Exhibit 99.3
EXECUTIVE EMPLOYMENT AGREEMENT
This EXECUTIVE EMPLOYMENT AGREEMENT (this "Agreement") is made as of
December __, 2007 by and between Beacon Enterprise Solutions Group, Inc., an
Indiana corporation (the "Company"), and Xxxxxxx X. Xxxx ("Executive").
WHEREAS, pursuant to that certain Agreement and Plan of Merger dated as of
October 15, 2007 (the "Purchase Agreement"), among the Company and the
stockholders of Xxxx-Xxxx Systems, Inc., the Company acquired all of the capital
stock of Xxxx-Xxxx Systems, Inc. through a wholly-owned subsidiary of the
Company; and
WHEREAS, the Company desires to employ Executive, and Executive desires to
be employed by the Company, on the terms set forth herein;
NOW THEREFORE, in consideration of the mutual covenants contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
Section 1. Employment. The Company hereby employs Executive, and Executive
hereby accepts employment with the Company, upon the terms and conditions set
forth in this Agreement, for the period beginning on the Closing Date (as
defined in the Purchase Agreement) and ending as provided in Section 4 hereof
(the "Employment Period").
Section 2. Position and Duties. During the Employment Period, Executive
will serve as the Director of Systems Integration of the Company. Executive will
render such managerial, analytical, administrative, marketing, creative and
other executive services to the Company and its Affiliates, as are from time to
time necessary in connection with the management and affairs of the Company and
its Affiliates, in each case subject to the authority of the Board (as defined
below) of the Company to define and limit such executive services, including
serving as an officer, manager, employee or in any other capacity for any
Affiliate of the Company. Executive will devote his best efforts and all of his
business time and attention (except for permitted vacation periods and
reasonable periods of illness or other incapacity) to the business and affairs
of the Company and its Affiliates. Executive will perform his duties and
responsibilities to the best of his abilities in a diligent, trustworthy,
businesslike and efficient manner. Executive will be permitted to reside and
perform Executive's duties in Columbus, Ohio or its environs (other than typical
travel that is required in the performance of such duties).
Section 3. Salary and Benefits.
(a) Salary. During the first twelve (12) months of the Employment Period,
the Company will pay to the Executive salary in the annual amount of
$100,000.00, payable at a rate equal to $8,333 per month (as may be adjusted
from time to time, the "Salary") as compensation for services. The Salary will
be payable in regular installments in accordance with the general payroll
practices of the Company. After the first twelve (12) months of the Employment
Period, Executive will be eligible for an salary review by the Company and the
Salary may be adjusted upward by the Company based on the achievement of
performance goals.
EXECUTIVE EMPLOYMENT AGREEMENT
(b) Bonuses. During the Employment Period, the Company will establish cash
and equity incentive bonus programs representing additional incentive
compensation for Executive. The bonus program shall be administered and
distributed under the sole direction of the Compensation Committee of the Board,
taking into account the recommendations of senior management of the Company and
the achievement of annual goals and objectives as established and approved by
the Board. If the Employment Period during any fiscal year is less than the full
fiscal year, the bonus amount paid to Executive, if any, attributable to any
fiscal year shall be prorated for the actual number of days of the Employment
Period that elapse during such fiscal year.
(c) Benefits. During the Employment Period, the Company will provide
Executive with family health, dental and major medical, vision and disability
coverage, as well as participation under such plans as the Board may establish
or maintain from time to time for executive officers of the Company
(collectively, the "Benefits"). Executive will be entitled to such paid vacation
per annum as the Company shall establish as Company policy for all management of
the Company.
(d) Reimbursement of Expenses. During the Employment Period, the Company
will reimburse Executive for all reasonable out-of-pocket expenses incurred by
him during the Employment Period in the course of performing his duties under
this Agreement which are consistent with the Company's policies in effect from
time to time with respect to travel, entertainment and other business expenses,
subject to the Company's requirements with respect to reporting and
documentation of such expenses.
Section 4. Termination.
(a) The Employment Period will commence on the Closing Date (as defined in
the Purchase Agreement) and continue until December 31, 2009, and may be further
extended by the mutual consent of Executive and the Company, unless terminated
by the earlier of: (i) Executive's resignation (A) for Good Reason on 30 days'
written notice, (B) for any other reason or no reason (a resignation described
in this clause (i)(B) being a resignation by the Executive "Without Good
Reason") or (C) as a result of Executive's death or Disability, which
resignation shall be deemed automatically tendered upon Executive's death or
Disability; or (ii) the giving of notice of termination by the Company (A) for
Cause or (B) for any other reason or for no reason (a termination described in
this clause (ii)(B) being a termination by the Company "Without Cause"). For
purposes of this Agreement, "Cause" means (i) any willful or intentional act of
Executive that has the effect of injuring the reputation or business of the
Company or its Affiliates in any material respect, (ii) Executive's use of
illegal drugs, (iii) that the Executive has materially failed to perform his
duties hereunder and such failure continues uncured for 30 days after notice to
Executive by the Company; provided, the foregoing notice shall only be required
with respect to one material breach that occurs in any 12-month period, or (iv)
Executive's indictment, conviction or a plea of guilty or no contest or similar
plea with respect to, a felony, an act of fraud or embezzlement, a breach of
fiduciary duty to the Company or any of its Subsidiaries, or a (v) breach of any
of Sections 6, 7 or 8 of this Agreement. For the purposes of this Agreement,
"Good Reason" means (i) any substantial diminution in the Executive's
professional responsibilities, (ii) any intentional act which creates a
workplace environment that, by duress or otherwise, makes it impossible for
Executive to continue his employment, (iii) a
reduction in Salary or the overall level of other compensation and benefits to
which Executive is entitled under this Agreement, or (iv) the failure by the
Company to pay the Executive any portion of the Executive's current compensation
when due and such failure continues for 7 days after notice to Company from
Executive provided that the foregoing notice shall only be required with respect
to one such failure in any 12-month period. For avoidance of doubt, Executive
hereby acknowledges that the Board may from time to time reorganize the
operations of the Company resulting in a change in Executive's title or direct
employer, which change alone shall not constitute Good Reason so long as (A) any
change in title or reporting responsibilities results in no substantial
diminution in Executive's responsibilities and (B) any new direct employer
agrees to be bound by the terms and conditions of this Agreement, without
modification other than to reflect the change in title and employer.
(b) In the event the Employment Period is terminated by the Company
Without Cause or the Executive resigns for Good Reason, then, so long as
Executive continues to comply with Sections 6, 7 and 8 hereof, Executive will be
entitled to continue to receive an amount (the "Severance Amount") during the
one year period following the Termination Date (the "Severance Term") equal to
the Salary in effect at the Termination Date and payable in accordance with the
Company's regular payment schedule in effect at the Termination Date. In
addition, in connection with termination described in the preceding sentence,
Executive shall be entitled to receive (x) any incentive payments earned and
accrued, but not yet paid to Executive prior to the Termination Date, (y)
continued medical coverage during the Severance Term pursuant to COBRA at the
Company's expense; and (z) all accrued and unpaid Salary and unused vacation
time through the Termination Date and all unreimbursed business expenses
incurred through the Termination Date; provided, as a condition to receiving the
Severance Amount or any payment or benefit described in paragraphs 4(b)(x) and
4(b)(y), Executive shall be required to execute and deliver to the Company
immediately prior to the payment of such first installment a release in the form
of Exhibit A.
(c) In the event the Employment Period is terminated due to the
Executive's death, or resignation Without Good Reason or by the Company with
Cause then, so long as Executive continues to comply with Sections 6, 7 and 8
hereof, Executive will be entitled to receive the items described in paragraphs
4(b)(x) and 4(b)(z) above.
(d) In the event the Employment Period is terminated by the Executive or
the Company due to the Executive's Disability, then the Executive shall receive
his monthly Salary and benefits through the end of the calendar month is which
such termination occurs and, so long as Executive continues to comply with
Sections 6, 7 and 8 hereof, Executive will be entitled to receive the items
described in Sections 4(b)(x),(y) and (z) above.
Section 5. Resignation as Officer or Director. Upon the Termination Date,
Executive will be deemed to have resigned from each position (if any) that he
then holds as an officer or director of the Company and each of its Affiliates,
and Executive will take any and all reasonable action that the Company may
request in order to confirm or evidence such resignation.
Section 6. Confidential Information. Executive acknowledges that the
information, observations and data that may be obtained by Executive during his
employment
relationship with, or through his involvement as a consultant, contractor,
representative, agent, officer, director, partner, member or stockholder of, the
Company, any of its Subsidiaries or Affiliates thereof (each of the Company, any
of its Subsidiaries or Affiliates being a "Related Company" and, collectively,
the "Related Companies"), prior to and after the date of this Agreement
concerning the business or affairs of the Related Companies (collectively,
"Confidential Information") are and will be the property of the Related
Companies. Therefore, Executive agrees that he will not disclose to any
unauthorized Person or use for the account of himself or any other Person any
Confidential Information without the prior written consent of the Company (by
the action of the Board), unless and to the extent that such Confidential
Information has become generally known to and available for use by the public
other than as a result of Executive's improper acts or omissions to act, or is
required to be disclosed by law. Executive will deliver or cause to be delivered
to the Company at, or within two days of, the Termination Date, or at any other
time the Company may request, all memoranda, notes, plans, records, reports,
computer tapes and software and other documents and data (and copies thereof)
containing or relating to Confidential Information or the business of any
Related Company which Executive may then possess or have under his control.
Section 7. Non-Compete, Non-Solicitation.
(a) Non-Compete. Executive acknowledges that during his employment
relationship with, or through his involvement as a consultant, contractor,
representative, agent, officer, director, partner, member or stockholder of, the
Company, any of its Subsidiaries, or any of their respective Affiliates or any
predecessor thereof, Executive has and will become familiar with trade secrets
and Confidential Information concerning such companies, and with investment
opportunities relating to their respective businesses, and that Executive's
services have been and will be of special, unique and extraordinary value to the
foregoing entities. Therefore, Executive agrees that, during his employment with
the Company and for one year after the Termination Date (the "Non-Compete
Period"), he will not, directly or indirectly, invest in, own, manage, operate,
finance, control, or participate in the ownership, management, operation,
financing, or control of, be employed by, render services to, or in any manner
be connected with any business (in each case including on his own behalf or on
behalf of another Person), whose products, services or activities compete in
whole or in part with the products, services or activities of the Company or its
Affiliates, as they now exist or may exist during such one year period, anywhere
in Ohio; provided, however, that Executive may purchase or otherwise acquire up
to (but not more than) 2% of any class of securities of any enterprise (but
without otherwise directly or indirectly participating in the activities of such
enterprise) if such securities are listed on any national or regional securities
exchange or have been registered under Section 12(g) of the Securities Exchange
Act of 1934. Executive agrees that this covenant is reasonable with respect to
its duration, geographical area, and scope. By initialing in the space provided
below, Executive acknowledges that he has read carefully and had the opportunity
to consult with legal counsel regarding the provisions of this Section 7(a).
______ [initial].
(b) Non-Solicitation. During his employment with the Company and for one
year thereafter, Executive will not directly or indirectly (i) induce or attempt
to induce any employee or independent contractor of the Company or any
Subsidiary, or their respective Affiliates to leave the employ or contracting
relationship with such entity, or in any way interfere
with the relationship between any such entity and any employee, or (ii) induce
or attempt to induce any customer, supplier or other business relation of the
Company or any Subsidiary, or their respective Affiliates, to cease doing
business with such entity or in any way interfere with the relationship between
any such customer, supplier or other business relation and such entity. By
initialing in the space provided below, Executive acknowledges that he has read
carefully and had the opportunity to consult with legal counsel regarding the
provisions of this Section 7(b). ______ [initial].
(c) Consideration for Non-compete and Non-solicitation. Company agrees
that it shall pay Executive for these covenants in the total amount of Fifty
Thousand and 00/100 Dollars ($50,000.00) payable as follows: Twenty Five
Thousand and 00/100 Dollars ($25,000.00) at Closing and Twelve Thousand Five
Hundred and 00/100 Dollars ($12,500.00) in month nineteen of the Employment
Period and Twelve Thousand Five Hundred and 00/100 Dollars ($12,500.00) in month
twenty-four of the Employment Period (i.e. the end of the Employment Period).
Company agrees that the right to the payments identified in this Section are
contingent upon the observance of the covenants set forth in Sections 7(a) and
7(b) hereof and are independent of, and unconnected in any way with any salary
or severance payment that may be made by Company hereunder and the payments
referred to in this Section shall be made by Company regardless of whether
Executive is employed with Company. Company shall make such payments directly to
Employee along with a 1099 (or similar) reporting format. The Executive shall
remit all payments made under this Section 7(c) to the Company in the event of
any breach or violation by Executive of the covenants set forth in Sections 7(a)
and 7(b) during the Restricted Period.
Section 8. Inventions and Patents. Executive acknowledges that all
inventions, innovations, improvements, know how, plans, development, methods,
designs, analyses, specifications, software, drawings, reports and all similar
or related information (whether or not patentable or reduced to practice) which
relate to any of the Company's actual or proposed business activities and which
are created, designed or conceived, developed or made by Executive during
Executive's past or future employment by the Company, or any Subsidiary, or any
predecessor thereof ("Work Product") belong to the Company, or its Subsidiaries,
as applicable. Any copyrightable work falling within the definition of Work
Product shall be deemed a "work made for hire" and ownership of all right title
and interest shall rest in the Company. Executive hereby irrevocably assigns,
transfers and conveys, to the full extent permitted by law, all right, title and
interest in the Work Product, on a worldwide basis, to the Company to the extent
ownership of any such rights does not automatically vest in the Company under
applicable law. Executive will promptly disclose any such Work Product to the
Company and perform all actions requested by the Company (whether during or
after employment) to establish and confirm ownership of such Work Product by the
Company (including without limitation, assignments, consents, powers of attorney
and other instruments.)
Section 9. Enforcement. The Company and Executive agree that if, at the
time of enforcement of Section 6, 7 or 8 hereof, a court holds that any
restriction stated in any such Section is unreasonable under circumstances then
existing, then the maximum period, scope or geographical area reasonable under
such circumstances will be substituted for the stated period, scope or area.
Because Executive's services are unique and because Executive has access to
information of the type described in Sections 6, 7 and 8 hereof, the Company and
Executive
agree that money damages would be an inadequate remedy for any breach of Section
6, 7 or 8 hereof. Therefore, in the event of a breach of Section 6, 7 or 8
hereof, the Company and any Subsidiary thereof may, in addition to other rights
and remedies existing in their favor, apply to any court of competent
jurisdiction for specific performance and/or injunctive relief in order to
enforce, or prevent any violations of, the provisions of Section 6, 7 or 8
hereof. The provisions of Sections 6, 7 and 8 hereof are intended to be for the
benefit of the Company and any Subsidiary thereof and their respective
successors and assigns. Sections 6, 7 and 8 hereof will survive and continue in
full force in accordance with their terms notwithstanding any termination of the
Employment Period for a period of eighteen (18) months. By initialing in the
space provided below, Executive acknowledges that he has read carefully and had
the opportunity to consult with legal counsel regarding the provisions of this
Section 9. _______ [initial].
Section 10. Representations and Warranties of Executive. Executive
represents and warrants to the Company as follows:
(a) Other Agreements. Executive is not a party to or bound by any
employment, noncompete, nonsolicitation, nondisclosure, confidentiality or
similar agreement with any other Person which would affect his performance under
this Agreement other than Executive's agreement with his current employer which
has previously been disclosed to Company and which shall be terminated as of the
Closing Date.
(b) Authorization. This Agreement constitutes the valid and legally
binding obligation of Executive, enforceable against Executive in accordance
with its terms.
Section 11. Survival of Representations and Warranties. All
representations and warranties contained herein will survive the execution and
delivery of this Agreement.
Section 12. Certain Definitions. When used herein, the following terms
will have the following meanings:
"Affiliate" means, with respect to any Person, any other Person that,
directly or indirectly through one or more of its intermediaries, controls, is
controlled by or is under common control with such Person.
"Board" means the Board of Directors of the Company.
"Business Day" means a day that is not a Saturday, a Sunday or a statutory
or civic holiday in the Commonwealth of Kentucky or in Louisville, Kentucky.
"Cause" has the meaning given in Section 4(a).
"Disability" means the failure by Executive (by reason of accident,
illness, incapacity or other disability) to perform his duties or fulfill his
obligations under this Agreement on a "full time" basis for a cumulative total
of 180 days, whether or not consecutive, within any 12-month period. The
Company's determination as to whether Executive has incurred a Disability shall
be made in good faith by the Board based on the opinion of a licensed physician
selected by the Company or its insurers.
"Good Reason" has the meaning given in Section 4(a). "Non-Compete Period"
has the meaning given in Section 7.
"Person" means an individual, a partnership, a corporation, an
association, a limited liability company, a joint stock company, a trust, a
joint venture, an unincorporated organization or any other entity (including any
governmental entity or any department, agency or political subdivision thereof).
"Subsidiaries" means, with respect to any Person, any corporation, limited
liability company, partnership, association or other business entity of which
(i) if a corporation, a majority of the total voting power of shares of stock
entitled (without regard to the occurrence of any contingency) to vote in the
election of directors thereof is at the time owned or controlled, directly or
indirectly, by such Person or one or more of the other Subsidiaries of such
Person or a combination thereof, or (ii) if a limited liability company,
partnership, association or other business entity, a majority of the partnership
or other similar ownership interest thereof is at the time owned or controlled,
directly or indirectly, by any Person or one or more Subsidiaries of such Person
or entity or a combination thereof. For purposes hereof, a Person or Persons
will be deemed to have a majority ownership interest in a limited liability
company, partnership, association or other business entity if such Person or
Persons will be allocated a majority of limited liability company, partnership,
association or other business entity gains or losses or will be or control any
managing director, managing member, or general partner of such limited liability
company, partnership, association or other business entity.
"Termination Date" means the date on which the Employment Period ends as
determined by Section 4(a).
"Without Cause" has the meaning given in Section 4(a).
Section 13. Miscellaneous.
(a) Notices. All notices, demands or other communications to be given or
delivered by reason of the provisions of this Agreement will be in writing and
will be deemed to have been given (i) on the date of personal delivery to the
recipient or an officer of the recipient, or (ii) when sent by telecopy or
facsimile machine to the number shown below on the date of such confirmed
facsimile or telecopy transmission (provided that a confirming copy is sent via
overnight mail), or (iii) when properly deposited for delivery by a nationally
recognized commercial overnight delivery service, prepaid, or by deposit in the
United States mail, certified or registered mail, postage prepaid, return
receipt requested. Such notices, demands and other communications will be sent
to each party at the address indicated for such party below:
Notices to Executive, to:
Xxxxxxx X. Xxxx
00000 Xxxxxx Xxx Xxxx
Xxxxxx, XX 00000
with a copy (which will not constitute notice to the Executive) to:
Xxxx Xxxxxxxxxx & Xxxxxxxxx
00 Xxxx Xxxxx Xxxxxx Xxxxx 0000
Xxxxxxxx, Xxxx 00000
Attn: Xxxxx X. Xxxxxxxx
Notices to the Company, to:
Beacon Enterprise Solutions Group, Inc.
000 X. Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxx
with a copy (which will not constitute notice to the Company) to:
Xxxxx Xxxxx Xxxx LLC
000 Xxxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxx
or to such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party.
(b) Consent to Amendments. No modification, amendment or waiver of any
provision of this Agreement will be effective against any party hereto unless
such modification, amendment or waiver is approved in writing by such party. No
other course of dealing among the Company and Executive or any delay in
exercising any rights hereunder will operate as a waiver by any of the parties
hereto of any rights hereunder.
(c) Successors and Assigns. All covenants and agreements contained in this
Agreement by or on behalf of any of the parties hereto will bind and inure to
the benefit of the respective successors and assigns of the parties hereto
whether so expressed or not.
(d) Severability. Whenever possible, each provision of this Agreement will
be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement is held to be prohibited by or invalid
under applicable law, such provision will be ineffective only to the extent of
such prohibition or invalidity, without invalidating the remainder of this
Agreement.
(e) Counterparts. This Agreement may be executed simultaneously in two or
more counterparts, any one of which need not contain the signatures of more than
one party, but all such counterparts taken together will constitute one and the
same Agreement.
(f) Descriptive Headings; Interpretation. The descriptive headings of this
Agreement are inserted for convenience only and do not constitute a substantive
part of this Agreement. The use of the word "including" in this Agreement will
be by way of example rather than by limitation.
(g) Governing Law. ISSUES AND QUESTIONS CONCERNING THE CONSTRUCTION,
VALIDITY, ENFORCEMENT AND INTERPRETATION OF THIS AGREEMENT AND THE EXHIBITS AND
SCHEDULES HERETO WILL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF THE COMMONWEALTH OF KENTUCKY, WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR
CONFLICT OF LAW RULES OR PROVISIONS (WHETHER OF THE COMMONWEALTH OF KENTUCKY OR
ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY
JURISDICTION OTHER THAN THE COMMONWEALTH OF KENTUCKY. IN FURTHERANCE OF THE
FOREGOING, THE INTERNAL LAW OF THE COMMONWEALTH OF KENTUCKY WILL CONTROL THE
INTERPRETATION AND CONSTRUCTION OF THIS AGREEMENT (AND ANY SCHEDULE HERETO),
EVEN THOUGH UNDER KENTUCKY'S CHOICE OF LAW OR CONFLICT OF LAW ANALYSIS, THE
SUBSTANTIVE LAW OF SOME OTHER JURISDICTION WOULD ORDINARILY APPLY.
(h) Jurisdiction. EACH OF THE PARTIES HERETO (I) CONSENTS TO SUBMIT ITSELF
TO THE PERSONAL JURISDICTION OF ANY FEDERAL OR STATE COURT LOCATED IN JEFFERSON
COUNTY, KENTUCKY IN THE EVENT ANY DISPUTE ARISES OUT OF THIS AGREEMENT OR ANY OF
THE TRANSACTIONS CONTEMPLATED HEREBY, (II) AGREES THAT IT WILL NOT ATTEMPT TO
DENY OR DEFEAT SUCH PERSONAL JURISDICTION BY MOTION OR OTHER REQUEST FOR LEAVE
FROM ANY SUCH COURT AND (III) AGREES THAT IT WILL NOT BRING ANY ACTION RELATING
TO THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY IN ANY COURT
OTHER THAN A FEDERAL OR STATE COURT SITTING IN JEFFERSON COUNTY, KENTUCKY, AS
APPLICABLE.
(i) Entire Agreement. Except as otherwise expressly set forth in this
Agreement, this Agreement and the other agreements referred to in this Agreement
embody the complete agreement and understanding among the parties to this
Agreement with respect to the subject matter of this Agreement, and supersede
and preempt any prior understandings, agreements, or representations by or among
the parties or their predecessors, written or oral, which may have related to
the subject matter of this Agreement in any way.
(j) Attorney's Fees. In the event that Company or Executive should bring
suit against the other in respect to any matters provided for in this Agreement,
the prevailing party shall be entitled to recover from the other party its
reasonable attorney's fees and costs in connection with such suit.
IN WITNESS WHEREOF, the parties hereto have executed this Executive
Employment Agreement as of the date first written above.
BEACON ENTERPRISE SOLUTIONS
GROUP, INC.
By: ______________________________
Name: Xxxxx Xxxxxxx
Title: Chief Executive Officer
EXECUTIVE
_________________________________
Signature
_________________________________
Xxxxxxx X. Xxxx
Signature Page to
Executive Employment Agreement
EXHIBIT A
FORM OF RELEASE AGREEMENT
This Release Agreement (this "Agreement") constitutes the release referred
to in that certain Executive Employment Agreement (the "Employment Agreement")
dated as of December __, 2007, by and between Xxxxxxx X. Xxxx ("Employee") and
Beacon Enterprise Solutions Group, Inc. (the "Company").
For good and valuable consideration, including the Company's provision of
certain payments and benefits to Employee in accordance with Section 3 of the
Employment Agreement, Employee hereby releases, discharges and forever acquits
the Company, its Affiliates (as such term is defined in the Employment
Agreement) and the past, present and future stockholders, members, partners,
directors, managers, employees, agents, attorneys, heirs, legal representatives,
successors and assigns of the foregoing, in their personal and representative
capacities (collectively, the "Company Parties"), from liability for, and hereby
waives, any and all claims, damages, or causes of action of any kind related to
Employee's employment with any Company Party, the termination of such
employment, and any other acts or omissions related to any matter on or prior to
the date of this Agreement including without limitation any alleged violation
through the date of this Agreement of: (i) the Age Discrimination in Employment
Act of 1967, as amended; (ii) Title VII of the Civil Rights Act of 1964, as
amended; (iii) the Civil Rights Act of 1991; (iv) Section 1981 through 1988 of
Title 42 of the United States Code, as amended; (v) the Employee Retirement
Income Security Act of 1974, as amended; (vi) the Immigration Reform Control
Act, as amended; (vii) the Americans with Disabilities Act of 1990, as amended;
(viii) the National Labor Relations Act, as amended; (ix) intentionally deleted;
(x) the Occupational Safety and Health Act, as amended; (xi) intentionally
deleted; (xii) any state anti-discrimination law; (xiii) any state wage and hour
law; (xiv) any other local, state or federal law, regulation or ordinance; (xv)
any public policy, contract, tort, or common law claim; (xvi) any allegation for
costs, fees, or other expenses including attorneys' fees incurred in these
matters; (xvii) any and all rights, benefits or claims Employee may have under
the Agreement and Plan of Merger, dated October 15, 2007, by and between the
Company and inter alia, the shareholders of Xxxx-Xxxx Systems, Inc. (the "BHS
Merger Agreement"), any employment contract, incentive compensation plan or
stock option plan with any Company Party or to any ownership interest in any
Company Party except as expressly provided in the BHS Merger Agreement,
Employment Agreement and any incentive equity agreement between Employee and the
Company or any Affiliate thereof and (xviii) any claim for compensation or
benefits of any kind not expressly set forth in the BHS Merger Agreement,
Employment Agreement or any such incentive equity agreement (collectively, the
"Released Claims"). This Agreement is not intended to indicate that any such
claims exist or that, if they do exist, they are meritorious. Rather, Employee
is simply agreeing that, in exchange for the consideration recited in the first
sentence of this paragraph, any and all potential claims of this nature that
Employee may have against the Company Parties, regardless of whether they
actually exist, are expressly settled, compromised and waived. By signing this
Agreement, Employee is bound by it. Anyone who succeeds to Employee's rights and
responsibilities, such as heirs or the executor of Employee's estate, is also
bound by this Agreement. This release also applies to any claims brought by any
person or agency or class action under which Employee may have a right or
benefit. THIS RELEASE INCLUDES MATTERS ATTRIBUTABLE TO THE SOLE OR PARTIAL
NEGLIGENCE (WHETHER GROSS OR SIMPLE) OR OTHER FAULT, INCLUDING STRICT LIABILITY,
OF ANY OF THE COMPANY PARTIES.
Employee agrees not to bring or join any lawsuit against any of the
Company Parties in any court relating to any of the Released Claims. Employee
represents that Employee has not brought or joined any lawsuit or filed any
charge or claim against any of the Company Parties in any court or before any
government agency and has made no assignment of any rights Employee has asserted
or may have against any of the Company Parties to any person or entity, in each
case, with respect to any Released Claims. If Employee brings or joins any
lawsuit against any of the Company Parties in any court or before any
arbitration tribunal (except as necessary to protect Employee's rights under
this release or with respect to Employee's entry into this release) relating to
any of the Released Claims, and Employee is the prevailing party in such
lawsuit, Employee shall be obligated to return to the Company all amounts paid
to Employee under this release, to the extent permitted under applicable law and
ordered by the court or arbitration tribunal, as applicable. Further, if any
Company Party is the prevailing party in any lawsuit Employee brings against
such Company Party relating to Employee's employment or other matters that have
been released or waived in this Agreement, to the extent permitted by applicable
law (such as if Employee's claim are found to be brought in bad faith), in
addition to all other remedies available at law or in equity, Employee agrees to
pay all costs and expenses incurred by such person or entity, including
reasonable attorneys' fees, in defending against such lawsuit.
By executing and delivering this Agreement, Employee acknowledges that:
(a) Employee has carefully read this Agreement;
(b) Employee has had at least 21 days to consider this Agreement before
the execution and delivery hereof to the Company;
(c) Employee has been and hereby is advised in writing that Employee may,
at Employee's option, discuss this Agreement with an attorney of Employee's
choice and that Employee has had adequate opportunity to do so; and
(d) Employee fully understands the final and binding effect of this
Agreement; the only promises made to Employee to sign this Agreement are those
stated in the Employment Agreement and herein; and Employee is signing this
Agreement voluntarily and of Employee's own free will, and that Employee
understands and agrees to each of the terms of this Agreement.
Notwithstanding the initial effectiveness of this Agreement, Employee may
revoke the delivery (and therefore the effectiveness) of this Agreement within
the seven day period beginning on the date Employee delivers this Agreement to
the Company (such seven day period being referred to herein as the "Release
Revocation Period"). To be effective, such revocation must be in writing signed
by Employee and must be delivered to the Company before 11:59 p.m., Louisville,
Kentucky time, on the last day of the Release Revocation Period. If an effective
revocation is delivered in the foregoing manner and timeframe, this Agreement
shall be of no force or effect and shall be null and void ab initio. No
consideration shall be paid if this Agreement is revoked by Employee in the
foregoing manner.
Executed on this _______ day of ____________________, _____.
_______________________________________
Name:
STATE OF Ohio)
COUNTY OF Franklin)
BEFORE ME, the undersigned authority personally appeared Xxxxxxx X. Xxxx,
by me known or who produced valid identification as described below, who
executed the foregoing instrument and acknowledged before me that he subscribed
to such instrument on this _______ day of ______________, _____.
_____________________________________________
NOTARY PUBLIC in and for the
State of ______________________________
My Commission Expires: ________________
Identification produced: ______________
