Exhibit 99.5
EXECUTIVE EMPLOYMENT AGREEMENT
This EXECUTIVE EMPLOYMENT AGREEMENT (this "Agreement") is made as of
December __, 2007 by and between Beacon Enterprise Solutions Group, Inc., an
Indiana corporation (the "Company"), and Xxxxxx Xxxx ("Executive").
WHEREAS, the Company desires to employ Executive, and Executive desires to
be employed by the Company, on the terms set forth herein;
NOW THEREFORE, 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 agree as follows:
Section 1. Employment. The Company hereby employs 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 Closing Date (as
defined in the Purchase Agreement) and ending as provided in Section 4 hereof
(the "Employment Period").
Section 2. Position and Duties. During the Employment Period, Executive
will serve as Chief Accounting Officer of the Company and render such
managerial, analytical, administrative, marketing, creative and other executive
services to the Company and its Affiliates, as are from time to time necessary
in connection with the management and affairs of the Company and its Affiliates,
in each case subject to the authority of the Board (as defined below) of the
Company to define and limit such executive services, including serving as an
officer, manager, employee or in any other capacity for any Affiliate of the
Company. Executive will devote his best efforts and all of his 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
Affiliates. Executive will perform his duties and responsibilities to the best
of his abilities in a diligent, trustworthy, businesslike and efficient manner.
Executive will be permitted to reside and perform Executive's duties in
Louisville, Kentucky (other than typical travel that is required in the
performance of such duties).
Section 3. Salary and Benefits.
(a) Salary. During the first twelve (12) months of the Employment Period,
the Company will pay Executive salary at a rate equal to $12,500 per month (as
may be adjusted from time to time, the "Salary") as compensation for services.
The Salary will be payable in regular installments in accordance with the
general payroll practices of the Company. After the first twelve (12) months of
the Employment Period, Executive will also be eligible for an annual salary
review by the Company and the Salary may be adjusted by the Company based on the
achievement of performance goals.
(b) Bonuses. During the Employment Period, the Company will establish cash
and equity incentive bonus programs representing additional incentive
compensation for Executive. Specifically, you will be eligible for a performance
based bonus of up to 25% of your Salary. The bonus program shall be administered
and distributed under the sole direction of the Compensation Committee of the
Board, taking into account the recommendations of senior
EXECUTIVE EMPLOYMENT AGREEMENT
management of the Company and the achievement of annual goals and objectives as
established and approved by the Board. If the Employment Period during any
fiscal year is less than the full fiscal year, the bonus amount paid to
Executive, if any, attributable to any fiscal year shall be prorated for the
actual number of days of the Employment Period that elapse during such fiscal
year.
(c) Benefits. During the Employment Period, the Company will provide
Executive with family health, dental and major medical, vision and disability
coverage, as well as participation under such plans as the Board may establish
or maintain from time to time for executive officers of the Company
(collectively, the "Benefits"). Executive will be entitled to such paid vacation
per annum as the Company shall establish as Company policy for all management of
the Company.
(d) Reimbursement of Expenses. During the Employment Period, the Company
will reimburse Executive for all reasonable out-of-pocket expenses incurred by
him during the Employment Period in the course of performing his duties under
this Agreement which 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. Specifically, you will be reimbursed for up to
$1,500 of annual membership dues to licensing and trade organizations of your
designation.
Section 4. Termination.
(a) The Employment Period will continue until the earlier of: (i)
Executive's resignation (A) for Good Reason on 30 days' written notice, (B) for
any other reason or no reason (a resignation described in this clause (i)(B)
being a resignation by the Executive "Without Good Reason") or (C) as a result
of Executive's death or Disability, which resignation shall be deemed
automatically tendered upon Executive's death or Disability; or (ii) the giving
of notice of termination by the Company (A) for Cause or (B) for any other
reason or for no reason (a termination described in this clause (ii)(B) being a
termination by the Company "Without Cause"). For purposes of this Agreement,
"Cause" means (i) any willful or intentional act of Executive that has the
effect of injuring the reputation or business of the Company or its Affiliates
in any material respect, (ii) Executive's use of illegal drugs, (iii) that the
Executive has materially failed to perform his duties hereunder and such failure
continues uncured for 30 days after notice to Executive by the Company;
provided, the foregoing notice shall only be required with respect to one
material breach that occurs in any 12-month period, or (iv) Executive's
indictment, conviction or a plea of guilty or no contest or similar plea with
respect to, a felony, an act of fraud or embezzlement, a breach of fiduciary
duty to the Company or any of its Subsidiaries, or a (v) breach of any of
Sections 6, 7 or 8 of this Agreement. For the purposes of this Agreement, "Good
Reason" means (i) any substantial diminution in the Executive's professional
responsibilities, (ii) any intentional act which creates a workplace
environmental that, by duress or otherwise, makes it impossible for Executive to
continue his employment, (iii) a reduction in Salary or the overall level of
other compensation and benefits to which Executive is entitled under this
Agreement, or (iv) the failure by the Company to pay the Executive any portion
of the Executive's current compensation when due and such failure continues for
7 days after notice to Company from Executive provided that the foregoing notice
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shall only be required with respect to one such failure in any 12-month period.
For avoidance of doubt, Executive hereby acknowledges that the Board may from
time to time reorganize the operations of the Company resulting in a change in
Executive's title or direct employer, which change alone shall not constitute
Good Reason so long as (A) any change in title or reporting responsibilities
results in no substantial diminution in Executive's responsibilities and (B) any
new direct employer agrees to be bound by the terms and conditions of this
Agreement, without modification other than to reflect the change in title and
employer.
(b) In the event the Employment Period is terminated by the Company
Without Cause or the Executive resigns for Good Reason, then, so long as
Executive continues to comply with Sections 6, 7 and 8 hereof, Executive will be
entitled to continue to receive an amount (the "Severance Amount") during the
three (3) month period following the Termination Date or during the remaining
period of the first twelve (12) months of the Employment Period, whichever is
longer (the "Severance Term") equal to the Salary in effect at the Termination
Date and payable in accordance with the Company's regular payment schedule in
effect at the Termination Date. In addition, in connection with termination
described in the preceding sentence, Executive shall be entitled to receive (x)
any incentive payments earned and accrued but not yet paid to Executive prior to
the Termination Date, (y) continued medical coverage during the Severance Term
pursuant to COBRA at the Company's expense; and (z) all accrued and unpaid
Salary and unused vacation time through the Termination Date and all
unreimbursed business expenses incurred through the Termination Date; provided,
as a condition to receiving the Severance Amount or any payment or benefit
described in paragraphs 4(b)(x) and 4(b)(y), Executive shall be required to
execute and deliver to the Company immediately prior to the payment of such
first installment a release in the form of Exhibit A.
(c) In the event the Employment Period is terminated due to the
Executive's death, or resignation Without Good Reason or by the Company with
Cause then, so long as Executive continues to comply with Sections 6, 7 and 8
hereof, Executive will be entitled to receive the items described in paragraphs
4(b)(x) and 4(b)(z) above.
(d) In the event the Employment Period is terminated by the Executive or
the Company due to the Executive's Disability, then the Executive shall receive
his monthly Salary and benefits through the end of the calendar month is which
such termination occurs and, so long as Executive continues to comply with
Sections 6, 7 and 8 hereof, Executive will be entitled to receive the items
described in Sections 4(b)(x),(y) and (z) above.
Section 5. Resignation as Officer or Director. Upon the Termination Date,
Executive will be deemed to have resigned from each position (if any) that he
then holds as an officer or director of the Company and each of its Affiliates,
and Executive will take any and all reasonable action that the Company may
request in order to confirm or evidence such resignation.
Section 6. Confidential Information. Executive acknowledges that the
information, observations and data that may be obtained by Executive during his
employment relationship with, or through his involvement as a consultant,
contractor, representative, agent, officer, director, partner, member or
stockholder of, the Company, any of its Subsidiaries or Affiliates thereof (each
of the Company, any of its Subsidiaries or Affiliates being a "Related
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Company" and, collectively, the "Related Companies"), prior to and after the
date of this Agreement concerning the business or affairs of the Related
Companies (collectively, "Confidential Information") are and will be the
property of the Related Companies. Therefore, Executive agrees that he will not
disclose to any unauthorized Person or use for the account of himself or any
other Person any Confidential Information without the prior written consent of
the Company (by the action of the Board), unless and to the extent that such
Confidential Information has become generally known to and available for use by
the public other than as a result of Executive's improper acts or omissions to
act, or is required to be disclosed by law. Executive will deliver or cause to
be delivered to the Company at, or within two days of, the Termination Date, or
at any other time the Company may request, all memoranda, notes, plans, records,
reports, computer tapes and software and other documents and data (and copies
thereof) containing or relating to Confidential Information or the business of
any Related Company which Executive may then possess or have under his control.
Section 7. Non-Compete, Non-Solicitation.
(a) Non-Compete. Executive acknowledges that during his employment
relationship with, or through his involvement as a consultant, contractor,
representative, agent, officer, director, partner, member or stockholder of, the
Company, any of its Subsidiaries, or any of their respective Affiliates or any
predecessor thereof, Executive has and will become familiar with trade secrets
and Confidential Information concerning such companies, and with investment
opportunities relating to their respective businesses, and that Executive's
services have been and will be of special, unique and extraordinary value to the
foregoing entities. Therefore, Executive agrees that, during his employment with
the Company and for one year after the Termination Date (the "Non-Compete
Period"), he will not, directly or indirectly, invest in, own, manage, operate,
finance, control, or participate in the ownership, management, operation,
financing, or control of, be employed by, render services to, or in any manner
connected with any business (in each case including on his own behalf or on
behalf of another Person), whose products, services or activities compete in
whole or in part with the products, services or activities of the Company or its
Affiliates, as they now exist or may exist during such one year period, anywhere
within the United States; provided, however, that Executive may purchase or
otherwise acquire up to (but not more than) 2% of any class of securities of any
enterprise (but without otherwise directly or indirectly participating in the
activities of such enterprise) if such securities are listed on any national or
regional securities exchange or have been registered under Section 12(g) of the
Securities Exchange Act of 1934. Executive agrees that this covenant is
reasonable with respect to its duration, geographical area, and scope. By
initialing in the space provided below, Executive acknowledges that he has read
carefully and had the opportunity to consult with legal counsel regarding the
provisions of this Section 7(a). _____ [initial].
(b) Non-Solicitation. During his employment with the Company and for one
year thereafter, Executive will not directly or indirectly (i) induce or attempt
to induce any employee or independent contractor of the Company or any
Subsidiary, or their respective Affiliates to leave the employ or contracting
relationship with such entity, or in any way interfere with the relationship
between any such entity and any employee, or (ii) induce or attempt to induce
any customer, supplier or other business relation of the Company or any
Subsidiary, or their respective Affiliates, to cease doing business with such
entity or in any way interfere with the relationship between any such customer,
supplier or other business relation and such entity.
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By initialing in the space provided below, Executive acknowledges that he has
read carefully and had the opportunity to consult with legal counsel regarding
the provisions of this Section 7(b). _____ [initial].
Section 8. Inventions and Patents. Executive acknowledges that all
inventions, innovations, improvements, know how, plans, development, methods,
designs, analyses, specifications, software, drawings, reports and all similar
or related information (whether or not patentable or reduced to practice) which
relate to any of the Company's actual or proposed business activities and which
are created, designed or conceived, developed or made by Executive during
Executive's past or future employment by the Company, or any Subsidiary, or any
predecessor thereof ("Work Product") belong to the Company, or its Subsidiaries,
as applicable. Any copyrightable work falling within the definition of Work
Product shall be deemed a "work made for hire" and ownership of all right title
and interest shall rest in the Company. Executive hereby irrevocably assigns,
transfers and conveys, to the full extent permitted by law, all right, title and
interest in the Work Product, on a worldwide basis, to the Company to the extent
ownership of any such rights does not automatically vest in the Company under
applicable law. Executive will promptly disclose any such Work Product to the
Company and perform all actions requested by the Company (whether during or
after employment) to establish and confirm ownership of such Work Product by the
Company (including without limitation, assignments, consents, powers of attorney
and other instruments.)
Section 9. Enforcement. The Company and Executive agree that if, at the
time of enforcement of Section 6, 7 or 8 hereof, a court holds that any
restriction stated in any such Section is unreasonable under circumstances then
existing, then the maximum period, scope or geographical area reasonable under
such circumstances will be substituted for the stated period, scope or area.
Because Executive's services are unique and because Executive has access to
information of the type described in Sections 6, 7 and 8 hereof, the Company and
Executive agree that money damages would be an inadequate remedy for any breach
of Section 6, 7 or 8 hereof. Therefore, in the event of a breach of Section 6, 7
or 8 hereof, the Company and any Subsidiary thereof 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 relief in order to
enforce, or prevent any violations of, the provisions of Section 6, 7 or 8
hereof. The provisions of Sections 6, 7 and 8 hereof are intended to be for the
benefit of the Company and any Subsidiary thereof and their respective
successors and assigns. Sections 6, 7 and 8 hereof will survive and continue in
full force in accordance with their terms notwithstanding any termination of the
Employment Period. By initialing in the space provided below, Executive
acknowledges that he has read carefully and had the opportunity to consult with
legal counsel regarding the provisions of this Section 9. ______ [initial].
Section 10. Representations and Warranties of Executive. Executive
represents and warrants to the Company as follows:
(a) Other Agreements. Executive is not a party to or bound by any
employment, noncompete, nonsolicitation, nondisclosure, confidentiality or
similar agreement with any other Person which would affect his performance under
this Agreement other than Executive's agreement with his current employer which
has previously been disclosed to Company and which shall be terminated as of the
Closing Date.
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(b) Authorization. This Agreement constitutes the valid and legally
binding obligation of Executive, enforceable against Executive in accordance
with its terms.
Section 11. Survival of Representations and Warranties. All
representations and warranties contained herein will survive the execution and
delivery of this Agreement.
Section 12. Certain Definitions. When used herein, the following terms
will have the following meanings:
"Affiliate" means, with respect to any Person, any other Person that,
directly or indirectly through one or more of its intermediaries, controls, is
controlled by or is under common control with such Person.
"Board" means the Board of Directors of the Company.
"Business Day" means a day that is not a Saturday, a Sunday or a statutory
or civic holiday in the Commonwealth of Kentucky or in Louisville, Kentucky.
"Cause" has the meaning given in Section 4(a).
"Disability" means the failure by Executive (by reason of accident,
illness, incapacity or other disability) to perform his duties or fulfill his
obligations under this Agreement on a "full time" basis for a cumulative total
of 180 days, whether or not consecutive, within any 12-month period. The
Company's determination as to whether Executive has incurred a Disability shall
be made in good faith by the Board based on the opinion of a licensed physician
selected by the Company or its insurers.
"Good Reason" has the meaning given in Section 4(a).
"Non-Compete Period" has the meaning given in Section 7.
"Person" means an individual, a partnership, a corporation, an
association, a limited liability company, a joint stock company, a trust, a
joint venture, an unincorporated organization or any other entity (including any
governmental entity or any department, agency or political subdivision thereof).
"Subsidiaries" means, with respect to any Person, any corporation, limited
liability company, partnership, association or other business entity of which
(i) if a corporation, a majority of the total voting power of shares of stock
entitled (without regard to the occurrence of any contingency) to vote in the
election of directors thereof is at the time owned or controlled, directly or
indirectly, by such Person or one or more of the other Subsidiaries of such
Person or a combination thereof, or (ii) if a limited liability company,
partnership, association or other business entity, a majority of the partnership
or other similar ownership interest thereof is at the time owned or controlled,
directly or indirectly, by any Person or one or more Subsidiaries of such Person
or entity or a combination thereof. For purposes hereof, a Person or Persons
will be deemed to have a majority ownership interest in a limited liability
company, partnership, association or other business entity if such Person or
Persons will be allocated a majority of limited liability company, partnership,
association or other business entity gains or losses or will
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be or control any managing director, managing member, or general partner of such
limited liability company, partnership, association or other business entity.
"Termination Date" means the date on which the Employment Period ends as
determined by Section 4(a).
"Without Cause" has the meaning given in Section 4(a).
Section 13. Miscellaneous.
(a) Notices. All notices, demands or other communications to be given or
delivered by reason of the provisions of this Agreement will be in writing and
will be deemed to have been given (i) on the date of personal delivery to the
recipient or an officer of the recipient, or (ii) when sent by telecopy or
facsimile machine to the number shown below on the date of such confirmed
facsimile or telecopy transmission (provided that a confirming copy is sent via
overnight mail), or (iii) when properly deposited for delivery by a nationally
recognized commercial overnight delivery service, prepaid, or by deposit in the
United States mail, certified or registered mail, postage prepaid, return
receipt requested. Such notices, demands and other communications will be sent
to each party at the address indicated for such party below:
Notices to Executive, to:
Xxxxxx Xxxx
__________________________
__________________________
Notices to the Company, to:
Beacon Enterprise Solutions Group, Inc.
000 X. Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxx
with a copy (which will not constitute notice to the Company) to:
Xxxxx Xxxxx Xxxx LLC
000 Xxxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxx
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.
(b) Consent to Amendments. No modification, amendment or waiver of any
provision of this Agreement will be effective against any party hereto unless
such modification, amendment or waiver is approved in writing by such party. No
other course of dealing among
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the Company and Executive or any delay in exercising any rights hereunder will
operate as a waiver by any of the parties hereto of any rights hereunder.
(c) Successors and Assigns. All covenants and agreements contained in this
Agreement by or on behalf of any of the parties hereto will bind and inure to
the benefit of the respective successors and assigns of the parties hereto
whether so expressed or not.
(d) 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 prohibited by or invalid
under applicable law, such provision will be ineffective only to the extent of
such prohibition or invalidity, without invalidating the remainder of this
Agreement.
(e) Counterparts. This Agreement may be executed simultaneously in two or
more counterparts, any one of which need not contain the signatures of more than
one party, but all such counterparts taken together will constitute one and the
same Agreement.
(f) Descriptive Headings; Interpretation. The descriptive headings of this
Agreement are inserted for convenience only and do not constitute a substantive
part of this Agreement. The use of the word "including" in this Agreement will
be by way of example rather than by limitation.
(g) Governing Law. ISSUES AND QUESTIONS CONCERNING THE CONSTRUCTION,
VALIDITY, ENFORCEMENT AND INTERPRETATION OF THIS AGREEMENT AND THE EXHIBITS AND
SCHEDULES HERETO WILL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF THE COMMONWEALTH OF KENTUCKY, WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR
CONFLICT OF LAW RULES OR PROVISIONS (WHETHER OF THE COMMONWEALTH OF KENTUCKY OR
ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY
JURISDICTION OTHER THAN THE COMMONWEALTH OF KENTUCKY. IN FURTHERANCE OF THE
FOREGOING, THE INTERNAL LAW OF THE COMMONWEALTH OF KENTUCKY WILL CONTROL THE
INTERPRETATION AND CONSTRUCTION OF THIS AGREEMENT (AND ANY SCHEDULE HERETO),
EVEN THOUGH UNDER KENTUCKY'S CHOICE OF LAW OR CONFLICT OF LAW ANALYSIS, THE
SUBSTANTIVE LAW OF SOME OTHER JURISDICTION WOULD ORDINARILY APPLY.
(h) Jurisdiction. EACH OF THE PARTIES HERETO (I) CONSENTS TO SUBMIT ITSELF
TO THE PERSONAL JURISDICTION OF ANY FEDERAL OR STATE COURT LOCATED IN JEFFERSON
COUNTY, KENTUCKY IN THE EVENT ANY DISPUTE ARISES OUT OF THIS AGREEMENT OR ANY OF
THE TRANSACTIONS CONTEMPLATED HEREBY, (II) AGREES THAT IT WILL NOT ATTEMPT TO
DENY OR DEFEAT SUCH PERSONAL JURISDICTION BY MOTION OR OTHER REQUEST FOR LEAVE
FROM ANY SUCH COURT AND (III) AGREES THAT IT WILL NOT BRING ANY ACTION RELATING
TO THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY IN ANY COURT
OTHER THAN A FEDERAL OR STATE COURT SITTING IN JEFFERSON COUNTY, KENTUCKY, AS
APPLICABLE.
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(i) Entire Agreement. Except as otherwise expressly set forth in this
Agreement, this Agreement and the other agreements referred to in this Agreement
embody the complete agreement and understanding among the parties to this
Agreement with respect to the subject matter of this Agreement, and supersede
and preempt any prior understandings, agreements, or representations by or among
the parties or their predecessors, written or oral, which may have related to
the subject matter of this Agreement in any way.
(j) Attorney's Fees. In the event that Company or Executive should bring
suit against the other in respect to any matters provided for in this Agreement,
the prevailing party shall be entitled to recover from the other party its
reasonable attorney's fees and costs in connection with such suit.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this Executive
Employment Agreement as of the date first written above.
BEACON ENTERPRISE SOLUTIONS GROUP, INC.
By: ___________________________________
Name: Xxxxx Xxxxxxx
Title: Chief Executive Officer
EXECUTIVE
_______________________________________
Signature
_______________________________________
Xxxxxx Xxxx
Signature Page to
Executive Employment Agreement
EXHIBIT A
FORM OF RELEASE AGREEMENT
This Release Agreement (this "Agreement") constitutes the release referred
to in that certain Executive Employment Agreement (the "Employment Agreement")
dated as of December __, 2007, by and between Xxxxxx Xxxx ("Employee") and
Beacon Enterprise Solutions Group, Inc. (the "Company").
For good and valuable consideration, including the Company's provision of
certain payments and benefits to Employee in accordance with Section 3 of the
Employment Agreement, Employee hereby releases, discharges and forever acquits
the Company, its Affiliates (as such term is defined in the Employment
Agreement) and the past, present and future stockholders, members, partners,
directors, managers, employees, agents, attorneys, heirs, legal representatives,
successors and assigns of the foregoing, in their personal and representative
capacities (collectively, the "Company Parties"), from liability for, and hereby
waives, any and all claims, damages, or causes of action of any kind related to
Employee's employment with any Company Party, the termination of such
employment, and any other acts or omissions related to any matter on or prior to
the date of this Agreement including without limitation any alleged violation
through the date of this Agreement of: (i) the Age Discrimination in Employment
Act of 1967, as amended; (ii) Title VII of the Civil Rights Act of 1964, as
amended; (iii) the Civil Rights Act of 1991; (iv) Section 1981 through 1988 of
Title 42 of the United States Code, as amended; (v) the Employee Retirement
Income Security Act of 1974, as amended; (vi) the Immigration Reform Control
Act, as amended; (vii) the Americans with Disabilities Act of 1990, as amended;
(viii) the National Labor Relations Act, as amended; (ix) the Fair Labor
Standards Act, as amended; (x) the Occupational Safety and Health Act, as
amended; (xi) the Family and Medical Leave Act of 1993; (xii) any state
anti-discrimination law; (xiii) any state wage and hour law; (xiv) any other
local, state or federal law, regulation or ordinance; (xv) any public policy,
contract, tort, or common law claim; (xvi) any allegation for costs, fees, or
other expenses including attorneys' fees incurred in these matters; (xvii) any
and all rights, benefits or claims Employee may have under any employment
contract, incentive compensation plan or stock option plan with any Company
Party or to any ownership interest in any Company Party except as expressly
provided in the Employment Agreement and any incentive equity agreement between
Employee and the Company or any Affiliate thereof and (xviii) any claim for
compensation or benefits of any kind not expressly set forth in the Employment
Agreement or any such incentive equity agreement (collectively, the "Released
Claims"). This Agreement is not intended to indicate that any such claims exist
or that, if they do exist, they are meritorious. Rather, Employee is simply
agreeing that, in exchange for the consideration recited in the first sentence
of this paragraph, any and all potential claims of this nature that Employee may
have against the Company Parties, regardless of whether they actually exist, are
expressly settled, compromised and waived. By signing this Agreement, Employee
is bound by it. Anyone who succeeds to Employee's rights and responsibilities,
such as heirs or the executor of Employee's estate, is also bound by this
Agreement. This release also applies to any claims brought by any person or
agency or class action under which Employee may have a right or benefit. THIS
RELEASE INCLUDES MATTERS ATTRIBUTABLE TO THE SOLE OR PARTIAL NEGLIGENCE (WHETHER
GROSS OR SIMPLE) OR OTHER FAULT, INCLUDING STRICT LIABILITY, OF ANY OF THE
COMPANY PARTIES.
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Employee agrees not to bring or join any lawsuit against any of the
Company Parties in any court relating to any of the Released Claims. Employee
represents that Employee has not brought or joined any lawsuit or filed any
charge or claim against any of the Company Parties in any court or before any
government agency and has made no assignment of any rights Employee has asserted
or may have against any of the Company Parties to any person or entity, in each
case, with respect to any Released Claims. If Employee brings or joins any
lawsuit against any of the Company Parties in any court or before any
arbitration tribunal (except as necessary to protect Employee's rights under
this release or with respect to Employee's entry into this release) relating to
any of the Released Claims, and Employee is the prevailing party in such
lawsuit, Employee shall be obligated to return to the Company all amounts paid
to Employee under this release, to the extent permitted under applicable law and
ordered by the court or arbitration tribunal, as applicable. Further, if any
Company Party is the prevailing party in any lawsuit Employee brings against
such Company Party relating to Employee's employment or other matters that have
been released or waived in this Agreement, to the extent permitted by applicable
law (such as if Employee's claim are found to be brought in bad faith), in
addition to all other remedies available at law or in equity, Employee agrees to
pay all costs and expenses incurred by such person or entity, including
reasonable attorneys' fees, in defending against such lawsuit.
By executing and delivering this Agreement, Employee acknowledges that:
(a) Employee has carefully read this Agreement;
(b) Employee has had at least 21 days to consider this Agreement before
the execution and delivery hereof to the Company;
(c) Employee has been and hereby is advised in writing that Employee may,
at Employee's option, discuss this Agreement with an attorney of Employee's
choice and that Employee has had adequate opportunity to do so; and
(d) Employee fully understands the final and binding effect of this
Agreement; the only promises made to Employee to sign this Agreement are those
stated in the Employment Agreement and herein; and Employee is signing this
Agreement voluntarily and of Employee's own free will, and that Employee
understands and agrees to each of the terms of this Agreement.
Notwithstanding the initial effectiveness of this Agreement, Employee may
revoke the delivery (and therefore the effectiveness) of this Agreement within
the seven day period beginning on the date Employee delivers this Agreement to
the Company (such seven day period being referred to herein as the "Release
Revocation Period"). To be effective, such revocation must be in writing signed
by Employee and must be delivered to the Company before 11:59 p.m., Louisville,
Kentucky time, on the last day of the Release Revocation Period. If an effective
revocation is delivered in the foregoing manner and timeframe, this Agreement
shall be of no force or effect and shall be null and void ab initio. No
consideration shall be paid if this Agreement is revoked by Employee in the
foregoing manner.
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Executed on this ___________ day of _____________, _______.
_________________________________
Name:
STATE OF __________________ ss.
ss.
COUNTY OF _______________ ss.
BEFORE ME, the undersigned authority personally appeared ______________,
by me known or who produced valid identification as described below, who
executed the foregoing instrument and acknowledged before me that he subscribed
to such instrument on this _____ day of ______________, ________.
_____________________________________
NOTARY PUBLIC in and for the
State of ___________________
My Commission Expires: ___________________
Identification produced:
A-3
