EMPLOYMENT AGREEMENT
--------------------
This EMPLOYMENT AGREEMENT, made as of April 3, 2000 (the "Effective
Date"), is entered into by and between Northpoint Communications, Inc. (the
"Company") and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (the "Executive").
WHEREAS, the Company and Executive wish to enter into a formal
employment agreement that shall govern the terms and conditions of Executive's
employment with the Company and shall provide certain severance, stock option
and other benefits for Executive in the event that his employment should
terminate.
WHEREAS, the Executive is agreeing to abide by the restrictive
covenants contained herein and is foregoing other career opportunities in
reliance on this Employment Agreement,
NOW, THEREFORE, in consideration of the mutual covenants and
agreements hereinafter set forth, the parties agree as follows:
1. Definitions
A. Target Bonus. "Target Bonus" means the target annual bonus for
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Executive during in any year or, if Executive is entitled to a bonus
under an individual written agreement with the Company, the annual
bonus to which Executive is entitled thereunder.
B. Base Salary. "Base Salary" means the greater of the annual rate
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of base salary in effect for Executive at the time of Executive's
Qualifying Termination or the annual rate of base salary in effect for
Executive immediately before the Change in Control.
C. Cause. Termination for "Cause" means the following: (i)
-----
Executive's conviction of a felony; (ii) Executive's commission of any
act of fraud with respect to the Company; (iii) any intentional
misconduct by Executive intended to have a materially adverse effect
upon the Company's business; (iv) Executive's repeated failure to
satisfactorily perform his job duties in any material respect; (v) an
intentional, material breach by Executive of any of Executive's
fiduciary obligations as an officer or director of the Company or a
breach of this Employment Agreement or any other agreement with the
Company that has a materially adverse effect upon the Company; or (vi)
Executive's death or Permanent Disability.
D. Change in Control. "Change in Control" shall mean the occurrence
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of any of the following events:
(a) Any "person" (as such term is used in Sections 13(d)
and 14(d) of the Securities Exchange Act of 1934 is or becomes
the "beneficial owner" (as defined in Rule 13d-3 under said Act),
directly or indirectly, of securities of the Company representing
50% or more of the total voting power represented by the
Company's then outstanding voting securities; or
(b) The stockholders of the Company approve a merger or
consolidation of the Company with any other corporation, other
than a merger or consolidation which would result in the voting
securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by
being converted into voting securities of the surviving entity)
at least 50% of the total voting power represented by the voting
securities of the Company or such surviving entity outstanding
immediately after such merger or consolidation, or the
stockholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale or
disposition by the Company of all or substantially all of the
Company's assets.
E. Change of Employment Circumstances. "Change of Employment
----------------------------------
Circumstances" means (i) a material reduction in Executive's level of
duties or responsibilities or the nature or scope of Executive's
functions, including a change in reporting structure (for example, not
reporting directly to the Chief Executive Officer), or (ii) a
reduction in Executive's base salary or a reduction in Executive's
total cash compensation (consisting of base salary and target bonus),
or (iii) the failure to provide Executive with employee benefits
(including medical/dental, disability and life insurance) that are
substantially equivalent to the benefits provided to Executive
immediately before a Change in Control, or (iv) a relocation of
Executive's principal place of employment by more than thirty-five
miles away (or any requirement that Executive spend more than two days
a week on a regular basis at any location more than thirty-five miles
away), or (v) the breach by the Company of the terms of any
compensation agreement or arrangement between the Company and
Executive, or (vi) the repudiation or failure by the Company or its
successor to acknowledge (upon Executive's written request) or to
comply with any of its obligations under this Employment Agreement.
F. Comparable Position. A "Comparable Position" means a position
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with a successor to part or all of the business of the Company, if the
terms of such position (including the levels of responsibility,
reporting structure, title and similar aspects of the position) do not
differ from Executive's prior position with the Company in any manner
that would constitute a Change of Employment Circumstances, assuming
that the terms of such new position with the successor remained
materially the same as the terms of Executive's employment with the
Company.
G. Final Determination. "Final Determination" means an audit
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adjustment by the Internal Revenue Service that is either (i) agreed
to by both Executive (or his estate) and the Company (such agreement
by the Company to be not unreasonably withheld) or (ii) sustained by a
court of competent jurisdiction in a decision with which Executive and
the Company concur (such concurrence by the Company to be not
unreasonably withheld) or with respect to which the period within
which an appeal may be filed has lapsed without a notice of appeal
being filed.
H. Period of Coverage. The "Period of Coverage" means the period
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commencing on the Effective Date and ending upon the date of
termination of this Employment
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Agreement.
I. Permanent Disability. "Permanent Disability" shall mean the
---------------------
inability of Executive to perform the services of an executive officer
of the Company, as required under this Agreement, by reason of any
medically determinable physical or mental impairment that has lasted
or can be expected to last for a continuous period of twelve (12)
months or more.
J. Qualifying Termination. "Qualifying Termination" shall mean a
----------------------
termination of Executive's employment with the Company either (i) by
the Company for any reason other than for Cause, or (ii) by Executive,
following the occurrence of a Change in Control that occurs during the
Period of Coverage which results in a Change of Employment
Circumstances, provided that Executive properly executes, and does not
revoke or attempt to revoke, a Release of claims against the Company,
its affiliates and their employees and agents in the form attached as
Exhibit B (the "Release"). A Qualifying Termination shall be deemed
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not to have occurred where Executive is offered a Comparable Position
with the new corporate entity subsequent to a Change in Control,
whether or not Executive accepts such position. If Executive is
offered a position which is not a Comparable Position and accepts such
position, then Executive will be treated as if he had been offered and
accepted a Comparable Position.
2. Job Duties. Executive shall serve as the Executive Vice President and
Chief Financial Officer of the Company and shall, in such capacity, report
directly to the President and Chief Executive Officer. In his capacity as
Executive Vice President and Chief Financial Officer of the Company, Executive
shall devote substantially all of his time and attention to the business and
affairs of the Company.
3. Current Stock Options and Benefits.
A. Initial Grant. Pursuant to the Amended and Restated
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NorthPoint Communications Group, Inc. 1999 Stock Option Plan (the
"Option Plan"), Executive received a grant of stock options on April
3, 2000 (the "Initial Grant"). The Option Agreement between the
Company and Executive dated April 3, 2000 that underlies the Initial
Grant (the "Option Agreement") is attached hereto as Exhibit A.
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B. Cash Compensation. Executive is paid a base salary at the
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annual rate of Two-hundred and Fifty Thousand Dollars ($250,000.00),
to be paid in accordance with the Company's standard payroll policy.
Such base salary may be increased by the Board of Directors in its
sole discretion.
C. Bonus. Executive shall be eligible to receive an annual
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target bonus of up to a maximum of fifty percent (50%) of his annual
base salary. Payment of the bonus shall be at the discretion of the
Compensation Committee of the Company's Board of Directors and shall
be based on the achievement of objectives agreed to by the
Compensation Committee of the Board of Directors. In future years,
payment of the bonus shall be at the discretion of the Compensation
Committee of the Company's Board of Directors and shall be based on
the achievement of objectives as determined by such
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Committee.
D. Other Employee Benefits. Executive shall, throughout the
-----------------------
Period of Coverage, be eligible to participate in all group term life
insurance plans, group health plans, accidental death and
dismemberment plans and short-term and long-term disability programs,
sick leave, vacation leave and other executive perquisites which are
made available to the Company's executive and/or other Company
employees. Such participation shall be on terms no less favorable to
Executive than the terms generally provided to the Company's executive
officers or to any other Company employees, provided that Executive
qualifies for participation in such plans, programs and/or
perquisites.
E. Commuting Expenses. The Company acknowledges that
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Executive's primary residence shall remain in the Denver, Colorado
area during the term of his employment with the Company. The Company
shall reimburse Executive for reasonable housing and commuting
expenses incurred by Executive in connection with the performance of
his obligations under this Agreement for a period of two years from
the date of this Agreement, including reimbursement for (1) rental
expenses of up to $3,700 per month for a one-bedroom apartment that is
within walking distance of the Company's corporate offices in San
Francisco, California, and (2) reasonable airline travel between
Executive's primary residence and the Company's corporate offices. In
addition, the Company shall gross-up any reimbursed amounts to the
extent such amounts are taxable. The Company will make such payments
within 30 days after receipt of Executive's written request therefore,
which request shall be accompanied by documentation supporting the
request for reimbursement.
4. Additional Compensation. In addition to the compensation enumerated above,
-----------------------
and in return for the consideration contained herein, the Company has agreed to
provide the Executive with the compensation set forth in subsections A, B and C
below.
A. Supplemental Life Insurance. The Company will provide Executive
---------------------------
with supplemental group term life insurance coverage of $500,000
during the Period of Coverage.
B. Financial Counseling Assistance. The Company will provide
-------------------------------
Executive with annual financial counseling (which may include tax and
estate planning services) during the Period of Coverage by a provider
selected by the Executive. In no event, however, shall the Company
provide Executive with financial counseling in an amount in excess of
$10,000 per year.
C. Change in Control.
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(1) Change in Control Protection. Notwithstanding anything to
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the contrary in the Initial Grant or Option Agreement, upon (i) a
Change in Control of the Company, and (ii) a Qualifying
---
Termination of the Executive, the Executive shall be entitled to
the following benefits:
a) Acceleration. Executive's Initial Grant, to the
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extent not otherwise exercisable for all the shares of
Company common stock underlying the Initial Grant, will
immediately become exercisable for all the shares of
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Company common stock underlying the Initial Grant, and
may be exercised for any or all of those shares as
fully vested shares. All options must be exercised
within ninety (90) days of the date of the Qualifying
Termination.
b) Installment Sum Payment of Salary and Bonus.
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Beginning within ten (10) business days after a
Qualifying Termination (or, if later, the last day of
any period during which the Release may be revoked by
Executive), the Company shall make six (6) equal
monthly cash payments to Executive, subject to any
mandatory tax withholding, equal to one-sixth (1/6)
times the sum of Executive's Annual Base Salary and
Executive's Target Bonus.
c) Continuing Benefit Coverage. The Company will,
---------------------------
at normal employee rates, provide Executive and, to the
extent available before the Qualifying Termination,
Executive's eligible dependents with coverage under the
Company's medical/dental plan, life insurance and
accident plan and disability plan until the earlier of
(i) six (6) months year after the date of Executive's
Qualifying Termination or (ii) the first date that
Executive is covered under another employer's program
which provides substantially the same level of benefit
coverage without exclusion for pre-existing conditions.
After this period of coverage, Executive (and, if
applicable, Executive's eligible dependents) may elect
to continue coverage under the Company's group
medical/dental plan at Executive's own expense in
accordance with the Consolidated Omnibus Budget
Reconciliation Act of 1985, as amended ("COBRA") and,
for purposes of determining the maximum period of COBRA
coverage, such maximum period will begin immediately
following the end of Company-subsidized coverage.
d) Excess Tax Gross-Up Payment. If any compensation
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payable hereunder, either alone or when aggregated with
other compensation payable to Executive, would
constitute a parachute payment that would subject
Executive to an excise tax under Section 4999 of the
Internal Revenue Code, Executive shall be entitled to
receive an additional lump sum cash payment, subject to
mandatory tax withholding, which, when added to all
compensation payable to Executive that constitutes a
parachute payment, provides Executive with the same
after tax-compensation that he would have received from
such parachute payments had none of such compensation
constituted a parachute payment (a "Tax Gross-Up"). The
procedures for making such payment are set forth in
Section 6.
(2) Limitation on Acceleration. Notwithstanding anything else
--------------------------
set forth in this Section 4, if it is reasonably determined by
the Company's Board of Directors in good faith, upon consultation
with Company management and the Company's independent auditors,
that the acceleration of vesting of stock options or restricted
5
stock or the acceleration and cash-out of affiliate options upon
a Change in Control (to the extent that those Sections provide
for acceleration or cash-out that would not otherwise occur under
the terms of the instruments evidencing such options or
restricted stock) would preclude accounting for any proposed
business combination of the Company as a pooling of interests,
and the Board of Directors otherwise desires to approve such a
proposed business transaction which requires as a condition to
the closing of such transaction that it be accounted for as a
pooling of interests, then, solely to the extent necessary to
permit such accounting, such acceleration or cash-out shall not
occur. The previous sentence shall not limit any acceleration of
vesting or cash-out of any option or restricted stock that would
occur, in absence of this Employment Agreement, under the terms
of the Option Agreement or Option Plan.
(3) Offset of Benefits. The compensation and benefits payable
-------------------
hereunder shall not be reduced or offset by any amounts that
Executive earns or could earn from any other sources following
Executive's Qualifying Termination. However, except to the extent
the Company expressly agrees otherwise in writing, if the Company
becomes obligated to pay Executive any severance pay or severance
benefits under a separate employment or severance agreement or
arrangement with the Company, the benefits payable hereunder
shall be reduced by the amount of benefits payable under such
other agreement or arrangement.
5. Restrictive Covenants.
A. In return for the consideration contained herein, Executive has
agreed to certain restrictive covenants set forth below. During the
Period of Coverage, Executive agrees that he shall:
(1) devote substantially all of his time and energy to the
performance of Executive's duties described herein, except
during periods of illness or vacation.
(2) not directly or indirectly provide services to or
through any person, firm or other entity except the Company,
unless otherwise authorized by the Company in writing.
(3) not render any services of any kind or character for
Executive's own account or for any other person, firm or
entity without first obtaining the Company's written
consent.
B. Notwithstanding the foregoing, Executive shall have the right to
perform such incidental services as are necessary in connection with
(i) his private, passive investments, but only if Executive is not
obligated or required to (and shall not in fact) devote any managerial
efforts which interfere with the services required to be performed by
him hereunder, (ii) his charitable or community activities, (iii)
participation in trade or professional organizations, but only if such
incidental services do not significantly interfere with the
performance of Executive's services hereunder, or (iv) service as a
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member of the Board of Directors of Commercial Federal Bank
Corporation, Regis University, the Santa Fe Opera and the Colorado
Symphony (unless and until notified to the contrary by the Company),
and such other boards as are approved in writing by the Company.
6. Excise Tax Gross-Up Procedures.
A. The amount of any such Tax Gross-Up to which Executive becomes
entitled under Section 4.C(1)(d), will be determined pursuant to the
following:
X = Y / (1 - (A + B + C)), where
X is the total dollar amount of the Tax Gross-Up payable to
Executive;
Y is the total Excise Tax (as defined in Internal revenue
Code Section 4999) imposed on Executive;
A is the Excise Tax rate in effect at the time;
B is the highest combined marginal federal income and
applicable state income tax rate in effect for Executive,
after taking into account disallowance of itemized
deductions caused by an event described in Section
4.C.(1)(d) and the deductibility of state income taxes
against federal income taxes to the extent allowable, for
the calendar year in which the Tax Gross-Up is paid; and
C is the applicable FICA Tax Rate in effect for Executive
for the calendar year in which the Tax Gross-Up is paid;
provided if there is a change in the tax laws after the date hereof that would
render the amount determined above insufficient to fully reimburse Executive on
an after-tax basis for the amount of any Excise Tax, Executive shall be entitled
to such additional amount as may be necessary to provide him with such
reimbursement
B. Within ninety (90) days after a determination is made by the Internal
Revenue Service or Executive's tax advisor that an item of compensation or
benefit payable hereunder constitutes a parachute payment under Code
Section 280G for which Executive is liable for an Excise Tax, Executive
shall identify the nature of the payment to the Company and submit to the
Company the calculation of the Excise Tax attributable to that payment and
the Tax Gross-Up to which Executive is entitled with respect to such tax
liability. The Company will pay such Tax Gross-Up to Executive (net of all
applicable withholding taxes, including any taxes required to be withheld
under Code Section 4999) within ten (10) business days after Executive's
submission of the calculation of such Excise Tax and the resulting Tax
Gross-Up, provided such calculations represent a reasonable interpretation
of the applicable law and regulations.
7
C. In the event that Executive's actual Excise Tax liability is
determined by a Final Determination to be greater than the Excise Tax
liability previously taken into account for purposes of the Tax Gross-
Up paid to Executive pursuant to this Section 6, then within ninety
(90) days following the Final Determination, Executive shall submit to
the Company a new Excise Tax calculation based upon the Final
Determination. Within ten (10) business days after receipt of such
calculation, the Company shall pay Executive the additional Tax Gross-
Up attributable to such excess Excise Tax liability.
D. In the event that Executive's actual Excise Tax liability is
determined by a Final Determination to be less than the Excise Tax
liability previously taken into account for purposes of the Tax Gross-
Up paid to Executive pursuant to this Section 6, then Executive shall
refund to the Company, promptly upon receipt, any federal or state tax
refund attributable to the Excise Tax overpayment.
7. Termination of Employment.
A. By Company. The Company may terminate Executive's employment
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under this Employment Agreement at any time for any reason, with or
without Cause.
B. By Executive. Executive may terminate his employment under this
------------
Employment Agreement at any time, for any reason, with or without
Cause, by giving the Company at least thirty (30) days prior written
notice of such termination. However, such thirty (30) day notice
requirement shall not apply if Executive terminates his employment due
to a Change in Control.
8. Release of Claims. All compensation and benefits under Section 4 above are
in consideration for Executive's execution of the Release, which Release
Executive does not subsequently revoke or attempt to revoke. If Executive does
not execute such a Release or if Executive attempts to revoke such Release,
Executive will not be entitled to any of the benefits provided under this
Employment Agreement.
9. Successors and Assigns. The provisions of this Employment Agreement shall
inure to the benefit of, and shall be binding upon, the Company, its successors
and assigns, and the Executive, the personal representative of his estate and
his heirs and legatees; provided, however, Executive may not assign, transfer or
delegate his rights or obligations hereunder and any attempt to do so shall be
void.
10. Notices.
A. Any and all notices, demands or other communications required or
desired to be given hereunder by any party shall be in writing and
shall be validly given or made to another party if served either
personally or, if deposited in the United States mail, certified or
registered, postage prepaid, return receipt requested. If such notice,
demand or other communication shall be served personally, service
shall be conclusively deemed made at the time of such personal
service. If such notice, demand or other
8
communication is given by mail, service shall be conclusively deemed
made at the time of the receipt by the party to whom such notice,
demand or other communication is sent. Any and all notices, demands or
other communications shall be delivered to the following address:
To the Company: NorthPoint Communications
▇▇▇ ▇/▇▇/ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
To Executive: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
B. Any party hereto may change its address for the purpose of
receiving notices, demands and other communications as herein provided
by a written notice given in the manner aforesaid to the other party
hereto.
11. Waivers. No waiver of any term or provision of this Employment Agreement
shall be valid unless such waiver is in writing signed by the party against whom
enforcement of the waiver is sought. In the case of the Company, such waiver
shall be signed by at least one (1) member of the Company's Board. The waiver
of any term or provision of this Employment Agreement shall not apply to any
subsequent breach of this Employment Agreement.
12. Governing Document. This Employment Agreement, the Option Agreement, the
Option Plan, and all other exhibits and attachments hereto constitute the entire
agreement and understanding of the Company and Executive with respect to the
terms and conditions of Executive's employment with the Company and the payment
of severance and other benefits, and supersedes all prior and contemporaneous
written or verbal agreements and understandings between Executive and the
Company relating to such subject matter. Where the terms of the Option
Agreement or Option Plan conflict with the terms of this Employment Agreement,
the terms of this Employment Agreement shall control. Any and all prior
agreements, understandings or representations relating to Executive's employment
with the Company are hereby terminated and cancelled in their entirety and are
of no further force or effect.
13. Governing Law. The provisions of this Employment Agreement shall be
construed and interpreted under the laws of the State of California applicable
to agreements executed and to be wholly performed within the State of
California. If any provision of this Employment Agreement as applied to any
party or to any circumstance should be adjudged by a court of competent
jurisdiction to be void or unenforceable for any reason, the invalidity of that
provision shall in no way affect (to the maximum extent permitted by law) the
application of such provision under circumstances different from those
adjudicated by the court, the application of any other provision of this
Employment Agreement, or the enforceability or invalidity of this Employment
Agreement as a whole. Should any provision of this Employment Agreement become
or be
9
deemed invalid, illegal or unenforceable in any jurisdiction by reason of
the scope, extent or duration of its coverage, then such provision shall be
deemed amended to the extent necessary to conform to applicable law so as to be
valid and enforceable or, if such provision cannot be so amended without
materially altering the intention of the parties, then such provision shall be
stricken and the remainder of this Employment Agreement shall continue in full
force and effect.
14. Deductions. All amounts paid to Executive hereunder are subject to all
withholdings and deductions required by law.
15. Amendment and Termination. This Employment Agreement may be modified,
amended or terminated only by a written agreement signed by Executive and an
authorized member of the Company's Board.
16. Remedies. All rights and remedies provided pursuant to this Employment
Agreement or by law shall be cumulative, and no such right or remedy shall be
exclusive of any other. A party may pursue any one or more rights or remedies
hereunder or may seek damages or specific performance in the event of another
party's breach hereunder or may pursue any other remedy by law or equity,
whether or not stated in this Employment Agreement.
17. Arbitration. Executive agrees that any and all disputes that he has with
the Company, or any of its employees, which arise out of his employment or under
the terms of his employment, shall be resolved through final and binding
arbitration, as specified herein. This shall include, without limitation,
disputes relating to this Employment Agreement, his employment by the Company or
the termination thereof, claims for breach of contract or breach of the covenant
of good faith and fair dealing, and any claims of discrimination or other claims
under Title VII of the Civil Rights Act of 1964, the Age Discrimination in
Employment Act, the Americans with Disabilities Act, the California Fair
Employment and Housing Act, the Employee Retirement Income Securities Act, the
Racketeer Influenced and Corrupt Organizations Act, or any other federal, state
or local law or regulation now in existence or hereinafter enacted and as
amended from time to time concerning in any way the subject of his employment
with the Company or its termination. The only disputes not covered by this
Employment Agreement are the following: (i) claims for benefits under the
unemployment insurance or workers' compensation laws, and (ii) claims concerning
the validity, infringement or enforceability of any trade secret, patent right,
copyright, trademark or any other intellectual property held or sought by the
Company or which the Company could otherwise seek; in each of these instances
such disputes or claims shall not be subject to arbitration, but rather, shall
be resolved pursuant to applicable law. Binding arbitration shall be conducted
in the county in which the Company's principal place of business is then located
in accordance with the rules and regulations of the American Arbitration
Association (AAA). One arbitrator shall be chosen by mutual agreement of the
Company and Executive from the AAA Employment Advisory Panel. Each side shall
bear its own attorneys' fees; that is, the arbitrator shall not have authority
to award attorneys' fees unless a statutory section at issue in the dispute
------
authorizes the award of attorneys' fees to the prevailing party, in which case
the arbitrator has authority to make such award as permitted by the statute in
question. Executive understands and agrees that the arbitration shall be
instead of any jury trial and that the arbitrator's decision shall be final and
binding to the fullest extent permitted by law
10
and enforceable by any court having jurisdiction thereof. Executive and the
Company shall share equally the costs of the arbitrator.
18. Counterparts. This Employment Agreement may be executed in more than one
counterpart, each of which shall be deemed an original, but all of which
together shall constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Employment
Agreement as of the day and year first above written.
NORTHPOINT COMMUNICATIONS, INC.
By /s/ NorthPoint Communications, Inc.
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EXECUTIVE:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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(Signature)
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
(Print Name)
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EXHIBIT A
STOCK OPTION AGREEMENT
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[Attached]
12
EXHIBIT B
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FORM OF RELEASE
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Dear ▇▇. ▇▇▇▇▇▇▇:
This letter is provided to confirm the agreement we have reached
regarding your separation from employment with NorthPoint Communications, Inc.,
(the "Company"). We have agreed that your employment with the Company will
terminate effective _________________, 200__.
In consideration of the benefits to be provided to you pursuant to
that certain in Employment Agreement between you and the Company dated April 3,
2000, you agree to the following:
A. Except for amounts payable under the Employment Agreement and benefits
required to be provided pursuant to the Employment Agreement, and except with
respect to any claims arising out of a breach by the Company of the Employment
Agreement, you fully and forever release and promise not to institute or
participate in any legal proceeding against the Company or any of its directors,
officers, or employees with respect to any and all claims and causes of action
of any nature or kind, which are or may be claimed to exist, through and
including the date on which this Agreement is executed by you, including but not
limited to, any proceeding arising out of or relating in any way to your
employment with the Company or your separation from employment. You should
understand that you are forever waiving any rights you may have to pursue any
remedies available to you against the Company, including, but not limited to,
any employment-related cause of action, any tort or contract claims, any claim
for violation of any state, federal or local statute, ordinance or regulation
relating to employment or employment discrimination.
B. You have agreed to maintain in confidence all information you have
regarding the Company, its clients, the circumstances leading to your separation
from the Company and the terms of this Agreement, except to the extent you are
required by law to make any such disclosure.
C. This Agreement between us shall be deemed to have been entered into in
the State of California and shall be construed and interpreted in accordance
with the laws of this State. It supersedes any and all prior agreements between
you and the Company and contains the entire agreement between us.
D. You and the Company hereby expressly waive any and all rights and
benefits conferred by the provisions of Section 1542 of the Civil Code of the
State of California, which states as follows:
A general release does not extend to claims which the
creditor does not know or suspect to exist in his favor
at the time of executing the release, which if known by
him must have materially affected his settlement with
the debtor.
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You may have up to ____________ (___) days in which to consider this
Agreement and you should review it with an attorney if you so desire. By your
signature below, you acknowledge that you have read and understand the terms of
this Agreement, and that you are signing it voluntarily and without coercion.
You further acknowledge that the waivers you have made in this Agreement are
knowing, conscious and made with full appreciation that you are forever
foreclosed from pursuing any of the rights so waived.
Very truly yours,
____________________________
Dated:____________________ By:________________________________
(Name, Title)
I hereby accept and agree to the terms and conditions set forth in the
above agreement.
Dated:___________________ ___________________________________
(Executive Name)
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