EMPLOYMENT AGREEMENT
Exhibit
10.3
THIS EMPLOYMENT AGREEMENT (the “Agreement”) is
made as of March 23, 2009, between TechPrecision Corporation, a
Delaware corporation (the “Company”), and Xxxxxxx X. Xxxxxxxxxx (the
“Employee”).
RECITALS
WHEREAS,
Company desires to employ the Employee in the capacity and on the terms and
conditions set forth herein, and the Employee desires to be employed by the
Company on the terms and conditions set forth herein;
NOW,
THEREFORE, in consideration of the foregoing premises and the mutual promises,
terms, provisions and conditions set forth in this Agreement, the parties hereto
hereby agree as follows:
1. Employment. The
Company agrees to employ the Employee during the Term specified in Paragraph 2
hereof and the Employee agrees to accept such employment, upon the terms and
conditions hereinafter set forth.
2. Term. Company hereby
employs Employee and Employee hereby accepts employment with the Company, until
termination of this Agreement in accordance with the provisions of Paragraph 6
hereof (the “Term”).
3. Duties and
Responsibilities.
a. Employee
shall serve as Chief Financial Officer (“CFO”) of the Company.
b. Subject
to the authority of the Chairman of the Company (“Chairman”) and the Board of
TechPrecision Corporation (“Board”) to modify the duties and responsibilities of
Employee, Employee's powers, duties and responsibilities shall initially consist
of such powers as listed in Exhibit A attached
hereto. The Employee shall report to the Chief Executive Officer and
the Board of the Company and others at the direction of the Board at such time
and in such detail as the Board shall reasonably
require. Notwithstanding anything contained herein to the contrary,
the Employee shall not be required to perform any act which would constitute or
require the violation of any federal, state or local law, rule, regulation,
ordinance or the like. Any substantial change in Employee's duties or
title, without Employee's consent, shall be construed as termination without
cause pursuant to Paragraph 6(b) below.
c. The
Employee shall devote not less than an average of forty (40) hours per week to
carrying out his duties hereunder and to the business of the Company, and during
the Term the Employee agrees that he will (i) devote his best efforts and all
his skill and ability to the performance of his duties hereunder; (ii) carry out
his duties in a competent and professional manner; and (iii) generally promote
the interests of the Company. During the Term it shall not be a
violation of this Agreement for the Employee to serve on civic or charitable
boards or committees, to perform speaking engagements, or to manage his personal
passive investments, so long as such activities (individually or collectively)
do not interfere with the performance of the Employee's responsibilities as an
employee of the Company.
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4. Compensation; Bonus; Stock
Options.
a. As
compensation for services hereunder and in consideration of his agreement not to
compete as set forth in Paragraph 8 hereof, the Company shall pay the Employee
an initial base salary at the annual rate of One Hundred Ninety Five Thousand
Dollars ($195,000.00). Such base salary shall be paid in equal
installments in accordance with the normal payroll policies of the
Company.
b. Upon
execution of this agreement, Employee shall be paid a signing bonus of
Twenty-Five Thousand Dollars ($25,000.00).
c. Employee's
base salary as set forth in Paragraph 4(a) above may be increased by order of
the Compensation Committee of the Corporate Board.
d. Employee
shall be eligible for an annual cash performance bonus based upon the Company's
financial performance as set forth in a resolution of the Board within the first
three months of each year hereunder and based upon the Company's business
plan.
e. Employee
is awarded 150,000 shares of TechPrecision stock options. The options will vest
in equal amounts of 50,000 over three years on the anniversary of the date of
this agreement. The option price will be at market price as of the date of
grant. Any additional future options will be as the Board shall in its sole
discretion institute.
5. Expenses; Fringe
Benefits.
a. The
Company agrees to pay or to reimburse the Employee during the Term for all
reasonable, ordinary and necessary business expenses incurred in the performance
of his services hereunder in accordance with the policies of the Company as are
from time to time in effect. The Employee, as a condition to
obtaining such payment or reimbursement, shall provide to the Company any and
all statements, bills or receipts evidencing the travel or out-of-pocket
expenses for which the Employee seeks payment or reimbursement, and any other
information or materials required by such Company policy or as the Company may
otherwise from time to time reasonably require.
b. During
the Term the Employee and, to the extent eligible, his dependents, shall be
entitled to participate in and receive all benefits under any welfare benefit
plans and programs provided by the Company (including without limitation,
medical, dental, disability, group life (including accidental death and
dismemberment) and business travel insurance plans and programs) applicable
generally to the employees of the Company, subject, however, to the generally
applicable eligibility and other provisions of the various plans and programs in
effect from time to time.
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c. During
the Term the Employee shall be entitled to participate in all retirement plans
and programs (including without limitation any profit sharing/401(k) plan)
applicable generally to the employees of the Company, subject, however, to
generally applicable eligibility and other provisions of the various plans and
programs in effect from time to time. In addition, during the Term
the Employee shall be entitled to receive fringe benefits and perquisites in
accordance with the plans, practices, programs and policies of the Company from
time to time in effect, available generally to the executive officers of the
Company and consistent with the generally applicable guidelines determined by
the Board.
d. The
Employee shall be entitled to four (4) weeks vacation per year and such
holidays, sick days and personal days as are in accordance with the Company's
policy then in effect for its employees generally, upon such terms as may be
provided of general application to all employees of the Company.
6. Termination.
a. For
Cause. The Company, shall have the right to terminate the
Employee's employment with the Company at any time for “Cause”; provided, that
any termination by the Company for Cause shall be communicated by the Company to
the Employee in writing indicating the basis for termination for Cause, and the
Employee shall have the opportunity for a period of seven (7) days following
such writing to contest his termination before the Board. (The
effective date of the Employee's termination of employment with the Company,
regardless of the reason, is referred to as the “Date of Termination”). For
purposes of this Agreement, the term “Cause” shall be limited to the following
grounds:
i. The
Employee's failure or refusal to perform his material duties and
responsibilities (other than any such failure resulting from Employee's
disability or death, which are governed by Paragraph 7) or his repeated failure
or refusal to follow lawful and reasonable directives of the
Company;
ii. The
willful misappropriation by Employee of the funds or property of the
Company;
iii. The
commission by the Employee of any willful or intentional act, which he should
reasonably have anticipated would reasonably be expected to have the effect of
materially injuring the reputation, business or business relationships of the
Company.
iv. Use of
alcohol to excess or illegal drugs, continuing after written
warning;
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v. Any
breach by the Employee (not covered by any of clauses (i) through (iv) and other
than in connection with the death or disability of Employee as set forth in
Paragraph 7) of any material provision of this Agreement.
Upon the
termination of the Employee's employment with the Company for Cause, the Company
shall pay the Employee, subject to appropriate offsets (as permitted by
applicable law) for debts or money due to the Company, including without
limitation personal loans to the Employee and travel advances (“Offset”), his
salary compensation only through, and any unpaid reimbursable expenses
outstanding as of, the Date of Termination. Any benefits to which Employee or
his beneficiaries may be entitled under the plans and programs, described in
Paragraphs 5(b) and (c) hereof as of his Date of Termination shall be determined
in accordance with the terms of such plans and programs. Except as
provided in this subparagraph, in connection with the Employee's termination by
the Company for Cause, the Company shall have no further liability to the
Employee or the Employee's heirs, beneficiaries or estate for damages,
compensation, benefits, indemnities or other amount of whatever
nature.
b. Without
Cause. The Company may terminate the Employee's employment
without Cause at any time. In the event of a termination of the
Employee’s employment during the Term by the Company without Cause, the Company
shall nonetheless pay to the Employee or his estate, in equal installments in
accordance with the normal payroll policies of the Company, an amount equal to
one year of the Employee's base salary in effect at such time (the “Severance
Amount”), provided all such
rights to any Severance Amount and any amounts paid shall be forfeited and
recoverable by the Company in the event the Company determines in good faith
that the Employee has violated any provision in Paragraphs 8 and 9 hereof or any
other provisions of this Agreement. Additionally, the Company shall
provide to the Employee, and his dependents, continued coverage for one year
thereafter under all health, life, disability and similar employee benefit plans
and programs of the Company on the same basis as the Employee and his dependents
were entitled to participate immediately prior to such termination, provided
that the Employee and his dependents’ continued participation is possible under
the general terms and provisions of such plans and
programs. Employee’s receipt of the payments described in this
Paragraph 6(b) is conditioned upon his execution of a release of all claims in
favor of Company in substantially the form attached to this Agreement as Exhibit
B. Employee will not be entitled to any other
compensation.
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7. Disability;
Death.
a. In the
event the Employee shall be unable to perform the essential functions of his
duties hereunder by virtue of illness or physical or mental incapacity or
disability (from any cause or causes whatsoever) in substantially the manner and
to the extent performed prior to the commencement of such disability (all such
causes being referred to as “Disability”) and the Employee shall fail to perform
such duties for periods aggregating ninety (90) days (inclusive of non-business
days), whether or not continuous, in any continuous period of one hundred and
eighty (180) days, the Company shall have the right to terminate the Employee's
employment hereunder at the end of any calendar month during the continuance of
such Disability upon at least ten (10) days prior written notice to
him. In the event of termination under this Paragraph 7(a), the
Employee shall be entitled to receive when otherwise payable, subject to any
Offsets, all salary compensation earned but unpaid as of the Date of Termination
and any unpaid reimbursable expenses outstanding as of such date; and any
benefits to which the Employee or his beneficiaries may be entitled under the
plans and programs described in Paragraphs 5(b) and (c) hereof as of such Date
of Termination shall be determined in accordance with the terms of such plans
and programs. Nothing contained herein is intended to nullify or diminish the
Employee's rights under, and this Paragraph 7(a) is subject to, the Americans
with Disabilities Act of 1990 and the Family and Medical Leave Act of 1993, as
such Acts may be amended from time to time.
b. The
employment of the Employee with the Company shall terminate on the date of the
Employee's death and in such event the Employee's estate shall be entitled to
receive when otherwise payable, subject to any Offsets, all salary compensation
earned but unpaid as of the date of his death and any unpaid reimbursable
expenses outstanding as of such date. In the event of the Employee's death, any
benefits to which the Employee or his beneficiaries may be entitled under the
plans and programs described in Paragraphs 5(b) and (c) hereof shall be
determined in accordance with the terms of such plans and programs.
c. Except as
provided in Paragraphs 7(a) and (b) hereof, in the event of the Employee's
termination due to Disability or death, the Company shall have no further
liability to the Employee or the Employee's heirs, beneficiaries or estate for
damages, compensation, benefits, indemnities or other amounts of whatever
nature.
8. Non-Competition and
Protection of Confidential Information.
a. The
Employee agrees that his services to the Company are of a special, unique,
extraordinary and intellectual character and his position with the Company
places him in a position of confidence and trust with the employees and
customers of the Company and its affiliates. Consequently, the
Employee agrees that it is reasonable and necessary for the protection of the
goodwill, intellectual property, trade secrets, designs, proprietary information
and business of the Company that the Employee make the covenants contained
herein. Accordingly, the Employee agrees that, during the period of the
Employee's employment hereunder and for the period of one (1) year immediately
following the termination of his employment hereunder, he shall not, directly or
indirectly:
i. own,
operate, manage or be employed by or affiliated with any person or entity
headquartered within or with a management office in the United States that
engages in any business then being engaged or planned to be engaged in by the
Company or its subsidiaries or affiliates; or
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ii. attempt
in any manner to solicit from any customer or supplier business of the type
performed for or by the Company or persuade any customer or supplier of the
Company to cease to do business or to reduce the amount of business which any
such customer or supplier has customarily done or contemplates doing with the
Company, whether or not the relationship between the Company and such customer
or supplier was originally established in whole or in part through his efforts;
or
iii. employ as
an employee or retain as a consultant, or persuade or attempt to persuade any
person who is at the Date of Termination or at any time during the preceding
year was, or in the six (6) months following such termination becomes, an
employee of or exclusive consultant to the Company to leave the Company or to
become employed as an employee or retained as a consultant by anyone other than
the Company.
iv. As used
in this Paragraph 8, the term: “customer” and “supplier” shall mean any person
or entity that is a customer or supplier of the Company at the Date of
Termination, or at any time during the preceding year was, or in the six (6)
months following such termination becomes, a customer or supplier of the
Company, or if the Employee's employment shall not have terminated, at the time
of the alleged prohibited conduct.
b. The
Employee agrees that he will not at any time (whether during the Term or after
termination of this Agreement for any reason), disclose to anyone, any
confidential information or trade secret of the Company or utilize
such confidential information or trade secret for his own benefit, or for the
benefit of third parties, and all memoranda or other documents compiled by him
or made available to him during the Term pertaining to the business of the
Company shall be
the property of the Company and shall be delivered to the Company on the Date of
Termination or at any other time, as reasonable, upon request. The term
“confidential information or trade secret” does not include any information
which (i) becomes generally available to the public other than by breach of this
provision, or (ii) is required to be disclosed by law or legal
process.
c. If the
Employee commits a breach or threatens to commit a breach of any of the
provisions of Paragraphs 8(a) or (b) hereof, the Company shall have the right to
have the provisions of this Agreement specifically enforced by any court having
jurisdiction without being required to post bond or other security and without
having to prove the inadequacy of any other available remedies, it being
acknowledged and agreed that any such breach will cause irreparable injury to
the Company and that money damages will not provide an adequate remedy to the
Company. In addition, the Company may take all such other actions and seek such
other remedies available to it in law or in equity and shall be entitled to such
damages as it can show it has sustained by reason of such breach.
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d. The
parties acknowledge that the type and periods of restriction imposed in the
provisions of Paragraphs 8(a) and (b) hereof are fair and reasonable and are
reasonably required for the protection of the Company and the goodwill
associated with the business of the Company; and that the time, scope,
geographic area and other provisions of this Paragraph 8 have been specifically
negotiated by sophisticated parties and accordingly it is reasonable that the
restrictive covenants set forth herein are not limited by narrow geographic
area. If any of the covenants in Paragraphs 8(a) or (b) hereof, or any part
thereof, is hereafter construed to be invalid or unenforceable, it is the
intention of the parties that the same shall not affect the remainder of the
covenant or covenants, which shall be given full effect, without regard to the
invalid portions. If any of the covenants contained in Paragraphs 8(a) or (b),
or any part thereof, is held to be unenforceable because of the duration of such
provision or the area covered thereby, the parties agree that the court making
such determination should reduce the duration and/or areas of such provision
such that, in its reduced form, said provision shall then be enforceable. The
parties intend to and hereby confer jurisdiction to enforce the covenants
contained in Paragraphs 8(a) and (b) upon the courts of any jurisdiction within
the geographical scope of such covenants. In the event that the courts of any
one or more of such jurisdictions shall hold such covenants wholly unenforceable
by reason of the breadth of such time, scope or geographic area, it is the
intention of the parties hereto that such determination not bar or in any way
affect the Company's right to the relief provided above in the courts of any
other jurisdiction within the geographical scope of such covenants, as to
breaches of such covenants in such other respective jurisdictions, the above
covenants as they relate to each jurisdiction being, for this purpose, severable
into diverse and independent covenants.
9. Intellectual
Property. During the Term, the Employee will disclose to the Company all
ideas, inventions, advertising campaigns, designs, logos, slogans, processes,
operations, products or improvements which may be patentable or copyrightable or
subject to any trade or service xxxx or name, and business plans developed by
him during such period, either individually or in collaboration with others,
which relate to the business of the Company (“Intellectual Property”). The
Employee agrees that such Intellectual Property will be the sole property of the
Company and that he will at the Company's request and cost do whatever is
reasonably necessary to secure the rights thereto by patent, copyright,
trademark or otherwise to the Company.
10. Enforceability. The
failure of either party at any time to require performance by the other party of
any provision hereunder shall in no way affect the right of that party
thereafter to enforce the same, nor shall it affect any other party's right to
enforce the same, or to enforce any of the other provisions in this Agreement;
nor shall the waiver by either party of the breach of any provision hereof be
taken or held to be a waiver of any subsequent breach of such provision or as a
waiver of the provision itself.
11. Assignment. This
Agreement is binding on and is for the benefit of the parties hereto and their
respective successors, heirs, executors, administrators and other legal
representatives. Neither this Agreement nor any right or obligation hereunder
may be sold, transferred, assigned, pledged or hypothecated by either party
hereto without the prior written consent of the other party; provided, the Company
may assign its rights and obligations under the Agreement without written
consent in connection with the sale or other transfer of all or substantially
all of the Company's business (whether by way of sale of stock, assets, merger
or otherwise).
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12. Severability. In the
event any provision of this Agreement is found to be void and unenforceable by a
court of competent jurisdiction, the remaining provisions of this Agreement
shall nevertheless be binding upon the parties with the same effect as though
the void or unenforceable part had been severed and deleted.
13. Life Insurance. The
Employee agrees that the Company shall have the right to obtain life insurance
on the Employee's life, at the Company's sole expense and with the Company as
the sole beneficiary thereof to that end, the Employee shall (a) cooperate fully
with the Company in obtaining such life insurance, (b) sign any necessary
consents, applications and other related forms or documents and (c) take any
reasonably required medical examinations.
14. Notice. Any notice,
request, instrument or other document to be given under this Agreement by either
party hereto to the other shall be in writing and shall be deemed effective (a)
upon personal delivery, if delivered by hand, (b) three (3) days after the date
of deposit in the mails, postage prepaid, if mailed by certified or registered
mail, or (c) on the next business day, if sent by a prepaid overnight courier
service, and in each case addressed as follows:
|
If
to the Employee:
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Xx.
Xxxxxxx X. Xxxxxxxxxx
000
Xxxx Xxxx
Xxxxxx,
XX 00000
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|
If
to the Company:
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TechPrecision
Corporation.
0
Xxxxx Xxxxx
Xxxxxxxxxxx,
XX 00000
Attention:
Chief Executive Officer
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Any party
may change the address to which notices are to be sent by giving notice of such
change of address to the other party in the manner herein provided for giving
notice.
15. No Conflict. The
Employee represents and warrants that he is not subject to any agreement,
instrument, order, judgment or decree of any kind, or any other restrictive
agreement of any character, which would prevent him from entering into this
Agreement or which would be breached by the Employee upon the performance of his
duties pursuant to this Agreement.
16. Miscellaneous.
a. The
headings contained in this Agreement are for reference purposes only, and shall
not affect the meaning or interpretation of this Agreement.
b. The
Company may withhold from any amount payable under this Agreement such federal,
state or local taxes as shall be required to be withheld pursuant to applicable
law or regulation.
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c. This
Agreement shall be governed by and construed in accordance with the internal
laws of the State of Delaware without giving effect to any choice or conflict of
law provision or rule that would cause the application of the laws of any other
jurisdiction. Any action arising out of the breach or threatened breach of this
Agreement shall be commenced in a state court of the State of Delaware and the
parties hereto hereby submit to the jurisdiction of such courts for the purpose
of enforcing this Agreement.
d. This
Agreement, represents the entire agreement between the Company and the Employee
with respect to the subject matter hereof, and all prior agreements relating to
the employment of the Employee, written or oral, are nullified and superseded
hereby.
e. This
Agreement may not be orally canceled, changed, modified or amended, and no
cancellation, change, modification or amendment shall be effective or binding,
unless in writing and signed by both parties to this Agreement, and any
provision hereof may be waived only by an instrument in writing signed by the
party or parties against whom or which enforcement of such waiver is
sought.
f. As used
in this Agreement, any gender includes a reference to all other genders and the
singular includes a reference to the plural and vice versa.
* * * *
*
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IN WITNESS WHEREOF, the
parties have executed this Agreement as of the date first written
above.
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COMPANY:
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EMPLOYEE:
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TECHPRECISION
CORPORATION.
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/s/Xxxxxxx
X. Xxxxxxxxxx
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Xxxxxxx
X. Xxxxxxxxxx
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||||
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By:
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/s/Xxxxx
X. Xxxxxx
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Xxxxx
X. Xxxxxx
Chief
Executive Officer
TechPrecision
Corporation
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By:
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/s/
Xxxxx X. Xxxxxxx
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Xxxxx
X. Xxxxxxx
Compensation
Committee Chair
TechPrecision
Corporation
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||||
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Exhibit
A
Position
Description – Initial Duties and Responsibilities
Chief
Financial Officer
Overview:
Directs
and coordinates company’s financial affairs according to the company’s operating
principals and all governmental regulations.
Functions:
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·
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Reports
to the Chief Executive Officer and Board of
Directors.
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·
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Establishes
major economic objectives and policies for the
company.
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·
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Identifies
and manages risks to the company.
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·
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Reports
and recommends to top management and the Board of Directors in regard to
policies and programs.
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·
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Plans
and directs new operational procedures to obtain optimum efficiency and
reduce costs.
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·
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Establishes
the company’s line of credit and maintains good banking
relationships.
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·
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Directs
receipt, disbursement and expenditures of money or capital assets of the
company.
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·
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Approves
and executes documents effecting monetary
transactions.
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·
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Directs
the activities concerned with the safekeeping, control and accounting for
assets and securities of the
company.
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·
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Directs
the preparation of budgets, financial forecasts and strategic planning of
the company.
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·
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Oversees
the valuation, analysis and due-diligence associated with accretive
acquisitions by the company.
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·
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Analyzes
divisional or departmental budgeting requests to identify areas in which
reductions can be made, and allocates operating
budgets.
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·
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Directs
the preparation of reports that outline the company’s financial position
in areas of income, expenses and earnings based on past present and future
operations of the company, e.g. SEC reporting
requirements.
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·
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Directs
the preparation of directions to divisional or departmental administrators
outlining policy, program or operating changes to be implemented
company-wide.
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·
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Promotes
the company in financial markets to assure sources of requisite
capital.
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Exhibit
B
FORM
OF GENERAL RELEASE OF ALL CLAIMS
This
General Release of All Claims is made as of _________ __, 20__
(“General Release”), by and between Xxxxxxx X. Xxxxxxxxxx (the “Employee”) and
TechPrecision Corporation., a Delaware corporation (the “Company”).
WHEREAS,
the Company and the Employee are parties to that certain Employment Agreement
dated as of March 23, 2009 (the “Employment Agreement”);
WHEREAS,
the Company wishes to terminate the Employee’s employment with the Company
without Cause;
WHEREAS,
the execution of this General Release is a condition precedent to the payment of
severance as set forth in Paragraph 6(b) of the Employment
Agreement;
WHEREAS,
in consideration for the Employee’s signing of this General Release, the Company
will provide the Employee with severance benefits pursuant to Paragraph 6(b) of
the Employment Agreement; and
WHEREAS,
the Employee and the Company intend that this General Release shall be in full
satisfaction of the obligations described in this General Release owed to the
Employee by the Company, including those under the Employment
Agreement.
NOW,
THEREFORE, in consideration of the premises and the mutual covenants and
agreements herein contained and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, intending to be legally
bound hereby, the Company and the Employee agree as follows:
1. The
Employee, for himself, the Employee’s spouse, heirs, administrators, children,
representatives, executors, successors, assigns, and all other persons claiming
through the Employee, if any (collectively, “Releasors”), does hereby release,
waive, and forever discharge the Company and each of its respective agents,
subsidiaries, parents, affiliates, related organizations, employees, officers,
directors, attorneys, successors, and assigns (collectively, the “Releasees”)
from, and does fully waive any obligations of Releasees to Releasors for, any
and all liability, actions, charges, causes of action, demands, damages, or
claims for relief, remuneration, sums of money, accounts or expenses (including
attorneys’ fees and costs) of any kind whatsoever, whether known or unknown or
contingent or absolute, which heretofore have been or which hereafter may be
suffered or sustained, directly or indirectly, by Releasors in consequence of,
arising out of, or in any way relating to: (a) the Employee’s
employment with the Company and any of its subsidiaries; (b) the termination of
the Employee’s employment with the Company and any of its subsidiaries; (c) the
Employment Agreement; or (d) any events, acts, agreements or conduct occurring
on or prior to the date of this General Release. The foregoing
release and discharge, waiver and covenant not to xxx includes, but is not
limited to, all claims and any obligations or causes of action arising from such
claims, under common law including wrongful or retaliatory discharge, breach of
contract (including but not limited to any claims under the Employment Agreement
and any claims
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under any
restricted stock or stock option or similar agreements between the Employee, on
the one hand, and the Company or any of its subsidiaries, on the other hand) and
any action arising in tort including libel, slander, defamation or intentional
infliction of emotional distress, and claims under any federal, state or local
statute including the Age Discrimination in Employment Act (“ADEA”), Title VII
of the Civil Rights Act of 1964, the Civil Rights Act of 1866 and 1871 (42
U.S.C. § 1981), the National Labor Relations Act, the Fair Labor Standards Act,
the Employee Retirement Income Security Act, the Americans with Disabilities Act
of 1990, the Rehabilitation Act of 1973, or the discrimination or employment
laws of any state or municipality, and/or any claims under any express or
implied contract which Releasors may claim existed with
Releasees. This also includes a release of any claims for wrongful
discharge and all claims for alleged physical or personal injury, emotional
distress relating to or arising out of the Employee’s employment with the
Company or any of its subsidiaries or the termination of that employment; and
any claims under the WARN Act or any similar law, which requires, among other
things, that advance notice be given of certain work force
reductions. This release and waiver does not apply to: (i)
any right to indemnification now existing under the charter or bylaws; (ii) any
rights to the receipt of employee benefits which vested on or prior to the date
of this General Release; (iii) the right to receive Severance Amount under
Paragraph 6(b) of the Employment Agreement and the right to reimbursement of
expenses under Paragraph 5(a) of the Employment Agreement; and (iv) right to
employee-paid continuation coverage pursuant to the Consolidated Omnibus Budget
Reconciliation Act, if available.
2. Excluded
from this General Release and waiver are any claims which cannot be waived by
law, including but not limited to the right to participate in an investigation
conducted by certain government agencies. The Employee does, however,
waive the Employee’s right to any monetary recovery should any agency (such as
the Equal Employment Opportunity Commission) pursue any claims on the Employee’s
behalf. The Employee represents and warrants that the Employee has
not filed any complaint, charge, or lawsuit against the Releasees with any
government agency or any court. The Employee also represents and
warrants that he has been paid for all time worked and has received all the
leave of absence and leave benefits and protections for which the Employee was
eligible.
3. The
Employee agrees never to seek personal recovery from Releasees in any forum for
any claim covered by the above waiver and release language. If the
Employee violates this General Release by suing Releasees, other than under the
ADEA or as otherwise set forth in Paragraph 1 hereof, the Employee shall be
liable to the Company for its reasonable attorneys’ fees and other litigation
costs incurred in defending against such a suit to the extent permitted by
law.
4. The
Employee acknowledges and recites that:
a. the
Employee has executed this General Release knowingly and voluntarily and is
knowingly and voluntarily waiving any rights he has under the ADEA;
b. the
Employee has read and understands this General Release in its
entirety;
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c. the
Employee has been advised and directed in writing (and this subparagraph (c)
constitutes such written direction) to seek legal counsel and any other advice
the Employee wishes with respect to the terms of this General Release before
executing it;
d. the
Employee’s execution of this General Release has not been forced by any employee
or agent of the Company, and the Employee has had an opportunity to negotiate
about the terms of this General Release;
e. the
Employee’s waiver does not apply to any rights or claims that arise after the
date the Employee signs this General Release;
f. the
Employee has been offered twenty one (21) calendar days after receipt of this
General Release to consider its terms before executing it;1 and
g. the
payment of severance pursuant to Paragraph 6(b) of the Employment Agreement is
consideration for the Employee’s covenants and agreements set forth in this
General Release and is in addition to anything of value to which the Employee is
otherwise entitled.
5. This
General Release shall be governed by and construed in accordance with the
internal laws of the State of Delaware without giving effect to any choice or
conflict of law provision or rule that would cause the application of the laws
of any other jurisdiction, except for the application of pre-emptive Federal
law.
6. The
Employee shall have seven (7) days from the date he executes this General
Release to revoke his waiver of any ADEA claims by providing written notice of
the revocation to the Company, as provided in Paragraph 14 of the Employment
Agreement. In the event of such revocation, the terms of Paragraph
6(b) of the Employment Agreement shall govern.
7. Defined
terms not defined in this General Release have the meanings given in the
Employment Agreement.
PLEASE
READ THIS AGREEMENT CAREFULLY. IT CONTAINS A RELEASE OF ALL KNOWN AND
UNKNOWN CLAIMS.
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Date:
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Xxxxxxx
X. Xxxxxxxxxx
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1 In
the event the Company determines that the Employee’s termination constitutes “an
exit incentive or other employment termination program offered to a group or
class of employees” under the ADEA, the Company will provide the Employee
with: (1) 45 days to consider the General Release; and (2) the
disclosure schedules required for an effective release under the
ADEA.
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