CHANGE IN CONTROL SEVERANCE AGREEMENT
Exhibit
10.3
THIS
CHANGE IN CONTROL SEVERANCE AGREEMENT (this "Agreement"), dated as of
____________, is made by and between Alsius Corporation, a Delaware corporation
(the "Company"), and ______________ ("Executive").
WITNESSETH:
WHEREAS,
Executive is a senior executive of the Company and has made and is expected to
continue to make major contributions to the short- and long-term profitability,
growth and financial strength of the Company;
WHEREAS,
the Company recognizes that, as is the case for most publicly held companies,
the possibility of a Change in Control exists;
WHEREAS,
the Company desires to assure itself of both present and future continuity of
management and desires to establish certain severance benefits for valued
executives such as Executive, applicable in the event of a Change in Control,
and the Company has therefore previously adopted the Plan which can provide
severance benefits under certain circumstances;
WHEREAS,
the Company wishes to ensure that Executive is not practically disabled from
discharging his or her duties in respect of a proposed or actual transaction
involving a Change in Control;
WHEREAS,
the Company desires to provide additional inducement for the Executive to
continue to remain in the employ of the Company;
WHEREAS,
this Agreement is the Change in Control Severance Agreement described in the
Plan and this Agreement enumerates the Plan benefits that may be provided to
Executive as referenced in Section II of the Plan; and
WHEREAS,
the Compensation Committee of the Board has authorized the Company to enter into
this Agreement in order for Executive to become a participant in the Plan as
provided by the Plan.
NOW,
THEREFORE, the Company and Executive agree as follows:
1. Certain Defined
Terms. In addition to terms defined elsewhere herein or in the
Plan, the following terms have the following meanings when used in this
Agreement with initial capital letters:
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(a)
"Base Pay" means Executive's annual base salary rate as in effect from time to
time.
(b)
"Board" means the Board of Directors of the Company.
(c)
"Cause" means any of the following, each as determined in the discretion of the
Company's (or its successor's) Board of Directors or Chief Executive Officer:
(i) the Executive's dereliction of his or her duties, (ii) the Executive's
material violation of Company policy, or (iii) the Executive's conviction of, or
guilty plea to, a crime against the Company or one which reflects negatively on
the reputation of the Company.
Notwithstanding
the foregoing, Executive's employment shall not be deemed to have been
terminated for "Cause" under (ii) above unless and until there shall have been
delivered to the Executive a copy of a resolution duly adopted by the
affirmative vote of not less than a majority of the Board then in office at a
meeting of the Board called and held for such purpose, after reasonable notice
to the Executive and an opportunity for the Executive, together with the
Executive's counsel (if the Executive chooses to have counsel present at such
meeting), to be heard before the Board, finding that, in the good faith opinion
of the Board, the Executive had committed an act constituting "Cause" and
specifying the particulars thereof in detail. Nothing herein will
limit the right of the Executive or his beneficiaries to contest the validity or
propriety of any such determination.
(d)
"Change in Control" means any of the following transactions, provided, however,
that the Company shall determine under parts (iv) and (v) whether multiple
transactions are related, and its determination shall be final, binding and
conclusive:
(i) a
merger or consolidation in which the Company is not the surviving entity, except
for a transaction the principal purpose of which is to change the state in which
the Company is incorporated;
(ii) the
sale, transfer or other disposition of all or substantially all of the assets of
the Company;
(iii) the
complete liquidation or dissolution of the Company;
(iv) any
reverse merger or series of related transactions culminating in a reverse merger
(including, but not limited to, a tender offer followed by a reverse merger) in
which the Company is the surviving entity but (A) the shares of Common Stock
outstanding immediately prior to such merger are converted or exchanged by
virtue of the merger into other property, whether in the form of securities,
cash or otherwise, or (B) in which securities possessing more than forty percent
(40%) of the total combined voting power of the Company’s outstanding securities
are transferred to a person or persons different from those who held such
securities immediately prior to such merger or the initial transaction
culminating in such merger, but excluding any such transaction or series of
related transactions that the Company determines shall not be a Change in
Control; or
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(v)
acquisition in a single or series of related transactions by any person or
related group of persons (other than the Company or by a Company-sponsored
employee benefit plan) of beneficial ownership (within the meaning of Rule 13d-3
of the Exchange Act) of securities possessing more than fifty percent (50%) of
the total combined voting power of the Company’s outstanding securities but
excluding any such transaction or series of related transactions that the
Company determines shall not be a Change in Control.
(e)
"Code" means the Internal Revenue Code of 1986, as amended.
(f)
"Disability" means that Executive is unable to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment
which can be expected to result in death or which has lasted or can be expected
to last for a continuous period of not less than twelve (12)
months.
(g)
"Employee Benefits" means any group health and dental benefit plans provided,
however, that Employee Benefits shall not include contributions made by the
Company to any retirement plan, pension plan or profit sharing plan for the
benefit of the Executive in connection with amounts earned by the
Executive.
(h)
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
(i)
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
(j)
“Good Reason” means that one or more of the following have occurred without the
Executive’s written consent:
(i)
Executive has experienced a material diminution in Base Pay;
(ii)
Executive has experienced a material diminution in his/her authority,
duties,
responsibilities,
or reporting structure as in effect immediately prior to the Company’s public
announcement of the Change in Control;
(iii)
Executive has been notified that he/she will experience a material change in the
geographic location at which he/she must perform his/her services to the Company
after the Change in Control; or
(iv) The
Company has materially breached this Agreement.
For
purposes of this Agreement, Executive may resign his/her employment from the
Company for "Good Reason" within sixty (60) days after the date that any one of
the events shown above in (i) through (iv) has first occurred without
Executive’s written consent. Executive’s resignation for Good Reason
will only be effective if the Company has not cured or remedied the Good Reason
event within thirty (30) days after its receipt of the written
notice. Such written notice must be provided to the Company within
thirty (30) days of the initial existence of the purported Good Reason event and
shall describe in detail the basis and underlying facts supporting Executive’s
belief that a Good Reason event has occurred. Failure to timely
provide such written notice to the Company means that Executive will be deemed
to have consented to and irrevocably waived the potential Good Reason
event. If the Company does timely cure or remedy the Good Reason
event, then Executive may either resign his/her employment without Good Reason
or Executive may continue to remain employed subject to the terms of this
Agreement.
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(k) "Plan" means the Alsius Corporation
Change in Control Severance Plan.
(l) "Termination Date" means the
Executive's last day of employment with the Company (and any Company subsidiary
or affiliate) and where such termination of employment constitutes a "separation
from service" within the meaning of Code Section 409A.
2. Termination Following or in
connection with a Change in Control. Subject to Section 2(f),
in the event that in the twelve months following the consummation of a Change in
Control, the employment of Executive is either terminated by the Company for any
reason other than Cause, death or Disability or is terminated by Executive for
Good Reason then the following subsections in this Section 2 shall apply (with
Sections 2(a) and 2(b) being subject to the effectiveness of the release of
claims and covenant not to xxx referenced in Section 2(e) below):
(a)
The Company shall pay to Executive cash in six monthly installments with each
installment equal to one-twelfth of Base Pay with the first such installment
payable on the first business day of the month following the effective date of
the release of claims specified in Section 2(e).
(b)
For the six month period commencing with the month following the month of the
Termination Date, the Company shall continue to provide to Executive all
Employee Benefits which were received by, or with respect to, Executive as of
the Termination Date, at the same expense to Executive as before the Change in
Control subject to immediate cessation if Executive is offered other employee
benefits coverage in connection with new employment. Executive shall
provide advance written notice to the Company informing the Company when the
Executive is offered or becomes eligible for other employee benefits in
connection with new employment. In addition, if periodically
requested by the Company, the Executive will provide the Company with written
confirmation that he/she has not been offered other employee
benefits.
(c)
As of his/her Termination Date, Executive shall also be paid for his/her accrued
but unpaid salary and vacation, unreimbursed valid business expenses that were
submitted in accordance with Company policies and procedures, and is eligible
for other vested benefits pursuant to the express terms of any employee benefit
plan.
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(d)
In the event that it is determined that any payment or distribution of any type
to or for the benefit of the Executive made by the Company, by any of its
affiliates, by any person who acquires ownership or effective control of the
Company or ownership of a substantial portion of the Company’s assets (within
the meaning of section 280G of the Code, and the regulations thereunder or by
any affiliate of such person, whether paid or payable or distributed or
distributable pursuant to the terms of this Agreement or otherwise (the “Total
Payments”), would be subject to the excise tax imposed by section 4999 of the
Code or any interest or penalties with respect to such excise tax (such excise
tax, together with any such interest or penalties, are collectively referred to
as the “Excise Tax”), then such payments or distributions shall be payable
either in (x) full or (y) as to such lesser amount which would result in no
portion of such payments or distributions being subject to the Excise Tax and
Executive shall receive the greater, on an after-tax basis, of (x) or (y)
above. All mathematical determinations and all determinations of
whether any of the Total Payments are “parachute payments” (within the meaning
of section 280G of the Code) that are required to be made under this Section
2(d), shall be made by a nationally recognized independent audit firm not
currently retained by the Company most recently prior to the Change in Control
(the “Accountants”), who shall provide their determination, together with
detailed supporting calculations regarding the amount of any relevant matters,
both to the Company and to the Executive within seven (7) business days of the
Executive’s Termination Date, if applicable, or such earlier time as is
requested by the Company. Such determination shall be made by the
Accountants using reasonable good faith interpretations of the
Code. Any determination by the Accountants shall be binding upon the
Company and the Executive, absent manifest error. The Company shall
pay the fees and costs of the Accountants which are incurred in connection with
this Section 2(d).
(e) All payments and benefits provided
under Sections 2(a) and 2(b) are conditioned on and subject to the Executive's
continuing compliance with this Agreement and the Executive's timely execution
(and effectiveness) of a general release of claims and covenant not to xxx
substantially in the form attached hereto as Exhibit A (or as may be reasonably
modified by the Company in its reasonable discretion). There is no
entitlement to any payments or benefits unless and until such release of claims
and covenant not to xxx is effective. Such release must become
effective within sixty days of the later of the Change in Control or the
Termination Date or else the Executive will be deemed to have waived all rights
to any payments or benefits under this Agreement. In addition, to the
extent Executive receives severance or similar payments and/or benefits under
any other Company plan, program, agreement, policy, practice, or the like, or
under the WARN Act or similar state law, the payments and benefits due to
Executive under this Agreement will be correspondingly reduced on a
dollar-for-dollar basis (or vice-versa) in a manner that complies with Code
Section 409A.
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(f)
Notwithstanding the foregoing, this Agreement shall also remain effective (and
Executive shall be eligible for payments and benefits hereunder) if, during a
period beginning three months immediately prior to an impending Change in
Control that is actually consummated (and provided such Change in Control
constitutes a "change in the ownership or effective control of the corporation
or a change in ownership of a substantial portion of the assets of the
corporation" within the meaning of Code Section 409A), the Company terminates
the Executive's employment for any reason other than Cause, death or Disability
and such termination is determined to be in connection with the Change in
Control. The Board shall determine in good faith whether such a
termination is occurring in connection with the impending Change in
Control. However, such a termination shall in any event be deemed to
be in connection with an impending Change in Control if such termination
(i) is required by the merger agreement or other instrument relating to
such Change in Control, or (ii) is made at the express request of the other
party (or parties) to the transaction constituting such Change in Control, or
(iii) occurs after the public announcement of the impending Change in
Control.
3. Successors and Binding
Agreement.
(a)
The Company will require any successor (whether direct or indirect, by purchase,
merger, consolidation, reorganization or otherwise) to all or substantially all
of the business or assets of the Company, by agreement in form and substance
reasonably satisfactory to the Executive, expressly to assume and agree to
perform this Agreement in the same manner and to the same extent the Company
would be required to perform if no such succession had taken
place. This Agreement will be binding upon and inure to the benefit
of the Company and any successor to the Company, including without limitation
any persons acquiring directly or indirectly all or substantially all of the
business or assets of the Company whether by purchase, merger, consolidation,
reorganization or otherwise (and such successor shall thereafter be deemed the
"Company" for the purposes of this Agreement), but will not otherwise be
assignable, transferable or delegable by the Company.
(b)
This Agreement will inure to the benefit of and be enforceable by the
Executive's personal or legal representatives, executors, administrators,
successors, heirs, distributees and legatees.
(c)
This Agreement is personal in nature and neither of the parties hereto shall,
without the consent of the other, assign, transfer or delegate this Agreement or
any rights or obligations hereunder except as expressly provided in Sections
3(a) and 3(b). Without limiting the generality or effect of the
foregoing, the Executive's right to receive payments hereunder will not be
assignable, transferable or delegable, whether by pledge, creation of a security
interest, or otherwise, other than by a transfer by Executive's will or by the
laws of descent and distribution and, in the event of any attempted assignment
or transfer contrary to this Section 3(c), the Company shall have no liability
to pay any amount so attempted to be assigned, transferred or
delegated.
4. No Retention
Rights. This Agreement is not an employment agreement and does
not give the Executive the right to be retained by the Company (or its
subsidiaries or affiliates) and the Executive agrees that he/she is an
employee-at-will. The Company (or its subsidiaries or affiliates) reserves the
right to terminate the Executive’s service as an employee at any time and for
any reason.
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5. Notices. For all
purposes of this Agreement, all communications, including without limitation
notices, consents, requests or approvals, required or permitted to be given
hereunder will be in writing and will be deemed to have been duly given when
hand delivered or dispatched by electronic facsimile transmission (with receipt
thereof orally confirmed), or five business days after having been mailed by
United States registered or certified mail, return receipt requested, postage
prepaid, or three business days after having been sent by a nationally
recognized overnight courier service such as FedEx, UPS, or DHL, addressed to
the Company (to the attention of the Secretary of the Company) at its principal
executive office and to the Executive at his/her principal residence, or to such
other address as any party may have furnished to the other in writing and in
accordance herewith, except that notices of changes of address shall be
effective only upon receipt.
6. Validity. If any
provision of this Agreement or the application of any provision hereof to any
person or circumstances is held invalid, unenforceable or otherwise illegal, the
remainder of this Agreement and the application of such provision to any other
person or circumstances will not be affected, and the provision so held to be
invalid, unenforceable or otherwise illegal will be reformed to the extent (and
only to the extent) necessary to make it enforceable, valid or
legal.
7. Dispute Resolution; Governing
Law. Any dispute between the parties must be resolved pursuant
to the claims procedures and other processes articulated in the
Plan. This Agreement is governed by ERISA and, to the extent
applicable, the laws of the State of Delaware, without reference to the conflict
of law provisions thereof.
8.
Miscellaneous. All provisions of this Agreement are subject to
and governed by the terms of the Plan. No provision of this Agreement
may be modified, waived or discharged unless such waiver, modification or
discharge is agreed to in writing signed by the Executive and the
Company. No waiver by either party hereto at any time of any breach
by the other party hereto or compliance with any condition or provision of this
Agreement to be performed by such other party will be deemed a waiver of similar
or dissimilar provisions or conditions at the same or at any prior or subsequent
time. The Plan and this Agreement constitute the entire agreement of
the parties with respect to the subject matter hereof and supersedes any and all
prior agreements of the parties with respect to such subject
matter. No agreements or representations, oral or otherwise,
expressed or implied with respect to the subject matter hereof have been made by
either party which are not set forth expressly in this Agreement.
9.
Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same agreement.
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10. Section
409A. This Agreement is intended to comply with the
requirements of section 409A of the Code. In the event this Agreement
or any benefit paid to Executive hereunder is deemed to be subject to section
409A of the Code, Executive consents to the Company adopting such conforming
amendments as the Company deems necessary, in its reasonable discretion, to
comply with section 409A of the Code. In addition, if Executive is a
specified employee (within the meaning of Code Section 409A) at the time of
his/her separation from service, then to the extent necessary to comply with
Code Section 409A and avoid the imposition of taxes under Code Section 409A, the
payment of certain benefits owed to Executive under this Agreement will be
delayed and instead paid (without interest) to Executive upon the earlier of the
first business day of the seventh month following Executive’s separation from
service or Executive’s death.
11.
Withholding. All payments and benefits made under this
Agreement shall be subject to reduction to reflect any withholding taxes or
other amounts required by applicable law or regulation.
12. Restrictive
Covenants.
(a)
Nondisparagement. Executive will not disparage the Company, its
directors, officers, employees, affiliates, subsidiaries, predecessors,
successors or assigns in any written or oral communications to any third
party. Executive further agrees that he/she will not direct anyone to
make any disparaging oral or written remarks to any third parties.
(b) Nonsolicit. During the
Executive's employment with Company and for twelve months after Executive's
Termination Date, the Executive shall not, directly or indirectly, either as an
individual or as an employee, agent, consultant, advisor, independent
contractor, general partner, officer, director, stockholder, investor, lender,
or in any other capacity whatsoever, of any person, firm, corporation or
partnership: (i) solicit, induce, recruit or encourage any of the Company’s
employees or consultants to terminate their relationship with the Company, or
attempt to solicit, induce, recruit, encourage any of the Company’s employees or
consultants to terminate their relationship with the Company, or attempt to
solicit, induce, recruit, encourage or take away employees or consultants of the
Company or (ii) attempt to negatively influence any of the Company’s clients or
customers from purchasing Company products or services or to solicit or
influence or attempt to influence any client, customer or other person either
directly or indirectly, to direct his or its purchase of products and/or
services to any person, firm, corporation, institution or other entity in
competition with the business of the Company or (iii) participate or engage in
the design, development, manufacture, production, marketing, sale or servicing
of any product, or the provision of any service, that directly or indirectly
relates to Company business as conducted on the Termination Date.
(c)
Nondisclosure. Notwithstanding any requirement that the Company may
have to publicly disclose the terms of this Agreement pursuant to applicable law
or regulations, the Executive agrees to use reasonable efforts to maintain in
confidence the existence of this Agreement, the contents and terms of this
Agreement, and the consideration for this Agreement (hereinafter collectively
referred to as “Agreement Information”). The Executive also agrees to
take every reasonable precaution to prevent disclosure of any Agreement
Information to third parties, except for disclosures required by law or
absolutely necessary with respect to Executive's immediate family members or
personal advisors who shall also agree to maintain confidentiality of the
Agreement Information.
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(d)
Confidentiality. Executive shall not, except as required by any court
or administrative agency, without the written consent of the Board or a person
authorized thereby, disclose to any person, other than an employee of the
Company or a person to whom disclosure is reasonably necessary or appropriate in
connection with the performance by the Executive or his duties to the Company,
any confidential information obtained by him while in the employ of the Company
with respect to any of the Company's inventions, processes, customers, methods
of distribution, methods of manufacturing, attorney-client communications,
pending or contemplated acquisitions, other trade secrets, or any other material
which the Company is obliged to keep confidential pursuant to any
confidentiality agreement or protective order; provided, however, that
confidential information shall not include any information now known or which
becomes known generally to the public (other than as a result of an unauthorized
disclosure by the Executive) or any information of a type not otherwise
considered confidential by a person engaged in the same business or a business
similar to that conducted by the Company.
(e) Noncompete. During the
Executive's employment with Company and for twelve months after Executive's
Termination Date, Executive shall not participate, without the written consent
of the Board or a person authorized thereby, in the management or control of, or
act as an executive for or employee of, any business operation or any enterprise
if such operation or enterprise engages in substantial competition with any
material line of business that was actively conducted by the Company or any of
its subsidiaries, divisions, or business units (collectively, the "Companies")
at the time of Executive’s Termination Date provided, however, that the
foregoing shall not include the mere ownership of not more than three percent of
the equity securities of any enterprise that is in competition with the
Companies.
(f) Remedy for Breach. The
parties hereto agree that, in the event of breach or threatened breach of any
covenants herein, the damage or imminent damage shall be inestimable, and that
therefore any remedy at law or in damages shall be inadequate. Accordingly, the
parties hereto agree that the Company and Executive shall be entitled to apply
for injunctive relief in the event of any breach or threatened breach of any of
such provisions by Executive or the Company, in addition to any other relief
(including damages) available to the Company or Executive under this Agreement
or under law.
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IN WITNESS WHEREOF, the
parties have caused this Agreement to be duly executed and delivered as of the
date first above written. By signing below, Executive acknowledges
that he/she (i) has received a copy of the Plan and its Summary Plan Description
and understands the terms of the Plan and this Agreement, (ii) is voluntarily
entering into this Agreement and (iii) is agreeing to be bound by the terms of
the Plan and this Agreement.
ALSIUS
CORPORATION
/
-------------------------------------
By:
Title:
|
Executive:
-------------------------------------
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EXHIBIT
A
RELEASE
OF CLAIMS AND COVENANT NOT TO XXX
This
Release of Claims and Covenant Not To Xxx (the "Release") is entered into by
____________ ("Executive"). This Release is effective only if (i) it
has been executed by the Executive after his/her termination of employment with
Alsius Corporation (the "Company"), (ii) such executed Release has been provided
to the Company on or before [DATE] and (iii) the revocation period has expired
without revocation as set forth in Section 5(c) below (the “Effective
Date”). The Company and the Executive are collectively referred to
herein as the Parties.
WHEREAS,
Executive was an employee of the Company and served as the Company's [JOB
TITLE];
WHEREAS,
Executive was a participant in and "Covered Employee" under the Alsius
Corporation Change in Control Severance Plan (the "Plan");
WHEREAS,
pursuant to the Plan and the Change in Control Severance Agreement executed by
the Parties on [DATE] (the "Severance Agreement"), the Executive is eligible for
specified severance benefits upon the occurrence of certain events with such
benefits conditioned upon, among other things, the Executive's execution and
non-revocation of this Release;
WHEREAS,
the Company was subject to a Change in Control (as defined in the Severance
Agreement) on [DATE];
WHEREAS,
the Executive's employment was terminated [by the Company without Cause] [by the
Executive for Good Reason] (as defined in the Severance Agreement) on [DATE]
(the "Separation Date"); and
WHEREAS,
pursuant to the terms of the Plan and Severance Agreement, the Company has
determined to treat the termination of Executive’s employment as eligible for
payment of certain separation benefits provided in the Severance
Agreement.
NOW,
THEREFORE, the Executive agrees as follows:
1. Termination
of Employment. Executive acknowledges and agrees that Executive’s
employment with the Company terminated as of the close of business on the
Separation Date. As of the Separation Date, Executive agrees that
he/she is no longer an employee of the Company and no longer holds any positions
or offices with the Company.
2. Separation
Benefits. In consideration for the release of claims set forth below
and other obligations under this Release, the Plan and the Severance Agreement
and in satisfaction of all of the Company's obligations to Executive and further
provided that (i) this Release is signed by Executive and not revoked by
Executive under Section 5(c) herein and (ii) the Executive remains in continuing
compliance with all of the terms of this Release, the Plan and the Severance
Agreement, the Executive is eligible to receive the separation benefits
specified in Sections 2(a) and 2(b) of the Severance Agreement.
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3. Integration. This
Release, the Plan, and the Severance Agreement (and any agreements referenced
therein) represents the entire agreement and understanding between the Parties
as to the subject matter hereof and supersedes all prior agreements whether
written or oral.
4. Right
to Advice of Counsel. Executive acknowledges that Executive has had
the opportunity to fully review this Release and, if Executive so chooses, to
consult with counsel, and is fully aware of Executive’s rights and obligations
under this Release.
5. Executive's
Release of Claims. Executive hereby expressly covenants not to xxx
and releases and waives any and all claims, liabilities, demands, damages,
penalties, debts, accounts, obligations, actions, grievances, and causes of
action (“Claims”), whether now known or unknown, suspected or unsuspected,
whether in law, in equity or in arbitration, of any kind or nature whatsoever,
which Executive has or claims to have, now or hereafter, against the Company and
its divisions, facilities, subsidiaries and affiliated entities, successors and
assigns, or any of its or their respective past or present officers, directors,
trustees, shareholders, agents, employees, attorneys, insurers, representatives
(collectively, the Releasees), including, but not limited to, any Claims arising
out of or relating in any way to Executive’s employment at the Company and the
termination thereof. Without limiting the foregoing, Executive hereby
acknowledges and agrees that the Claims released by this Release include, but
are not limited to, any and all claims which arise or could arise under Title
VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of
1967, the Federal Worker Adjustment and Retraining Notification Act (or any
similar state, local or foreign law), the Employee Retirement Income Security
Act of 1974, as amended, the California Fair Employment and Housing Act,
California statutory or common law, the Orders of the California Industrial
Welfare Commission regulating wages, hours, and working conditions, and federal
statutory law, or any Claim for severance pay, bonus, sick leave, disability,
holiday pay, vacation pay, life insurance, health or medical insurance or any
other fringe benefit. Nothing in this Release shall limit in any way
Executive’s right under California Workers’ Compensation laws to file or pursue
any workers’ compensation claim. Nothing herein shall release any
rights to indemnification Executive may have in connection with Executive's
actions taken in the course of his/her duties with the Company. This
release shall not apply to any claims that may not be waived as a matter of
applicable law.
(a) As
part of this general release, Executive expressly releases, waives and
relinquishes all rights under Section 1542 of the California Civil Code which
states:
“A
GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF
KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE
DEBTOR.”
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Executive
acknowledges that he/she may later discover facts in addition to or different
from those which Executive now knows, or believes to be true, with respect to
any of the subject matters of this Release, but that it is nevertheless
Executive’s intention to settle and release any and all Claims released
herein.
(b)
Executive warrants and represents that there is not now pending any action;
complaint, petition Executive charge, grievance, or any other form of
administrative, legal or arbitral proceeding by Executive against the Company
and further warrants and represents that no such proceeding of any kind shall be
instituted by or on Executive’s behalf based upon any and all Claims released
herein.
(c)
Executive expressly acknowledges, understands and agrees that this Release
includes a waiver and release of all claims which Executive has or may have
under the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C.
§621, et seq.
(“ADEA”). The following terms and conditions apply to and are part of
the waiver and release of ADEA claims under this Release:
(i)
Executive is advised to consult an attorney before signing this
Release;
(ii)
Executive is granted twenty-one (21) days after he/she is presented with this
Release to decide whether or not to sign this Release;
(iii)
Executive will have the right to revoke the waiver and release of claims under
the ADEA within seven (7) days of signing this Release, and this Release shall
not become effective and enforceable until that revocation period has expired
without such revocation;
(iv)
Executive hereby acknowledges and agrees that he/she is knowingly and
voluntarily waiving and releasing Executive’s rights and claims in exchange for
consideration (something of value) in addition to anything of value to which
he/she is already entitled; and
(v)
Nothing in this Release prevents or precludes Executive from challenging or
seeking a determination in good faith of the validity of this waiver under the
ADEA, nor does it impose any condition precedent, penalties or costs from doing
so, unless specifically authorized by federal law.
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6. Labor
Code Section 206.5. Executive agrees that the Company has paid to
Executive his/her salary and vacation accrued as of the Separation Date and that
these payments represent all such monies due to Executive through the Separation
Date. In light of the payment by the Company of all wages due, or to
become due to Executive, California Labor Code Section 206.5 is not
applicable. That section provides in pertinent part as
follows:
No employer shall require the
execution of any release of any claim or right on account of wages due, or to
become due, or made as an advance on wages to be earned, unless payment of such
wages has been made.
7. Severability. Executive
understands that whenever possible, each provision of this Release will be
interpreted in such a manner as to be effective and valid under applicable law,
but if any provision of this Release is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, but this Release will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
8. No
Representations. Executive has not relied upon any representations or
statements made by the Company in deciding whether to execute this
Release.
9. Voluntary
Execution of Release. This Release is executed voluntarily by
Executive and without any duress or undue influence and with the full intent of
releasing all claims. The Executive acknowledges that:
(a) He/She
has read this Release;
(b) He/She
has been represented in the preparation, negotiation, and execution of this
Release by legal counsel of his/her own choice or that he/she has voluntarily
declined to seek such counsel;
(c) He/She
understands the terms and consequences of this Release and of the releases it
contains;
(d) He/She
is fully aware of the legal and binding effect of this Release.
IN
WITNESS WHEREOF, the Executive has executed this Release as shown
below.
EXECUTIVE
_______________
Dated:
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