Exhibit 10.3
SEVERANCE AND NONSOLICITATION AGREEMENT
THIS AGREEMENT is made and entered into on this ___ day of _________,
2002, by and between WCI COMMUNITIES, INC. ("WCI"), a Delaware corporation, and
__________________________ (the "Executive").
RECITALS:
A. Executive is a senior executive of WCI, and is an employee of
WCI and/or one or more of it subsidiaries.
B. Executive is not now a party to any employment agreement
between him and the WCI or any of its subsidiaries.
C. WCI is involved in an initial public offering ("IPO") which
may result in WCI becoming a public company.
D. Irrespective of whether or not the IPO is completed, there may
be other financings or transactions in the future which could
result in a change in control of WCI.
E. WCI would like to provide some assurance to Executive that if
there is a change in control of WCI and within twelve months
after such change in control, Executive's employment is
terminated, Executive will receive certain severance payments,
provided Executive does not solicit any employees of WCI or
its subsidiaries.
F. WCI and Executive have agreed that upon such termination,
Executive will have an option to receive significant
additional payments as compensation for his agreement not to
compete with WCI and its subsidiaries, and not to work at all
for any entity which has any activities which compete with WCI
or any of its subsidiaries, which option and the agreement to
not compete shall be solely at Executive's election.
NOW, THEREFORE, IN CONSIDERATION of the recitals and the mutual
agreements herein set forth, the parties agree as follows:
1. Definitions. The following terms, which are used in this Agreement,
are defined as follows:
a. "Base Salary" means the amount of Executive's base salary
(without inclusion of any bonus) in effect immediately prior to a
Change in Control.
b. "Cause" means: (i) any act of willful misconduct or
dishonesty by Executive in the performance of his duties; (ii) any
willful and persistent failure by Executive to attend to his duties; or
(iii) any action by Executive which would constitute a violation of the
provisions of this Agreement under the headings "Nonsolicitation" and
"Confidentiality and Nondisclosure" if such actions occurred during the
Nonsolicitation Restricted Period; or (iv) any action by Executive
which would constitute a violation of the provisions of the Noncompete
Addendum if such actions occurred during the Noncompete Restricted
Period and Executive had elected to execute the Noncompete
Addendum; or (v) Executive's conviction of (or pleading guilty or nolo
contendere to) any felony, or of a criminal offense resulting in
imprisonment, or of any misdemeanor involving theft, embezzlement,
dishonesty or moral turpitude.
c. "Change in Control" means:
(i) When any "person" as defined in Section 3(a)(9)
of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and as used in Section 13(d) and 14(d)
thereof, including a "group" as defined in Section 13(d) of
the Exchange Act, (excluding any person (or "group" as defined
in Section 13(d) of the Exchange Act) holding securities
representing 50% or more of the combined voting power of WCI's
outstanding securities as of the Effective Date (as such term
is defined in the 1998 Stock Purchase and Option Plan for Key
Employees of WCI Communities, Inc., as amended), excluding
WCI, any Subsidiary and any employee benefit plan sponsored or
maintained by WCI or any Subsidiary (including any trustee of
such plan acting as trustee)), who directly or indirectly,
becomes the "beneficial owner" (as defined in Rule 13d-3 under
the Exchange Act), of securities of WCI representing 50% or
more of the combined voting power of WCI's then outstanding
securities (unless the event causing the 50% threshold to be
crossed is an acquisition of securities directly from WCI); or
(ii) the shareholders of WCI shall approve any merger
or other business combination of WCI, sale of 50% or more of
WCI's assets, liquidation or dissolution of WCI or combination
of the foregoing transactions and a closing of the transaction
shall have occurred (the "Transactions") other than a
Transaction immediately following which the shareholders of
WCI and any trustee or fiduciary of any WCI employee benefit
plan immediately prior to the Transaction who collectively
owned at least 50% of the voting power, directly or indirectly
of WCI immediately prior to the Transaction own, immediately
after the Transaction, at least 50% of the voting power,
directly or indirectly, of (A) the surviving entity in any
such merger or other business combination; (B) the purchaser
of or successor to WCI's assets; (C) both the surviving entity
and the purchaser in the event of any combination of
Transactions; or (D) the parent company owning 100% of such
surviving entity, purchaser or both the surviving entity and
the purchaser, as the case may be; or
(iii) within any twelve month period, the persons who
were directors of WCI immediately before the beginning of such
period (the "Incumbent Directors") shall cease (for any reason
other than death) to constitute at least a majority of the
board of directors of WCI or of any successor to WCI. For this
purpose, any director who was not a director at the beginning
of such period shall be deemed to be an Incumbent Director if
such director was elected to the board of directors of WCI by,
or on the recommendation of or with the approval of, at least
two-thirds of the directors who then qualified as Incumbent
Directors (so long as such director was not nominated by a
person who has entered into an agreement to effect a Change in
Control or expressed an intention to cause such a Change in
Control).
2
d. "Company" means WCI and each of its Subsidiaries.
e. "Good Reason" means, following a Change in Control: (i) any
material reduction in Executive's salary below the level of Base Salary
or (ii) any material adverse change in Executive's duties, title or
responsibilities; provided, however, that Good Reason shall not be
deemed to have occurred unless Executive gives WCI thirty (30) days
written notice, and within such thirty (30) day period, the Company
does not restore Executive's Base Salary or restore Executive to the
prior position, in which event Good Reason shall be deemed to have
occurred at the time of the giving of such written notice.
f. "Noncompete Addendum" means the Noncompete Addendum, as so
titled, attached to this Agreement.
g. "Noncompete Compensation" means cash payments equal to
twelve (12) months of Base Salary.
h. "Noncompete Restricted Period" means a period of nine (9)
months which begins on the date of Termination and ends nine (9) months
after the date of Termination.
i. "Nonsolicitation Restricted Period" means a period of
twelve (12) months which begins on the date of Termination and ends
twelve (12) months after the date of Termination.
j. "Severance" means cash payments equal to six (6) months of
Base Salary, payable monthly.
k. "Subsidiary" means each entity (including, without
limitation, every corporation, partnership, limited partnership,
limited liability company, trust and joint venture) in which WCI owns,
or has the right to acquire, directly or indirectly, a controlling
interest.
l. "Termination" means the termination of Executive's
employment with the Company by the Company, other than for Cause, or
the termination of such employment by Executive for Good Reason, in
either case at any time within the twelve (12) months following a
Change of Control.
m. "WCI" means WCI Communities, Inc., and any successor in
connection with any restructuring of WCI Communities, Inc. which does
not result in a Change in Control.
2. Severance
a. Basis for Payment. If, within twelve (12) months following
a Change in Control, Executive's employment is terminated by Company,
other than for Cause, or if within such twelve (12) month period,
Executive terminates his employment with the Company for Good Reason,
Executive will be entitled to receive Severance.
3
b. Payment of Severance. Severance will be paid by
WCI in six (6) equal monthly installments, beginning with the
month after the month in which Termination occurred. Severance
shall terminate if, during the Nonsolicitation Restricted
Period, Executive violates any of the provisions of this
Agreement under the headings "Nonsolicitation" and
"Confidentiality and Nondisclosure". Severance shall also
terminate if Executive exercises his option to receive
Noncompete Compensation under Section 3, and thereafter he
violates any provision of the Noncompete Addendum. Termination
of WCI's obligations to pay Severance under this Section 2.b
shall not release Executive from his obligations under this
Agreement (including the Noncompete Addendum, if executed).
3. Noncompete Compensation.
a. Executive's Option to Obtain Noncompete
Compensation. In the event of a Termination within twelve (12)
months following a Change in Control, Executive shall have an
option to obtain Noncompete Compensation. Such option shall be
exercised by Executive, if at all, within fourteen (14) days
of Termination, by the execution by Executive of the
Noncompete Addendum and the delivery by him to the Company of
such executed copy of the Noncompete Addendum within such
fourteen (14) day period. Noncompete Compensation shall be in
addition to Severance. If Executive fails to execute and
deliver the Noncompete Addendum within fourteen (14) days of
Termination, then Executive's option to obtain Noncompete
Compensation shall be void and of no force and effect.
b. Effectiveness of Noncompete Addendum. The
Noncompete Addendum attached hereto shall have no force or
effect unless a copy thereof is executed by Executive and
delivered to WCI within the time period provided in Section
3.a. Upon execution by Executive of a copy of the Noncompete
Addendum and delivery thereof to WCI within the time period
provided, the Noncompete Addendum shall become a part of this
Agreement, and the Agreement and the Noncompete Addendum shall
be considered as one and the same document.
c. Payment of Noncompete Compensation. Noncompete
Compensation will be paid by WCI in twelve (12) equal monthly
installments, beginning in the month after the month in which
the last monthly payment of Severance has been made. All
payments of Noncompete Compensation shall terminate if, during
the Noncompete Restricted Period, Executive violates any of
the provisions of this Agreement under the headings
"Nonsolicitation" and "Confidentiality and Nondisclosure", or
if Executive violates any of the provisions of the Noncompete
Addendum. Termination of WCI's obligations to pay Noncompete
Compensation under this Section 3.b shall not release
Executive from his obligations under this Agreement (including
the Noncompete Addendum).
4. Effect of Death or Disability.
a. During Employment. All of the obligations of WCI
hereunder, including the obligation of WCI to pay Severance
and Noncompete Compensation, will terminate upon a termination
of employment as a result of death or disability.
4
b. During Nonsolicitation Restricted Period and
Noncompete Restricted Period. In the event of the death or
disability of Executive during the Nonsolicitation Restricted
Period, Severance shall terminate as of the date of death, and
Executive or his personal representative shall be entitled to
receive any payments of Severance accrued (on a per diem
basis) but unpaid as of the date of death. If Executive
exercised his option to receive Noncompete Compensation, then
Executive or his personal representative shall be entitled to
continue to receive a pro rata portion of Noncompete
Compensation, based on the percentage of the Noncompete
Restricted Period which had elapsed between the date of
Termination and the date of death. Such amounts shall continue
to be paid on a monthly basis.
5. Nonsolicitation. During the Nonsolicitation Restricted Period (and
irrespective of whether Executive executes the Noncompete Addendum), Executive
shall not solicit any person who was an employee of or consultant to the Company
at any time within three (3) months prior to Termination to accept employment
with Executive, with Executive's new employer, or with any other person or
entity, or encourage any person to terminate his employment or consultant
relationship with the Company, or assist any person or entity, including
Executive's new employer, in identifying employees of or consultants to the
Company to solicit for employment or consulting relationships, or in any way
assist any person or entity, including Executive's new employer, in solicitation
of any employee of or consultant to the Company, nor except with the prior
written consent of WCI, shall Executive hire, or cause or permit any entity
controlled directly or indirectly by Executive to hire, any person as an
employee or consultant who was, at any time within three (3) months prior to
Termination, an employee of the Company.
6. Confidentiality and Nondisclosure. Executive agrees that he shall
not use or disclose to third parties any confidential information of the
Company. All files, records, documents, data and similar items relating to the
Company, as well as all copies thereof, whether prepared by Executive or
otherwise coming into his possession, shall remain the exclusive property of the
Company and shall immediately be returned to the Company upon termination of
Executive's employment. Executive's obligations under this section shall
continue while he is an employee of the Company, and after termination of the
employment so long as the Company derives value from such confidential
information remaining confidential.
7. Release. As a condition to the payment of Severance and as a
condition to the payment of Noncompete Compensation, Executive will execute a
complete release in the form of Exhibit A.
8. Restrictions Reasonable. Executive acknowledges that the
restrictions under the sections headed "Nonsolicitation" and "Confidentiality
and Nondisclosure" are reasonable and necessary to protect the legitimate
interests of WCI and do not cause Executive undue hardship.
9. Equitable Relief. Executive hereby acknowledges and agrees that the
Company and its goodwill would be irreparably injured by, and that damages at
law are an insufficient remedy for, a breach or violation of the provisions of
this Agreement, and agrees that the Company, in addition to other remedies
available to it for such breach, shall be entitled to a preliminary injunction,
temporary restraining order, or other equivalent relief, restraining Executive
from any
5
actual breach of the provisions hereof, and that WCI's rights to such equitable
relief shall be cumulative and in addition to any other rights or remedies to
which WCI may be entitled.
10. Fiduciary Obligations of Executive; Other Rights of the Company.
The provisions of this Agreement, including the Noncompete Addendum, if
applicable, are not intended to limit the fiduciary and other obligations of the
Executive, if any, to the Company under applicable law, and in no event shall
this Agreement, including the Noncompete Addendum, be interpreted to release or
limit any of Executive's obligations to the Company provided by law.
11. Notices. Any notice, request, instruction, or other document to be
given hereunder shall be in writing and shall be deemed to have been given: (a)
on the day of receipt, if sent by overnight courier; (b) upon receipt, if given
in person; (c) five days after being deposited in the mail, certified or
registered mail, postage prepaid, and in any case addressed as follows:
If to WCI:
Senior Vice President
Human Resources Department
00000 Xxxxxx Xxxxxx Xx.
Xxxxxx Xxxxxxx, XX 00000
If to the Executive:
--------------------------
--------------------------
--------------------------
or to such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party.
12. Choice of Law; Venue. This Agreement is made and entered into in
the State of Florida. All of the terms and provisions of this Agreement are
governed by, and shall be interpreted in accordance with, the laws of the State
of Florida. Each of the parties irrevocably consents to exclusive jurisdiction
and venue in the Florida state courts located in Naples. Florida, and in the
Federal district court which includes Naples, Florida.
13. Legal Fees and Expenses. The prevailing party in any litigation to
enforce the terms of this Agreement shall be entitled to recover reasonable
costs and expenses, including attorneys' fees.
14. Exclusive Agreement Regarding Severance. The provisions regarding
severance in this Agreement are in lieu of any other severance policy of the
Company which might otherwise be applicable to Executive.
6
15. Agreement Not Dependent on IPO. This Agreement is effective between
Executive and the Company upon execution by both parties, and shall continue in
effect whether or not the Company completes the IPO.
16. At-Will Employment. Executive understands and acknowledges that his
employment with the Company is for an unspecified duration and constitutes
"at-will" employment, unless he and the Company enter into a written employment
agreement signed by the Chief Executive Officer of WCI. Executive acknowledges
that, unless such an employment agreement is entered into, his employment
relationship with the Company may be terminated at any time, with or without
Cause at the option either of the Company or Executive, with or without notice.
17. Successors and Assigns. This Agreement shall be binding upon, and
shall inure to the benefit of, the parties hereto and to their successors,
assigns and personal representatives.
18. Headings; References. The headings in this Agreement are inserted
for convenience only and shall not be deemed to constitute a part hereof nor to
affect the meaning thereof. All section references are to sections of this
Agreement, unless otherwise specified. The terms "hereof" or "herein" or similar
terms as used in this Agreement refer to this Agreement as a whole and not to
any particular provision or part thereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first above written.
EXECUTIVE WCI COMMUNITIES, INC.
-------------------- By:
-----------------------
Its:
-----------------------
7
NONCOMPETE ADDENDUM
This document is an addendum to that certain Severance and Nonsolicitation
Agreement (the "Agreement"), dated as of ______________, 2002, by and between
WCI Communities, Inc., defined in the Agreement as "WCI", and the undersigned,
defined in the Agreement as the "Executive".
RECITALS
A. This Noncompete Addendum is an attachment to the Agreement,
and is for the purpose of permitting Executive to obtain
compensation for agreeing not to compete with the Company in
the event that Executive's employment with the Company is
terminated by the Company without cause or is terminated by
the Executive with good reason within twelve months of a
change in control of WCI.
B. Executive has the option to execute this Noncompete Addendum,
and is not required to do so.
C. If Executive had not elected to execute this Noncompete
Addendum, then as of the date of the Agreement, Executive
would not be bound by any agreement between him and the
Company which would have prohibited or restricted him from
competing with the Company.
NOW, THEREFORE, Executive agrees as follows:
1. Definitions.
a. "Prohibited Activity" means any activity,
including, without limitation, acting as a developer or
builder, which is competitive in any market with any activity
or business conducted by the Company at the time of
Termination, or which involves preparing to act as a developer
or builder in a market in competition with the Company. For
purposes of this definition, the Company will be considered to
be engaged in a market or activity if: (i) the Company is, in
fact, engaged in such activity or business within any market;
or (ii) the Company is a party to any agreement which provides
for the performance of obligations or the creation of rights
which, if fully performed, would result in the Company being
engaged in such activity or business in such market; or (iii)
the Company reasonably intends to engage in such activity or
business in such market and has taken steps in furtherance of
that intention, as evidenced by the Company's written records,
which may, but need not, include such things as the
preparation of analyses, surveys, environmental studies,
architectural and engineering work, renderings, marketing and
other studies, budgets, pro-formas, and timetables and
negotiation with third parties. For purposes of determining
whether a builder or developer is preparing to act in a market
in competition with the Company, such preparation shall be
evidenced by any of the actions activities or evidence which
are specified as demonstrating the Company's involvement or
intent under clauses (ii) and (iii) of this Section 1(a). A
market, for purposes of this
definition, is any area in which a customer would reasonably
consider products or services available or to be available
from the Company and any other party as alternative choices.
Advertising in a market, without any other activity in that
market, shall not be considered competing in that market. A
single market may include a number of geographic locations
which are not contiguous or in the same county or state.
b. "Prohibited Party" means any person or entity
which is, at any time during the Noncompete Restricted Period,
involved, directly or indirectly, in any Prohibited Activity,
or which has a majority ownership interest in, or the right to
acquire a majority ownership interest in, or controls,
directly or indirectly, as a matter of legal right or in
practical effect, any person or entity which is engaged in any
Prohibited Activity.
c. Other terms used herein are defined in the
Agreement.
2. Effectiveness of Addendum. This Noncompete Addendum shall have no
force or effect unless a copy hereof is executed by Executive and delivered to
WCI within the time period provided in the Agreement. Upon execution by
Executive of a copy of this Noncompete Addendum and delivery hereof to WCI
within the time period provide in the Agreement, this Noncompete Addendum shall
become a part of the Agreement, and the Agreement and this Noncompete Addendum
shall be considered as one and the same document.
3. Noncompete. Executive agrees that during the Noncompete Restricted
Period: (a) he shall not engage in any Prohibited Activity; (b) he shall not
become an employee, agent or representative of, independent contractor to,
consultant to, shareholder, officer, director, member, partner, joint venturer
or other equity owner of or lender to, any Prohibited Party; and (c) if he is an
employee, agent or representative of, independent contractor to, consultant to,
shareholder, officer, director, member, partner, joint venturer or other equity
owner of or lender to, any entity or person who was not a Prohibited Party at
the time Executive established such relationship, but subsequently becomes a
Prohibited Party, Executive shall, within ten (10) days of the date that such
entity or person becomes a Prohibited Party, terminate his position and
relationship with the Prohibited Party; provided, however, that this provision
shall not prohibit Executive from owning stock or other equity securities,
solely as an investment, in any publicly traded entity, provided such ownership
does not exceed two percent (2%) of the outstanding securities of such entity.
The provisions of this Section 3 are intended to be an absolute bar to
employment and other activities with any party who has operations or activities
which constitute Prohibited Activities, and do not permit Executive to be
involved with any such Prohibited Party in any capacity or in any geographical
area, even if Executive's functions and activities were isolated and wholly
concentrated in a market in which the Prohibited Party does not compete with the
Company. By way of example and not limitation, Pulte Xxxxxx, Inc. ("Pulte") is a
Prohibited Party, because it competes with the Company in the Company's markets,
and consequently, Executive could not work for Pulte or any of its subsidiaries
or affiliates, even if his work was limited solely to a market (such as Arizona,
as of the date of the Agreement) in which Pulte did not compete with the
Company. By way of further example, if Executive became an employee of a builder
or developer who was in a market not in competition with the Company (such as
Arizona, as of the date of the Agreement), and such developer entered the
Company's market in competition with the Company, or began preparation to enter
such market, Executive would be required under this Noncompete Addendum to
terminate his employment
2
relationship with such developer within ten days of the earlier of the date that
such developer entered the market or began preparation enter such market.
4. Acknowledgement of Restrictions. By execution of this Noncompete
Addendum, Executive acknowledges that the restrictions imposed on him are
substantial, and may effectively prohibit him from working, during the
Noncompete Restricted Period, in the field of his experience and expertise.
Executive has carefully considered the consequences of the execution of this
Noncompete Addendum, has determined that WCI's agreement to pay Noncompete
Compensation (which is equal to the entire amount of Executive's Base Salary
which Executive would have received for full time employment with the Company
during the Noncompete Restricted Period) is adequate compensation for such
agreement and restrictions, and that such restrictions will not adversely affect
Executive's opportunities in the future.
5. Severability. It is mutually agreed and understood by the parties
that should any of the agreements and covenants contained herein be determined
by any court of competent jurisdiction to be invalid by virtue of being vague,
overly broad, unreasonable as to time, territory or otherwise, then WCI shall
have the following options:
a. The Agreement (including this Noncompete Addendum) shall be
amended retroactive to the date of its execution to include the terms
and conditions which such court deems to be reasonable and in
conformity with the original intent of the parties and the parties
hereto consent that under such circumstances, such court shall have the
power and authority to determine what is reasonable and in conformity
with the original intent of the parties to the extent that such
covenants and agreements are enforceable; or
b. WCI may terminate the Agreement on a retroactive basis and
Executive shall repay to WCI all of the amounts paid as Severance and
Noncompete Compensation, if any, and neither party shall have any
obligation to the other hereunder. WCI's rights under this Section 5.b
may be exercised either before or after a determination by a court
under Section 5.a.
In no event shall a determination by a court with respect to an agreement which
is similar to or identical to this Agreement but is between the Company and
someone other than Executive be a basis for WCI's termination of this Agreement;
such right shall only apply if a court makes such determination with respect to
this Agreement.
Dated: April ___, 2002
WCI COMMUNITIES, INC.
By:
-----------------------------
Its:
-----------------------------
EXECUTIVE:
-----------------------------
3
EXHIBIT A
GENERAL RELEASE
This General Release is given on this ___ day of __________, 2___, by
________________ ("Executive") to WCI Communities, Inc., a Delaware Corporation
("WCI") and to each entity (including, without limitation, every corporation,
partnership, limited partnership, limited liability company, trust and joint
venture) in which WCI owns, or has the right to acquire, directly or indirectly,
a controlling interest (WCI and all of such other entities are collectively and
individually referred to as the "Company").
WITNESSETH:
WHEREAS, Executive and WCI are parties to a Severance and
Nonsolicitation Agreement, dated as of _______________, 2002 (the Agreement"),
under which WCI is obligated to pay severance payments upon the occurrence of
certain events, and under which Executive has an option to obtain additional
payments for Executive's agreement not to compete with the Company; and
WHEREAS, those events have occurred, and as a consequence, Executive is
entitled to receive the severance payments, and may also be entitled to
noncompete payments; and
WHEREAS, it is a condition of the payment of severance that Executive
release the Company from any obligation or liability to him.
NOW, THEREFORE, IN CONSIDERATION of WCI's agreement to pay severance to
Executive under the provisions of the Agreement:
1. General Release.
a. Executive hereby agrees not to xxx or file any
action, claim or lawsuit against the Company, pursue, seek to
recover or recover any alleged damages, seek to obtain or
obtain any other form of relief or remedy with respect to, and
to take any action to cause the dismissal or withdrawal of,
any lawsuit, action, claim or charge against the Company.
b. Executive hereby waives all claims and releases
and forever discharges, the Company, and each of its officers,
directors, stockholders and employees, from any and all
claims, demands, actions, causes of action or liabilities for
compensatory damages or any other relief or remedy, and from
and against any and all obligations of any kind or nature
whatsoever, whether known or unknown, fixed or contingent,
liquidated or unliquidated, and whether arising from tort,
statute, or contract, including, but not limited to:
(i) any claims arising under or pursuant to
Title VII of the Civil Rights Act of 1964, as
amended, the Civil Rights Act of 1991, the Civil
Rights Act of 1866, as amended, the Americans With
Disabilities Act, the Rehabilitation Act, the Family
and Medical Leave Act, the Occupational Safety &
Health Act, the Executive Retirement Income Security
Act of 1974, as amended, the Age
4
Discrimination in Employment Act, Executive Orders
11246 and 11375, the Worker Adjustment and Retraining
Notification Act, the Fair Labor Standards Act, any
other state, federal, city, county or local statute,
rule, regulation, ordinance or order, any claim for
future consideration for employment with the Company;
and
(ii) any claims for attorneys' fees and
costs and any employment rights or entitlement law;
and
(iii) any claims for wrongful discharge,
intentional infliction of emotional distress,
defamation, libel or slander, payment of wages,
outrageous behavior, breach of contract or any duty
allegedly owed to Executive, and any other theory of
recovery.
It is the intention of the parties to make this release as broad and as
general as the law permits. Notwithstanding the foregoing, Executive
does not release WCI from any obligation to Executive under the
Agreement, or from any rights Executive may have solely in Executive's
capacity as a holder of securities of WCI.
2. Waiver of Right to Future Employment. Executive waives and has no
right or entitlement to future employment with the Company.
3. Acknowledgements of Executive.
a. Executive acknowledges that Executive has been advised to
consult with an attorney, at Executive's own expense, prior to signing
this Release.
b. Executive acknowledges that Executive has fully read this
Release, understands the contents of this Release, and agrees to its
terms and conditions of Executive's own free will, knowingly and
voluntarily, and without any duress or coercion.
c. Executive understands that this is a FINAL GENERAL RELEASE,
and that Executive can make no further claims against the Company
having any connection with the events contained herein. Executive also
understands that this Release precludes Executive from recovering any
damages or other relief as a result of any lawsuit, grievance, charge
or claim that may be brought on Executive's behalf and arising out of
Executive's employment with the Company, or Executive's resignation or
separation from employment with the Company. Executive does not release
rights that may arise after the termination of Executive's employment
with the Company.
d. Executive acknowledges that Executive is receiving adequate
consideration for signing this Release.
e. Executive acknowledges that this Release is attached to the
Agreement, that Executive received a copy of the Agreement, with this
form of release attached on _____________, 2002, and that Executive has
had more than twenty-one (21) days from the date he received this
Release to consider whether to accept and sign it.
5
4. Executive will have seven (7) days from the date Executive signs
this Release to revoke Executive's acceptance of this Release. Executive
acknowledges that until such seven (7) days shall have elapsed, no severance
shall be payable by under the Agreement, that if Executive fails to sign this
Release, the Company shall not have any obligation to pay severance or
noncompete payments to Executive but Executive shall nevertheless remain bound
by the terms of the Severance and Nonsolicitation Agreement.
Dated: , 200 EXECUTIVE:
---------------- --
-----------------------------
6
