SMART BALANCE, INC. CHANGE OF CONTROL AGREEMENT
Exhibit
10.48
This
Agreement (the “Agreement”) is made and entered into as of SAMPLE (the
“Effective Date”) by and between Smart Balance, Inc., a Delaware corporation
(the “Company”) and SAMPLE (“Employee”).
Recitals
A. Employee
is a key employee of the Company.
B. The
Company recognizes that Employee may have concerns about the possibility of
a
Change of Control (as hereinafter defined) due, in part, to the Company’s status
as a special purpose acquisition company;
C. The
Board
of Directors of the Company (“Board”) has determined that it is essential and in
the best interest of the Company and its stockholders to retain the services
of
Employee and to ensure Employee’s continued dedication and efforts, without
undue concern for Employee’s financial and employment security; and
D. To
induce
Employee to continue employment with the Company, as well as to remain with
the
Company in the event of a threat or the occurrence of a Change of Control,
the
Company desires to enter into this Agreement with Employee to provide Employee
with certain benefits in the event that Employee’s employment is terminated as a
result of, or in connection with, a Change of Control.
Agreement
In
consideration of the respective agreements of the parties contained herein,
it
is hereby agreed as follows:
1. Term
of Agreement.
This
Agreement shall commence as of the Effective Date and shall continue in effect
until the thirty-first (31st) day of December in the year in which the Effective
Date occurred (the “Expiration Date”); provided, however, that commencing on the
Expiration Date and on each anniversary of the Expiration Date thereafter,
the
term of this Agreement shall automatically be extended for one (1) year
following such date unless the Company or Employee shall have provided written
notice to the other at least ninety (90) days prior to such date that the term
of this Agreement shall not be so extended; and provided, further, that
notwithstanding the foregoing the term of this Agreement shall not expire within
the twelve (12) month period immediately following the occurrence of a Change
of
Control, but may expire on the first day following such twelve (12) month period
if a notice not to extend the term of this Agreement is timely provided at
least
ninety (90) days prior to the Expiration Date or an anniversary thereof, as
applicable, as set forth herein.
2. Definitions.
2.1. Accrued
Compensation.
For
purposes of this Agreement, “Accrued
Compensation”
shall
mean an amount which shall include all amounts earned,
accrued or awarded through the Termination Date (as
hereinafter defined) but not paid as of the Termination Date, including (a)
base
salary, (b) reimbursement for reasonable and necessary expenses incurred by
the
Employee on behalf of the Company during the period ending on the Termination
Date, (c) accrued but unused vacation pay, and (d) bonuses, commissions and
incentive compensation (other than the Pro Rata Bonus (as hereinafter defined)).
References to Accrued Compensation under this Agreement shall not obligate
the
Company to pay such amounts twice (e.g., under this Agreement and under another
agreement or obligation) and such references are meant only to clarify
obligations outside the scope of this Agreement and not to create additional
rights hereunder.
2.2. Base
Amount.
For
purposes of this Agreement, “Base Amount” shall mean SAMPLE times
the
greater of Employee’s annual base salary (a) at the rate in effect on the
Termination Date or (b) at the highest rate in effect at any time during the
ninety (90) day period prior to the applicable Change of Control, and shall
include all amounts of base salary that are deferred under the employee benefit
plans of the Company or any other agreement or arrangement.
2.3. Bonus
Amount.
For
purposes of this Agreement, “Bonus Amount” shall mean SAMPLE of
the
aggregate annual target bonus for which Employee is eligible under any bonus
program, plan, agreement or arrangement applicable to Employee for the fiscal
year in which the Termination Date occurs.
2.4. Cause.
The
Company may terminate this Agreement for Cause at any time upon written notice
to Employee. For purposes of this Agreement, the term “Cause” shall mean: (a) a
breach of any term of this Agreement by Employee and failure to cure such breach
within ten (10) days after written notice thereof from the Company; (b) the
failure by Employee to perform his or her duties to the Company (other than
any
such failure resulting from his or her incapacity due to death or physical
or
mental illness) coupled with a failure to cure the same within ten (10) days
after receipt of written notice thereof; (c) acts or omissions which are deemed
by the Board to be in bad faith, or to constitute gross negligence, recklessness
or willful misconduct, on the part of Employee with respect to the performance
of his or her duties; (d) the failure by Employee to follow the reasonable
instructions of the person(s) to whom Employee reports, the President
of the Company [for
everyone except the CEO, the Board of Directors of the Company for
him];
(e)
Employee’s engaging in misconduct that is deemed by the Board to be materially
injurious to the Company, monetarily or otherwise; (f) Employee’s conviction,
plea of guilty or nolo
contendere,
or
judicial determination of civil liability, based on a federal or state felony
or
serious criminal or civil offense, including, but not limited to, crimes or
civil offenses involving theft, embezzlement, fraud or dishonesty, crimes or
civil offenses based on banking or securities laws (including the Xxxxxxxx-Xxxxx
Act of 2002), and civil enforcement actions brought by federal or state
regulatory agencies (including the Securities and Exchange Commission); or
(g)
Employee’s use of illegal drugs and/or, to the extent permitted by law, abuse of
alcohol.
2.5. Change
of Control.
For
purposes of this Agreement, a “Change of Control” shall be deemed to have
occurred if:
(a) any
“person,” as such term is defined in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”), other than an “Exempt
Person” (as hereinafter defined), hereafter becomes the “beneficial owner,” as
defined in Rule 13d-3 under of the Exchange Act, directly or indirectly, of
securities of the Company representing twenty percent (20%) or more of the
total
combined voting power of the Company’s then outstanding securities; provided,
however,
that a
Change of Control for purposes of this Agreement shall be deemed to have
occurred if any person qualifying as an Exempt Person pursuant to Section 2.8
hereof increases, whether in one or more related or unrelated transactions,
its
beneficial ownership of securities of the Company on or after the date hereof
by
ten percent (10%) or more (other than as a result of one or more increases
due
solely to transfers to such person from one or more of its affiliates of
securities of the Company owned by such affiliates on the date hereof) from
the
level of its beneficial ownership of securities of the Company on the date
hereof; and provided
further,
that
for the purposes of this Section 2.5(a) a Change of Control shall not be
deemed to have occurred as a result of any acquisition of securities by any
person directly from the Company or as a result of any acquisition by the
Company of its outstanding securities;
(b) during
any period of two (2) consecutive years, individuals who at the beginning of
such period constitute the Board and any new director whose election by the
Board or nomination for election by the Company’s stockholders was approved by a
vote of at least two-thirds (2/3) of the directors then still in office who
either were directors at the beginning of the period or whose election or
nomination for election was previously so approved, cease for any reason to
constitute a majority of the Board;
(c) the
stockholders of the Company approve a merger or consolidation of the Company
with any other corporation or entity, other than a merger or consolidation
which
would result in the voting securities of the Company outstanding immediately
prior thereto continuing to represent (either by remaining outstanding or by
being converted into voting securities of the surviving entity) at least eighty
percent (80%) of the total voting power represented by the voting securities
of
the Company or such surviving entity outstanding immediately after such merger
or consolidation; provided that such merger or consolidation is consummated;
or
(d) the
stockholders of the Company approve a plan of complete liquidation of the
Company or an agreement for the sale or disposition by the Company, in one
transaction or a series of transactions, of all or substantially all of the
Company’s assets; provided that such sale or disposition is
consummated.
2.6. Company.
For
purposes of this Agreement, the “Company” shall mean Smart Balance, Inc., a
corporation organized under the laws of the State of Delaware, and its
subsidiaries and shall include the Company’s Successors and Assigns (as
hereinafter defined).
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2.7. Disability.
For
purposes of this Agreement, “Disability” shall mean a physical or mental
impairment that limits a major life activity of Employee and cannot be
reasonably accommodated without undue hardship to the Company.
2.8. Exempt
Person.
For
purposes of this Agreement, “Exempt Person” shall mean: (a) a trustee or other
fiduciary holding securities under an employee benefit plan of the Company
in
such capacity, (b) a corporation or other entity owned, directly or indirectly,
by the stockholders of the Company in substantially the same proportions as
their ownership of stock of the Company, or (c) any beneficial stockholder
or
group, as defined by Rule 13d-5 of the Exchange Act, which holds as of the
date
hereof securities possessing more than twenty-five percent (25%) of the total
combined voting power of the Company’s outstanding securities.
2.9. Good
Reason.
(a) For
purposes of this Agreement, “Good Reason” shall mean any of the events or
conditions described in the following subsections:
(i) a
change
in Employee’s status, title, position or responsibilities (including reporting
responsibilities) that represents a material adverse change from Employee’s
status, title, position or responsibilities as in effect within the ninety
(90)
days preceding the date of a Change of Control or at any time thereafter; the
assignment to Employee of any duties or responsibilities that are materially
inconsistent with Employee’s status, title, position or responsibilities as in
effect immediately prior to the date of the Change of Control; or any removal
of
Employee from or failure to reappoint or reelect Employee to the office or
position (or to a substantially similar office or position) in which Employee
served immediately prior to the date of the Change of Control, except in
connection with the termination of Employee’s employment as a result of
Employee’s death, or for Disability or Cause;
(ii) a
reduction in Employee’s base salary in effect immediately prior to the date of
the Change of Control or any failure to pay Employee any compensation or
benefits to which Employee is entitled within ten (10) days after receipt of
written notice from Employee;
(iii) the
Company’s requiring Employee to be based at any location outside a fifty
(50)-mile radius from the location at which Employee was based immediately
prior
to the Change of Control, except for reasonably required travel on the Company’s
business which is not materially greater than such travel requirements generally
required of Employee to adequately and appropriately perform his or her duties
prior to the Change of Control;
(iv) the
failure by the Company to (A) continue in effect (without reduction in benefit
level and/or reward opportunities) any material compensation or employee benefit
plan in which Employee was participating at any time within ninety (90) days
preceding the date of a Change of Control unless such plan is replaced with
a
plan that provides substantially equivalent compensation or benefits to
Employee, or (B) provide Employee with compensation and benefits, in the
aggregate, at least equal (in terms of benefit levels and/or reward
opportunities) to those provided for under each other employee benefit plan,
program and practice in which Employee was participating at any time within
ninety (90) days preceding the date of a Change of Control or at any time
thereafter;
(v) any
material breach by the Company of any provision of this Agreement, and failure
of the Company to cure such breach within thirty (30) days from the Company’s
receipt of written notice from Employee setting forth the nature of the alleged
breach;
(vi) any
purported termination of Employee’s employment for Cause by the Company which
does not comply with the terms of Section 2.4 hereof; or
(vii) the
failure of the Company to obtain an agreement, satisfactory to Employee, from
any Successors and Assigns to assume and agree to perform this Agreement, as
contemplated in Section 6 hereof.
(b) Employee’s
right to exercise the Good Reason requirements under this Section 2.9 shall
not
be affected by Employee’s incapacity due to physical or mental
illness.
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2.10. Notice
of Termination.
For
purposes of this Agreement, “Notice of Termination” shall mean a written notice
of termination of Employee’s employment from the Company, which notice indicates
the date on which termination is to be effective, the specific termination
provision in this Agreement relied upon and which sets forth in reasonable
detail the facts and circumstances claimed to provide a basis for termination
of
Employee’s employment under the provision so indicated.
2.11. Pro
Rata Bonus.
For
purposes of this Agreement, “Pro Rata Bonus” shall mean an amount equal to the
Bonus Amount multiplied by a fraction the numerator of which is the number
of
days in the fiscal year through the Termination Date and the denominator of
which is 365.
2.12. Successors
and Assigns.
For
purposes of this Agreement, “Successors and Assigns” shall mean a corporation or
other individual, group or entity acquiring all or substantially all of the
assets and business of the Company (including the rights and obligations created
by this Agreement) whether by operation of law or otherwise.
2.13. Termination
Date.
For
purposes of this Agreement, “Termination Date” shall mean (a) in the case of
Employee’s death, Employee’s date of death, (b) in the case of Good Reason, the
last day of Employee’s employment and, (c) in all other cases, the date
specified in the Notice of Termination; provided,
that if
Employee’s employment is to be terminated by the Company due to Disability, such
employment shall not be terminated if Employee returns to the full-time
performance of his or her duties prior to the date specified in the Notice
of
Termination. The “date” of a Change of Control pursuant to Section 2.5(c) or (d)
shall be the date of stockholder approval.
3. Termination
of Employment.
If,
during the term of this Agreement, Employee’s employment with the Company shall
be terminated within twelve (12) months following a Change of Control, and
subject to Employee’s execution of a release agreement as set forth in Section
15 hereof, Employee shall be entitled to the following compensation and
benefits:
(a) If
Employee’s employment with the Company is terminated by the Company for Cause or
by Employee other than for Good Reason, the Company shall pay to Employee only
the Accrued Compensation. If Employee’s employment with the Company is
terminated due to death or Disability, then the Company shall pay to Employee
the Accrued Compensation and a Pro Rata Bonus.
(b) If
Employee’s employment with the Company shall be terminated for any reason other
than as specified in Section 3(a) hereof, Employee shall be entitled to the
following:
(i) the
Company shall pay Employee all Accrued Compensation and a Pro Rata
Bonus;
(ii) the
Company shall pay Employee as severance pay, in lieu of any further compensation
for periods subsequent to the Termination Date, an amount in cash equal to
the
sum of (A) the Base Amount and (B) the Bonus Amount;
(iii) to
the
extent not otherwise provided in any such agreement or plan, Employee’s right
and entitlement to any unvested stock options, restricted stock, or other
securities or similar incentives which have been granted or issued to Employee
as of the Termination Date pursuant to any employee benefit plan, agreement,
understanding or arrangement which would have vested (with Employee’s continued
employment and the passage of time and increases in the price of shares of
Company stock) during the period commencing upon the Termination Date and
continuing for twelve (12) months thereafter, shall immediately vest and shall
be free from any restrictions (other than those imposed by applicable state
and
federal securities laws). All such securities shall continue to be exercisable,
if applicable, for ninety (90) days from the Termination Date or until the
terms
of such securities would have otherwise expired (if applicable), whichever
is
earlier; and
(c) The
amounts provided for in Section 3(a) and Section 3(b)(i) hereof shall be paid
in
a single lump sum cash payment within forty-five (45) days after Employee’s
Termination Date (or earlier, if required by applicable law). Subject to Section
3(h) hereof, the amounts provided for in Section 3(b)(ii) hereof shall be paid
(without interest) in equal installments, in accordance with the Company’s
standard payroll practices and less applicable taxes and withholding amounts,
over the twelve (12) month period immediately following Employee’s Termination
Date.
(d) Employee
shall not be required to mitigate the amount of any payment provided for in
this
Agreement by seeking other employment or otherwise, and no such payment shall
be
offset or reduced by the amount of any compensation or benefits provided to
Employee in any subsequent employment.
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(e) The
severance pay and other benefits provided for in this Section 3 shall be in
lieu
of any other severance or termination pay to which Employee may be entitled
under any Company severance or termination plan, program, practice or
arrangement and Employee may be required to execute a written release and waiver
consistent with this Section.
(f) Employee’s
entitlement to any other non-severance compensation or benefits shall be
determined in accordance with the Company’s employee benefit plans and other
applicable programs, policies and practices then in effect.
(g) If
Employee’s employment with the Company is terminated during the ninety (90) day
period immediately preceding a Change of Control, Employee shall be entitled
to
the amounts provided for in Section 3(a) or Section 3(b) hereof, as applicable,
if Employee can demonstrate that the termination (A) was at the request of
a
third party who has taken steps reasonably calculated to effect a Change of
Control or (B) otherwise arose in connection with or in anticipation of a Change
of Control.
(h) The
Company shall have the authority, in its sole judgment and discretion, to delay
the payment of any amounts or the provision of any benefits under this Agreement
to any extent it determines in its discretion that such delay is required by
Code Section 409A (or regulations or rulings thereunder) because the payment
of
any such amount or the provision of any such benefit would otherwise constitute
the distribution to a key employee of a public company within six (6) months
after such key employee’s separation from service, as set forth in Code Section
409A(a)(2)(B)(i). The amounts provided for in Section 3(b)(ii) hereof shall
be
paid in accordance with Section 3(c) hereof unless such payments may not be
begun before the date that is six months after the Termination Date as provided
in Section 409A(a)(2) of the Code in order to meet the requirements of Section
409A of the Code, as determined by the Company in its sole judgment and
discretion, in which case the sum of the payments that otherwise would have
been
made during such six (6) month period shall be paid (with interest of 5% per
annum) in a single lump sum payment as soon as administratively practicable
following the date that is six months after the Termination Date.
4. Notice
of Termination.
Within
one (1) year following a Change of Control, any purported termination of
Employee’s employment shall be communicated by Notice of Termination to
Employee. For purposes of this Agreement, no such purported termination shall
be
effective without such Notice of Termination.
5. Excess
Parachute Payment Gross-Up.
(a) If
the
payment of any benefit under this Agreement (or under any other arrangement
with
the Company, including, but not limited to the vesting of awards under the
Smart
Balance, Inc. Stock and Awards Plan), when added to any other payments or
benefits provided to Employee in the nature of compensation will result in
the
payment of an excise tax under Code Section 4999 (the “Excise Tax”), then the
Company shall pay Employee an additional amount for each calendar year in which
an excess parachute payment is received by the Executive (the “Gross-Up
Payment”). The Gross-Up Payment shall be in such amount as is necessary to place
Employee in the same after-tax financial position that Employee would have
been
in if there were no Excise Tax on any payment from the Company, regardless
of
whether the payment is made under this Agreement, under the Smart Balance,
Inc.
Stock and Awards Plan or any other plan, program or arrangement (collectively,
the Change of Control Payments and, individually, a Change of Control Payment).
For purposes of determining whether any of the Change of Control Payments will
be subject to the Excise Tax and the amount of such Excise Tax liability:
(i) all Change of Control Payments shall be treated as “parachute payments”
(within the meaning of Code Section 280G(b)(2)) unless, in the reasonable
opinion of the Company’s tax counsel, such Change of Control Payments (in whole
or in part) do not constitute parachute payments, including, by reason of Code
Section 280G(b)(4)(A), and all “excess parachute payments” (within the meaning
of Code Section 280G(b)(1) of the Code) shall be treated as subject to the
Excise Tax, unless, in the reasonable opinion of the Company’s tax counsel, such
excess parachute payments represent reasonable compensation for services
actually rendered within the meaning of Code Section 280G(b)(4)(B), or are
not
otherwise subject to the Excise Tax, and (ii) the value of any non-cash
benefits or any deferred payment or benefit shall be determined by the Company’s
independent auditors in accordance with the principles of Code Sections
280G(d)(3) and (4). For purposes of determining the amount of the Gross-Up
Payment, the Employee shall be deemed to pay federal income taxes at the highest
marginal rate of federal income taxation in the calendar year in which the
Gross-Up Payment is to be made and state and local income taxes at the highest
marginal rate of taxation in the state and locality of residence of the
Employee, new of the maximum reduction in federal income taxes that could be
obtained from the deduction of such state and local taxes. Payment of the
Gross-Up Payment shall be made to Employee on or before December 31 of each
calendar year for which an excess parachute payment is received by
Employee.
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(b) Any
determination to be made by the Company’s tax counsel or independent auditors
shall be made, at the Company’s expense, by the legal or accounting firm that is
the Company’s independent legal or accounting firm as of the date of the Change
of Control or, if such firm is prohibited from performing such services by
applicable law, then such accounting firm as the Board or the Audit Committee
thereof, shall approve (the “Firm”). The Firm shall provide its determination
(the “Determination”), together with detailed supporting calculations and
documentation, to the Company and Employee within twenty (20) days of the
Termination Date if applicable, or such other time as requested by the Company
or by Employee (provided Employee reasonably believes that any of the Change
of
Control Payments may be subject to the Excise Tax), and if the Firm determines
that there is substantial authority (within the meaning of Section 6662 of
the
Code) that no Excise Tax is payable by Employee with respect to a Change of
Control Payment or Payments, it shall furnish Employee with an opinion
reasonably acceptable to Employee that no Excise Tax will be imposed with
respect to any such Change of Control Payment or Payments. Within ten (10)
days
of the delivery of the Determination to Employee, Employee shall have the right
to dispute the Determination (the “Dispute”). If there is no Dispute, the
Determination shall be binding, final and conclusive upon the Company and
Employee.
(c) As
a
result of the uncertainty in the application of Sections 4999 and 280G of the
Code, it is possible that the Change of Control Payments to be made to, or
provided for the benefit of, Employee either will be greater (an “Excess
Payment”) or less (an “Underpayment”) than the amounts provided for by the
limitations contained in Section 5(a) hereof. If it is established pursuant
to a
final determination of a court or an Internal Revenue Service (the “IRS”)
proceeding which has been finally and conclusively resolved that an Excess
Payment has been made, such Excess Payment shall be deemed for all purposes
to
be a loan, to the extent permitted by applicable law, to Employee made on the
date Employee received the Excess Payment and Employee shall repay the Excess
Payment to the Company on demand (but not less than ten (10) days after written
notice is received by Employee) together with interest on the Excess Payment
at
the “Applicable Federal Rate” (as defined in Section 1274(d) of the Code) from
the date of Employee’s receipt of such Excess Payment until the date of such
repayment. In the event that it is determined by (i) the Accounting Firm, the
Company (which shall include the position taken by the Company, or together
with
its consolidated group, on its federal income tax return) or the IRS, (ii)
pursuant to a determination by a court, or (iii) upon the resolution to
Employee’s satisfaction of the Dispute that an Underpayment has occurred, the
Company shall pay an amount equal to the Underpayment to Employee within ten
(10) days of such determination or resolution, together with interest on such
amount at the Applicable Federal Rate from the date such amount would have
been
paid to Employee until the date of payment.
6. Successors;
Binding Agreement.
(a) This
Agreement shall be binding upon and shall inure to the benefit of the Company
and its Successors and Assigns. The Company shall require (i) any Successors
and
Assigns to expressly assume and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to perform
it
if no such succession or assignment had taken place, and (ii) the parent entity,
if any, of any such Successors and Assigns to guarantee the performance of
any
such Successors and Assigns hereunder.
(b) Neither
this Agreement nor any right or interest hereunder shall be assignable or
transferable by Employee or Employee’s beneficiaries or legal representatives,
except by will or by the laws of descent and distribution. This Agreement shall
inure to the benefit of and be enforceable by Employee’s legal personal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees.
7. Notice.
All
notices, requests, demands, and other communications hereunder shall be in
writing, and shall be delivered in person, by facsimile, or by certified or
registered mail with return receipt requested. Each such notice, request,
demand, or other communication shall be effective: (a) if delivered by hand,
when delivered at the address specified in this Section 7; (b) if given by
facsimile, when such facsimile is transmitted to the telefacsimile number
specified in this Section 7 and confirmation is received; or (c) if given by
certified or registered mail, three (3) days after the mailing thereof. Notices
to the Employee shall be delivered to the last mailing address that the Employee
has provided to the Company for purposes of tax statements and notices. Notices
to the Company shall be delivered as follows:
6
|
Smart
Brands, Inc.
000
Xxxxxxxxxxxxx Xxxx
Xxxxxxxxx,
XX 00000
|
Any
party
may change its address or other contact information for the purposes hereof
by
providing notice thereof to the other party in accordance with the foregoing
provisions.
8. Non-Exclusivity
of Rights.
Nothing
in this Agreement shall prevent or limit Employee’s continuing or future
participation in any benefit, bonus, incentive or other plan or program provided
by the Company (except for any severance or termination policies, plans,
programs or practices) and for which Employee may qualify, nor shall anything
herein limit or reduce such rights as Employee may have under any other
agreements with the Company (except for any severance or termination agreement).
Amounts which are vested benefits or which Employee is otherwise entitled to
receive under any plan or program of the Company shall be payable in accordance
with such plan or program, except as explicitly modified by this
Agreement.
9. No
Implied Employment Rights.
Employee hereby acknowledges and agrees that nothing in this Agreement shall
be
construed to imply that his or her employment is guaranteed for any period
of
time. Employee understands and agrees that his or her employment is, unless
otherwise specified in a written agreement signed by Employee and a duly
authorized executive officer of the Company, “at will,” which means that either
the Company or Employee can terminate the employment relationship at any time,
with or without advance notice, for any reason or no reason, and with or without
cause. Employee acknowledges and agrees that the only way that his or her “at
will” employment relationship, if applicable, can be altered is by a written
agreement signed by Employee and a duly authorized executive officer of the
Company.
10. Settlement
Of Claims.
Employee hereby agrees that, to the extent permitted by law, the Company’s
obligation to make payments provided for in this Agreement and otherwise to
perform its obligations hereunder shall be reduced by any amounts owed by
Employee to the Company including, without limitation, any set-off,
counterclaim, recoupment, defense or other right which the Company may have
against Employee.
11. Miscellaneous.
No
provision of this Agreement may be modified, waived or discharged, unless such
waiver, modification or discharge is agreed to in writing and signed by Employee
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 shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at any prior
or
subsequent time. No agreement or representation, oral or otherwise, express
or
implied, with respect to the subject matter hereof has been made by either
party
which is not expressly set forth in this Agreement.
12. Governing
Law.
This
Agreement has been negotiated and executed in the State of New Jersey and is
to
be performed in New Jersey. This Agreement shall be governed by and interpreted
in accordance with the laws of the State of New Jersey, including all matters
of
construction, validity, performance, and enforcement, without giving effect
to
principles of conflict of laws. Any dispute, action, litigation, or other
proceeding concerning this Agreement shall be instituted, maintained, heard,
and
decided in New Jersey.
13. Severability.
If any
provision of this Agreement, or the application thereof in any circumstance,
is
or becomes illegal, invalid or unenforceable, such provision shall be deemed
severable and the invalidity or unenforceability of any such provision shall
not
affect the validity or enforceability of the other provisions
hereof.
14. Entire
Agreement.
This
Agreement constitutes the entire agreement between the parties hereto and
supersedes all prior agreements, understandings and arrangements, if any,
whether oral or written, between the parties hereto with respect to the subject
matter hereof, including, but not limited to, any prior severance, change of
control or similar agreements, understandings or arrangements previously entered
into between the Company and Employee.
15. Severance
and Release Agreement.
Employee’s right to the severance payments under this Agreement shall be
conditioned upon Employee’s execution and delivery of a release agreement in a
form reasonably satisfactory to the Company, which is not revoked by the
Employee.
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16. Remedies.
All
rights, remedies, undertakings, obligations, options, covenants, conditions,
and
agreements contained in this Agreement shall be cumulative and no one of them
shall be exclusive of any other.
17. Interpretation.
The
language in all parts of this Agreement shall be in all cases construed simply
according to its fair meaning and not strictly for or against any party.
Whenever the context requires, all words used in the singular will be construed
to have been used in the plural, and vice versa. The descriptive headings of
the
sections and subsections of this Agreement are inserted for convenience only
and
shall not control or affect the interpretation or construction of any of the
provisions herein.
18. Counterparts.
This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed to be an original, but all of which together shall constitute one and
the
same instrument.
19. Further
Documents and Acts.
Each of
the parties hereto agrees to cooperate in good faith with the other and to
execute and deliver such further instruments and perform such other acts as
may
be reasonably necessary or appropriate to consummate and carry into effect
the
transactions contemplated under this Agreement.
20. Consultation
with Counsel.
Employee acknowledges (a) that he or she has been given the opportunity to
consult with counsel of his or her own choice concerning this Agreement, and
(b)
that he or she has read and understands this Agreement, is fully aware of its
legal effect, and has entered into it freely based upon his or her own judgment
with or without the advice of such counsel.
THE
EMPLOYEE ACKNOWLEDGES THAT HE OR SHE HAS READ THIS AGREEMENT AND UNDERSTANDS
ITS
CONTENTS. THE EMPLOYEE FURTHER ACKNOWLEDGES THAT HE OR SHE HAS BEEN ADVISED
BY
THE COMPANY OF HIS OR HER RIGHT TO CONSULT WITH LEGAL COUNSEL OF HIS OR HER
OWN
CHOICE CONCERNING THIS AGREEMENT. BY SIGNING THIS AGREEMENT, THE EMPLOYEE AND
THE COMPANY AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS
AGREEMENT.
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IN
WITNESS WHEREOF, the Company has caused this Agreement to be executed by its
duly authorized officer and the Employee has executed this Agreement as of
the
day and year first above written.
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