Executive Severance Agreement
This Executive Severance Agreement ("Agreement") is entered into, effective as of [EFFECTIVE DATE] ("Effective Date"), by and between [EXECUTIVE NAME] ("Executive") and [COMPANY] ("Company").
In consideration of Executive's employment by the Company and for other good and valuable consideration, the receipt and sufficiency of which are acknowledged, the Executive and the Company agree as follows:
1. Definitions. For purposes of this Agreement, the following terms shall have the meanings specified below:
1.1. "Annual Base Salary" means the annual base cash compensation payable to the Executive at the rate in effect as of the applicable date (excluding bonuses, incentive compensation, taxable fringe benefits, and any other type of special pay), before any reduction on account of salary reduction contributions pursuant to Code Section 125 or 401(k) or pursuant to a nonqualified deferred compensation plan.
1.2. "Board" means the Company's Board of Directors.
1.3. "Bonus" means an annual cash bonus payable under any Bonus Plan.
1.4. "Cause" means the Executive's:
(a) act of fraud, embezzlement, theft, or other intentional material violation of the law in connection with or in the course of his employment;
(b) willful gross misconduct that is likely to materially injure the reputation, business, or a business relationship of the Company; or
(c) willful material violation of the Confidentiality and Non-Competition Agreement.
(i) For purposes of the definition of "Cause", no act, or failure to act, on the part of the Executive shall be deemed "willful," if it was done or omitted by the Executive in good faith or with a reasonable belief that the act or omission was not opposed to the best interests of the Company.
1.5. "Change of Control" means the occurrence of any of the following events:
(a) at any time after the Effective Date at least a majority of the Board shall cease to consist of "Continuing Directors" (meaning directors of the Company who either were directors on the Effective Date or who subsequently became directors and whose election, or nomination for election by the Company's stockholders, was approved by a majority of the then Continuing Directors); or
(b) any "person" or "group" (as determined for purposes of Section 13(d)(3) of the Exchange Act), except any majority-owned subsidiary of the Company or any employee benefit plan of the Company or any trust thereunder, shall have acquired "beneficial ownership" (as determined for purposes of Securities and Exchange Commission ("SEC") Regulation 13(d)(3)) of Shares having more than [OUTSTANDING SHARES VOTING POWER PERCENT]% of the voting power of all outstanding Shares; or
(c) a merger or consolidation occurs to which the Company is a party, in which outstanding Shares are converted into shares of another company (other than a conversion into shares of voting common stock of the successor corporation or a holding company thereof representing [CAPITAL STOCK VOTING POWER PERCENT]% of the voting power of all capital stock thereof outstanding immediately after the merger or consolidation) or other securities (of either the Company or another company) or cash or other property; or
(d) the sale of all, or substantially all, of the Company's assets occurs; or
(e) the stockholders of the Company approve a plan of complete liquidation of the Company.
1.6. "Code" means the Internal Revenue Code of 1986, as amended from time to time.
1.7. "Continuation Coverage" means continuation coverage within the meaning of ERISA Sections 601 through 607.
1.8. "Disability" means an illness or injury that qualifies the Executive for disability benefits under a long-term disability plan of the Company or a Related Employer in which the Executive is a participant; provided, however, that a Disability shall not be deemed to have occurred hereunder unless the Executive is absent from work or otherwise substantially unable to assume his normal duties for a period of 90 successive days or an aggregate of 120 days during any consecutive twelve-month period during the Term.
1.9. "Equity Plan" means that [COMPANY] [YEAR] Equity Incentive Plan, as amended and any successor equity plan thereto.
1.10. "ERISA" means the Employee Retirement Income Security Act of 1974, as amended from time to time.
1.11. "Exchange Act" means the Securities Exchange Act of 1934, as in effect on the date of this Agreement.
1.12. "Fiscal Year" means the fiscal year of the Company.
1.13. "Good Reason" means any of the following occurring without the Executive's express written consent:
(a) a material reduction in the Executive's authority, duties, or responsibilities or the assignment to the Executive of duties of a substantial nature and on a continuous or regular basis that are materially inconsistent with the duties of the Executive;
(b) a reduction in the Executive's base compensation or failure to include the Executive with other similarly situated employees in any incentive, bonus, or benefit plans as may be offered by the Company from time to time;
(c) a change in the primary location at which the Executive is required to perform the duties of his employment to a location that is more than 30 miles from the location at which his office is located on the Change of Control Date;
(d) the Company's material breach of this Agreement;
(e) a material reduction in the authority, duties, or responsibilities of the supervisor to whom the Executive is required to report; or
(f) a material reduction in the scope of the budget over which the Executive retains authority or responsibility.
1.14. "Long Term Incentive Plan" means the Company's Long Term Incentive Plan as in effect for the Company's fiscal year ending [DATE], as amended, and any successor plan thereto.
1.15. "Monthly Base Salary" means Annual Base Salary, divided by 12.
1.16. "Parachute Payment" has the meaning given to such term in Code Section 280G(b)(2).
1.17. "Parachute Payment Limit" means 3 times the base amount, as defined by Code Section 280G(b)(3).
1.18. "Release" means a Release of All Claims, in substantially the same form as set out in Exhibit A hereto.
1.19. "Retirement" means the Executive's termination of his employment with the Company or its subsidiary (other than as a result of death or Disability) on or after (A) the Executive's 65th birthday if the Executive has completed at least ten years of employment with the Company or any of its subsidiaries, or (B) the Executive's 60th birthday if the Executive has completed at least 15 years of employment with the Company or any of its subsidiaries.
1.20. "Term" means the term of this Agreement, as determined pursuant to Section 2.
1.21. "Terminates Employment", "Terminate(s) the Executive's Employment", "Termination of Employment," or any other variation of such term means a "separation from service" within the meaning of Code Section 409A(a)(2)(A).
1.22. "Termination Date" means the effective date of the Executive's Termination of Employment.
1.23. "Unacceptable Performance" means any of the following:
(a) the Executive's act or failure to act constituting willful misconduct or gross negligence that is materially injurious to the Company or its reputation;
(b) the Executive's material failure to perform the duties of his employment (except in the case of a Termination of Employment for Good Reason or on account of the Executive's physical or mental inability to perform such duties) and the failure to correct such failure within a reasonable period after receiving written notice from the Board describing such failure in detail; provided, however, that the quality of the Executive's performance (determined by achievement of Company or personal targets or otherwise) shall not be a factor in determining whether Executive has performed his duties.
(c) the Executive's violation of any code of ethics or business conduct or written harassment policies of the Company that continues after the Board has provided notice to the Executive that the continuation of such conduct will result in the Termination of the Executive's Employment;
(d) willful material violation of the Confidentiality and Non-Competition Agreement;
(e) the Executive's arrest or indictment for (i) a felony or (ii) lesser criminal offense involving dishonesty, breach of trust, or moral turpitude; or
(f) the Executive's breach of a material term, condition, or covenant of this Agreement and the failure to correct such breach promptly following receipt of written notice from the Board describing such breach in detail.
2.1. Initial Term. This initial Term of this Agreement commenced as of [COMMENCEMENT DATE], and shall continue through [TERMINATION DATE].
2.2. Extension. The Term of this Agreement shall automatically be extended by [EXTENSION PERIOD], unless either the Company or the Executive shall have provided notice to the other at least [NOTICE PERIOD FOR NON EXTENSION] before such date that the Term shall not be extended.
3. Termination. The Executive's employment may be terminated during the term of this Agreement only as follows:
3.1. Death. The Executive's employment shall terminate upon the Executive's death.
3.2. Disability. The Company may terminate the Executive's employment upon the Executive's Disability.
3.3. Termination by the Company For Cause. The Company may terminate the Executive's employment for Cause.
3.4. Termination by the Company Without Cause. The Company may terminate Executive's employment at any time by giving Executive [NOTICE PERIOD FOR TERMINATION WITHOUT CAUSE] prior written notice of the termination.
3.5. Termination by the Company Following a Change of Control. The Company may terminate the Executive's employment within [CHANGE OF CONTROL TERMINATION PERIOD] of a Change of Control.
3.6. Termination by the Executive for Good Reason. The Executive may terminate the Executive's employment with the Company for Good Reason.
3.7. Termination by the Executive without Good Reason. The Executive may voluntarily terminate the Executive's employment with the Company at any time by giving the Company [NOTICE PERIOD FOR TERMINATION WITHOUT GOOD REASON] prior written notice of the termination.
4. Severance Benefits
4.1. Termination Due To Disability, Without Cause or For Good Reason. If the Executive's employment terminates due to [Disability], [Without Cause], [For Good Reason] or [upon a Change of Control], the Executive shall be entitled to the following:
(a) Salary. The Company shall [continue to pay the Executive the Executive's then-current salary through the remaining term of the Executive's employment under this Agreement for a period of [TERMINATION PAYMENT PERIOD] following the date of termination pay to the Executive and amount equal to [SEVERANCE PAYMENT AMOUNT ]
(i) The Company shall continue to pay the Executive an annual bonus(es) throughout such remaining term.
(ii) Each such bonus shall be equal to the greater of (A) the Executive's bonus during the year prior to the Executive's termination or (B) the bonus that the Executive would have earned under the Company's bonus plan in the year that Executive was terminated had Executive remained in its employment.
(iii) Such bonuses shall not be paid until they would normally be paid in accordance with the Company's practices.
(c) Stock Options. All unvested stock options granted to the Executive by the Company shall immediately become vested upon such termination. Executive will have no right to any future ungranted options.
(d) Continuing Coverage. If the Executive is eligible for and properly elects Continuation Coverage for Executive and/or one or more qualified beneficiaries (as defined in ERISA Section 607(3)) under the Company's medical plan, the Company shall pay the premiums for such coverage (or reimburse the Executive for such premiums) for the [CONTINUING COVERAGE PAYMENT PERIOD] month period following the Executive's Termination of Employment (or such shorter period during which such person is eligible for Continuation Coverage). Such payments or reimbursements shall constitute taxable income of the Executive to the extent required by law.
(e) Outplacement Services. The Company shall pay the cost of outplacement services incurred by the Executive during the [OUTPLACEMENT SUPPORT PERIOD] period following his Termination of Employment and provided by a firm of the Executive's choice, up to a total of [MAXIMUM OUTPAYMENT COST]. Payment for outplacement expenses shall be made by the Company promptly following the Company's receipt of appropriate invoices documenting such expenses.
(f) Life Insurance. For a period of [LIFE INSURANCE CONTINUATION PERIOD] following the Executive's Termination of Employment, the Company shall continue to provide term life insurance coverage substantially the same as that provided for the Executive immediately before Executive's Termination Date (if any).
(i) Subject to the Continuing Coverage obligation above, the Company will continue to pay the cost (to the same extent that the Company was doing so immediately before the Termination Date) for group health plan continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA").
(ii) Company will pay the costs to the same extent provided under the Company's group health plan (including medical, dental and vision benefits) in which Executive and Executive's eligible dependent(s), if any, were covered
(h) immediately before the Termination Date for [NUMBER OF MONTHS] months commencing on the first day of the month following the month of the Termination Date (or such earlier date that Executive's group health plan coverage would otherwise cease as a result of Executive's termination of employment), or
(i) until Executive becomes eligible for group insurance benefits from another employer, whichever occurs first, provided that Executive timely elects COBRA coverage ("COBRA Benefits").
(i) Executive agrees at any time either before or during the period of time Executive is receiving the COBRA Benefits to inform the Company promptly in writing if Executive becomes eligible to receive group health coverage from another employer.
(ii) The period of such COBRA Benefits shall be considered part of Executive's COBRA coverage entitlement period.
4.2. Termination for Death, Cause[, Unacceptable Performance] or Voluntary Termination. If the Executive's employment terminates due to Death, For Cause[, Unacceptable Performance] or Voluntary Termination, the Executive shall be entitled to the following:
(a) Salary. The Executive shall be paid the Executive's salary through the Executive's termination date and not thereafter.
(b) Bonus. The Executive shall not be entitled to any bonus payments which were not fully earned prior to the Executive's termination date, and the Executive shall not be entitled to any unearned pro-rated bonus payment for the year in which the Executive's employment terminates.
(c) Stock Options. Any stock options granted to the Executive by the Company shall continue to vest only through the date on which the Executive's employment terminates.
4.3. Expenses. Provided that the Executive applies for reimbursement in accordance with the Company's established reimbursement procedures (within the period required by such procedures but under no circumstances later than 90 days after his Termination Date), the Company shall pay the Executive any reimbursements to which he is entitled under such procedures not later than the payment date for the payroll period next following the date on which the Executive applies for reimbursement.
4.4. Other Benefits. Any benefits (other than severance) payable to the Executive under any of the Company's cash or equity incentive compensation plans, employee benefit plans or programs, the Company's [YEAR] Equity Incentive Plan and any successor thereto (the "Equity Plan") and the agreements issued thereunder (collectively, "Benefit Plans"), to the extent not provided for herein, shall be payable in accordance with the provisions of those plans or programs.
5. Representations and Warranties. Executive hereby warrants and represents that:
5.1. Throughout Executive's employment, Executive was fully and appropriately compensated for all hours worked in accordance with the Fair Labor Standards Act and other applicable law, if any.
5.2. Executive has been provided with all leave to which Executive is entitled under The Company policy and applicable law, including but not limited to the Family and Medical Leave Act.
5.3. Executive has carefully read and fully understands the comprehensive terms and conditions of this Agreement and the releases set forth herein;
5.4. Executive is executing this Agreement knowingly and voluntarily, without any duress, coercion or undue influence by the Company, its representatives, or any other person;
5.5. Executive has consulted with legal counsel of Executive's own choice before executing this Agreement;
5.6. Executive has pending no claim, complaint, grievance or any document with any federal or state agency or any court seeking money damages or relief against The Company;
5.7. The Severance Benefits recited above constitute good and valuable consideration;
5.8. Executive is fully satisfied with the terms and conditions of this Agreement including, without limitation, the consideration paid to Executive by the Company;
5.9. Executive is not waiving rights or claims that may arise after the date this Agreement is executed;
5.10. Executive has had the right to consider the terms of this Agreement for a full 21 days and Executive hereby waives any and all rights to any further review period;
5.11. Executive understands that Executive has the right to revoke this Agreement within 7 calendar days after signing it by providing during this seven day period written notice of revocation to:
5.12. Executive understands the content, meaning, intent, and legal effect of this Agreement; and
5.13. If Executive revokes this Agreement during the seven-day period, the Agreement and all obligations hereunder become null and void in their entirety.
6.1. No Obligation to Mitigate
(a) No Mitigation or Reduction in Benefits. The Executive shall not be required to mitigate the amount of any payment or benefits by seeking other employment or otherwise, and the amount of any payment or benefits shall not be reduced by any payments or benefits received by the Executive as the result of employment by another employer after the Termination Date, or otherwise.
(b) Exception for Payments Required by Law. Any benefits payable under the Severance Benefits and Expenses Sections shall be reduced by the amount of any severance, termination, or notice pay (or any other similar amounts) required by law to be paid to the Executive by the Company or its subsidiaries and by any salary or other amounts paid to the Executive during any notice period that the Company or its subsidiaries is required by law to provide.
6.2. Withholding and Taxes
(a) The Company may withhold from any payment made hereunder:
(i) any taxes that the Company reasonably determines are required to be withheld under federal, state, or local tax laws or regulations, and
(ii) any other amounts that the Company is authorized to withhold.
(b) Except for employment taxes that are the obligation of the Company, the Executive shall pay all federal, state, local, and other taxes (including, without limitation, interest, fines, and penalties) imposed on him under applicable law by virtue of or relating to the payments and/or benefits contemplated by this Agreement, subject to any reimbursement provisions of this Agreement.
6.3. Unsecured Obligation. All rights of the Executive or any beneficiary of the Executive who succeeds to the Executive's rights to payments or benefits under this Agreement shall at all times be entirely unfunded and no provision shall at any time be made with respect to segregating any assets of the Company or payment of any amounts due hereunder. Neither the Executive nor any such beneficiary shall have any interest in or rights against any specific assets of the Company or any of its subsidiaries, and the Executive and any such beneficiary shall have only the rights of a general unsecured creditor of the Company.
6.4. Older Workers Benefit Protection Act. This Agreement is intended to comply with and be enforceable under the terms of the Older Workers Benefit Protection Act of 1990. Executive specifically acknowledges and agrees that, prior to signing this Agreement, the Executive:
(a) has been given the opportunity, for no less than 21 days, to consider its terms;
(b) has been advised by this writing, and has been given ample opportunity, to consult with an attorney regarding this Agreement;
(c) has carefully read and fully understands all of the provisions of the Agreement;
(d) knowingly and voluntarily agrees to all of the terms set forth in the Agreement, and agrees to be legally bound by those terms;
(e) knowingly and voluntarily agrees to release the Company from any and all Claims, whether known or unknown, which Executive may have against Company as of the date of the Agreement, including claims of age discrimination under the Age Discrimination in Employment Act of 1967 (29 U.S.C. 621, et seq.);
(f) is not waiving rights or claims under the Age Discrimination in Employment Act of 1967 which may arise after the execution of the Agreement; and
(g) has a full seven days following his or her signing of this Agreement to revoke the Agreement and is advised by this writing that the Agreement shall not become effective or enforceable as to any Age Discrimination in Employment Act Claims until this revocation period has expired.
(a) Agreement to Release. The Executive agrees that the Company's payment obligations shall be conditioned on the Executive's release of the Company and all other persons named in the Release from any and all causes of causes of action that the Executive has or may have against the Company or any such person before the effective date of the Release, other than a cause based on a breach hereof.
(b) Form of Release. The Release shall be substantially in the form attached hereto as Exhibit A.
(c) Effective Date of Release. For the Release to be effective, the Executive (or his representative or agent) must have provided a signed version of the Release to the Company and such Release shall have become effective and irrevocable by its terms within [EECUTION PERIOD FOR RELEASE] after the Executive's Termination of Employment.
7.2. Code Section 409A
(a) Notice Under Section 409A. If the Executive is a "specified employee" within the meaning of Code Section 409A(a)(2)(B)(i), the Company shall promptly deliver written notice to the Executive advising him of the application of such Code Section.
(b) Deferment of Payment. Solely to the extent necessary to avoid adverse personal tax consequences to the Executive under Code Section 409A, payments otherwise required to be made to the Executive pursuant to Section 4 shall be delayed to the earlier of (i) six months and one day after the Executive's Termination Date, or (ii) the Executive's death. For purposes of this Subparagraph, the Executive's Date of Termination shall be interpreted in a manner that is consistent with the term "separation from service" as defined in Code Section 409A and the Treasury Regulations thereunder.
(c) Interest of Deferment. Interest shall accrue on unpaid amounts delayed under this subparagraph at the prime rate from time to time in effect at [BANK] or any successor bank commencing from the date that such amounts would otherwise have been due under the applicable provision.
7.3. Provisions Relating to Parachute Payments. If payments and benefits to or for the benefit of the Executive, whether pursuant to this Agreement or otherwise, would result in total Parachute Payments to the Executive with a value equal to or greater than one hundred percent of the Parachute Payment Limit, the Executive may, in his sole discretion, elect to reduce the amount payable pursuant to Section 4.1(b) so that the value of all Parachute Payments to the Executive, whether or not made pursuant to this Agreement, is equal to the Parachute Payment Limit minus One Dollar ($1.00).
7.4. No Admission of Liability. Nothing in this Agreement, nor any action taken by the Company, shall in any way be construed as an admission by the Company of any liability, wrongdoing, or violation of law.
8.1. Confidentiality. The Executive agrees to maintain the strict confidentiality of all Confidential Information during the term of this Agreement and thereafter. This provision shall survive the termination of this Agreement indefinitely.
8.2. Return of Company Property. Upon Termination of employment, Executive shall return to Company any and all Company property, documents and computer disks, whether in original or copies thereof, which are the Company's property or in any way related to Company's business and which are under Executive's direct or indirect control, including any property which may have been furnished to Executive such as portable computers.
(a) Restrictions. During the Term of this Agreement and for a period of [NON-COMPETITION PERIOD] thereafter, Executive shall not, directly or indirectly, without the prior written consent of the Company, own, manage, operate, join, control, finance or participate in the ownership, management, operation, control or financing of, or be connected as an officer, director, Executive, partner, principal, agent, representative, or consultant of any entity engaged in the Restricted Business.
(b) Exceptions. It is not a breach of this Agreement for Executive to participate as a passive investor holding up to [PASSIVE INVESTMENT PERCENT] of the equity securities of an entity engaged in the Restricted Business, which securities are publicly traded.
8.4. Non-Solicitation. During the Term of this Agreement and for a period of [NON-SOLICITATION PERIOD] thereafter, Executive shall not directly or indirectly induce or attempt to induce any of the Executives of the Company to leave the employ of the Company, or solicit the business of any client, customer, [or any consultant] of the Company.
(a) Executive Non-Disparagement Obligation. The Executive agrees not to make any false, disparaging or derogatory statements to any person (including any media outlet, industry group, investor, securities professional, employer, financial institution or current or former employee, consultant, client or customer of the Company) regarding the Company or any of its directors, officers, employees, agents or representatives or the Company's operations, business affairs or financial condition. For the avoidance of doubt, this means that the Executive shall not denigrate the Company, verbally or in writing, about its leadership, market position, current and future prospects, financial situation, products, services, or in any other regard.
(b) Company Non-Disparagement Obligation. The Company will, in turn, instruct its Directors and executive officers to refrain from making any false, disparaging or derogatory statements about the Executive.
8.6. Remedy. Failure to abide by the terms of this Section shall constitute a breach of this letter agreement and shall entitle Company, where appropriate, to immediate injunctive relief to enjoin further breaches, consequential damages, and reimbursement of all fees and costs actually incurred in bringing such legal action.
9. Rights and Remedies
9.1. Indemnification. The Executive shall continue to be entitled to any rights to insurance and indemnification under the Company's or a Related Employer's directors and officers liability insurance ("D&O Insurance"), Certificate of Incorporation, and Bylaws, as in effect before the earlier of the Executive's Termination of Employment or a Change of Control (or rights to insurance and indemnification that are substantially the same thereto), with respect to any claims relating to the period before his Termination Date. Additionally, any and all D&O Insurance policies obtained by the Company or a Related Employer following the Termination Date that are "claims made" polices shall cover the Executive to the same extent as other former officers of the Company.
9.2. Limitation on Payments and Benefits. If the Executive intentionally and materially breaches any provision of the Confidentiality and Non-Competition Agreement, and fails to cure such breach (if curable) within 30 days, he shall promptly repay to the Company any and all severance amounts previously paid and the Executive shall have no further rights pursuant to this Agreement.
9.3. Default in Payment. Any payment not made within 10 days after it is due in accordance with this Agreement shall thereafter bear interest, compounded quarterly, at [INTEREST RATE FOR DEFAULT IN PAYMENT]% above the prime rate from time to time in effect at [BANK] or any successor bank.
10. Arbitration. Any dispute or controversy arising under or in connection with this Agreement shall be settled exclusively by arbitration in [LOCATION FOR ARBITRATION].
(a) Appointment of Arbitrators. Arbitration shall be determined by three arbitrators, one of whom shall be appointed by the Company, one of whom shall be appointed by the Executive, and the third of whom shall be appointed by the first two arbitrators.
(b) Failure to Appoint Arbitrators. If either the Company or the Executive fails to appoint an arbitrator within 20 days of a request in writing by the other to do so, or if the first two arbitrators cannot agree on the appointment of a third arbitrator within 20 days after the second arbitrator is designated, then such arbitrator shall be appointed by the American Arbitration Association.
10.2. Procedure. The arbitration shall be conducted promptly and expeditiously and in accordance with the rules of the American Arbitration Association.
10.3. Judgment. Judgment may be entered on the arbitrator's award in any court having jurisdiction; provided, however, that the Executive shall be entitled to seek specific performance of his right to be paid during the pendency of any dispute or controversy arising under or in connection with this Agreement.
10.4. Costs. The Company shall pay all reasonable out-of-pocket expenses, including reasonable legal fees and legal expenses, incurred by the Executive in connection with any judicial or other proceeding, including any arbitration proceeding, to enforce this Agreement or to construe, determine, or defend the validity of this Agreement. The Company shall pay (or reimburse the Executive) for any such expense as soon as administratively practicable after the Executive demonstrates evidence that such expense have been incurred and not later than 30 days following the Executive's submission of such expenses to the Company with a request for reimbursement.
11. General Provisions
11.1. Entire Agreement. This Agreement constitutes the entire agreement between the parties, and supersedes all prior agreements, representations and understandings of the parties, written or oral.
11.2. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which taken together shall constitute the same instrument.
11.3. Assignment. The Executive may not assign any part of the Executive's rights or obligations under this Agreement. Company may assign its rights, together with its obligations hereunder, to any parent, subsidiary or successor, or in connection with any sale, transfer or other disposition of all or substantially all of its business and assets provided, however, that any such assignee assumes Company's obligations hereunder.
11.4. Successors and Assigns. The Company shall require any successor (whether direct or indirect, by purchase, merger, consolidation, or otherwise) to all or substantially all of the business and/or assets of the Company, by agreement in form and substance satisfactory to the Executive, to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform it if no such succession had taken place. Failure of the Company to obtain such agreement before the effectiveness of any such succession shall be a material breach of this Agreement.
11.5. Notice. All notices, demands, requests or other communications given under this Agreement shall be in writing and be given by personal delivery, certified mail, return receipt requested, or nationally recognized overnight courier service to the address set forth below or as may subsequently in writing be requested.
If to Executive:
If to Company:
Attention: [COMPANY CONTACT NAME]
11.6. Amendment. This Agreement may be amended only by written agreement of the parties.
11.7. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of [GOVERNING LAW STATE], without regard to its conflict of laws rules.
11.8. Waiver. A waiver by Company of any breach of this Agreement by the Executive shall not be effective unless in writing, and no such waiver shall constitute a waiver of the same or another breach on a subsequent occasion.
11.9. Severability. The invalidity or unenforceability of any provision or provisions of this Agreement shall not affect the validity or enforceability of any other provision hereof, which shall remain in full force and effect.
11.10. Headings. The headings in this Agreement have been inserted solely for ease of reference and shall not be considered in the interpretation or enforcement of this Agreement.
11.11. No Right to Employment. The Executive agrees not to apply for employment, or seek reinstatement, with the Company, and further agrees that the Company has no obligation to hire or rehire the Executive at any time in the future. The Executive forever releases, waives, and relinquishes any right or claim to be hired by, or to reinstatement with, the Company. The Executive agrees that this Agreement is a lawful and non-discriminatory basis upon which the Company may refuse to hire or rehire the Executive.
The parties hereto have caused this Agreement to be executed on the Effective Date.
RELEASE OF ALL CLAIMS
This Release of All Claims ("Release") has been signed by ("Executive") on the date indicated below.
A. The Executive and [COMPANY] ("Company") entered into an Amended and Restated Executive Severance Agreement, effective as of ______________ ("Agreement"), which provides for the payment of benefits to the Executive under certain circumstances following his Termination of Employment.
B. The Executive's Employment with the Company Terminated/will Terminate on ______________ under circumstances that entitle him to payments under the Agreement, subject to the terms thereof.
C. The Company's obligations under the Agreement are contingent on the Executive signing and providing this Release to the Company within 60 days after receiving it and allowing this Release to become effective as provided herein.
D. As a condition of receiving benefits under the Agreement, the Executive wishes to sign this Release.
In consideration of the premises and for other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Executive agrees as follows:
1. If the Executive (i) signs and dates this Release and submits it to the Company not later than 60 days after it is provided to the Executive, (ii) complies with the other requirements of this Release and the Agreement, and (iii) and does not provide written revocation of this Agreement to the Company within the seven-day revocation period referred to in Paragraph 8, the Company shall make the payments and pay the benefits required by the Agreement.
2. In consideration of the Company's payment obligations under this Agreement, the Executive releases and discharges the Company, all of its past and/or present divisions, affiliates, officers, directors, shareholders, partners, trustees, employees, agents, representatives, administrators, attorneys, insurers, fiduciaries, successors, and assigns, in their individual and/or representative capacities (hereinafter collectively referred to as "Released Persons"), from any and all causes of action, suits, agreements, promises, damages, disputes, controversies, contentions, differences, judgments, claims, and demands of any kind whatsoever ("Claims") that the Executive and/or his heirs, executors, administrators, successors, and assigns ever had, now have, or may have against any Released Person by reason of his employment and/or cessation of employment with the Company or a Related Employer, or otherwise involving facts that occurred on or before the date on which the Executive signed this Release, other than (i) a Claim that the Company has failed to pay the Executive a payment described in or contemplated by the Agreement or has otherwise breached the terms of the Agreement, or (ii) a Claim that the Company has failed to pay the Executive any vested benefits to which he is entitled under a plan or program of the Company or a Related Employer (collectively, "Excluded Claims"). Claims, other than Excluded Claims, are hereafter referred to a "Released Claims." The Executive gives this Release regardless of whether the Released Claims are known or unknown. Such Released Claims include, without limitation, any and all Claims under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, the Civil Rights Act of 1871, the Civil Rights Act of 1991, the Fair Labor Standards Act, the Employee Retirement Income Security Act of 1974, the Americans with Disabilities Act, the Family and Medical Leave Act of 1993, and any and all other federal, state or local laws, statutes, rules, and regulations pertaining to employment, as well as any and all claims under state contract or tort law including, but not limited, to those based on allegations of wrongful discharge, breach of contract, promissory estoppel, defamation, and infliction of emotional distress.
3. The Executive hereby covenants not to sue or commence or maintain any action or proceeding against any Released Person, none of whom admit any liability, as to any Released Claim. The Executive hereby agrees that if he hereafter institutes or maintains an action against any Released Person with respect to a Released Claim, and it is determined in such action that a claim or claims brought by the Executive in such action is barred by this Release, he will pay the Released Person for all costs and expenses, including attorneys' fees, incurred in defending against such claims. The Executive understands that this Release is final and binding, except as expressly provided herein. Nothing herein shall (i) prevent the Executive from filing a charge or complaint, including a challenge to the validity of this Agreement, with the Equal Employment Opportunity Commission ("EEOC"), (ii) prevent the Executive from participating in any investigation or proceeding conducted by the EEOC, or (iii) establish a condition precedent or other barrier to exercising the aforesaid rights. While the Executive has a right to participate in any such investigation, he understands that he is waiving his right to any monetary recovery arising from any investigation or pursuit of a claim on his behalf. The Executive acknowledges that he has the right to file a charge alleging a violation of the ADEA with any administrative agency and/or to challenge the validity of the waiver and release of any claim that he may have under the ADEA without either (i) repaying the Company the amounts paid to him as a result of this Release or (ii) paying the Company any other monetary amounts (such as attorneys' fees and damages).
4. The Executive agrees that if this Release is ever held to be invalid or unenforceable (in whole or in part) as to any particular type of claim or as to any particular circumstance, it shall remain fully valid and enforceable as to all other claims and circumstances.
5. Except as permitted by paragraph 3, the Executive represents that he has not filed, and will not hereafter file, any lawsuit against any Released Person relating to his employment and/or cessation of employment with the Company or any Related Employer, or otherwise involving facts that occurred on or before the date on which he signed this Release, other than with respect to any Excluded Claim. The Executive further understands and agrees that, other than as provided under paragraph 3, if he commences, continues, joins in, or in any other manner attempts to assert any lawsuit released herein against a Released Person with regard to a Released Claim, or otherwise violates the terms of this Release, he shall be required to return all severance payments paid to him by the Company pursuant to the Executive Severance Agreement (together with interest thereon), and he agrees to reimburse the Released Person for all attorneys' fees and expenses incurred by it in defending against such a lawsuit, provided that the right to receive such payments is without prejudice to the Released Person's other rights hereunder.
6. The Executive understands and agrees that the Company's payments to him and the signing of this Release do not in any way indicate that he has any viable Claims against the a Released Person or that any Released Person admits any liability to him whatsoever.
7. The Executive has read this Release carefully, has been given at least 21 days to consider all of its terms and any modifications, material or otherwise, made to this Agreement do not restart or affect in any manner the original 21 calendar day consideration period. The Executive has been advised to consult with an attorney and any other advisors of his choice and fully understands that by signing below he is giving up any right that he may have to sue or bring any Claims (other than the Excluded Claims) against a Released Person. The Executive has not been forced or pressured in any manner whatsoever to sign this Release, and he agrees to all of its terms voluntarily.
8. The Executive understands that he has 7 days from the date on which he signed this Release below to revoke this Release by notifying the Company of his revocation, that this Release will not become effective until the eighth day following the date on which he has signed this Release, and that if he revokes this Release within such period, the Executive Severance Agreement shall be void.
9. The Executive understands and agrees that this Release will be governed by the internal laws of the State of New Jersey, without regard to conflict of law principles, to the extent not preempted by federal law.