EXAS » Topics » NOW, THEREFORE

These excerpts taken from the EXAS 10-K filed Mar 31, 2009.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Executive and the Company hereby agree as follows:

 

1.             Non-Contingent Payments.  The Company has paid and/or shall pay the following to the Executive regardless of whether he agrees to the terms of this Release Agreement: (a) all of the Executive’s base salary accrued through the Termination Date; (b) reimbursement for any and all business expenses required to be reimbursed to the Executive pursuant to the Company’s expense reimbursement policy, and (c) Executive’s accrued but unused vacation.

 

2.             Severance Benefits.  For purposes of the Employment Agreement, the Executive’s employment shall be treated as having been involuntarily terminated by the Company for a reason other than Cause.  Since the Employment Agreement satisfies the various requirements of the severance pay and short-term deferral exemptions to Section 409A (“Section 409A”) of the Internal Revenue Code (the “Code”), Executive’s severance pay is not considered deferred compensation under the Code and, therefore, the salary continuation payments may be accelerated and converted to a lump sum payment without subjecting the payments to the 20 percent additional tax imposed pursuant to Section 409A.  Consistent with this and the terms of the Employment Agreement, the Company agrees to provide Executive with the following Severance Benefits in exchange for, among other things, his signing and complying with the terms of this Release Agreement:

 

(a)           a lump sum payment equal to eighteen months of Executive’s base salary at the rate as of the Termination Date, less applicable deductions and withholdings (the “Lump Sum Payment); and

 



 

(b)           continuation of group health plan benefits to the extent authorized by the state law commonly known as “mini-COBRA”, with the cost of the regular premium for such benefits paid for by the Company for eighteen months from the Termination Date provided Executive elects and remains eligible for mini-COBRA.

 

The Lump Sum Payment will be made on March 31, 2009 provided this Release Agreement has become fully effective on or before that date.

 

3.             General Release. Executive irrevocably and unconditionally releases and forever discharges the Company, all of its affiliated and related entities, its and their respective predecessors, successors and assigns, its and their respective employee benefit plans and the fiduciaries of such plans, and the current and former officers, directors, stockholders, employees, attorneys, accountants, and agents of each of the foregoing in their official and personal capacities (collectively referred to as the “Releasees”) generally from all claims, demands, debts, damages and liabilities of every name and nature, known or unknown (“Claims”) that, as of the date when Executive signs this Release Agreement, he has, ever had, now claims to have or ever claimed to have had against any or all of the Releasees.  This release includes, without implication of limitation, the complete waiver and release of all Claims of or arising in connection with or for: the Employment Agreement including Claims for breach of express or implied contract; wrongful termination of employment whether in contract or tort; intentional, reckless, or negligent infliction of emotional distress; breach of any express or implied covenant of employment, including the covenant of good faith and fair dealing; interference with contractual or advantageous relations, whether prospective or existing; deceit or misrepresentation; discrimination or retaliation under state, federal, or municipal law, including, without implication of limitation, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as amended, the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq.; Massachusetts General Laws. ch. 151B; defamation or damage to reputation; reinstatement; punitive or emotional distress damages; wages, severance pay, vacation pay, back or front pay or other forms of compensation; and attorney’s fees and costs.  Executive understands that this general release of Claims extends to any and all Claims related to Executive’s employment by the Company and the termination of his employment.  Executive understands that this general release does not extend to any rights or claims that may arise out of acts or events that occur after the date on which Executive signs this Agreement.  Executive represents that he has not assigned to any third party and has not filed with any agency or court any Claim released by this Agreement.

 

4.             Restrictive Covenants.  Executive hereby reaffirms his continuing obligations pursuant to the Employee Non-Disclosure and Developments Agreement dated November 6, 2002 and the Employee Non-Competition Agreement dated November 9, 2002 (collectively, the “Restrictive Covenants”), which shall remain in full force and effect regardless of the effectiveness or any termination of this Release Agreement.  For the avoidance of doubt, the Restrictive Covenants are appended to this Release Agreement.

 

5.             Option Treatment

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Executive and the Company hereby agree as follows:

 

1.                                       Non-Contingent Payments.  The Company has paid and/or shall pay the following to the Executive regardless of whether he agrees to the terms of this Release Agreement: (a) all of the Executive’s base salary accrued through the Termination Date; (b) reimbursement for any and all business expenses required to be reimbursed to the Executive pursuant to the Company’s expense reimbursement policy, and (c) Executive’s accrued but unused vacation.

 

2.                                       Severance Benefits.  For purposes of the Employment Agreement, the Executive’s employment shall be treated as having been involuntarily terminated by the Company for a reason other than Cause.  Since the Employment Agreement satisfies the various requirements of the severance pay and short-term deferral exemptions to Section 409A (“Section 409A”) of the Internal Revenue Code (the “Code”), Executive’s severance pay is not considered deferred compensation under the Code and, therefore, the salary continuation payments may be accelerated and converted to a lump sum payment without subjecting the payments to the 20 percent additional tax imposed pursuant to  Section 409A.  Consistent with this and the terms of the Employment Agreement, the Company agrees to provide Executive with the following Severance Benefits in exchange for, among other things, his signing and complying with the terms of this Release Agreement:

 

(a)                                  a lump sum payment equal to fifteen months of Executive’s base salary at the rate as of the Termination Date, less applicable deductions and withholdings (the “Lump Sum Payment); and

 

 



 

(b)                                 continuation of group health plan benefits to the extent authorized by the state law commonly known as “mini-COBRA”, with the cost of the regular premium for such benefits paid for by the Company for fifteen months from the Termination Date provided Executive elects and remains eligible for mini-COBRA.

 

The Lump Sum Payment will be made on March 31, 2009 provided this Release Agreement has become fully effective on or before that date.

 

3.                                       General Release. Executive irrevocably and unconditionally releases and forever discharges the Company, all of its affiliated and related entities, its and their respective predecessors, successors and assigns, its and their respective employee benefit plans and the fiduciaries of such plans, and the current and former officers, directors, stockholders, employees, attorneys, accountants, and agents of each of the foregoing in their official and personal capacities (collectively referred to as the “Releasees”) generally from all claims, demands, debts, damages and liabilities of every name and nature, known or unknown (“Claims”) that, as of the date when Executive signs this Release Agreement, he has, ever had, now claims to have or ever claimed to have had against any or all of the Releasees.  This release includes, without implication of limitation, the complete waiver and release of all Claims of or arising in connection with or for: the Employment Agreement including Claims for breach of express or implied contract; wrongful termination of employment whether in contract or tort; intentional, reckless, or negligent infliction of emotional distress; breach of any express or implied covenant of employment, including the covenant of good faith and fair dealing; interference with contractual or advantageous relations, whether prospective or existing; deceit or misrepresentation; discrimination or retaliation under state, federal, or municipal law, including, without implication of limitation, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as amended, the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq.; Massachusetts General Laws. ch. 151B; defamation or damage to reputation; reinstatement; punitive or emotional distress damages; wages, severance pay, vacation pay, back or front pay or other forms of compensation; and attorney’s fees and costs.  Executive understands that this general release of Claims extends to any and all Claims related to Executive’s employment by the Company and the termination of his employment.  Executive understands that this general release does not extend to any rights or claims that may arise out of acts or events that occur after the date on which Executive signs this Agreement.  Executive represents that he has not assigned to any third party and has not filed with any agency or court any Claim released by this Agreement.

 

4.                                       Restrictive Covenants.  Executive hereby reaffirms his continuing obligations pursuant to the Employee Non-Disclosure and Developments Agreement dated November 9, 2004 and the Employee Non-Competition Agreement dated December 1, 2004 (collectively, the “Restrictive Covenants”), which shall remain in full force and effect regardless of the effectiveness or any termination of this Release Agreement.  For the avoidance of doubt, the Restrictive Covenants are appended to this Release Agreement.

 

5.                                       Option Treatment

NOW,
THEREFORE
, for
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Executive and the Company hereby agree as follows:



 



1.            

NOW,
THEREFORE
, for
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Executive and the Company hereby agree as follows:



 



1.            

NOW,
THEREFORE
, for
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Executive and the Company hereby agree as follows:



 



1.                                      

NOW,
THEREFORE
, for
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Executive and the Company hereby agree as follows:



 



1.                                      

EXCERPTS ON THIS PAGE:

10-K (6 sections)
Mar 31, 2009
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