separation From Service if he is a
Specified Employee. Following such payments, the Company shall have no
further obligations to Executive other than as may be required by law or the
terms of an employee benefit plan of the Company.
(c)
Notwithstanding the foregoing, the Company's obligation to Executive for
Severance Payments or other rights under either Sections 6(a) or
(b) above
shall cease if Executive is in violation of the provisions of Sections 8 or 9
below.
(d)
If the Executive retires at age 65 or older the Company shall pay the
Executive's Annual Base Salary through the retirement date and shall also pay
when due and payable under the Annual Bonus plan the pro rata portion of any
Annual Bonus that may have been earned by the Executive through the retirement
date. No other amounts will be payable by the Company.
7.
Representations of
Executive.
Executive
hereby represents and warrants to the Company that the statements contained in
this Section 7 are
true and accurate as of the date of this Agreement.
(a)
Legal
Proceedings. Executive has not been
(i) the subject of any criminal proceeding (other than a traffic violation
or other minor offense) which has resulted in a conviction against Executive,
nor is Executive the subject of any pending criminal proceeding (other than a
traffic violation or other minor offense), (ii) indicted for, or charged in
a court of competent jurisdiction with, any felony or crime of moral turpitude,
(iii) the defendant in any civil complaint alleging damages in excess of
$50,000, or (iv) the defendant in any civil complaint alleging sexual
harassment, unfair labor practices or discrimination in the work
place.
(b)
Securities
Law.
Executive has not been found in a civil action by the Securities and Exchange
Commission, Commodity Futures Trading Commission, a state securities authority
or any other regulatory agency to have violated any federal, state or other
securities or commodities law.
(c)
Work
History; Immigration Status. Executive's resume,
previously provided by Executive to the Company, is complete and correct in all
material respects, and accurately reflects Executive's prior work history.
Executive has the full legal right to be employed on a full-time basis by the
Company in the United States under all applicable immigration laws on the basis
of the Company's continued willingness to employ him on a full-time basis, and
has provided the Company with evidence of legal immigration status and will do
so at any time upon request. The Company will, if applicable, continue to
cooperate with Executive in maintaining Executive's work visa status and/or any
mutually agreeable adjustment of status.
(d)
Employment
Restrictions. Executive is not
currently a party to any non competition, non-solicitation, confidentiality or
other work-related agreement that limits or restricts Executive's ability to
work in any particular field or in any particular geographic region, whether or
not such agreement would be violated by this Agreement.
8.
Confidential
Information; Proprietary Information, etc.
(a)
Obligation
to Maintain Confidentiality. Executive acknowledges
that any Proprietary Information disclosed or made available to Executive or
obtained, observed or known by Executive as a direct or indirect consequence of
his employment with or performance of services for the Company or any of its
Subsidiaries during the course of his performance of services for, or employment
with, any of the foregoing Persons (whether or not compensated for such
services) and during the period in which Executive is receiving Severance
Payments, are the property of the Company and its Subsidiaries. Therefore,
Executive agrees that, other than in the course of performance of his duties as
an employee of the Company, he will not at any time (whether during or after
Executive's term of employment) disclose or permit to be disclosed to any Person
or, directly or indirectly, utilize for his own account or permit to be utilized
by any Person any Proprietary Information or records pertaining to the Company,
its Subsidiaries and their respective business for any reason whatsoever without
the Chief Executive Officer's consent, unless and to the extent that (except as
otherwise provided in the definition of Proprietary Information) the
aforementioned matters become generally known to and available for use by the
public other than as a direct or indirect result of Executive's acts or
omissions to act. Executive agrees to deliver to the Company at the termination
of his employment, as a condition to receipt of the next or final payment of
compensation, or at any other time the Company may request in writing (whether
during or after Executive's term of employment), all records pertaining to the
Company, its Subsidiaries and their respective business which he may then
possess or have under his control. Executive further agrees that any property
situated on the Company's or its Subsidiaries' premises and owned by the Company
or its Subsidiaries, including disks and other storage media, filing cabinets or
other work areas, is subject to inspection by Company or its Subsidiaries and
their personnel at any time with or without notice. Nothing in this Section 8(a) shall
be construed to prevent Executive from using his general knowledge and
experience in future employment so long as Executive complies with this Section 8(a) and
the other restrictions contained in this Agreement.
(b)
Ownership
of Property. Executive acknowledges
that all inventions, innovations, improvements, developments, methods,
processes, programs, designs, analyses, drawings, reports and all similar or
related information (whether or not patentable) that relate to the Company's or
any of its Subsidiaries' actual or anticipated business, research and
development, or existing or future products or services and that are conceived,
developed, contributed to, made, or reduced to practice by Executive (either
solely or jointly with others) while employed by the Company or any of its
Subsidiaries (including any of the foregoing that constitutes any Proprietary
Information or records) ("Work
Product") belong to the Company or such Subsidiary and Executive hereby
assigns, and agrees to assign, all of the above Work Product to the Company or
such Subsidiary. Any copyrightable work prepared in whole or in part by
Executive in the course of his work for any of the foregoing entities shall be
deemed a "work made for hire" under the copyright laws, and the Company or such
Subsidiary shall own all rights therein. To the extent that any such
copyrightable work is not a "work made for hire," Executive hereby assigns and
agrees to assign to Company or such Subsidiary all right, title and interest,
including without limitation, copyright in and to such copyrightable work.
Executive shall promptly disclose such Work Product and copyrightable work to
the Chief Executive Officer and perform all actions reasonably requested by the
Chief Executive Officer (whether during or after Executive's term of employment)
to establish and confirm the Company's or its Subsidiary's ownership (including,
without limitation, execution of assignments, consents, powers of attorney and
other instruments). Notwithstanding anything contained in this Section 8(b) to
the contrary, the Company's ownership of Work Product does not apply to any
invention that Executive develops entirely on his own time without using the
equipment, supplies or facilities of the Company or Subsidiaries or any
Proprietary Information (including trade secrets), except that the Company's
ownership of Work Product does include those inventions that: (i) relate to
the business of the Company or its Subsidiaries or to the actual or demonstrably
anticipated research or development relating to the Company's business; or
(ii) result from any work that Executive performs for the Company or its
Subsidiaries.
(c)
Third
Party Information. Executive understands
that the Company and its Subsidiaries will receive from third parties
confidential or proprietary information ("Third Party Information")
subject to a duty on the Company's and its Subsidiaries' part to maintain the
confidentiality of such information and to use it only for certain limited
purposes. During the term of Executive's employment and thereafter, and without
in any way limiting the provisions of Sections
8(a) and 8(b) above,
Executive shall hold Third Party Information in the strictest confidence and
shall not disclose to anyone (other than personnel of the Company or its
Subsidiaries who need to know such information in connection with their work for
the Company or its Subsidiaries) or use, except in connection with his work for
the Company or its Subsidiaries, Third Party Information unless expressly
authorized by the Chief Executive Officer in writing.
(d)
Use of
Information of Prior Employers, etc. Executive will abide
by any enforceable obligations contained in any agreements that Executive has
entered into with his prior employers or other parties to whom Executive has an
obligation of confidentiality.
(e)
Compelled
Disclosure.
If Executive is required by law or governmental regulation or by subpoena or
other valid legal process to disclose any Proprietary Information or Third Party
Information to any Person, Executive will immediately provide the Company with
written notice of the applicable law, regulation or process so that the Company
may seek a protective order or other appropriate remedy. Executive will
cooperate fully with the Company and the Company's representatives in any
attempt by the Company to obtain any such protective order or other remedy. If
the Company elects not to seek, or is unsuccessful in obtaining, any such
protective order or other remedy in connection with any requirement that
Executive disclose Proprietary Information or Third Party Information then
Executive may disclose such Proprietary Information or Third Party Information
to the extent legally required; provided, however, that Executive will use his
reasonable best efforts to ensure that such Proprietary Information is treated
confidentially by each Person to whom it is disclosed.
9.
Noncompetition and
Nonsolicitation.
(a)
Noncompetition. As long as Executive is an
employee of the Company or any Subsidiary thereof, and for a period ending
twelve (12) months following the Termination Date of Executive's employment (the
"Restrictive Covenant
Period"), Executive shall not, directly or indirectly own, manage,
control, participate in, consult with, render services for, or in any manner
engage in any business competing with the business of producing and developing
mineral properties or any other businesses then carried on by the Company or its
Subsidiaries (the "Business") in any geographic
area in which: (i) Executive acted as an employee of the Company or its
Subsidiaries and had contact with the customers of the Company or its
Subsidiaries during the 12-month period immediately preceding the Termination
Date, and (ii) the Company or its Subsidiaries is conducting business or
has conducted business during the Restrictive Covenant Period.
(b)
Nonsolicitation. As long as Executive
is an employee of the Company or any Subsidiary thereof, and during the
Restrictive Covenant Period thereafter, Executive shall not directly or
indirectly through another entity: (i) induce or attempt to induce
any employee of the Company or any Subsidiary to leave the employ of the Company
or such Subsidiary, or in any way interfere with the relationship between the
Company or any Subsidiary and any employee thereof; (ii) hire or employ any
person who was an employee of the Company or any Subsidiary at any time during
the 12-month period immediately preceding the Termination Date;
(iii) induce or attempt to induce any customer, supplier, licensee or other
business relation of the Company or any Subsidiary to cease doing business with
the Company or such Subsidiary, or in any way interfere with the relationship
between any such customer, supplier, licensee or business relation and the
Company or any Subsidiary; (iv) solicit or provide services related to the
Business to any Person who was a customer or client of the Company or any
Subsidiary at any time during the 12-month period immediately preceding the
Termination Date; or (v) solicit or provide services related to the
Business to any Prospective Customer. For purposes hereof, a "Prospective Customer" means
any Person whom the Company or any of its Subsidiaries has entertained
discussions with to become a client or customer at any time during the 12-month
period immediately preceding the Termination Date and who has not explicitly
rejected a business relationship with the Company.
(c)
Acknowledgment. Executive
acknowledges that in the course of his employment
with the Company and its Subsidiaries, he has and will become familiar with the
trade secrets and other Proprietary Information of the Company and its
Subsidiaries. Executive further acknowledges that as the Chief Executive Officer
of the Company, Executive has and will have direct or indirect responsibility,
oversight or duties with respect to the businesses of the Company and its
Subsidiaries and its and their current and prospective employees, vendors,
customers, clients and other business relations, and that, accordingly, the
geographical restriction contained in this Section 9 is
reasonable in all respects and necessary to protect the goodwill and Proprietary
Information of the Company and that without such protection the Company's
customer and client relations and competitive advantage would be materially
adversely affected. It is specifically recognized by Executive that his
services to the Company and its Subsidiaries are special, unique and of
extraordinary value, that the Company has a protectable interest in prohibiting
Executive as provided in this Section 9, that
Executive is responsible for the growth and development of the Company and the
creation and preservation of the Company's goodwill, that money damages are
insufficient to protect such interests, that there is adequate consideration
being provided to Executive hereunder, that such prohibitions are necessary and
appropriate without regard to payments being made to Executive hereunder and
that the Company would not enter this Agreement with Executive
without the restriction of this Section 9.
Executive further acknowledges that the restrictions contained in this
Section 9
do not impose an undue hardship on him and, since he has general business skills
that may be used in industries other than that in which the Company and its
Subsidiaries conduct their business, do not deprive Executive of his livelihood.
Executive further acknowledges that the provisions of this Section 9 are
separate and independent of the other sections of this Agreement.
(d)
Enforcement,
etc. If, at
the time of enforcement of Section 8 or
9 of this
Agreement, a court holds that the restrictions stated herein are unreasonable
under circumstances then existing, the parties hereto agree that the maximum
duration, scope or geographical area reasonable under such circumstances as
determined by the court shall be substituted for the stated period, scope or
area. Because Executive's services are unique, because Executive has
access to Proprietary Information and for the other reasons set forth herein,
the parties hereto agree that money damages would be an inadequate remedy for
any breach of this Agreement. Therefore, without limiting the generality of
Section 12(f),
in the event of a breach or threatened breach of this Agreement, the Company or
its successors or assigns may, in addition to other rights and remedies existing
in their favor, apply to any court of competent jurisdiction for specific
performance and/or injunctive or other relief in order to enforce, or prevent
any violations of, the provisions hereof (without posting a bond or other
security).
(e)
Submission
to Jurisdiction. The parties hereby:
(i) submit to the jurisdiction of any state or federal court sitting in the
Commonwealth of Virginia in any action or proceeding arising out of or relating
to Section 8 and/or
9 of this
Agreement; (ii) agree that all claims in respect of such action or
proceeding may be heard or determined in any such court; and (iii) agree
not to bring any action or proceeding arising out of or relating to Section 8 and/or
9 of this
Agreement in any other court. The parties hereby waive any defense of
inconvenient forum to the maintenance of any action or proceeding so brought.
The parties hereby agree that a final judgment in any action or proceeding so
brought shall be conclusive and may be enforced by suit on the judgment or in
any other manner provided by law.
GENERAL
PROVISIONS
10.
Definitions.
"Accrued Obligation" means the
sum of (a) Executive's Annual Base Salary through the Termination Date for
periods through but not following his Separation From Service and (b) any
accrued vacation pay earned by Executive, in each case, to the extent not
theretofore paid.
"Affiliate" means, with
respect to any particular Person, any other Person controlling, controlled by or
under common control with such particular Person. A Subsidiary of the Company
shall be an Affiliate of the Company.
"Board" means the Board of
Directors of the Company or any committee of the Board, such as the Compensation
Committee, to which the Board has delegated applicable authority.
"Code" means the Internal
Revenue Code of 1986, as amended.
"Person" means any individual
or corporation, association, partnership, limited liability company, joint
venture, joint stock or other company, business trust, trust, organization,
university, college, governmental authority or other entity of any
kind.
"Proprietary Information"
means any and all data and information concerning the business affairs of the
Company or any of its Subsidiaries and not generally known in the industry in
which the Company or any of its Subsidiaries is or may become engaged, and any
other information concerning any matters affecting or relating to the Company's
or its Subsidiaries businesses, but in any event Proprietary Information shall
include, any of the Company's and its Subsidiaries' past, present or prospective
business opportunities, including information concerning acquisition
opportunities in or reasonably related to the Company's or its Subsidiaries
businesses or industries, customers, customer lists, clients, client lists, the
prices the Company and its Subsidiaries obtain or have obtained from the sale
of, or at which they sell or have sold, their products, unit volume of sales to
past or present customers and clients, or any other information concerning the
business of the Company and its Subsidiaries, their manner of operation, their
plans, processes, figures, sales figures, projections, estimates, tax records,
personnel history, accounting procedures, promotions, supply sources, contracts,
know-how, trade secrets, information relating to research, development,
inventions, technology, manufacture, purchasing, engineering, marketing,
merchandising or selling, or other data without regard to whether all of the
foregoing matters will be deemed confidential, material or important.
Proprietary Information does not include any information that Executive has
obtained from a Person other than an employee of the Company or a Subsidiary,
which was disclosed to him without a breach of a duty of
confidentiality.
"Section 409A" means
section 409A of the Code and the final Department of Treasury regulations issued
thereunder.
"Separation From Service" shall
have the meaning ascribed to such term in Section 409A.
"Specified Employee" means a
person who is a "specified employee" within the meaning of Section 409A,
taking into account the elections made and procedures established in resolutions
adopted by the Board.
"Subsidiary" means any company
of which the Company owns securities having a majority of the ordinary voting
power in electing the board of directors directly or through one or more
subsidiaries.
11.
Notices.
Any
notice provided for in this Agreement must be in writing and must be mailed,
personally delivered or sent by reputable overnight courier service (charges
prepaid) to the recipient at the address below indicated:
If to the
Company:
Xxx
Xxxxxx
0000 X.
Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx,
XX 00000
With a copy
to
Xxxx
Xxxxx
00000
Xxxxxxxx
Xxxxxxx
Xxxxx, XX 00000
If to
Executive:
H.
Xxxxxxx Xxxx
Xxxxx 0,
Xxx 0000
Xxxxxxxxx,
XX 00000
or such
other address or to the attention of such other person as the recipient party
shall have specified by prior written notice to the sending party. Any notice
under this Agreement will be deemed to have been given when delivered or, if
mailed, five (5) business days after deposit in the U.S. mail.
12.
Miscellaneous.
(a)
Severability. Whenever possible,
each provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of this Agreement
is held to be invalid, illegal or unenforceable in any respect under any
applicable law or rule in any jurisdiction, such invalidity, illegality or
unenforceability will not affect any other provision or any other jurisdiction,
but this Agreement will be reformed, construed and enforced in such jurisdiction
as if such invalid, illegal or unenforceable provision had never been contained
herein.
(b)
Complete
Agreement.
This Agreement, those documents expressly referred to herein and other documents
of even date herewith embody the complete agreement and understanding among the
parties and supersede and preempt any prior understandings, agreements or
representations by or among the parties, written or oral, which may have related
to the subject matter hereof in any way.
(c)
Counterparts;
Facsimile Transmission. This Agreement may be
executed in separate counterparts, each of which is deemed to be an original and
all of which taken together constitute one and the same agreement. Each party to
this Agreement agrees that its own telecopied signature will bind it and that it
accepts the telecopied signature of each other party to this
Agreement.
(d)
Successors
and Assigns. Except as otherwise provided herein, this Agreement
shall bind and inure to the benefit of and be enforceable by Executive, the
Company and their respective successors and assigns; provided that the rights
and obligations of the parties under this Agreement shall not be assignable
without the prior written consent of the other party, except for assignments by
operation of law and assignments by the Company to any successor of the Company
by merger, consolidation, combination or sale of assets. Any purported
assignment in violation of these provisions shall be void ab initio.
(e)
Choice of
Law; Jurisdiction. All questions or
disputes concerning this Agreement and the exhibits hereto will be governed by
and construed in accordance with the internal laws of the State of Idaho,
without giving effect to any choice of law or conflict of law provision or
rule (whether of the State of Idaho or any other jurisdiction) that would
cause the application of the laws of any jurisdiction other than the State of
Idaho. The parties hereby: (i) submit to the non-exclusive
jurisdiction of any state or federal court sitting in the State of Idaho in any
action or proceeding arising out of or relating to this Agreement; and
(ii) agree that all claims in respect of such action or proceeding may be
heard or determined in any such court. Each party hereby waives any defense of
inconvenient forum to the maintenance of any action or proceeding so brought.
The parties hereby agree that a final judgment in any action or proceeding so
brought shall be conclusive and may be enforced by suit on the judgment or in
any other manner provided by law.
(f)
Remedies. Each of the parties to
this Agreement will be entitled to enforce its rights under this Agreement
specifically, to recover damages and costs (including attorney's fees) caused by
any breach of any provision of this Agreement and to exercise all other rights
existing in its favor. The parties hereto agree and acknowledge that money
damages may not be an adequate remedy for any breach of the provisions of this
Agreement and that any party may in its sole discretion apply to any court of
law or equity of competent jurisdiction (without posting any bond or deposit)
for specific performance and/or other injunctive relief in order to enforce or
prevent any violations of the provisions of this Agreement.
(g)
Amendment
and Waiver.
The provisions of this Agreement may be amended or waived only with the prior
written consent of the Company and Executive.
(h)
Business
Days. If
any time period for giving notice or taking action hereunder expires on a day
which is a Saturday, Sunday or holiday in the state in which the Company's chief
executive office is located, the time period shall be automatically extended to
the business day immediately following, such Saturday, Sunday or holiday.
The provisions of this Section 12(h) shall
not apply to determine the date an amount is payable under Section 3(c)(ii) or
6.
(i)
Termination. This Agreement (except
for the provisions of Sections 1, 2, 3, 4, 12 and 13) shall survive the
termination of Executive's employment with the Company and shall remain in full
force and effect after such termination.
(j)
No
Waiver. A
waiver by any party hereto of any right or remedy hereunder on any one occasion
shall not be construed as a bar to any right or remedy that such party would
otherwise have on any future occasion. Neither failure to exercise nor any delay
in exercising on the part of any party hereto, any right, power or privilege
hereunder shall preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. The rights and remedies herein provided
are cumulative and may be exercised singly or concurrently, and are not
exclusive of any rights or remedies provided by law.
(k)
Insurance. The Company, at its
discretion, may apply for and procure in its own name for its own benefit life
and/or disability insurance with respect to Executive in any amount or amounts
considered available provided, however, that such procurement of insurance does
not restrict the amount of insurance that Executive may obtain for his own
personal use. Executive agrees to cooperate in any medical or other examination,
supply any information, and to execute and deliver any applications or other
instruments in writing as may be reasonably necessary to obtain and constitute
such insurance. Executive hereby represents that he has no reason to believe
that his life is not insurable at rates now prevailing for healthy men of his
age.
(l)
Withholding
of Taxes on Behalf of Executive. The Company and its
Subsidiaries shall be entitled to deduct or withhold from any amounts owing from
the Company or any of its Subsidiaries to Executive any federal, state,
provincial, local or foreign withholding taxes, excise taxes, or employment
taxes ("Taxes") imposed
with respect to Executive's compensation or other payments from the Company or
any of its Subsidiaries or Executive's ownership interest in the Company,
including, but not limited to, wages, bonuses, dividends, the receipt or
exercise of stock options and/or the receipt or vesting of restricted
stock.
(m)
Waiver of
Jury Trial. BOTH
PARTIES TO THIS AGREEMENT AGREE THAT ANY ACTION, DEMAND, CLAIM OR COUNTERCLAIM
RELATING TO THE TERMS AND PROVISIONS OF THIS AGREEMENT, OR TO ITS BREACH,
MAY BE COMMENCED IN THE COMMONWEALTH OF VIRGINIA IN A COURT OF COMPETENT
JURISDICTION. BOTH PARTIES TO THIS AGREEMENT FURTHER AGREE THAT ANY
ACTION, DEMAND, CLAIM OR COUNTERCLAIM SHALL BE RESOLVED BY A JUDGE ALONE, AND BOTH PARTIES
HEREBY WAIVE AND FOREVER RENOUNCE THAT RIGHT TO A TRIAL BEFORE A CIVIL
JURY.
13.
Certain Additional
Payments by the Company.
(a)
Anything in this Agreement to the contrary notwithstanding and except as set
forth below, in the event it shall be determined that any payment or
distribution by, or benefit from, the Company or an Affiliate or any person who
acquires ownership or effective control or ownership of a substantial portion of
the Company's assets (within the meaning of section 280G of the Code) or by any
Affiliate of such person, to or for the benefit of Executive (whether paid or
payable or distributed or distributable pursuant to the terms of this Agreement
or otherwise, but determined without regard to any additional payments required
under this Section 13) (a
"Payment")
would be subject to the excise tax imposed by section 4999 of the Code or
any interest or penalties are incurred by Executive with respect to such excise
tax (such excise tax, together with any such interest and penalties, are
hereinafter collectively referred to as the "Excise
Tax"), then Executive shall be entitled to receive an additional payment
(a "Gross-Up
Payment") in an amount such that after payment by Executive of all taxes
(including any interest or penalties imposed with respect to such taxes),
including without limitation, any income taxes (and any interest and penalties
imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment,
Executive retains an amount of the Gross-Up Payment equal to the Excise Tax
imposed upon the Payments. Any Gross-Up Payment that the Company is
required to make to reimburse Executive for federal, state and local taxes
imposed upon Executive, including the amount of additional taxes imposed upon
Executive due to the Company's payment of the initial taxes on such amounts,
shall be made by the Company by the end of Executive's taxable year next
following Executive's taxable year in which Executive remits the related taxes
to the taxing authority.
(b)
Subject to the provisions of Section 13(c),
all determinations required to be made under this Section 13,
including whether and when a Gross-Up Payment is required and the amount of such
Gross-Up Payment and the assumptions to be utilized in arriving at such
determination, shall be made by a nationally recognized accounting firm that is
(i) not serving as accountant or auditor for the person who acquires
ownership or effective control or ownership of a substantial portion of the
Company's assets (within the meaning of section 280G of the Code) or any
Affiliate of such person and (ii) agreed upon by the Company and Executive
(the "Accounting
Firm"). The Accounting Firm shall provide detailed supporting
calculations both to the Company and Executive within 15 business days
after appointment by the Company and Executive and receipt of notice from
Executive that there has been a Payment, or such earlier time as is requested by
the Company. All fees and expenses of the Accounting Firm shall be borne
solely by the Company. Any Gross-Up Payment, as determined pursuant to
this Section 13,
shall be paid by the Company to Executive within five days after the receipt of
the Accounting Firm's determination and in no event later than the payment
deadline specified in Section 13(a).
Any determination by the Accounting Firm shall be binding upon the Company and
Executive. As a result of the uncertainty in the application of
section 4999 of the Code at the time of the initial determination by the
Accounting Firm hereunder, it is possible that Gross-Up Payments that will not
have been made by the Company should have been made ("Underpayment"),
consistent with the calculations required to be made hereunder. In the
event that the Company exhausts its remedies pursuant to Section 13(c) and
Executive thereafter is required to make a payment of any Excise Tax, the
Accounting Firm shall determine the amount of the Underpayment that has occurred
and any such Underpayment shall be promptly paid by the Company to or for the
benefit of Executive.
(c)
Executive shall notify the Company in writing of any claim by the Internal
Revenue Service, state or other taxing authority ("Taxing
Authority") that, if successful, would require the payment by the Company
of the Gross-Up Payment (or an additional Gross-Up Payment) in the event the
Taxing Authority seeks higher payment. Such notification shall be given as
soon as practicable, but no later than ten business days after Executive is
informed in writing of such claim, and shall apprise the Company of the nature
of such claim and the date on which such claim is requested to be paid.
Executive shall not pay such claim prior to the expiration of the 30-day period
following the date on which he gives such notice to the Company (or such shorter
period ending on the date that any payment of taxes with respect to such claim
is due). If the Company notifies Executive in writing prior to the
expiration of such period that it desires to contest such claim, Executive
shall:
(i)
give the Company any information reasonably requested by the Company relating to
such claim,
(ii)
take such action in connection with contesting such claim as the Company shall
reasonably request in writing from time to time, including without limitation,
accepting legal representation with respect to such claim by an attorney
reasonably selected by the Company,
(iii)
cooperate with the Company in good faith in order to effectively contest such
claim, and
(iv)
permit the Company to participate in any proceedings relating to such claim;
provided, however, that the Company shall bear and pay directly all costs and
expenses (including additional interest and penalties) incurred at any time
during the period that ends ten years following the lifetime of Executive in
connection with such proceedings and shall indemnify and hold Executive
harmless, on an after-tax basis, for any Excise Tax and income tax (including
interest and penalties with respect thereto) imposed as a result of such
representation and payment of costs and expenses. Without limitation on
the foregoing provisions of this Section 13(c),
the Company shall control all proceedings taken in connection with such contest
and, at its sole option, may pursue or forego any and all administrative
appeals, proceedings, hearings and conferences with the Taxing Authority in
respect of such claim and may, at its sole option, either direct Executive to
pay the tax claimed and xxx for a refund or contest the claim in any permissible
manner, and Executive agrees to prosecute such contest to determination before
any administrative tribunal, in a court of initial jurisdiction and in one or
more appellate courts, as the Company shall determine; provided, however, that
if the Company directs Executive to pay such claim and xxx for a refund, the
Company shall advance the amount of such payment to Executive, on an
interest-free basis and shall indemnify and hold Executive harmless, on an
after-tax basis, from any Excise Tax or income tax (including interest or
penalties with respect thereto) imposed with respect to such advance or with
respect to any imputed income with respect to such advance; and further provided
that any extension of the statute of limitations relating to payment of taxes
for the taxable year of Executive with respect to which such contested amount is
claimed to be due is limited solely to such contested amount. The Company
shall not direct Executive to pay such a claim and xxx for a refund if, due to
the prohibitions of section 402 of the Xxxxxxxx-Xxxxx Act of 2002, the Company
may not advance to Executive the amount necessary to pay such claim. The
Company's control of the contest shall be limited to issues with respect to
which a Gross-Up Payment would be payable hereunder and Executive shall be
entitled to settle or contest, as the case may be, any other issues raised by
the Taxing Authority. The costs and expenses that are subject to be paid
pursuant to this Section 13(c) shall
not be limited as a result of when the costs or expenses are incurred. The
amounts of costs or expenses that are eligible for payment pursuant to this
Section 13(c)(iv) during
a given taxable year of Executive shall not affect the amount of costs or
expenses eligible for payment in any other taxable year of Executive. The
right to payment of costs and expenses pursuant to this Section 13(c)(iv) is
not subject to liquidation or exchange for another benefit. Any payment
due under this Section 13(c)(iv) to
reimburse Executive for any taxes shall be made to Executive by the Company by
the end of Executive's taxable year following Executive's taxable year in which
Executive remits the related taxes to the applicable taxing
authorities.
(d)
If, after the receipt by Executive of an amount advanced by the Company pursuant
to Section 13(c),
Executive becomes entitled to receive any refund with respect to such claim,
Executive shall (subject to the Company's complying with the requirements of
Section 13(c))
promptly pay to the Company the amount of such refund (together with any
interest paid or credited thereon after taxes applicable thereto. If,
after the receipt by Executive of an amount advanced by the Company pursuant to
Section 13(c), a
determination is made that Executive shall not be entitled to any refund with
respect to such claim and the Company does not notify Executive in writing of
its intent to contest such denial of refund prior to the expiration of
30 days after such determination, then such advance shall not be required
to be repaid.
14.
Indemnification.
During
and following the employment period, the Company shall indemnify Executive and
hold Executive harmless from and against any claim, loss or cause of action
arising from or out of Executive's performance as an officer, director or
employee of the Company or any of its Subsidiaries or in any other capacity,
including any fiduciary capacity, in which Executive serves at the request of
Company to the maximum extent permitted by applicable law and the Company's
By-Laws. Expenses incurred in defending or investigating a threatened or pending
action, suit or proceeding shall be paid by the Company in advance of the final
disposition of such action, suit or proceeding upon receipt of an undertaking by
or on behalf of Executive to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the Company. To the
extent that the Company reduces the indemnity rights provided for under its
By-Laws after execution of this Agreement, the Company's indemnity obligations
hereunder shall be unaffected (to the extent permitted by applicable
law).
[Signature
pages follow]
| Page
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement on the date
first written above.
|
By:
|
/s/
Xxx Xxxxxx
|
|
|
Xxx
Xxxxxx, Chief Financial Officer
|
||
|
EXECUTIVE
|
||
|
/s/
H. Xxxxxxx Xxxx
|
||
|
H.
Xxxxxxx Xxxx
|
||
| Page
EXHIBIT
A
Form of
Release
Legal
Release
This
Legal Release ("Release") is between Advanced
Mineral Technologies, Inc. (the "Company") and H. Xxxxxxx Xxxx
("Executive") (each a
"Party," and together,
the "Parties"). For
purposes of this Agreement "Effective Date" shall mean the date on which
Executive signs this Agreement.
Recitals
A.
Executive and the Company are parties to a Employment Agreement to which this
Release is appended as Exhibit A
(the "Employment
Agreement").
B.
Executive wishes to receive the Severance Benefit described
Section 6(a) of the Employment Agreement.
C.
Executive and the Company wish to resolve, except as specifically set forth
herein, all claims between them arising from or relating to any act or omission
predating the Separation Date defined below.
Agreement
The
Parties agree as follows:
1.
Confirmation of
Severance Benefit Obligation. The Company shall pay or provide to
Executive the entire Severance Benefit, as, when and on the terms and conditions
specified in the Employment Agreement.
2.
Legal
Releases
(a)
Executive, on behalf of Executive and Executive's heirs, personal
representatives and assigns, and any other person or entity that could or might
act on behalf of Executive, including, without limitation, Executive's counsel
(all of whom are collectively referred to as "Executive Releasers"), hereby
fully and forever releases and discharges the Company, its present and future
affiliates and subsidiaries, and each of their past, present and future
officers, directors, employees, shareholders, independent contractors,
attorneys, insurers and any and all other persons or entities that are now or
may become liable to any Releaser due to any Executive Releasee's act or
omission, (all of whom are collectively referred to as "Executive Releasees") of
and from any and all actions, causes of action, claims, demands, costs and
expenses, including attorneys' fees, of every kind and nature whatsoever, in law
or in equity, whether now known or unknown, that Executive Releasers, or any
person acting under any of them, may now have, or claim at any future time to
have, based in whole or in part upon any act or omission occurring on or before
the Effective Date, without regard to present actual knowledge of such acts or
omissions, including specifically, but not by way of limitation, matters which
may arise at common law, such as breach of contract, express or implied,
promissory estoppel, wrongful discharge, tortious interference with contractual
rights, infliction of emotional distress, defamation, or under federal, state or
local laws, such as the Fair Labor Standards Act, the Employee Retirement Income
Security Act, the National Labor Relations Act, Title VII of the Civil Rights
Act of 1964, the Age Discrimination in Employment Act, the Rehabilitation Act of
1973, the Equal Pay Act, the Americans with Disabilities Act, the Family and
Medical Leave Act, and any civil rights law of any state or other governmental
body; PROVIDED, HOWEVER, that notwithstanding the foregoing or anything else
contained in this Agreement, the release set forth in this Section shall
not extend to: (i) any rights arising under this Agreement; (ii) any
vested rights under any pension, retirement, profit sharing or similar plan; or
(iii) Executive's rights, if any, to indemnification, and/or defense under
any Company certificate of incorporation, bylaw and/or policy or procedure, or
under any insurance contract or any indemnification agreement with the Company,
in connection with Executive's acts an omissions within the course and scope of
Executive's employment with the Company. Executive hereby warrants that
Executive has not assigned or transferred to any person any portion of any claim
which is released, waived and discharged above. Executive further states and
agrees that Executive has not experienced any illness, injury, or disability
that is compensable or recoverable under the worker's compensation laws of any
state that was not reported to the Company by Executive before the Effective
Date, and Executive agrees not to not file a worker's compensation claim
asserting the existence of any such previously undisclosed illness, injury, or
disability. Executive has specifically consulted with counsel with respect to
the agreements, representations, and declarations set forth in the previous
sentence. Executive understands and agrees that by signing this Agreement
Executive is giving up any right to bring any legal claim against the Company
concerning, directly or indirectly, Executive's employment relationship with the
Company, including Executive's separation from employment. Executive
agrees that this legal release is intended to be interpreted in the broadest
possible manner in favor of the Company, to include all actual or potential
legal claims that Executive may have against the Company, except as specifically
provided otherwise in this Agreement.
(b)
The Company, for itself, its affiliates, and any other person or entity that
could or might act on behalf of it including, without limitation, its attorneys
(all of whom are collectively referred to as "Company Releasers"), hereby fully
and forever release and discharge Executive, Executive's heirs, representatives,
assigns, attorneys, and any and all other persons or entities that are now or
may become liable to any Company Releaser on account of Executive's employment
with the Company or separation therefrom (all of whom are collectively referred
to as "Company Releasees") of and from any and all actions, causes of action,
claims, demands, costs and expenses, including attorneys' fees, of every kind
and nature whatsoever, in law or in equity, whether now known or unknown, that
the Company Releasers, or any person acting under any of them, may now have, or
claim at any future time to have, based in whole or in part upon any act or
omission relating to Employee's employment with the Company or separation
therefrom, without regard to present actual knowledge of such acts or omissions;
PROVIDED, HOWEVER, that notwithstanding the foregoing or anything else contained
in this Agreement, the release set forth in this Section shall not extend
to: (i) any rights arising under this Agreement; (ii) a breach of
fiduciary duty or other misconduct that renders Executive ineligible for
indemnification by the Company under applicable law, or any right of recovery by
the Company for Executive's breach of fiduciary duty or misconduct in his
capacity as a director of the Company under applicable law; or (iii) any
claim or claims that the Company may have against Executive as of the Effective
Date of which the Company is not aware as of the Effective Date because of
willful concealment by Executive. The Company understands and agrees that
by signing this Agreement, it is giving up its right to bring any legal claim
against Executive concerning, directly or indirectly, Executive's employment
relationship with the Company. The Company agrees that this legal release
is intended to be interpreted in the broadest possible manner in favor of
Executive, to include all actual or potential legal claims that the Company may
have against Executive relating to Employee's employment with the Company or
separation therefrom, except as specifically provided otherwise in this
Agreement.
(c)
In order to provide a full and complete release, each of the Parties understands
and agrees that this Release is intended to include all claims, if any, covered
under this Paragraph 2 that such Party may have and not now know or suspect to
exist in his or its favor against any other Party and that this Release
extinguishes such claims. Thus, each of the Parties expressly waives all
rights under any statute or common law principle in any jurisdiction that
provides, in effect, that a general release does not extend to claims which the
releasing party does not know or suspect to exist in his favor at the time of
executing the release, which if known by him must have materially affected his
settlement with the party being released.
(d)
Executive acknowledges that he consulted with an attorney of his choosing before
signing this the Employment Agreement and this Release, and that the Company
provided him with no fewer than twenty-one (21) days during which to consider
the provisions of the Employment Agreement and this Release and, specifically
the release set forth at Paragraph 2(a), above, although Executive may sign and
return the Release sooner if he so chooses. Executive further acknowledges
that he has the right to revoke this Release for a period of seven (7) days
after signing it and that this Release shall not become effective until such
seven (7)-day period has expired. Executive acknowledges and agrees that if he
wishes to revoke this Release, he must do so in writing, and that such
revocation must be signed by Executive and received by the Company in care of
the Chief Executive Officer no later than 5 p.m. (Eastern Time) on the
seventh (7th) day after Executive has signed this Release. Executive
acknowledges and agrees that, in the event that he revokes this Release, he
shall have no right to receive the Severance Benefit. Executive represents that
he has read this Release, including the release set forth in Paragraph 2(a),
above, affirms that this Release and the Employment Agreement provide him with
benefits to which he would not otherwise be entitled, and understands its terms
and that he enters into this Release freely, voluntarily, and without
coercion.
3.
Executive acknowledges that he has received all compensation to which he is
entitled for his work up to his last day of employment with the Company, and
that he is not entitled to any further pay or benefit of any kind, for services
rendered or any other reason, other than the Severance Benefit.
4.
Executive agrees that the only thing of value that he will receive by signing
this Release is the Severance Benefit.
5.
The Parties agree that their respective rights and obligations under the
Employment Agreement shall survive the execution of this Release.
6.
The parties understand and agree that this Agreement shall not be construed as
an admission of liability on the part of any person or entity, liability being
expressly denied.
7.
Executive represents and warrants to the Company that, prior to the Effective
Date, Executive did not disclose to any person, other than to Executive's
spouse, tax advisor and counsel, the terms of this Agreement or the
circumstances under which the matter that is the subject of this Agreement has
been resolved. After the Effective Date, neither Executive, counsel for
Executive, nor any other person under Executive's control shall disclose any
term of this Agreement or the circumstances of Executive's separation from the
Company, except that Executive may disclose such information to Executive's
spouse, or as required by subpoena or court order, or to an attorney or
accountant to the extent necessary to obtain professional advice.
Executive shall not be entitled to rely upon the foregoing exception for
disclosures pursuant to subpoena or court order unless Executive has given the
Company written notice, within three business days following service of the
subpoena or court order.
8.
Executive covenants never to disparage or speak ill of the Company or any the
Company product or service, or of any past or present employee, officer or
director of the Company, nor shall Executive at any time harass or behave
unprofessionally toward any past, present or future the Company employee,
officer or director.
9.
Executive acknowledges that because of Executive's position with the Company,
Executive may possess information that may be relevant to or discoverable in
connection with claims, litigation or judicial, arbitral or investigative
proceedings initiated by a private party or by a regulator, governmental entity,
or self-regulatory organization, that relates to or arises from matters with
which Executive was involved during Executive's employment with the Company, or
that concern matters of which Executive has information or knowledge
(collectively, a "Proceeding"). Executive agrees that Executive shall testify
truthfully in connection with any such Proceeding, shall cooperate with the
Company in connection with every such Proceeding, and that Executive's duty of
cooperation shall include an obligation to meet with the Company representatives
and/or counsel concerning all such Proceedings for such purposes, and at such
times and places, as the Company reasonably requests, and to appear for
deposition and/or testimony upon the Company's request and without a
subpoena. The Company shall reimburse Executive for reasonable
out-of-pocket expenses that Executive incurs in honoring Executive's obligation
of cooperation under this Section 9.
10.
Miscellaneous Terms and Conditions
(a)
Each party understands and agrees that Executive or it assumes all risk that the
facts or law may be, or become, different than the facts or law as believed by
the party at the time Executive or it executes this Agreement. Executive
and the Company acknowledge that their relationship precludes any affirmative
obligation of disclosure, and expressly disclaim all reliance upon information
supplied or concealed by the adverse party or its counsel in connection with the
negotiation and/or execution of this Agreement.
(b)
The parties warrant and represent that they have been offered no promise or
inducement except as expressly provided in this Agreement, and that this
Agreement is not in violation of or in conflict with any other agreement of
either party.
(c)
All covenants and warranties contained in this Agreement are contractual and
shall survive the closing of this Agreement.
(d) Successors
and Assigns. This Agreement shall be binding in all respects upon, and shall
inure to the benefit of, the parties' heirs, successors and
assigns.
(e)
Governing Law. This Agreement shall be governed by the internal laws of the
Commonwealth of Virginia, irrespective of the choice of law rules of any
jurisdiction.
(f)
Should any provision of this Agreement be declared illegal or unenforceable by
any court of competent jurisdiction and cannot be modified to be enforceable,
such provision shall immediately become null and void, leaving the remainder of
this Agreement in full force and effect. Notwithstanding the foregoing, if
Section 2(a), above, is declared void or unenforceable, then this Agreement
shall be null and void and both parties shall be restored to the positions that
they occupied before the Agreement's execution (meaning that, among other
things, all sums paid by the Company pursuant to Section 1, above, shall be
immediately refunded to the Company); provided that in such circumstances this
Agreement and the facts and circumstances relating to its execution shall be
inadmissible in any later proceeding between the parties, and the statutes of
limitations applicable to claims asserted in the proceeding shall be deemed to
have been tolled for the period between the Effective Date and 10 days after the
date on which Section 2(a) is declared unenforceable.
(g)
This Agreement constitutes the entire agreement of the parties and a complete
merger of prior negotiations and agreements.
(h)
This Agreement shall not be modified except in a writing signed by the
parties.
(i)
Waiver. No term or condition of this Agreement shall be deemed to have
been waived, nor shall there be an estoppel against the enforcement of any
provision of this Agreement, except by a writing signed by the party charged
with the waiver or estoppel. No waiver of any breach of this Agreement
shall be deemed a waiver of any later breach of the same provision or any other
provision of this Agreement.
(j)
Headings are intended solely as a convenience and shall not control the meaning
or interpretation of any provision of this Agreement.
(k)
Pronouns contained in this Agreement shall apply equally to the feminine, neuter
and masculine genders. The singular shall include the plural, and the
plural shall include the singular.
(l)
Each party shall promptly execute, acknowledge and deliver any additional
document or agreement that the other party reasonably believes is necessary to
carry out the purpose or effect of this Agreement.
(m)
Any party contesting the validity or enforceability of any term of this
Agreement shall be required to prove by clear and convincing evidence fraud,
concealment, failure to disclose material information, unconscionability,
misrepresentation or mistake of fact or law.
(n)
The parties acknowledge that they have reviewed this Agreement in its entirety
and have had a full and fair opportunity to negotiate its terms and to consult
with counsel of their own choosing concerning the meaning and effect of this
Agreement. Each party therefore waives all applicable rules of
construction that any provision of this Agreement should be construed against
its drafter, and agrees that all provisions of the agreement shall be construed
as a whole, according to the fair meaning of the language used.
(o)
Every dispute arising from or relating to this Agreement shall be tried only in
the state or federal courts situated in the Commonwealth of Virginia. The
parties consent to venue in those courts, and agree that those courts shall have
personal jurisdiction over them in, and subject matter jurisdiction concerning,
any such action.
(p)
In any action relating to or arising from this Agreement, or involving its
application, the party substantially prevailing shall recover from the other
party the expenses incurred by the prevailing party in connection with the
action, including court costs and reasonable attorneys' fees.
(q)
This Agreement may be executed in counterparts, or by copies transmitted by
telecopier, all of which shall be given the same force and effect as the
original.
[SIGNATURES
FOLLOW]
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NOTE:
DO NOT SIGN THIS SUPPLEMENTAL LEGAL RELEASE UNTIL AFTER EXECUTIVE's FINAL DAY OF
EMPLOYMENT.
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EXECUTIVE
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By:
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[name,
title]
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H.
Xxxxxxx Xxxx
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Date:
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Date:
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