Exhibit 10.5
Execution Copy
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NAVIGATION TECHNOLOGIES CORPORATION
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made as of
September 18, 2000, by and between Navigation Technologies Corporation, a
Delaware corporation (the "Company"), and Xxxx XxxXxxx ("Executive").
The execution and delivery of this Agreement by the Company
and Executive are conditions to the Company's grant of an option to Executive to
purchase shares of the Company's common stock pursuant to, and in accordance
with, a Stock Option Agreement of even date herewith by and between Executive
and the Company.
In consideration of the mutual covenants contained herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto, intending to be legally bound, hereby
agree as follows:
1. Employment. The Company shall employ Executive, and
Executive hereby accepts employment with the Company, upon the terms and
conditions set forth in this Agreement, for the period beginning on the date
hereof and ending as provided in Section 4 hereof (the "Employment Period").
2. Position and Duties.
(a) During the Employment Period, Executive shall serve as
Executive Vice President North America of the Company and shall have the normal
duties, responsibilities, functions and authority of such position, subject to
the powers of the board of directors of the Company (the "Board") and the
Company's President and Chief Executive Officer (the "CEO") to expand or limit
such duties, responsibilities, functions and authority and to override actions
of officers of the Company.
(b) During the Employment Period, Executive shall report to
the CEO and shall devote his best efforts and his full business time and
attention (except for permitted vacation periods and reasonable periods of
illness or other incapacity) to the business and affairs of the Company and its
Subsidiaries. Executive shall perform his duties, functions and responsibilities
to the Company and its Subsidiaries to the best of his abilities in a diligent,
trustworthy, businesslike and efficient manner. Executive's principal place of
business will be located in the Chicago, Illinois metropolitan area (the
"Principal Office"), and his primary business activities will be conducted from
within the Principal Office other than as conducted by Executive while engaged
in business travel for the Company.
(c) For purposes of this Agreement, "Subsidiaries" shall mean
any corporation or other entity of which the securities or other ownership
interests having the voting power to elect a majority of the board of directors
or other governing body are, at the time of determination, owned by the Company,
directly or through one of more Subsidiaries.
3. Compensation and Benefits.
(a) During the Employment Period, Executive's base salary
shall be $300,000.00 per annum or such higher rate as the Board or the CEO may
determine from time to time (as adjusted from time to time, the "Base Salary"),
which salary shall be payable by the Company in accordance with the Company's
general payroll practices. In addition, the Board may, in accordance with the
Company's annual discretionary bonus plan, award an annual bonus to Executive of
up to 50% of his Base Salary for each full calendar year in which Executive is
employed with the Company or any of its Subsidiaries; it being understood and
agreed, however, that the minimum annual bonus for the period commencing on the
date hereof and ending on December 31, 2000 shall be $60,000.00. Each bonus
payment to be made to Executive pursuant to this Section 3(a) shall be paid on
or before March 31st of the calendar year immediately following the period to
which such bonus relates.
(b) During the Employment Period, Executive shall be entitled
to participate in all of the Company's employee benefit programs for which all
senior executive employees of the Company and its Subsidiaries are generally
eligible. In addition, upon written request to the Company at anytime prior to
the first anniversary of the date hereof, Executive shall be entitled, subject
to compliance with the Company's relocation policy, to a one-time reimbursement
of reasonable moving and relocation expenses for purposes of relocating the
principal residence of Executive and his immediate family (i.e., spouse and
dependent children) to the Chicago, Illinois metropolitan area.
(c) During the Employment Period, the Company shall reimburse
Executive for all reasonable expenses incurred by him in the course of
performing his duties and responsibilities under this Agreement to the extent
such expenses are consistent with the Company's policies in effect from time to
time with respect to travel, entertainment and other business expenses, subject
to the Company's requirements with respect to reporting and documentation of
such expenses. Notwithstanding any implication to the contrary contained herein,
however, except for the one-time relocation benefit described in Section 3(b)
above, the Company will reimburse Executive for expenses incurred by Executive
in connection with his commute between Executive's principal residence and the
Principal Office (or vice-versa) only until the earlier to occur of (i) the
first anniversary of the date hereof and (ii) Executive's relocation of his
principal residence to the Chicago, Illinois metropolitan area.
(d) All amounts payable to Executive as compensation hereunder
shall be subject to all required withholding by the Company.
4. Termination.
(a) The Employment Period shall continue until Executive's
resignation, disability (as determined by the Board in its good faith judgment)
or death or until the Board or the CEO terminates Executive's employment with or
without Cause (as defined in Section 4(d) below)). Except as otherwise provided
herein, (i) a termination of the Employment Period by the Company without Cause
shall be effective upon the 30th day following the delivery to Executive of a
written notice of such termination, provided that the Company shall be entitled
to revoke such notice of termination at anytime prior to such 30th day, in which
case the Employment Period shall continue as if such notice had never been
delivered to Executive, and (ii) a termination of the Employment Period with
Cause shall be effective upon the delivery to Executive of a written notice of
such termination, provided that such written notice shall contain a detailed
description of the Company's basis for such termination.
(b) In the event the Employment Period is terminated by the
Company without Cause or by Executive with Good Reason (as defined in Section
4(e) below), Executive shall be entitled to (i) receive from the Company an
aggregate amount equal to Executive's Base Salary, and (ii) continue to
participate in all of the Company's employee benefit programs for which all
senior executive employees of the Company and its Subsidiaries are then
generally eligible (other than bonus and incentive compensation plans) from the
date of such termination through the first anniversary of the date of such
termination. The amount payable, if any, pursuant to this Section 4(b) shall be
paid in 12 regular monthly installments commencing on the last day of the month
immediately following the date of such termination (or, at the Company's sole
discretion, in one lump sum payment within 30 days following termination of the
Employment Period; provided that such lump sum payment shall be equal to the
present value of the payments otherwise payable pursuant to this Section 4(b),
discounted at a rate of 10% per annum).
(c) In the event the Employment Period is terminated under any
circumstances not covered by Section 4(b) above, Executive shall be entitled to
receive his Base Salary through the date of termination and shall not be
entitled to any other salary, compensation or benefits from the Company or its
Subsidiaries thereafter.
(d) Notwithstanding anything in this Section 4 to the
contrary, Executive shall only be entitled to receive, and the Company shall
only be obligated to provide, the payments and benefits set forth in Section
4(b) above if Executive has executed and delivered to the Company a General
Release in form and substance substantially similar to Exhibit A attached hereto
and, then, for only so long as Executive has not breached any provision of
Section 5 of this Agreement or any provision of that certain Proprietary
Information and Inventions Agreement, dated as of the date hereof, by and
between Executive and the Company (the "Proprietary Rights Agreement"). In
addition, the amounts payable, if any, pursuant to Section 4(b) above shall be
reduced on a dollar for dollar basis by the amount of any compensation received
by Executive in connection with any other employment during (i) the one year
period immediately following the termination of the Employment Period (the
"Severance Period"). Upon request from time to time, Executive shall furnish the
Company with a true and complete certificate specifying any compensation earned
and/or received by Executive during the Severance Period. Except as otherwise
expressly provided herein, all of Executive's rights to salary, bonuses, fringe
benefits and other compensation hereunder which would otherwise accrue or become
payable after the termination of the Employment Period shall cease upon
such termination, other than those expressly required under applicable law (such
as COBRA). The Company may offset any amounts Executive owes the Company or its
Subsidiaries against any amounts the Company or any of its Subsidiaries owes
Executive hereunder.
(d) For purposes of this Agreement, "Cause" means (i) the
commission by Executive of a felony or a crime involving moral turpitude or the
commission by Executive of any other act or omission involving dishonesty or
fraud with respect to the Company or any of its Subsidiaries or any of their
respective customers or suppliers, (ii) conduct by Executive tending to bring
the Company or any of its Subsidiaries into substantial public disgrace or
disrepute, (iii) substantial and repeated failure by Executive, after the
Company provides Executive with written notice of such failure, to perform
duties of the office held by Executive as reasonably directed by the Board, (iv)
gross negligence or willful misconduct by Executive with respect to the Company
or any of its Subsidiaries, (v) any breach by Executive of the Proprietary
Rights Agreement or Section 5 of this Agreement.
(e) For purposes of this Agreement, "Good Reason" means (i) a
significant diminution by the Company of Executive's duties and responsibilities
as compared to the duties and responsibilities of Executive as of the date
hereof and/or (ii) a reduction by the Company of Executive's Base Salary to an
amount below his initial Base Salary.
5. Non-Compete, Non-Solicitation. In further consideration
of the compensation to be paid to Executive hereunder, Executive acknowledges
that in the course of his employment with the Company and its Subsidiaries he
will become familiar with the Company's trade secrets and with other
confidential information concerning the Company and its Subsidiaries and that
his services will be of special, unique and extraordinary value to the Company
and its Subsidiaries. Therefore, Executive agrees that:
(a) during the Employment Period and for one year thereafter
(the "Noncompete Period"), Executive shall not, directly or indirectly, own any
interest in, manage, control, participate in, consult with, render services for,
or in any other manner engage in any enterprise in the business of (i) creating,
managing, adapting, applying, formatting, distributing, selling and/or licensing
land map information databases representing roadways and related information,
with or without additional location-dependent information, such as
points-of-interest, traffic, weather, construction and other similar
information, (ii) related database creation, access management, aggregation,
updating and/or distribution of software, (iii) vehicle navigation software and
logical extensions thereof, and/or (iv) providing consulting and/or other
services in the fields of map databases and vehicle navigation and related
software, in each case within any geographical area in which the Company or any
of its Subsidiaries engage (or have definitive plans to engage in such
businesses as of the date of termination) during the Noncompete Period. Nothing
herein shall prohibit Executive from being a passive owner of not more than 2%
of the outstanding stock of any class of a corporation which is publicly traded,
so long as Executive has no active participation in the business of such
corporation;
(b) during the Noncompete Period, Executive shall not directly
or indirectly through another person or entity (i) induce or attempt to induce
any employee of the Company or any of its Subsidiaries to leave the employ of
the Company or such Subsidiary, or in any way interfere
with the relationship between the Company or any of its Subsidiaries and any
employee thereof, (ii) hire any person who was an employee of the Company or any
Subsidiary in a position above the level of Manager at any time during the
Employment Period, and/or (iii) induce or attempt to induce any customer,
supplier, licensee, licensor, franchisee or other business relation of the
Company or any of its Subsidiaries 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 of its
Subsidiaries (including, without limitation, making any negative or disparaging
statements or communications regarding the Company or any of its Subsidiaries);
(c) if, at the time of enforcement of this Section 5, a court
shall hold that the duration, scope or area restrictions stated herein are
unreasonable under circumstances then existing, the parties agree that the
maximum duration, scope or area reasonable under such circumstances shall be
substituted for the stated duration, scope or area and that the court shall be
allowed to revise the restrictions contained herein to cover the maximum period,
scope and area permitted by law. Executive acknowledges that the restrictions
contained in this Section 5 are reasonable and that he has reviewed the
provisions of this Agreement with his legal counsel;
(d) in the event of the breach or a threatened breach by
Executive of any of the provisions of this Section 5, the Company, in addition
and supplementary to other rights and remedies existing in its favor, shall be
entitled to specific performance and/or injunctive or other equitable relief
from a court of competent jurisdiction in order to enforce or prevent any
violation of the provisions hereof (without posting a bond or other security).
In addition, in the event of an alleged breach or violation by Executive of this
Section 5, the Noncompete Period shall be tolled until such breach or violation
has been duly cured; and
(e) the provisions of this Section 7 are in consideration of:
(i) employment with the Company, (ii) a grant to Executive of certain options to
purchase shares of the Company's common stock and (iii) additional good and
valuable consideration as set forth in this Agreement. In addition, Executive
agrees and acknowledges that the restrictions contained in this Section 5 and in
the Proprietary Rights Agreement do not preclude Executive from earning a
livelihood, nor do they unreasonably impose limitations on Executive's ability
to earn a living. In addition, Executive agrees and acknowledges that the
potential harm to the Company and/or its affiliates of the non-enforcement of
this Section 5 and/or the Proprietary Rights Agreement outweighs any potential
harm to Executive of its enforcement by injunction or otherwise. In addition,
Executive acknowledges that he has carefully read this Agreement and has given
careful consideration to the restraints imposed upon Executive by this Agreement
and is in full accord as to their necessity for the reasonable and proper
protection of confidential and proprietary information of the Company now
existing or to be developed in the future. Executive expressly acknowledges and
agrees that each and every restraint imposed by this Agreement is reasonable
with respect to subject matter, time period and geographical area.
6. Executive's Representations. Executive hereby represents
and warrants to the Company that (i) the execution, delivery and performance of
this Agreement by Executive do not and shall not conflict with, breach, violate
or cause a default under any contract, agreement, instrument, order, judgment or
decree to which Executive is a party or by which he is bound, (ii)
Executive is not a party to or bound by any employment agreement, noncompete
agreement, confidentiality agreement or other similar agreement with any other
person or entity and (iii) upon the execution and delivery of this Agreement by
the Company, this Agreement shall be the valid and binding obligation of
Executive, enforceable in accordance with its terms. Executive hereby
acknowledges and represents that he has consulted with independent legal counsel
regarding his rights and obligations under this Agreement and that he fully
understands the terms and conditions contained herein.
7. Survival. This Agreement shall survive and continue in full
force in accordance with its terms notwithstanding the termination of the
Employment Period.
8. Notices. Any notice provided for in this Agreement shall be
in writing and shall be either personally delivered, sent by reputable overnight
courier service or mailed by first class mail, return receipt requested, to the
recipient at the address below indicated:
Notices to Executive:
Xxxx XxxXxxx
00 Xxxxxxxxxx Xxxxxxxxx Xxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Notices to the Company:
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Navigation Technologies Corporation
00000 Xxxx Xxxxxxx Xxxx
Xxxxxxxx, XX 00000-0000
Attention: Chief Executive Officer
With a copy to:
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Navigation Technologies Corporation
00000 Xxxx Xxxxxxx Xxxx
Xxxxxxxx, XX 00000-0000
Attention: General Counsel
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 shall be deemed to have been given when so
delivered, sent or mailed.
9. Severability. Whenever possible, each provision of this
Agreement shall 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 shall not affect
any other provision or any action in any other jurisdiction, but this Agreement
shall be reformed, construed
and enforced in such jurisdiction as if such invalid, illegal or unenforceable
provision had never been contained herein.
10. 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.
11. No Strict Construction. The language used in this
Agreement shall be deemed to be the language chosen by the parties hereto to
express their mutual intent, and no rule of strict construction shall be applied
against any party.
12. Counterparts. This Agreement may be executed in separate
counterparts, each of which shall be deemed to be an original and all of which
taken together constitute one and the same agreement.
13. Successors and Assigns. This Agreement is intended to bind
and inure to the benefit of and be enforceable by Executive, the Company and
their respective heirs, successors and assigns, except that Executive may not
assign his rights or delegate his duties or obligations hereunder without the
prior written consent of the Company.
14. Choice of Law. All issues and questions concerning the
construction, validity, enforcement and interpretation of this Agreement and the
exhibits and schedules hereto shall be governed by, and construed in accordance
with, the laws of the State of Illinois, without giving effect to any choice of
law or conflict of law rules or provisions (whether of the State of Illinois or
any other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Illinois.
15. Amendment and Waiver. The provisions of this Agreement may
be amended or waived only with the prior written consent of the Company (as
approved by the Board) and Executive, and no course of conduct or course of
dealing or failure or delay by any party hereto in enforcing or exercising any
of the provisions of this Agreement (including, without limitation, the
Company's right to terminate the Employment Period for Cause) shall affect the
validity, binding effect or enforceability of this Agreement or be deemed to be
an implied waiver of any provision of this Agreement.
16. Arbitration.
(a) Except with respect to disputes and claims under Section 5
hereof (which may be pursued in any court of competent jurisdiction as specified
below and with respect to which each party shall bear the cost of such party's
own attorneys' fees and expenses, except to the extent otherwise required by
applicable law), each party hereto agrees that arbitration, pursuant to the
procedures set forth in the National Rules for the Resolution of Employment
Disputes of the American Arbitration Association (as adopted and effective as of
June 1, 1997 or such later version
as may then be in effect) (the "AAA Rules"), shall be the sole and exclusive
method for resolving any claim or dispute ("Claim") arising out of or relating
to the rights and obligations of the parties under this Agreement and the
employment of Executive by the Company (including, without limitation, claims
and disputes regarding employment discrimination, sexual harassment, termination
and discharge), whether such Claim arose or the facts on which such Claim is
based occurred prior to or after the execution and delivery of this Agreement.
The parties hereto agree that (i) one arbitrator shall be appointed pursuant to
the AAA Rules to conduct any such arbitration, (ii) all meetings of the parties
and all hearings with respect to any such arbitration shall take place in
Chicago, Illinois, (iii) each party to the arbitration shall bear such party's
own costs and expenses (including, without limitation, all attorneys' fees and
expenses, except to the extent otherwise required by applicable law), (iv) all
costs and expenses of the arbitration proceeding (such as filing fees, the
arbitrator's fees, hearing expenses, etc.) shall be borne by the Company. The
parties agree that the judgment, award or other determination of any arbitration
under the AAA Rules shall be final, conclusive and binding on all of the parties
hereto. Nothing in this Section 16 shall prohibit any party hereto from
instituting litigation to enforce any final judgment, award or determination of
the arbitration. Each party hereto hereby irrevocably submits to the
jurisdiction of the federal and state courts sitting in Chicago, Illinois, and
agrees that such courts shall be the exclusive forum for the enforcement of any
such final judgment, award or determination of the arbitration. Each party
hereto irrevocably consents to service of process by registered mail or personal
service and waives any objection on the grounds of personal jurisdiction, venue
or inconvenience of the forum. Each party hereto further agrees that each other
party hereto may initiate litigation in any court of competent jurisdiction to
execute any judicial judgment enforcing or not enforcing any award, judgment or
determination of the arbitration.
(b) Notwithstanding the foregoing, prior to any party hereto
instituting any arbitration proceeding hereunder to resolve any Claim, such
party first shall submit the Claim to a mediation proceeding between the parties
hereto which shall be governed by the prevailing procedures of the American
Arbitration Association and shall be conducted in Chicago, Illinois. If the
parties hereto have not agreed in writing to a resolution of the Claim pursuant
to the mediation within 45 days after the commencement thereof or if any party
refuses to participate in the mediation process, then the Claim may be submitted
to arbitration under Section 16(a) above. Each party hereto shall bear such
party's own costs and expenses incurred in connection with the mediation, and
all costs and expenses of the mediation proceeding shall be borne equally by the
parties hereto.
* * * * *
IN WITNESS WHEREOF, the parties hereto have executed this
Employment Agreement as of the date first written above.
NAVIGATION TECHNOLOGIES CORPORATION
By: /s/ Xxxxxx Xxxxx
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Its: President and Chief Executive Officer
/s/ Xxxx XxxXxxx
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Xxxx XxxXxxx
Exhibit A
GENERAL RELEASE
I, Xxxx XxxXxxx, in consideration of and subject to the performance by
Navigation Technologies Corporation, a Delaware corporation (together with its
subsidiaries, the "Company"), of its material obligations under the Employment
Agreement, dated as of September 1, 2000 (the "Agreement"), do hereby release
and forever discharge as of the date hereof the Company and all present and
former directors, officers, agents, representatives, employees, successors and
assigns of the Company and its direct or indirect owners (collectively, the
"Released Parties") to the extent provided below.
1. I understand that any payments or benefits paid or granted to me under
Section 4(b) of the Agreement represent, in part, consideration for
signing this General Release and are not salary, wages or benefits to
which I was already entitled. I understand and agree that I will not
receive the payments and benefits specified in Section 4(b) of the
Agreement unless I execute this General Release and do not revoke this
General Release within the time period permitted hereafter or breach
this General Release.
2. Except as provided in paragraph 4 below, I knowingly and voluntarily
release and forever discharge the Company and the other Released
Parties from any and all claims, controversies, actions, causes of
action, cross-claims, counter-claims, demands, debts, compensatory
damages, liquidated damages, punitive or exemplary damages, other
damages, claims for costs and attorneys' fees, or liabilities of any
nature whatsoever in law and in equity, both past and present (through
the date of this General Release) and whether known or unknown,
suspected, or claimed against the Company or any of the Released
Parties which I, my spouse, or any of my heirs, executors,
administrators or assigns, may have, which arise out of or are
connected with my employment with, or my separation from, the Company
(including, but not limited to, any allegation, claim or violation,
arising under: Title VII of the Civil Rights Act of 1964, as amended;
the Civil Rights Act of 1991; the Age Discrimination in Employment Act
of 1967, as amended (including the Older Workers Benefit Protection
Act); the Equal Pay Act of 1963, as amended; the Americans with
Disabilities Act of 1990; the Family and Medical Leave Act of 1993; the
Civil Rights Act of 1866, as amended; the Worker Adjustment Retraining
and Notification Act; the Employee Retirement Income Security Act of
1974; any applicable Executive Order Programs; the Fair Labor Standards
Act; or their state or local counterparts; or under any other federal,
state or local civil or human rights law, or under any other local,
state, or federal law, regulation or ordinance; or under any public
policy, contract or tort, or under common law; or arising under any
policies, practices or procedures of the Company; or any claim for
wrongful discharge, breach of contract, infliction of emotional
distress, defamation; or any claim for costs, fees, or other expenses,
including attorneys' fees incurred in these matters) (all of the
foregoing collectively referred to herein as the "Claims").
3. I represent that I have made no assignment or transfer of any right,
claim, demand, cause of action or other matter covered by paragraph 2
above.
4. I agree that this General Release does not waive or release any rights
or claims that I may have under the Age Discrimination in Employment
Act of 1967 which arise after the date I execute this General Release.
I acknowledge and agree that my separation from employment with the
Company in compliance with the terms of the Agreement shall not serve
as the basis for any claim or action (including, without limitation,
any claim under the Age Discrimination in Employment Act of 1967).
5. In signing this General Release, I acknowledge and intend that it
shall be effective as a bar to each and every one of the Claims
hereinabove mentioned or implied. I expressly consent that this General
Release shall be given full force and effect according to each and all
of its express terms and provisions, including those relating to
unknown and unsuspected Claims (notwithstanding any state statute that
expressly limits the effectiveness of a general release of unknown,
unsuspected and unanticipated Claims), if any, as well as those
relating to any other Claims hereinabove mentioned or implied. I
acknowledge and agree that this waiver is an essential and material
term of this General Release and that without such waiver the Company
would not have agreed to the terms of the Agreement. I further agree
that in the event I should bring a Claim seeking damages against the
Company, or in the event I should seek to recover against the Company
in any Claim brought by a governmental agency on my behalf, this
General Release shall serve as a complete defense to such Claims. I
further agree that I am not aware of any pending charge or complaint of
the type described in paragraph 2 hereof as of the execution of this
General Release.
6. I agree that neither this General Release, nor the furnishing of the
consideration for this General Release, shall be deemed or construed at
any time to be an admission by the Company, any Released Party or
myself of any improper or unlawful conduct.
7. I agree that I will forfeit all amounts payable by the Company pursuant
to the Agreement if I challenge the validity of this General Release. I
also agree that if I violate this General Release by suing the Company
or the other Released Parties, I will pay all costs and expenses of
defending against the suit incurred by the Released Parties, including
reasonable attorneys' fees, and return all payments received by me
pursuant to the Agreement.
8. I agree that this General Release is confidential and agree not to
disclose any information regarding the terms of this General Release,
except to my immediate family and any tax, legal or other counsel I
have consulted regarding the meaning or effect hereof or as required by
law, and I will instruct each of the foregoing not to disclose the same
to anyone.
9. Any non-disclosure provision in this General Release does not prohibit
or restrict me (or my attorney) from responding to any inquiry about
this General Release or its underlying facts and circumstances by the
Securities and Exchange Commission (SEC), the National Association of
Securities Dealers, Inc. (NASD), any other self-regulatory organization
or governmental entity.
10. I agree to reasonably cooperate with the Company in any internal
investigation or administrative, regulatory or judicial proceeding. I
understand and agree that my cooperation may include, but not be
limited to, making myself available to the Company upon reasonable
notice for interviews and factual investigations; appearing at the
Company's request to give testimony without requiring service of a
subpoena or other legal process; volunteering to the Company pertinent
information; and turning over to the Company all relevant documents
which are or may come into my possession all at times and on schedules
that are reasonably consistent with my other permitted activities and
commitments. I understand that in the event the Company asks for my
cooperation in accordance with this provision, the Company will
reimburse me solely for reasonable travel expenses, including lodging
and meals, upon my submission of receipts.
11. Notwithstanding anything in this General Release to the contrary, this
General Release shall not relinquish, diminish, or in any way affect
any rights or claims arising out of any breach by the Company or by any
Released Party of the Agreement.
12. Whenever possible, each provision of this General Release shall be
interpreted in, such manner as to be effective and valid under
applicable law, but if any provision of this General Release 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 shall not affect any other provision or any other
jurisdiction, but this General Release shall be reformed, construed and
enforced in such jurisdiction as if such invalid, illegal or
unenforceable provision had never been contained herein.
BY SIGNING THIS GENERAL RELEASE, I REPRESENT AND AGREE THAT:
(a) I HAVE READ IT CAREFULLY;
(b) I UNDERSTAND ALL OF ITS TERMS AND KNOW THAT I AM GIVING UP IMPORTANT
RIGHTS, INCLUDING BUT NOT LIMITED TO, RIGHTS UNDER THE AGE
DISCRIMINATION IN EMPLOYMENT ACT OF 1967, AS AMENDED; TITLE VII OF THE
CIVIL RIGHTS ACT OF 1964, AS AMENDED; THE EQUAL PAY ACT OF 1963; THE
AMERICANS WITH DISABILITIES ACT OF 1990; AND THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED;
(c) I VOLUNTARILY CONSENT TO EVERYTHING IN IT;
(d) I HAVE BEEN ADVISED TO CONSULT WITH AN ATTORNEY BEFORE EXECUTING IT
AND HAVE DONE SO, OR, AFTER CAREFUL READING AND CONSIDERATION, I HAVE
CHOSEN NOT TO DO SO OF MY OWN VOLITION;
(e) I HAVE HAD AT LEAST 21 DAYS FROM THE DATE OF MY RECEIPT OF THIS RELEASE
SUBSTANTIALLY IN ITS FINAL FORM ON _______________ __, _____ TO
CONSIDER IT AND THE CHANGES MADE SINCE THE _______________ __, _____
VERSION OF THIS RELEASE ARE NOT MATERIAL AND WILL NOT RESTART THE
REQUIRED 21-DAY PERIOD;
(f) THE CHANGES TO THE AGREEMENT SINCE _______________ ___, _____ EITHER
ARE NOT MATERIAL OR WERE MADE AT MY REQUEST.
(g) I UNDERSTAND THAT I HAVE SEVEN DAYS AFTER THE EXECUTION OF THIS
RELEASE TO REVOKE IT AND THAT THIS RELEASE SHALL NOT BECOME EFFECTIVE
OR ENFORCEABLE UNTIL THE REVOCATION PERIOD HAS EXPIRED;
(h) I HAVE SIGNED THIS GENERAL RELEASE KNOWINGLY AND VOLUNTARILY AND WITH
THE ADVICE OF ANY COUNSEL RETAINED TO ADVISE ME WITH RESPECT TO IT; AND
(i) I AGREE THAT THE PROVISIONS OF THIS GENERAL RELEASE MAY NOT BE AMENDED,
WAIVED, CHANGED OR MODIFIED EXCEPT BY AN INSTRUMENT IN WRITING SIGNED
BY AN AUTHORIZED REPRESENTATIVE OF THE COMPANY AND BY ME.
DATE: ,
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Xxxx XxxXxxx
