Exhibit 2.5
EMPLOYMENT AGREEMENT
THIS AGREEMENT (the "Agreement") is made and entered into as of
the 14th day of February, 2000 (the "Agreement Effective Date"), by and
between CALIFORNIA COMMUNITY BANCSHARES, INC., a Delaware corporation
registered under the Bank Holding Company Act of 1956 (the "Employer" or
"CCB") and XXXX X. XXXXXXX (the "Employee") (collectively, the "Parties"):
WHEREAS, the Parties desire to enter into an agreement for the
purpose of retaining Employee's services as Senior Vice President and
Controller of Employer;
WHEREAS, Placer Capital Co. ("PCC") is a subsidiary of ("CCB");
WHEREAS, CCB and PCC have determined that it is in their
respective best interests and in the best interests and to the advantage of
their respective shareholders, for PCC to grant options to the directors,
officers and employees of CCB, PCC, and other affiliates of CCB and PCC in
consideration of CCB agreeing to assume such options upon the occurrence of
such certain events as set forth in that certain Assumption Agreement By and
Between California Community Bancshares, Inc. and Placer Capital Co. (the
"Assumption Agreement").
NOW, THEREFORE, IT IS MUTUALLY AGREED AS FOLLOWS:
1. EMPLOYMENT AND DUTIES. Employer and Employee hereby
enter into this Agreement upon the terms and conditions hereinafter set
forth. Employee is hereby employed, at the pleasure of the Board of Directors
of the Employer (the "Board"), as the Senior Vice President and Controller of
Employer located at any of its offices in Orange or Los Angeles Counties,
California. Employee shall perform the customary duties of a Senior Vice
President and Controller of a bank holding company and such attendant duties
as may, from time to time, be reasonably requested of Employee by the Board.
2. EXTENT OF SERVICES.
a) EXCLUSIVE EMPLOYMENT. Employee shall devote
Employee's full time, ability and attention to the business of
Employer during the term of this Agreement, and shall neither
directly nor indirectly render any services of a business, commercial
or professional nature to any other person, firm, corporation or
organization for compensation without the prior written consent of
the Board; provided, however, subject to Section 9 hereto, Employee
may serve as a director of another company, perform charitable and
other non-profit activities which does not in any manner or for any
amount of time interfere with Employee's performance of services on
behalf of Employer.
b) EMPLOYEE INVESTMENT ACTIVITIES. Nothing
contained herein shall be construed to prevent Employee from
investing Employee's assets in any form or manner which does not in
any manner or for any amount of time interfere with Employee's
performance of services on behalf of Employer.
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3. TERM OF EMPLOYMENT. Subject to a mutual, written
extension of the Employment Term, or prior termination of this Agreement as
hereinafter provided in Section 5, Employer hereby employs Employee, and
Employee hereby accepts employment with Employer, for a period of three (3)
years beginning on the Agreement Effective Date and ending on the third
anniversary of the Agreement Effective Date (the "Employment Term"). The
Employer shall provide 90 days written notice to Employee if it intends not
to renew this Agreement at the end of the Employment Term. If the Employer
does not provide 90 days' notice that it does not intend to renew this
Agreement, then the Employer shall pay Employee her then-current Base Salary
for a period of three (3) months after the Employment Term payable in
conformity with the Employer's normal payroll procedures.
4. COMPENSATION AND BENEFITS. In consideration of
Employee's services to Employer during the Employment Term, Employer agrees
to compensate Employee, subject to such limitations as may exist under any
applicable state or federal banking law or regulation, as follows:
a) BASE COMPENSATION. Employer shall pay or cause
to be paid to Employee a base compensation of $125,000 per year,
payable in conformity with Employer's normal payroll procedures (the
"Base Salary"), and pro rated for any partial calendar year in which
this Agreement is in effect. The Board shall review Employee's Base
Salary, annually, to consider, in the Board's sole discretion,
whether Employee's Base Salary should be adjusted upward.
b) BONUS. Employee shall be eligible to receive an
annual incentive bonus for each fiscal year of employment with the
Employer. The bonus will be awarded by the Board, in its sole
discretion, based on reasonable performance goals and administrative
procedures established by the Board based on a methodology and
payment terms as set forth in the Employer's Executive Compensation
Plan. Any such annual bonus shall be prorated for any partial fiscal
year of employment.
c) GENERAL EXPENSES. Employer shall, upon
submission and approval of written statements and bills in accordance
with the then regular procedures of Employer, pay or reimburse
Employee for any and all necessary, customary and usual expenses
incurred by her while traveling for or on behalf of Employer, and any
and all other necessary, customary or usual expenses (including
entertainment) incurred by Employee for or on behalf of Employer in
the normal course of business, as determined to be appropriate by
Employer.
d) INSURANCE. Employee shall be entitled to
participate in such retirement plans and group life insurance,
health, long-term disability and other such benefit plans as are
provided by Employer to its employees and/or senior executives, with
such terms, conditions and contributions as Employer generally
provides its other employees and/or senior executives. Employee shall
have the right, in Employee's discretion, to designate the
beneficiary or beneficiaries of any such insurance and retirement
plans.
e) VACATION. Employee shall accrue four (4) weeks'
paid vacation leave per year, pro rated on a daily basis for any
partial calendar year in which this Agreement is in
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effect. Such vacation leave shall be taken at such time or times as
are mutually agreed upon by Employee and Employer and in accordance
with Employer's vacation leave policy, provided, that at least two
(2) weeks of such vacation shall be taken consecutively. Employee
acknowledges that the requirement of two (2) consecutive weeks of
vacation is required by sound banking practice. For each calendar
year, the Board shall decide, in its discretion, either (i) to pay
Employee for any unused vacation time for such calendar year or (ii)
to carry over any unused vacation time for such calendar year to the
next calendar year, provided, however, that Employee shall accrue no
additional vacation time at any time that the Employee has accrued
and unused vacation time of six (6) weeks.
f) OTHER BENEFITS. Employee shall be entitled to
participate during the Employment Term in such other benefits of
Employer, including bonus programs and employee stock ownership
plans, if any, as Employer now or hereafter shall provide for its
employees and/or senior executives generally, in accordance with the
applicable terms and conditions thereof.
g) STOCK OPTIONS. As more fully set forth in the
PCC Nonstatutory Stock Option Agreement dated as of March 6, 2000 by
and between Employee and PCC (the "Stock Option Agreement"), Employee
shall be granted an option to purchase not less than 20,321 shares of
common stock of PCC at an exercise price of $16.34 per share. The
option shall vest and be exercisable according to the terms of the
Stock Option Agreement. CCB's obligations with respect to the stock
option awarded to Employee in this Paragraph 4(g) shall be governed
by the terms and conditions of the Assumption Agreement.
5. TERMINATION OF AGREEMENT. This Agreement may be
terminated with or without cause during the Employment Term in accordance
with this Section 5. In the event of such termination, Employee shall be
released from all obligations under this Agreement, except that Employee
shall remain subject to Sections 7, 8, 10, 12, 13, 15, 16 and 19 and Employer
shall be released from all obligations under this Agreement, except as
otherwise provided in this Section 5 and Sections 7, 10, 12, 13, 15, 16 and
19.
a) EARLY TERMINATION BY EMPLOYER WITHOUT CAUSE OR
BY EMPLOYEE UPON GOOD REASON. This Agreement and Employee's
employment may be terminated (i) by Employer without cause, for any
reason whatsoever, in the sole, absolute and unreviewable discretion
of Employer, upon written notice by the Board to Employee; or (ii) by
Employee in the event that Employer changes Employee's title as
Senior Vice President and Controller of the Company or changes
Employee's duties from those which are customary for a Senior Vice
President and Controller of a bank holding company, or changes
Employee's location of work to any area outside Los Angeles or Orange
Counties; or (iii) by Employee if Employer materially breaches this
Agreement. In the event of termination pursuant to this Section 5(a),
Employee shall receive a single sum severance payment equal to twelve
(12) months of her then current Base Salary, less customary
withholdings, payable in accordance with the terms of the full and
unconditional release referenced below in this Section 5(a). Such
severance pay shall constitute liquidated damages in lieu of any and
all claims by Employee against
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Employer, and shall be in full and complete satisfaction of any and
all rights which Employee may enjoy hereunder, and are expressly
conditioned upon receipt by Employer of a full and unconditional
release (in the form of Exhibit A) from Employee of any and all
liability of Employer or any of its affiliates, partners, limited
liability companies, limited partners, directors, officers, insurers,
underwriters, employees, agents, successors and assigns arising out
of this Agreement or out of the employment relationship or
termination of the employment relationship between Employee and
Employer, except that Employee shall be entitled to receive (i) those
benefits, if any, that have vested by operation of state or federal
law or under any written term of a plan ("Vested Benefits"), and
(ii) health care coverage continuation rights under the consolidated
Omnibus Budget Reconciliation Act of 1985 ("COBRA Rights"). In the
event of a termination pursuant to this Section 5(a), Employee's
stock options shall accelerate and fully vest.
b) EARLY TERMINATION BY EMPLOYER FOR CAUSE.
Employer may terminate this Agreement and Employee's employment for
cause upon written notice to Employee, and Employee shall not be
entitled to receive compensation or other benefits for any period
after termination for cause. "For cause" pursuant to this Agreement
shall include, but not be limited to: (i) any act of dishonesty,
fraud or embezzlement that would have a material adverse effect on
the business or financial prospects of Employer; (ii) any material
breach of this Agreement or any breach of a fiduciary duty (involving
personal profit); (iii) any neglect of duties or negligence in
carrying out duties customary to that of a Senior Vice President and
Controller of a bank holding company; (iv) any willful violation of
any law, rule or regulation, which, by virtue of bank regulatory
restrictions imposed as a result thereof, would have a material
adverse effect on the business or financial prospects of Employer;
(v) any commission of any crime (other than a traffic violation or
similar offense) involving moral turpitude or resulting in material
harm to Employer; or (vi) any failure by Employee to qualify at any
time during the Employment Term for a fidelity bond as described in
Section 6 of this Agreement. Termination for cause by Employer shall
not constitute a waiver of any remedies that may otherwise be
available to Employer under law, equity, or this Agreement.
c) EARLY TERMINATION BY EMPLOYEE. Except as
otherwise provided in Section 5(a), Employee may terminate this
Agreement upon thirty (30) days written notice to Employer. Except as
otherwise provided by Section 5(a) above and Section 5(e) below,
Employee shall not be entitled to receive compensation or other
benefits under this Agreement for any period after such early
termination by Employee.
d) DEATH DURING EMPLOYMENT. Except as required by
applicable law, this Agreement and all benefits hereunder shall
terminate immediately upon the death of Employee, provided that such
termination of benefits shall not operate to prejudice or forfeit the
rights of any beneficiary or beneficiaries of any life insurance
policy on the life of Employee obtained pursuant to Section 4(d)
hereof or any Vested Benefits and COBRA Rights.
e) MERGER OR CORPORATE DISSOLUTION. In the event
of (a) a merger in which Employer is not the surviving corporation or
a majority of the capital stock of which is
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not owned by the majority shareholder of Employer or an
affiliate thereof; (b) a transfer of all or substantially all
of the assets of Employer; (c) any sale or other corporate
reorganization in which there is a change in ownership of the
outstanding shares of Employer wherein more than fifty percent
(50%) of the outstanding shares of Employer are transferred to
any other partnership, corporation, trust or business entity
((a), (b) and (c) above shall be considered to be a " Change
in Control"); this Agreement shall not be terminated, but
instead, the surviving or resulting corporation, the
transferee of Employer's assets, or Employer shall be bound by
and shall have the benefit of the provisions of this
Agreement. Notwithstanding the foregoing, in the event of a
Change in Control and in the event that, during the twelve
month period following such Change in Control, Employee
terminates employment with Employer (pursuant to Section 5(c)
above) following a reduction in the Employee's duties or title
or change in location of her employment outside Southern
California, Employee shall receive a single sum severance
payment equal to twenty-four (24) months of her then current
Base Salary, less customary withholdings and taxes and
Employee 's stock options shall accelerate and fully vest.
Such severance pay shall constitute liquidated damages in lieu
of any and all claims by Employee against Employer, and shall
be in full and complete satisfaction of any and all rights
which Employee may enjoy hereunder, and are expressly
conditioned upon receipt by Employer of a full and
unconditional release (in the form of Exhibit A) from Employee
of any and all liability of Employer or any of its
subsidiaries, affiliates, parents, partners, limited
partnership, limited liability companies, directors, officers,
employees, insurers, underwriters and agents, arising out of
this Agreement or out of the employment relationship or
termination of the employment and relationship between
Employee and Employer, except any Vested Benefits and COBRA
Rights.
6. FIDELITY BOND. Employee agrees that she will furnish
all information and take any other steps necessary to enable Employer to
obtain or maintain a fidelity bond conditional on the rendering of a true
account by Employee of all moneys, goods, or other property which may come
into the custody, charge or possession of Employee during the term of
Employee's employment. The surety company issuing the bond and the amount of
the bond must be acceptable to Employer and satisfy all banking laws and
regulations. All premiums on the bond are to be paid by Employer. If Employee
cannot qualify for a fidelity bond at any time during the term of this
Agreement, Employer shall have the option to terminate this Agreement
immediately, which shall constitute a termination for cause as defined in
Section 5(b) hereof.
7. PRINTED MATERIAL. All written or printed materials
which shall include, but not be limited to, computer software, programs and
files, used by Employee in performing duties for Employer are, and shall
remain, the property of Employer, provided that any materials which belonged
personally to Employee prior to her employment with Employer are, and shall
remain, the property of Employee. Upon termination of Employee's employment
with Employer, Employee shall return such applicable written or printed
materials to Employer.
8. DISCLOSURE OF INFORMATION. Employee recognizes and
acknowledges that Employer possesses trade secrets and other confidential
and/or proprietary information concerning its business affairs and methods of
operation which constitute valuable, confidential, and unique assets of its
business and that of its affiliates ("Proprietary Information"), which
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Employer has developed through a substantial expenditure of time and money
and which are and will continue to be utilized in Employer 's business and
which are not generally known in the trade. At any time before or after
termination of this Agreement, Employee agrees not to disclose to anyone any
Proprietary Information and not to make use of any Proprietary Information
for her own purposes or for the benefit of anyone other than Employer under
any circumstances. For purposes of this Section 8, Proprietary Information
includes, without limitation, all information regarding products, services,
processes, know-how, customers, suppliers, product and/or service
development, business and capital plans, research, finances, marketing,
pricing, costs and any other confidential matters relating to Employer or any
affiliate of Employer. Employee recognizes and acknowledges that all
financial information concerning any of Employer's customers, products or
financial results is strictly confidential, and Employee shall not, at any
time before or after termination of this Agreement, disclose to anyone any
such information or any part thereof, for any reason or purpose whatsoever
except to the extent that such information is already otherwise publicly
available or to the extent such disclosure is required by Employee in order
to comply with judicial process or applicable regulations of any state or
federal bank regulatory agency.
Employee hereby acknowledges the particular value to the Employer
of this Section 8, the loss of which cannot be reasonably or adequately
compensated in an action at law or in arbitration. Therefore, Employee
expressly agrees that the Employer, in addition to any other rights or
remedies that the Employer shall possess, shall be entitled to injunctive and
other equitable relief to prevent or remedy a breach of this Section 8 by
Employee, without the necessity of posting any bond.
Employee's obligation under this Section 8 shall survive the
termination of this Agreement and/or the termination of employment.
9. NON-COMPETITION BY EMPLOYEE. Employee shall not, during
the Employment Term, directly or indirectly, either as an employee, employer,
consultant, agent, principal, partner, shareholder, corporate officer,
director, or in any other individual or representative capacity, engage or
participate in any competing bank or financial institution or financial
services business without the prior written consent of the Board; provided,
however, Employee shall not be restricted by this Section from owning
securities of corporations listed on a national securities exchange or
regularly traded by national securities dealers so long as such investment
does not exceed one percent of the market value of the outstanding securities
of such corporation.
10. NOTICES. Any notices to be given hereunder by either
party to the other may be effected in writing either by personal delivery or
by mail, registered or certified, postage prepaid with return receipt
requested. Notices to Employer shall be given to the Employer at its then
current principal office, c/o President and Chief Executive Officer. Notices
to Employee shall be sent to Employee's then current personal residence.
Notices delivered personally shall be deemed communicated as of actual
receipt; mailed notices shall be deemed communicated as of five (5) calendar
days after mailing.
11. ENTIRE AGREEMENT. This Agreement supersedes any and all
other agreements, either oral or in writing, between the Parties hereto with
respect to the employment of Employee
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by Employer and contains all of the covenants and agreements between the
Parties with respect to such employment. Each party to this Agreement
acknowledges that no representations, inducements, promises or agreements,
oral or otherwise, have been made by any party, or anyone acting on behalf of
any party, which are not embodied herein, and that no other agreement,
statement or promise not contained in this Agreement shall be valid and
binding. Any modification of this Agreement will be effective only if it is
in writing signed by all parties to the Agreement.
12. SEVERABILITY. In the event that any term or condition
contained in this Agreement shall, for any reason, be held by a court of
competent jurisdiction to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any
other term or condition of this Agreement, but this Agreement shall be
construed as if such invalid or illegal or unenforceable term or condition
had never been contained herein.
13. CHOICE OF LAW AND FORUM. This Agreement shall be
governed by and construed in accordance with the laws of the State of
California without giving effect to any conflict of law governing the effect
thereof, except to the extent preempted by the laws of the United States. Any
action or proceeding brought upon, or arising out of, this Agreement or its
termination shall be brought in a forum located within the County of Orange,
State of California, and Employee hereby agrees to be subject to service of
process in California.
14. WAIVER. The Parties hereto shall not be deemed to have
waived any of their respective rights under this Agreement unless the waiver
is in writing and signed by such waiving party. No delay in exercising any
rights shall be a waiver nor shall a waiver on one occasion operate as a
waiver of such right on a future occasion.
15. INDEMNIFICATION. Employer shall indemnify Employee, to
the maximum extent permitted under the articles of incorporation and bylaws
of Employer and governing laws and regulations, against expenses actually and
reasonably incurred by Employee (including attorneys' fees and expenses), and
judgments, fines and amounts paid in settlement actually incurred by Employee
in connection with any threatened or pending action, suit or proceeding to
which Employee is made a party by reason of her position as an officer or
agent of Employer or by reason of her service at the request of Employer, if
Employee acted in good faith in the course and scope of her employment and in
a manner believed to be in or not opposed to the best interests of Employer.
Any fees and expenses payable by Employer pursuant to this Section 15 shall
be paid as incurred by Employee, subject to a written undertaking by Employee
to repay Employer any such amounts advanced by Employer in the event of a
final determination under applicable law, that Employee was not entitled to
indemnification. If available at rates determined by Employer, in its sole
discretion, to be reasonable, Employer shall endeavor to apply for and obtain
directors' and officers' liability insurance to indemnify and insure Employer
and Employee from such liability or loss. Employee will have the same such
level of such insurance as provided by Employer to other senior executives.
16. ASSIGNMENT. Neither this Agreement nor any of the
rights or benefits hereunder shall be subject to execution, attachment or
similar process, nor may this Agreement or any rights or benefits hereunder
be assigned, transferred, pledged or hypothecated without the written consent
of both Parties hereto, except as provided in Sections 4(d) and 5(d) hereof.
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17. CAPTIONS AND PARAGRAPH HEADINGS. Captions and paragraph
headings used herein are for convenience and ready reference only and are not
a part of this Agreement and shall not be used in the construction or
interpretation thereof.
18. WITHHOLDING. Any payments provided for hereunder shall
be paid net of any applicable withholding required under federal, state or
local law and any additional withholding to which Employee has agreed.
19. ARBITRATION PROVISION. Any controversy or claim arising
out of or relating to this Agreement, the alleged breach of this Agreement,
or Employee's employment with Employer or the termination of the employment
relationship between Employee and Employer, shall be settled by arbitration
in accordance with the National Rules for the Resolution of Employment
Disputes of the American Arbitration Association, and judgment on the award
rendered by the arbitrators may be entered in any court having jurisdiction.
There shall be three arbitrators, one to be chosen directly by each party,
and the third arbitrator to be selected by the two arbitrators so chosen. If
any arbitration proceeding is brought for the enforcement of this Agreement
or because of an alleged dispute, breach or default in connection with this
Agreement, (i) the non-prevailing party shall pay the fees of the arbitrators
and all other costs of the arbitration, including the cost of any record or
transcripts of the arbitrations and administrative fees; and (ii) the
prevailing party shall be entitled to recover reasonable attorneys' fees and
any other costs and expenses incurred in that action or proceeding, in
addition to any other relief to which it or she may be entitled. The parties
acknowledge that they intend that the controversies and claims to be
arbitrated under this Section 19 be construed as broadly as possible under
applicable law.
EXECUTED as of the 14th day of February, 2000.
EMPLOYER: EMPLOYEE:
CALIFORNIA COMMUNITY BANCSHARES, INC.
/s/ Xxxxxx X. Xxxxxx /s/ Xxxx X. Xxxxxxx
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By: Xxxxxx X. Xxxxxx Xxxx X. Xxxxxxx
President and Chief Executive Officer
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EXHIBIT A
RELEASE AGREEMENT
This Release Agreement ("Release") was given to me, Xxxx X.
Xxxxxxx ("Employee"), this _____day of _________ , _______, by CALIFORNIA
COMMUNITY BANCSHARES, INC. ("CCB"). At such time as this Release becomes
effective and enforceable (i.e., the revocation period discussed below has
expired), and assuming Employee is otherwise eligible for payments under the
terms of that certain Employment Agreement between Employee and CCB dated
February 14, 2000 (the "Agreement"), CCB agrees to pay Employee pursuant to
the terms of the Agreement an amount equal to $ ________ (minus customary
payroll deductions and any outstanding obligations owed by the Employee to
Employer), and to provide any Vested Benefits and COBRA Rights, as these
terms are defined in the Agreement. CCB and its employees, agents, officers,
directors, shareholders, parent companies, partnerships, limited
partnerships, limited liability companies, subsidiaries and any and all of
its other affiliates, and the directors, officers, employees, agents,
insurers, underwriters and the predecessors, successors and assigns of each
such individuals and entities shall be referred to herein as the "Employer".
In consideration of the receipt of the promise to pay such amount,
Employee hereby agrees, for herself and her heirs, executors, administrators,
successors and assigns (hereinafter referred to as the "Releasors"), to fully
release and discharge Employer and its officers, directors, employees,
shareholders, partners, limited partners, parent companies, partnerships,
limited liability companies and any of its other affiliates, and the
officers, directors, employees, agents, insurers, underwriters, subsidiaries,
affiliates, and the predecessors, successors and assigns of each such
individual and entity (hereinafter referred to as the "Releasees") from any
and all actions, causes of action, claims, obligations, costs, losses,
liabilities, damages and demands under any federal, state or local law or
laws, or common law, whether or not known, suspected or claimed, which the
Releasors have, or hereafter may have, against the Releasees arising out of
or in any way related to the Agreement and/or Employee's employment or
termination of employment with Employer, except with the sole and limited
exception that Releasor's release of all claims against Releasees will not
release Employer from its obligations, as provided in Sections 7, 10, 13, 15
and 19 of the Agreement.
It is understood and agreed that this Release extends to all such
claims and/or potential claims and that Employee, on behalf of the Releasors,
hereby expressly waives all rights with respect to all such claims under
California Civil Code Section 1542, which provides as follows:
A general release does not extend to claims which the
creditor does not know or suspect to exist in his or her
favor at the time of executing the release, which if known
by him or her must have materially affected his or her
settlement with the debtor.
Employee executes this Release without reliance on any
representation by any Releasee. Employee acknowledges that she has read and
understands the provisions of the Release set forth in the preceding
paragraph, that she has had an opportunity to consult with an attorney prior
to executing this Release, that she affixes her signature hereto voluntarily
and without coercion, and
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that no promise or inducement has been made other than those set out in this
Release. This document does not constitute, and shall not be admissible as
evidence of, an admission by any Releasee as to any fact or matter.
In case any part of this Release is later deemed to be invalid,
illegal or otherwise unenforceable, Employee agrees that the legality and
enforceability of the remaining provisions of this Release will not be
affected in any way.
Dated:
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XXXX X. XXXXXXX
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