EMPLOYMENT AGREEMENT
Exhibit
10.8
THIS EMPLOYMENT AGREEMENT (the “Agreement”), dated as of May 23, 2007, between LIBBEY INC., a
Delaware corporation (the “Company”), and Xxxxxxx X. Xxxxxxx (the “Executive”).
WHEREAS, the Company desires to employ the Executive, and the Executive desires to be employed
by the Company, to serve as an officer of the Company upon the terms and conditions set forth
herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties agree as follows:
1. Term of Agreement. The term of this Agreement shall commence on the date of this
Agreement (the “Effective Date”) and shall continue through December 31, 2007, provided however,
that commencing on January 1, 2008 and each January 1 thereafter, the term of this Agreement shall
automatically be extended for one additional year unless not later than September 30 of the year
preceding such extension of the term, the Company shall have given written notice to the Executive
that it does not wish to extend this Agreement beyond the expiration of the then current term.
Employment hereunder by the Company or its affiliates shall continue indefinitely during the term
of this Agreement until terminated as provided in Section 4. Not withstanding the foregoing, the
term of this Agreement shall automatically end on the last day of the month in which the Executive
reaches age 65.
2. Position and Duties.
(a) Position. The Executive hereby agrees to serve as an officer of the Company and
shall perform all duties assigned by the Company commensurate with such position and shall devote
the Executive’s best efforts to the performance of services to the Company in accordance with the
terms hereof and as may reasonably be requested by the Company. For purposes of this Agreement
“Officer” of the Company shall mean an executive elected by the Board of Directors of the Company
(the “Board”) as an officer and who enters into a written employment agreement authorized by the
Board.
(b) Other Activities. While employed pursuant to this Agreement, the Executive shall
not, other than in the performance of duties inherent in, and in furtherance of, the business of
the Company, engage in any other business or commercial activity as an employee, consultant, or any
other capacity, whether or not any compensation is received therefore, provided, however, that
nothing herein shall prevent the Executive from (i) making and managing personal investments, (ii)
performing occasional assistance to family members and friends, including but not limited to
service as a director of a family owned or private business enterprise, (iii) engaging in community
and/or charitable activities, including without limitation service as a director, trustee or
officer of an educational, welfare, social, religious or civic organization or charity, (iv)
serving as a trustee or director or similar position of a public corporation or public business
enterprise, but for only one such public corporation or public business enterprise at any one time,
or (v) engaging in such other activities as are approved in writing by the Chief Executive Officer,
in each case (i) – (v) which singly or in the aggregate do
not interfere with the proper performance of the Executive’s duties and responsibilities to
the Company and are consistent with Section 9 of this Agreement.
3. Compensation. In consideration of the performance of his duties hereunder, the
Executive shall be entitled to receive the salary, bonus and benefits set forth on Schedule A. All
amounts payable to the Executive under this Section 3 shall be paid in accordance with the
Company’s regular payroll practices (e.g., timing of payments and standard employee deductions,
such as income and employment tax withholdings, medical benefit contributions and parking fees
among others). No additional compensation shall be payable to the Executive by reason of the
number of hours worked or any hours worked on Saturdays, Sundays or holidays, by reason of special
responsibilities assumed (whether on behalf of the Company or any of its subsidiaries or
affiliates), special projects completed, or otherwise. The Executive’s compensation shall be
reviewed by the Chief Executive Officer, the Board or the Compensation Committee of the Board (the
“Compensation Committee”) periodically for possible merit increases and other changes as such
reviewer deems appropriate.
4. Termination of Employment. Either party may terminate the Executive’s employment
hereunder at any time and for any reason, without advance notice; provided, however, that if the
Executive’s employment is terminated for any of the following reasons, the following provisions
shall apply:
(a) Termination for Cause. If the Executive’s employment is terminated for Cause, the
Company shall pay to the Executive all base salary, when due, through the Date of Termination at
the then current rate in effect at the time the Notice of Termination (as defined in Section 4(f))
is given plus, all other amounts and benefits to which the Executive is entitled under any pension
plan, retirement savings plan, equity participation plan, stock purchase plan, medical benefits and
other benefits of the Company or provided by law, at the time such payments are due and the Company
shall have no further obligations to the Executive under this Agreement. Without waiving any rights
the Company may have hereunder or otherwise, the Company hereby expressly reserves its rights to
proceed against the Executive for damages in connection with any claim or cause of action that the
Company may have arising out of or related to the Executive’s employment hereunder. “Cause” shall
mean (a) the Executive’s willful and continued failure to substantially perform the Executive’s
duties with the Company (other than any such failure resulting from an incapacity due to physical
or mental illness or any such actual or anticipated failure after the Executive’s issuance of a
Notice of Termination (as defined in Section 4(d)) for Good Reason), after a written demand for
substantial performance is delivered to the Executive by the Board, which demand specifically
identifies the manner in which the Board believes that the Executive has not substantially
performed the Executive’s duties, (b) the Executive’s willful and continued failure to
substantially follow and comply with the specific and lawful directives of the Board, as reasonably
determined by the Board (other than any such failure resulting from an incapacity due to physical
or mental illness or any such actual or anticipated failure after the Executive’s issuance of a
Notice of Termination for Good Reason), after a written demand for substantial performance is
delivered to the Executive by the Board, which demand specifically identifies the manner in which
the Board believes that the Executive has not substantially followed or complied with the
directives of the Board, (c) the Executive’s willful commission of an act of fraud or dishonesty
resulting in material economic or financial injury to the Company, or (d) the Executive’s willful
engagement in illegal conduct or gross misconduct, in each case which is
materially and demonstrably injurious to the Company.
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For purposes of this Section 4(a), no
act, or failure to act, shall be deemed “willful” unless done, or omitted to be done, by the
Executive not in good faith. Notwithstanding the foregoing, the Executive shall not be deemed
terminated for Cause pursuant to this section 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
three-quarters (3/4) of the entire membership of the Board at a meeting of
the Board (after reasonable notice to the Executive, an opportunity for the Executive, together
with counsel, to be heard before the Board and a reasonable opportunity to cure), finding that in
the Board’s good faith opinion, the Executive was guilty any of the conduct set forth above in this
section and specifying the particulars thereof in reasonable detail.
(b) Death. If the Executive’s employment is terminated due to the Executive’s death,
within sixty (60) days after the Company receives written notice of appointment of a personal
representative (on behalf of the Executive’s estate), the Executive’s estate shall be entitled to
compensation, vesting and benefits as described under Section 5(a) below.
(c) Permanent Disability. If the Executive’s employment is terminated due to
Executive’s Permanent Disability, the Executive shall be entitled to such compensation, vesting and
benefits as described under Section 5(b) below, which in addition to any payments under the
Company’s long-term disability policy, shall constitute full and complete satisfaction of the
Company’s obligations hereunder. For purposes of this Agreement, “Permanent Disability” means any
incapacity due to physical or mental illness, a result of which is that the Executive shall have
been absent from the full-time performance of his duties with the Company for six (6) consecutive
months and the Executive shall not have returned to the full-time performance of his duties within
thirty (30) days after written notice of termination is given to the Executive.
(d) Termination Without Cause or For Good Reason. If the Executive’s employment is
terminated by the Executive with “Good Reason” or by the Company without cause, the Executive shall
be entitled to such compensation, vesting and benefits as described under Section 5(b) below. For
purposes of this Agreement, the following circumstances shall constitute “Good Reason” unless such
circumstances are fully corrected (provided such circumstances are capable of correction) prior to
the Date of Termination (as defined in section 4(g)):
| 1) | The Executive ceases to be an Officer of the Company reporting to another Officer. | ||
| 2) | The Executive’s Base Salary is reduced by a greater percentage than the reduction applicable to any other Officer. | ||
| 3) | There is a reduction in the incentive compensation target established for the position held by the Executive that is not similarly applied in the same or similar manner to all other Officers. | ||
| 4) | There is a reduction or elimination of an executive benefit or an employee benefit which reduction is not applicable to all other Officers in the same or similar manner provided however the number of awards made pursuant to any stock option or equity participation plan |
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| is at the discretion of the Chief Executive Officer, the Compensation Committee or the Board at all times and shall in no case be deemed to be Good Reason. |
| 5) | There is a material breach of this Agreement by the Company that is not remedied prior to the expiration of the thirty (30) day period after receipt of written notice thereof given by the Executive to the Company. | ||
| 6) | The Company exercises its right not to extend the term of this Agreement beyond the then current term, unless such right is exercised with respect to all employment agreements in effect with respect to other Officers. For purposes of this Section 4 (d) 6) the term employment agreements does not include agreements of the type described in Section 11(n) relating to a change in control of the Company. |
The Executive’s right to terminate employment for Good Reason pursuant to this Section 4(d) shall
not be affected by the Executive’s incapacity due to physical or mental illness or continued
employment provided however. Good Reason shall be asserted in writing delivered to the Chief
Executive Officer within ninety (90) days of the date the Executive knew or should have known of
the event giving rise to the Good Reason and if not so asserted within the ninety (90) day period
shall be deemed to be conclusively waived.
(e) Termination by Resignation or Retirement. If the Executive’s employment is
terminated by the Executive’s resignation or retirement, other than at the written request of the
Company or for Good Reason, the Company shall pay the Executive all base salary, when due, through
the date of termination at the then current rate in effect at the time the Notice of Termination is
given plus all other amounts and benefits to which the Executive is entitled under any compensation
plan, or practice of the Company, pension plan, retirement savings plan, equity participation plan,
stock purchase plan, medical benefits and other benefits of the Company or provided by law, at the
time such payments are due and the Company shall have no further obligations to the Executive under
this Agreement.
(f) Notice of Termination. Any purported termination of the Executive’s employment by
the Company or by the Executive (other than termination due to death which shall terminate
employment automatically, voluntary resignation or retirement not for Good Reason) shall be
communicated by written Notice of Termination to the other party hereto in accordance with Section
4. “Notice of Termination” shall mean a notice that shall indicate the specific termination
provision in this Agreement relied upon and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the Executive’s employment under the
provision so indicated.
(g) Date of Termination, Etc. “Date of Termination” shall mean (a) if the Executive’s
employment is terminated due to death, the date of death; (b) if the Executive’s employment is
terminated for Permanent Disability, thirty (30) days after Notice of Termination is given
(provided that the Executive has not returned to the full-time performance of the
Executive’s duties during such thirty (30) day period), (c) if the Executive’s employment is
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terminated for Cause or for Good Reason, or for any other reason (other than death, Disability,
voluntary resignation or retirement not for Good Reason), the date specified in the Notice of
Termination (which, in the case of a termination for Cause shall not be less than thirty (30) days
from the date such Notice of Termination is given, and in the case of a termination for Good Reason
shall not be less than fifteen (15) nor more than sixty (60) days from the date such Notice of
Termination is given) or (d) if the Executive’s employment is terminated by the Executive’s
resignation or retirement, other than at the written request of the Company or for Good Reason, the
Date of Termination shall be the date when the Executive ceases to be an employee of the Company by
reason of the resignation or retirement. Notwithstanding anything to the contrary contained in this
Section 4(g), if within fifteen (15) days after any Notice of Termination is given, the party
receiving such Notice of Termination notifies the other party that a dispute exists concerning the
termination, then the Date of Termination shall be the date on which the dispute is finally
determined, either by mutual written agreement of the parties, or otherwise; provided, however,
that the Date of Termination shall be extended by a notice of dispute only if such notice is given
in good faith and the party giving such notice pursues the resolution of such dispute with
reasonable diligence; provided, further, that in the event of the Executive’s death pending a
dispute, if the resolution of such dispute is ultimately in the Executive’s favor, then the Date of
Termination shall be the date specified in the Notice of Termination.
5. Compensation upon Termination.
(a) Death. If the Executive’s employment with the Company is terminated by reason of
the Executive’s death, the Executive’s estate shall be entitled to the following:
(i) payment of the Executive’s base salary accrued through the Date of
Termination;
(ii) payment of the Executive’s incentive compensation under all plans in
effect at the
Date of Termination paid at target but prorated over the period of each applicable plan
through the Date of Termination;
(iii) one (1) times the sum of the Executive’s annual base salary at the
then current
rate in effect as of the Date of Termination payable in one (1) lump-sum payment;
(iv) continuation of the Executive’s medical, prescription drug, dental and
vision
benefits for the Executive’s covered dependents for a period of twelve (12) months following
the Date of Termination without any contribution required of the Executive’s dependents; and
(v) The Executive’s equity participation awards granted pursuant to any equity
participation plan of the Company shall immediately vest as of the Date of Termination and
be exercisable for a period of three years following the Date of Termination or for such
longer period following the Date of Termination specified by the award granted to the
Executive, provided however, nothing in this Agreement shall act to extend the term of any
equity participation award and no equity participation award
may
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be exercised after the expiration of the term of the award specified in the award
granted to the Executive.
(b) Termination for Permanent Disability, Without Cause or for Good Reason. If the
Executive’s employment with the Company is terminated for Permanent Disability, or by the Company
without Cause, or by the Executive for Good Reason, the Executive shall be entitled to the
following:
(i) payment of the Executive’s base salary accrued through the Date of
Termination;
(ii) payment of the Executive’s annual incentive compensation paid at the
lesser of the
Executive’s annual target or the average percentage of the target paid to all other
Officers, but prorated over the period of each applicable plan through the Date of
Termination;
(iii) payment of the Executive’s long term incentive compensation under all
plans in
effect at the Date of Termination paid at the Executive’s target, but prorated over the
period of each applicable plan through the Date of Termination;
(iv) two (2) times the sum of Executive’s annual Base Compensation at the
then current
rate in effect at the time of the Notice of Termination, payable in equal installments over
a period of twenty-four (24) months following the Date of Termination, or at the election of
the Company payable in one (1) lump-sum payment;
(v) payment of the Executive’s annual incentive compensation pursuant to the
terms of
the annual incentive compensation plan at the lesser of the Executive’s annual target or the
average percentage of the target paid to all other Officers, for all annual compensation
periods ending twenty four (24) months after the Date of Termination, with the final payment
prorated to the end of the twenty four month period;
(vi) continuation of the Executive’s medical, prescription drug, dental and
life
insurance benefits for a period of twenty-four (24) months following the Date of Termination
without any contribution required of the Executive and the dependents of the Executive; and
(vii) the Executive’s equity participation awards granted pursuant to any
equity
participation plan of the Company shall immediately vest as of the Date of Termination and
be exercisable for a period of three years following the Date of Termination or for such
longer period following the Date of Termination specified by the award granted to the
Executive, provided however, nothing in this Agreement shall act to extend the term of any
equity participation award and no equity participation award may be exercised after the
expiration of the term of the award specified in the award granted to the Executive.
(c) Payments. Payment of benefits under Section 5 (a) is subject to reasonable
evidence of authority to act for the decedent’s estate. Payment of benefits under
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Sections 5 (b)(ii),(iii),(iv) and (v) are subject to the release provided under Section 5 (d)
becoming effective. Except as otherwise provided in this Agreement or accelerated by the Company at
its election all payments under this Section 5 shall be made in accordance with the Company’s
normal pay practices, and shall be subject to applicable withholdings. Continuation of benefits
under Section 5(a)(iv) or 5(b)(vi), shall be in addition to and not concurrent with any
continuation rights Executive may have under the Consolidated Omnibus Budget Reconciliation Act of
1985, or similar state law.
(d) Release. Payment of any amount to, or on behalf of, the Executive pursuant to
Sections 5(b)(ii),(iii),(iv) and (v) of this Agreement and Executive’s acceptance of such amounts
shall be subject to the execution of a general waiver and release of claims in the form attached
hereto as Exhibit A or such other form as the Company may reasonably request to provide a complete
release of all claims and causes of action the Executive or the Executive’s estate may have against
the Company except claims and causes of action arising out of, or related to, the obligations of
the Company pursuant to this Agreement and Claims (as defined in Exhibit A) for vested benefits
under any pension plan, retirement plan and savings plan, rights under any equity participation
plan and stock purchase plan and rights to continuation of medical care coverage pursuant to the
Consolidated Omnibus Budget Reconciliation Act of 1985 and any similar state law.
(e) No Offset for Benefits. There shall be no offset to any compensation or other
benefits otherwise payable to, or on behalf of, the Executive pursuant to the terms of Section 5 of
this Agreement as a result of the receipt by Executive of any pension, retirement or other benefit
payments (including, but not limited to, accrued vacation) except that there shall be an offset for
severance compensation payable pursuant to the Company’s benefit plans and programs based on the
length of service with the Company and except as provided by Section 11(n).
(f) Excise Tax.
(i) Anything in this Agreement to the contrary notwithstanding, if it shall be
determined that any payment or distribution to the Executive or for the Executive’s benefit
(whether paid or payable or distributed or distributable) pursuant to the terms of this
Agreement or otherwise (the “Payment”) would be subject to the excise tax imposed by section
4999 of the Code or any successor provision (the “Excise Tax”), then the Executive shall be
entitled to receive from the Company an additional payment (the “Gross-Up Payment”) in an
amount such that the net amount of the Payment and the Gross-Up Payment retained by the
Executive after the calculation and deduction of all Excise Taxes (including any interest or
penalties imposed with respect to such taxes) on the payment and all federal, state and
local income tax, employment tax and Excise Tax (including any interest or penalties imposed
with respect to such taxes) on the Gross-Up Payment provided for in this Section 5(g), and
taking into account any lost or reduced tax deductions on account of the Gross-Up Payment,
shall be equal to the Payment;
(viii) all determinations required to be made under this Section 5, including
whether
and when the Gross-Up Payment is required and the amount of such Gross-Up Payment, and the
assumptions to be utilized in arriving at such
determinations
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shall be made in good faith by the Accountants (as defined below) which
shall provide the Executive and the Company with detailed supporting calculations with
respect to such Gross-Up Payment within fifteen (15) business days of the receipt of notice
from the Executive or the Company that has received or will receive a Payment. For the
purposes of this Section 5(f), the “Accountants” shall mean the Company’s independent
certified public accountants serving immediately prior to the change in control that with
other events results in the imposition of the Excise Tax. In the event that the Accountants
are also serving as accountant or auditor for the individual, entity or group effecting a
change in control that with other events results in the imposition of the Excise Tax, the
Company shall appoint another recognized public accounting firm to make the determinations
required hereunder (which accounting firm shall also be referred to herein as the
“Accountants”). All fees and expenses of the Accountants shall be borne solely by the
Company. For the purposes of determining whether any of the Payments will be subject to the
Excise Tax and the amount of such Excise Tax, such Payments will be treated as “parachute
payments” within the meaning of section 280G of the Code, and all “parachute payments” in
excess of the “base amount” (as defined under section 280G(b)(3) of the Code) shall be
treated as subject to the Excise Tax, unless and except to the extent that in the opinion of
the Accountants such Payments (in whole or in part) either do not constitute “parachute
payments” or represent reasonable compensation for services actually rendered (within the
meaning of section 280G(b)(4) of the Code) in excess of the “base amount,” or such
“parachute payments” are otherwise not subject to such Excise Tax. For purposes of
calculating whether the Excise Tax is applicable and determining the amount of the Gross-Up
Payment, (A) to the extent not otherwise specified herein, reasonable assumptions and
approximations may be made, (B) good faith interpretations of the Code may be relied upon
and (C) the Executive shall be deemed to pay Federal income taxes at the highest applicable
marginal rate of Federal income taxation for the calendar year in which the Gross-Up Payment
is to be made and to pay any applicable state and local income taxes at the highest
applicable marginal rate of taxation for the calendar year in which the Gross-Up Payment is
to be made, net of the maximum reduction in Federal income taxes which could be obtained
from the deduction of such state or local taxes if paid in such year (determined without
regard to limitations on deductions based upon the amount of your adjusted gross income),
and to have otherwise allowable deductions for Federal, state and local income tax purposes
at least equal to those disallowed because of the inclusion of the Gross-Up Payment in the
Executive’s adjusted gross income. To the extent practicable, any Gross-Up Payment with
respect to any Payment shall be paid by the Company at the time the Executive is entitled to
receive the Payment and in no event will any Gross-Up Payment be paid later than five days
after the receipt by the Executive of the Accountant’s determination. Any determination by
the Accountants shall be binding upon the Company and the Executive. As a result of
uncertainty in the application of section 4999 of the Code at the time of the initial
determination by the Accountants hereunder, it is possible that the Gross-Up Payment made
will have been an amount less than the Company should have paid pursuant to this Section
5(f) (the “Underpayment”). In the event that the Company exhausts its remedies pursuant to
Section 5(f) and the Executive is required to make a payment of any Excise Tax, the
Underpayment shall be promptly paid by the Company to or for the Executive’s benefit;
and
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(ix) the Executive shall notify the Company in writing of any claim by the Internal
Revenue Service that, if successful, would require the payment by the Company of the
Gross-Up Payment. Such notification shall be given as soon as practicable after the
Executive is informed in writing of such claim and shall apprise the Company of the nature
of such claim and the date on which such claim is requested to be paid. The Executive shall
not pay such claim prior to the expiration of the 30-day period following the date on which
the Executive gives such notice to the Company (or such shorter period ending on the date
that any payment of taxes, interest and/or penalties with respect to such claim is due). If
the Company notifies the Executive in writing prior to the expiration of such period that it
desires to contest such claim, the Executive shall:
(A) give the Company any information reasonably requested by the Company
relating to such claim;
(B) take such action in connection with contesting such claim as the Company
shall reasonably request in writing from time to time, including, without
limitation, accepting legal representation with respect to such claim by an attorney
reasonably selected by the Company;
(C) cooperate with the Company in good faith in order to effectively contest
such claim; and
(D) permit the Company to participate in any proceedings relating to such
claims;
provided, however, that the Company shall bear and pay directly all costs and expenses
(including additional interest and penalties) incurred in connection with such contest and
shall indemnify the Executive for and hold the Executive harmless from, on an after-tax
basis, any Excise Tax or income tax (including interest and penalties with respect thereto)
imposed as a result of such representation and payment of all related costs and expenses.
Without limiting the foregoing provisions of this Section 5(f), the Company shall control
all proceedings taken in connection with such contest and, at its sole option, may pursue or
forgo any and all administrative appeals, proceedings, hearings and conferences with the
taxing authority in respect of such claim and may, at its sole option, either direct the
Executive to pay the tax claimed and xxx for a refund or contest the claim in any
permissible manner, and the Executive agrees to prosecute such contest to a determination
before any administrative tribunal, in a court of initial jurisdiction and in one or more
appellate courts, as the Company shall determine; provided, however, that if the Company
directs the Executive to pay such claim and xxx for a refund, the Company shall advance the
amount of such payment to the Executive, on an interest-free basis, and shall indemnify the
Executive for and hold the Executive harmless from, on an after-tax basis, any Excise Tax or
income tax (including interest or penalties with respect thereto) imposed with respect to
such advance or with respect to any imputed income with respect to such advance (including
as a result of any forgiveness by the Company of such advance); provided, further, that any
extension of
the statute of limitations relating to the payment of taxes for the taxable year of the
Executive with respect to which such contested amount is claimed to be due is limited solely
to such contested amount. Furthermore, the Company’s control of the contest shall be
limited to
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issues with respect to which a Gross-Up Payment would be payable hereunder and
the Executive shall be entitled to settle or contest, as the case may be, any other issue
raised by the Internal Revenue Service or any other taxing authority.
6. Termination Obligations.
(a) The Executive hereby acknowledges and agrees that all personal property and equipment
furnished to or prepared by the Executive in the course of or incident to the Executive’s
employment by the Company belongs to the Company and shall be promptly returned to the Company upon
termination of the employment. “Personal property” includes, without limitation, all books,
manuals, records, reports, notes, contracts, lists, blueprints, and other documents, or materials,
or copies thereof (including computer files), and all other proprietary information relating to the
business of the Company or any affiliate. Following termination of employment, the Executive will
not retain any written or other tangible material containing any proprietary information or
Confidential Information (as defined below) of the Company or any affiliate of the Company.
(b) Upon termination of the employment, the Executive shall be deemed to have resigned from
all offices and directorships then held with the Company or any affiliate of the Company.
(c) The representations and warranties contained herein and the Executive’s obligations and/or
agreements under Sections 6, 7, 8, 9, 10 and 11 hereof shall survive termination of the employment
and the expiration of this Agreement.
(d) Construction. Any reference to the Company in this Section 6 shall include the Company
and any entity which owns, is owned by or under common ownership with the Company (an “Affiliate”).
7. Records and Confidential Data.
(a) The Executive acknowledges that in connection with the performance of his duties during
the term of this Agreement, the Company will make available to the Executive, or the Executive will
have access to, certain Confidential Information (as defined below) of the Company. The Executive
acknowledges and agrees that any and all Confidential Information learned or obtained by the
Executive during the course of his employment by the Company or otherwise (including, without
limitation, information that the Executive obtained through or in connection with the Executive’s
stock ownership in and employment by the Company prior to the date hereof) whether developed by the
Executive alone or in conjunction with others or otherwise, shall be and is the property of the
Company.
(b) The Executive shall keep all Confidential Information confidential and will not use such
Confidential Information other than in connection with the Executive’s discharge of his duties
hereunder. The Executive will safeguard the Confidential Information from unauthorized disclosure.
This covenant is not intended to, and does not limit in any way, any of
the Executive’s duties or obligations to the Company under statutory or common law not to
disclose or to make personal use of the Confidential Information or trade secrets.
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(c) Following the Executive’s termination hereunder, as soon as possible after the Company’s
written request, the Executive will return to the Company all written Confidential Information
which has been provided to the Executive and the Executive will destroy all copies of any analyses,
compilations, studies or other documents prepared by the Executive or for the Executive’s use
containing or reflecting any Confidential Information. Within ten (10) business days of the
receipt of such request by the Executive, the Executive shall, upon written request of the Company,
deliver to the Company a notarized document certifying that such written Confidential Information
has been returned or destroyed in accordance with this Section 7(c).
(d) For the purposes of this Agreement, “Confidential Information” shall mean all confidential
and proprietary information of the Company, including, without limitation, the Company’s marketing
strategies, pricing policies or characteristics, customers and customer information, product or
product specifications, designs, software systems, cost of equipment, customer lists, business or
business prospects, plans, proposals, codes, marketing studies, research, reports, investigations,
public relations methods, or other information of similar character. For purposes of this
Agreement, the Confidential Information shall not include and the Executive’s obligations under
this Section 7 shall not extend to (i) information which is available in the public domain, (ii)
information obtained by the Executive from third persons (other than employees of the Company or
its affiliates) not under agreement to maintain the confidentiality of the same and (iii)
information which is required to be disclosed by law or legal process.
(e) Construction. Any reference to the Company in this Section 7 shall include the
Company and its Affiliates.
8. Assignment of Inventions.
(a) Definition of Inventions. “Inventions” mean discoveries, developments concepts,
ideas, methods, designs, improvements, inventions, formulas, processes, techniques, programs,
know-how and data, whether or not patentable or registerable under copyright or similar statutes,
except any of the foregoing that (i) is not related to the business of the Company or the Company’s
actual or demonstrable research or development, (ii) does not involve the use of any equipment,
supplies, facility or Confidential Information of the Company, (iii) was developed entirely on the
Executive’s own time, and (iv) does not result from any work performed by the Executive for the
Company.
(b) Assignment. The Executive agrees to and hereby does assign to the Company, without
further consideration, all of his right, title and interest in any and all Inventions the Executive
may make during the term hereof.
(c) Duty to Disclose and Assist. The Executive agrees to promptly disclose in writing
all Inventions to the Company, and to provide all assistance reasonably requested by the Company in
the preservation of the Company’s interests in the Inventions including obtaining patents in any
country throughout the world. Such services will be without additional
compensation if the Executive is then employed by the Company and for reasonable compensation
and subject to his reasonable availability if he is not. If the Company cannot, after reasonable
effort, secure the Executive’s signature on any document or documents
11
needed to apply for or
prosecute any patent, copyright, or other right or protection relating to an Invention, whether
because of his physical or mental incapacity or for any other reason whatsoever, the Executive
hereby irrevocably designates and appoints the Company and its duly authorized Officers and agents
as his agent and attorney-in-fact, to act for and on his behalf and in his name and xxxxx for the
purpose of executing and filing any such application or applications and taking all other lawfully
permitted actions to further the prosecution and issuance of patents, copyrights, or similar
protections thereon, with the same legal force and effect as if executed by the Executive.
(d) Ownership of Copyrights. The Executive agrees that any work prepared for the
Company which is eligible for United States copyright protection or protection under the Universal
Copyright Convention or other such laws or protections including, but not limited to, the Berne
Copyright Convention and/or the Buenos Aires Copyright Convention shall be a work made for hire and
ownership of all copyrights (including all renewals and extensions) therein shall vest in the
Company. If any such work is deemed not to be a work made for hire for any reason, the Executive
hereby grants, transfers and assigns all right, title and interest in such work and all copyrights
in such work and all renewals and extensions thereof to the Company, and agrees to provide all
assistance reasonably requested by the Company in the establishment, preservation and enforcement
of the Company’s copyright in such work, such assistance to be provided at the Company’s expense
but without any additional compensation to the Executive. The Executive hereby agrees to and does
hereby waive the enforcement of all moral rights with respect to the work developed or produced
hereunder, including without limitation any and all rights of identification of authorship and any
and all rights of approval, restriction or limitation on use or subsequent modifications.
(e) Litigation. The Executive agrees to render assistance and cooperation to the
Company at its request regarding any matter, dispute or controversy with which the Company may
become involved and of which the Executive has or may have reason to have knowledge, information or
expertise. Such services will be without additional compensation if the Executive is then employed
by the Company and for reasonable compensation and subject to his reasonable availability if he is
not.
(f) Construction. Any reference to the Company in this Section 7 shall include the
Company and its Affiliates.
9. Additional Covenants.
(a) Non-Interference with Customer Accounts. Executive covenants and agrees that (i)
during employment and (ii) for a period of twenty four (24) months commencing on the Date of
Termination, except as may be required by Executive’s employment by the Company, Executive shall
not directly or indirectly, personally or on behalf of any other person, business, corporation, or
entity, contact or do business with any customer of the Company with respect to any product,
business activity or service which is competitive with any product, business, activity or service
of the type sold or provided by the Company.
(b) Non-Competition. In consideration of and in connection with the benefits provided
to the Executive under this Agreement and in order to protect the goodwill of the Company, the
Executive hereby agrees that if the Executive’s employment is terminated, then,
12
unless the Company
otherwise agrees in writing, for a period of twenty four (24) months commencing on the Date of
Termination, the Executive shall not, directly or indirectly, own, manage, operate, join, control
or participate in the ownership, management, operation or control of, or be connected as a
director, officer, employee, partner, consultant or otherwise with any entity engaged in a business
which sells, in competition with the Company and its affiliates, the same type of products as sold
by the Company, including without limitation glass tableware, ceramic dinnerware, metal flatware
and plastic supplies to the foodservice industry other than as a shareholder or beneficial owner
owning five percent (5%) or less of the outstanding securities of a public company. Without
limiting the foregoing, currently the following business operations among others sell, in
competition with the Company and its affiliates, the same type of products as sold by the Company
and its affiliates: Arc International, Anchor Hocking, currently a unit of Xxxxxx Rubbermaid Inc.,
Cardinal International, Inc., Indiana Glass Company, currently a unit of Lancaster Colony
Corporation, Oneida Ltd. and any glass tableware manufacturer, seller or importer for Bormioli
Rocco Casa SpA, for the Kedaung group of companies of Indonesia or for the Sisecam group of
companies of Turkey including Pasabahce.
(c) No Diversion. The Executive covenants and agrees that in addition to the other
Covenants set forth in this Section 9, (i) during his employment and (ii) for a period of two years
following his Date of Termination, Executive shall not divert or attempt to divert or take
advantage of or attempt to take advantage of any actual or potential business opportunities of the
Company (e.g., joint ventures, other business combinations, investment opportunities, potential
investors in the Company, and other similar opportunities) of which the Executive became aware as a
result of his employment with the Company.
(d) Non-Recruitment. The Executive acknowledges that the Company has invested
substantial time and effort in assembling its present workforce. Accordingly, the Executive
covenants and agrees that during employment and for period of twenty four (24) months commencing on
the Date of Termination, the Executive shall not either for the Executive’s own account or jointly
with or as a manager, agent, officer, employee, consultant, partner, joint venture owner or
shareholder or otherwise on behalf of any other person, firm or corporation directly or indirectly
entice, solicit, attempt to solicit, or seek to induce or influence any Officer or employee of the
Company to leave his or her employment with the Company or to offer employment to any person who on
or during the six (6) month period immediately preceding the date of such solicitation or offer was
an employee of the Company; provided, however, that this Section 9(d) shall not be deemed to be
breached with respect to an employee or former employee of the Company who responds to a general
advertisement seeking employment or who otherwise initiates contact for the purpose of seeking
employment.
(e) Non-Disparagement. Executive covenants and agrees that during the Executive’s
employment and for period of twenty four (24) months commencing on the Date of Termination,
Executive shall not induce or incite claims of discrimination, wrongful discharge, or any other
claims against the Company or any of its directors, Officers, employees or equity holders, by any
other persons, executives or entities, and the Executive shall not undertake
any harassing or disparaging conduct directed at the Company or any of its directors,
Officers, employees or equity holders, other than such statements made as part of testimony
compelled by law or legal process.
13
(f) Remedies. The Executive acknowledges that should the Executive violate any of the
covenants contained in Sections 6, 7, 8, or 9 hereof (collectively, the “Covenants”), it would be
difficult to determine the resulting damages to the Company and, in addition to any other remedies
it may have, the Company shall be entitled to (x) temporary injunctive relief without being
required to post a bond, (y) permanent injunctive relief without the necessity of proving actual
damage and (z) forfeiture of all benefits otherwise payable to or for the account of the Executive
under Sections 5(b)(ii),(iii),(iv) and (v) following the violation. The Executive shall be liable
to pay all costs including reasonable attorneys’ fees which the Company may incur in enforcing or
defending, to any extent, these Covenants, whether or not litigation is actually commenced and
including litigation of any appeal taken or defended by the Company, where the Company succeeds in
enforcing any part of these Covenants. The Company may elect to seek one or more of these remedies
at its sole discretion on a case by case basis. Failure to seek any or all remedies in one case
does not restrict the Company from seeking any remedies in another situation. Such action by the
Company shall not constitute a waiver of any of its rights.
(g) Severability and Modification of any Unenforceable Covenant. It is the parties’
intent that each of the Covenants be read and interpreted with every reasonable inference given to
its enforceability. However, it is also the parties’ intent that if any term, provision or
condition of the Covenants is held to be invalid, void or unenforceable, the remainder of the
provisions thereof shall remain in full force and effect and shall in no way be affected, impaired
or invalidated. Finally, it is also the parties’ intent that if it is determined any of the
Covenants are unenforceable because of over breadth, then the covenants shall be modified so as to
make it reasonable and enforceable under the prevailing circumstances.
(h) Tolling. If the Executive breaches any Covenant, the running of the period of
restriction shall be automatically tolled and suspended for the amount of time that the breach
continues, and shall automatically recommence when the breach is remedied so that the Company shall
receive the benefit of the Executive’s compliance with the Covenants. This paragraph shall not
apply to any period for which the Company is awarded and receives actual monetary damages for
breach by the Executive of a Covenant with respect to which this paragraph applies.
(i) Construction. Any reference to the Company in this Section 9 shall include the
Company and its affiliates.
10. No Assignment. This Agreement and the rights and duties hereunder are personal to
the Executive and shall not be assigned, delegated, transferred, pledged or sold by the Executive
without the prior written consent of the Company. The Executive hereby acknowledges and agrees
that the Company may assign, delegate, transfer, pledge or sell this Agreement and the rights and
duties hereunder (a) to an affiliate of the Company or (b) to any third party in connection with
(i) the sale of all or substantially all of the assets of the Company or (ii) a stock purchase,
merger, or consolidation involving the Company. This Agreement shall
inure to the benefit of and be enforceable by the parties hereto, and their respective heirs,
personal representatives, successors and assigns.
11. Miscellaneous Provisions.
(a) Payment of Taxes. Except as specifically provided for in this Agreement,
14
to the
extent that any taxes become payable by the Executive by virtue of any payments made or benefits
conferred by the Company, the Company shall not be liable to pay or obligated to reimburse the
Executive for any such taxes or to make any adjustment under this Agreement. Any payments
otherwise due under this Agreement to the Executive, including, but not limited to, the base salary
and any bonus compensation shall be reduced by any required withholding for federal, state and/or
local taxes and other appropriate payroll deductions.
(b) Notices. All notices and other communications required or permitted to be given
pursuant to this Agreement shall be in writing and shall be considered as properly given or made
(i) if delivered personally or (ii) after the expiration of five days from the date upon which such
notice was mailed from within the United States by certified mail, return receipt requested,
postage prepaid, (iii) upon receipt by prepaid telegram or facsimile transmission (with written
confirmation of receipt) or (iv) after the expiration of the second business day following deposit
with an overnight delivery service. All notices given or made pursuant hereto shall be so given or
made to the parties at the following addresses:
If to the Executive:
Xxxxxxx X. Xxxxxxx
0000 Xxxx Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
0000 Xxxx Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
If to the Company:
Libbey Inc.
000 Xxxxxxx Xxxxxx
X.X. Xxx 00000
Xxxxxx, Xxxx 00000
Facsimile: (000) 000-0000
Attention: Secretary
000 Xxxxxxx Xxxxxx
X.X. Xxx 00000
Xxxxxx, Xxxx 00000
Facsimile: (000) 000-0000
Attention: Secretary
The address of any party hereto may be changed by a notice in writing given in accordance with the
provisions hereof.
(c) Severability. If any provision of this Agreement is held by a court of competent
jurisdiction to be invalid, illegal or unenforceable, such provision shall be severed and enforced
to the extent possible or modified in such a way as to make it enforceable, and the invalidity,
illegality or unenforceability thereof shall not affect the validity, legality or enforceability of
the remaining provisions of this Agreement.
15
(d) Governing Law. This Agreement shall be governed by and construed in accordance with
the laws of the State of Ohio applicable to contracts executed in and to be performed entirely
within that state, except with respect to matters of law concerning the internal corporate affairs
of any corporate entity which is a party to or the subject of this Agreement, and as to those
matters, the law of the jurisdiction under which the respective entity derives its powers shall
govern. The parties irrevocably agree that all actions to enforce an arbitrator’s decision
pursuant to Section 11(l) of this Agreement shall be instituted and litigated only in federal,
state or local courts sitting in Toledo, Ohio and each of such parties hereby consents to the
exclusive jurisdiction and venue of such court and waives any objection based on forum non
conveniens.
(e) WAIVER OF JURY TRIAL. THE PARTIES HEREBY WAIVE, RELEASE AND RELINQUISH ANY AND
ALL RIGHTS THEY MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY ACTIONS TO ENFORCE AN ARBITRATOR’S
DECISION PURSUANT TO SECTION 11(l) OF THIS AGREEMENT.
(f) Counterparts. This Agreement may be executed in counterparts, each of which shall
be an original, but all of which shall constitute one and the same instrument.
(g) Entire Understanding. This Agreement including all Exhibits and Recitals hereto
which are incorporated herein by this reference, together with the other agreements and documents
being executed and delivered concurrently herewith by the Executive, the Company and certain of its
affiliates, constitute the entire understanding among all of the parties hereto and supersedes any
prior understandings and agreements, written or oral, among them respecting the subject matter
within.
(h) Limitation on Liabilities. If the Executive is awarded any damages as
compensation for any breach of this Agreement or a breach of any covenant contained in this
Agreement (whether express or implied by either law or fact), such damages shall be limited to
contractual damages (including reasonable attorneys’ fees) and shall exclude (i) punitive damages
and (ii) consequential and/or incidental damages (e.g., lost profits and other indirect or
speculative damages). The maximum amount of damages that the Executive may recover for any reason
shall be all amounts owed (but not yet paid) to the Executive pursuant to this Agreement.
(i) Pronouns and Headings. As used herein, all pronouns shall include the masculine,
feminine, neuter, singular and plural thereof wherever the context and facts require such
construction. The headings, titles and subtitles herein are inserted for convenience of reference
only and are to be ignored in any construction of the provisions hereof.
(j) Amendment. Except as set forth in Sections 9(g) and 11(c) above, this Agreement
shall not be changed or amended unless in writing and signed by both the Executive and the Chairman
of the Board of Directors or unless amended by the Company in any manner provided that the rights
and benefits of the Executive shall not be diminished by any amendment made by the Company without
the Executive’s written consent to such amendment.
16
(k) Advice of Counsel. The Executive acknowledges (i) that he has consulted with or has
had the opportunity to consult with independent counsel of his own choice concerning this Agreement
and has been advised to do so by the Company, and (ii) that he has read and understands this
Agreement, is fully aware of its legal effect, and has entered into it freely based on his own
judgment.
(l) Arbitration. Notwithstanding anything herein to the contrary, in the event that
there shall be a dispute among the parties arising out of or relating to this Agreement, or the
breach thereof, the parties agree that such dispute shall be resolved by final and binding
arbitration in Toledo, Ohio, administered by the American Arbitration Association (the “AAA”), in
accordance with AAA’s Employment ADR Rules. The arbitrator’s decision shall be final and binding
upon the parties, and may be entered and enforced in any court of competent jurisdiction by either
of the parties. The arbitrator shall have the power to grant temporary, preliminary and permanent
relief, including without limitation, injunctive relief and specific performance. The arbitrator’s
fees and expenses shall be paid by the Company.
(m) Attorney’s Fees. If any arbitration or other proceeding, including without
limitation any hearing before the Board, any arbitration proceeding, any proceeding to enforce an
arbitration award, any legal action and any appeal, is brought by one party against the other
relating to, or in connection with this Agreement, the Company shall reimburse the Executive
reasonable attorneys’ fees and other costs within a reasonable time after the same are incurred in
addition to any other relief to which the Executive may be entitled.
(n) Effect on Other Agreements. It is the intention of the parties hereto and thereto
that this Agreement provide benefits which are not otherwise provided by the Letter Agreement dated
as of May 7, 2007, between the Executive and the Company (the “Letter Agreement”) that provides to
Executive certain benefits if a change of control (as defined in the Letter Agreement) of the
Company occurs. Therefore, if during the term of this Agreement the Executive is entitled to
payment under both this Agreement and the Letter Agreement, the Executive shall only receive the
greater of the benefits provided under this Agreement or under the Letter Agreement, but not both.
If Executive receives benefits under this Agreement, all rights to receive any benefits under the
Letter Agreement shall be waived, and vice versa.
IN WITNESS WHEREOF, this Agreement has been executed as of the date and year first above
written.
| LIBBEY INC. | ||||||
| By: | ||||||
| Name: Xxxxx X. Xxxxxx | ||||||
| Title: Vice President, General Counsel & Secretary | ||||||
| Name: Xxxxxxx X. Xxxxxxx | ||||||
17
SCHEDULE 1
| 1. | Base salary of the Executive as of the date of this Agreement and subsequent revisions. | |
| 2. | The Executive shall be eligible to participate in the following benefit plans and programs of the Company: |
| a. | The annual performance incentive compensation plan for corporate Officers (currently the “Senior Management Incentive Plan”). The target percentage for an Executive’s participation shall be the target percentage currently in effect for the position as of the date of this Agreement (namely, 60% of annual base salary) and any subsequent revisions. | ||
| b. | The long term incentive compensation plan (currently the Libbey Inc. Long Term Incentive Compensation Plan). The target percentage for an Executive’s participation shall be the target percentage currently in effect for the position as of the date of this Agreement (namely, 80% of annual base salary) and any subsequent revisions. | ||
| c. | Stock option and equity participation plan (currently the 2006 Omnibus Incentive Plan of Libbey Inc.) | ||
| x. | Xxxxxx Inc. Retirement Savings Plan | ||
| x. | Xxxxxx Inc. Executive Savings Plan | ||
| f. | Financial Investment Counseling | ||
| g. | Executive Physical | ||
| h. | Deferred Compensation Plan (if and when adopted) | ||
| i. | Such other benefit plans and arrangements as the Company provides, from time to time, to salaried employees generally |
EXHIBIT A
GENERAL RELEASE AND WAIVER OF CLAIMS
The undersigned,
resident of the State of
(“Releasor”), in
accordance with and pursuant to the terms of Section 5(d) of the Employment Agreement (the
“Agreement”), dated as of , 2007, between Libbey Inc., a Delaware corporation (the
“Company”), and Releasor, and the consideration therein provided, except as set forth herein,
hereby remises, releases and forever discharges and covenants not to xxx, and by these presents
does for Releasor and Releasor’s legal representatives, trustees, beneficiaries, heirs and assigns
(Releasor and such persons referred to herein, collectively, as the “Releasing Parties”) hereby
remise, release and forever discharge and covenant not to xxx the Company and its affiliates and
the respective Officers, directors, employees, equity holders, agent and representatives of each of
them and all of their respective successor and assigns (each a “Released Party” and collectively,
the “Released Parties”), of and from any and all manner of actions, proceedings, claims, causes of
action, suits, promises, damages, judgments, executions, claims and demands, of any nature
whatsoever, and of every kind and description, xxxxxx and inchoate, known or unknown, at law or in
equity (collectively, “Claims”), which the Releasing Parties, or any of them, now have or ever had,
or hereafter can, shall or may have, for, upon or by reason of any matter, cause or thing
whatsoever, against the Released Parties, and each of them, from the beginning of time to the date
hereof;
(i) arising from Releasor’s employment, compensation, commissions, deferred
compensation plans, insurance, stock ownership, stock options, employee benefits, and other
terms and conditions of employment or employment practices of the Company under federal,
state or local law or regulation, including, but not limited to the Employee Retirement
Income Security Act of 1974, as amended;
(ii) relating to the termination of Releasor’s employment or the circumstances
surrounding thereof based on any contract, tort, whistleblower, personal injury,
retaliatory, wrongful discharge or any other theory under any federal, state or local
constitution, law, regulation, common law or otherwise;
(iii) relating to payment of any
attorneys’ fees incurred by Releasor; and
(iv) based on any alleged discrimination on the basis of race, color, religion, sex,
age, national origin, handicap, disability or another category protected by any federal,
state or local law or regulation, including, but not limited to, the Age Discrimination in
Employment Act, Title VII of the Civil Rights Act of 1964, the Americans with Disabilities
Act, the Fair Labor Standards Act, the Older Workers Benefit Protection Act of 1990, or
Executive Order 11246 (as any of these laws or orders may have been amended) or any other
similar federal, state or local labor, employment or anti-discriminatory laws.
Notwithstanding any other provision of this General Release and Waiver of Claims, Releasor
does not release or waive Releasor’s rights and Claims against the Company arising out of, or
related to, the obligations of the Company pursuant to the Agreement, Claims for Releasor’s vested
benefits under any pension plan, retirement plan and savings plan, rights under any equity
participation plan and stock purchase plan and rights to continuation of
2
medical care coverage pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985
and any similar state law.
Releasor represents and warrants on behalf of the Releasing Parties that there has been, and
there will be, no assignment or other transfer of any right or interest in any Claims which
Releasor has or may have against the Released Parties, and Releasor hereby agrees to indemnify and
hold each Released Party harmless from any Claims, costs, expenses and attorney’s fees directly or
indirectly incurred by any of the Released Parties as a result of any person asserting any right or
interest pursuant to his, her or its assignment or transfer of any such right or interest.
Releasor agrees that if any Releasing Party hereafter commences, joins in, or in any manner
seeks relief through any suit arising out of, based upon, or relating to any of the Claims released
hereunder, or in any manner asserts against any Released Party any of the Claims released
hereunder, then Releasor will pay to such Released Party, in addition to any and all damages and
compensation, direct or indirect, all attorney’s fees incurred in defending or otherwise responding
to such suit or Claims.
Releasor acknowledges that (i) Releasor has received the advice of legal counsel in connection
with this General Release and Waiver of Claims, (ii) Releasor has read and understands that this is
a General Release and Waiver of Claims, and (iii) Releasor intends to be legally bound by the
same.
Releasor acknowledges that Releasor has been given the opportunity to consider this Release
for twenty-one (21) days and has been encouraged and given the opportunity to consult with legal
counsel of Releasor’s choosing before signing it. Releasor understands that Releasor shall have
seven (7) days from the date on which Releasor executes this General Release and Waiver of Claims
(as indicated by the date below his signature) to revoke Releasor’s signature and agreement to be
bound hereby by providing written notice of revocation to the Company within such seven (7) day
period. Releasor further understands and acknowledges this Release shall become effective, if not
sooner revoked, on the eighth day after the execution hereof by Releasor (the “Effective Date”).
IN WITNESS WHEREOF, Releasor has executed and delivered this General Release and Waiver of
Claims on behalf of the Releasing Parties as of the day and year set forth below.
Dated: , 20__.
| RELEASOR: | ||||||
| Name: | ||||||
3
