EXHIBIT 10.18
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement") is entered into as of December
17, 2001, by and between MARK H. PERRY (the "Employee") and URS CORPORATION, a
New York Stock Exchange listed Delaware corporation headquartered at 100
California Street, Suite 500, San Francisco, California 94111-4529 (the
"Company").
1. TERM OF EMPLOYMENT.
(a) Basic Rule. The Company agrees to employ the Employee, and the
Employee agrees to remain in employment with the Company, from the date
hereof until the date on which the Employee's employment terminates
pursuant to Subsection (b), (c), (d), (e) or (f) below.
(b) Termination by Company Without Cause. The Company may terminate
the Employee's employment at any time without Cause (as defined below) and
for any reason or no reason whatsoever by giving the Employee thirty (30)
days' advance notice in writing.
(c) Termination by Company for Cause. The Company may terminate the
Employee's employment for Cause. For all purposes under this Agreement,
"Cause" shall mean:
(i) A willful failure or omission of the Employee to
substantially perform his duties hereunder, other than as a result of
the death or Disability (as defined below) of the Employee;
(ii) A willful act by the Employee that constitutes gross
misconduct or fraud;
(iii) The Employee's conviction of, or plea of "guilty" or "no
contest" to, a felony; or
(iv) The Employee's disobedience of orders and directives of the
Chief Financial Officer of the Company.
(d) Resignation by Employee. The Employee may terminate his employment
by giving the Company thirty (30) days' advance notice in writing.
(e) Death of Employee. The Employee's employment shall terminate
automatically in the event of his death.
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(f) Disability. The Company may terminate the Employee's employment
due to Disability by giving the Employee thirty (30) days' advance notice
in writing. For all purposes under this Agreement, "Disability" shall mean
that the Employee, at the time the notice is given, has performed none of
his duties under this Agreement for a period of not less than one hundred
eighty (180) consecutive days as a result of his incapacity due to physical
or mental illness. In the event the Employee resumes the performance of
substantially all of his duties hereunder before termination of his active
employment under this Section 1(f) becomes effective, the notice of
termination shall automatically be deemed to have been revoked because of a
mental or physical impairment that substantially affects one or more major
life activities.
(g) Rights Upon Termination. Except as expressly provided in Sections
6 and 7, upon the termination of the Employee's employment pursuant to this
Section 1, the Employee shall only be entitled to the compensation,
benefits and reimbursements described in Sections 3, 4 and 5 for the period
preceding the effective date of the termination. The payments under this
Agreement shall fully discharge all responsibilities of the Company to the
Employee.
(h) Employment by Affiliate. The employment of the Employee shall not
be considered to have terminated for purposes of this Agreement if the
Employee is employed by a parent, subsidiary or affiliated corporation or
related entity of the Company.
(i) Termination of Agreement. This Agreement shall terminate when all
obligations of the parties hereunder have been satisfied.
2. DUTIES AND SCOPE OF EMPLOYMENT.
(a) Position. The Company agrees to employ the Employee in an
executive position as the Vice President, Finance and Corporate Controller
of the Company for the term of his employment under this Agreement. The
Employee shall report to the Chief Financial Officer of the Company and
shall serve in such positions on behalf of the Company and its parent,
subsidiary and affiliated corporations and related entities and perform
such duties consistent with an executive and Vice President and Corporate
Controller position for such corporations and entities as may be required
by such Chief Financial Officer. It is anticipated that the Employee's
duties will require him to travel frequently and extensively. If the
Employee's principal office is changed from the San Francisco Bay Area, the
Company shall reimburse reasonable relocation expenses of the Employee in
accordance with generally applicable policies of the Company.
(b) Obligations. During the term of his employment under this
Agreement, the Employee shall devote his full business efforts and time to
the Company and its parent, subsidiary and affiliated corporations and
related entities and shall not render services to any other person or
entity without the prior written consent of the Chief Financial Officer of
the Company. The foregoing, however, shall not preclude the Employee from
(i) engaging in appropriate civic, charitable or religious activities,
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(ii) devoting a reasonable amount of time to private investments that do
not interfere or conflict with his responsibilities to the Company or (iii)
serving on the boards of directors of other companies provided that such
service does not interfere or conflict with his responsibilities to the
Company.
(c) Resignation from Other Positions. Immediately upon request by the
Company, before or after the termination of the employment of the Employee,
he shall resign from any position he holds as director, officer, trustee,
nominee, agent for service of process, attorney-in-fact or similar position
with respect to the Company or a parent, subsidiary or affiliated
corporation or related entity of the Company, and shall execute, verify,
acknowledge, swear to and deliver any documents and instruments reasonably
requested by the Company or required to reflect such resignation.
3. BASE COMPENSATION AND TARGET BONUS.
During the term of his employment under this Agreement, the Company agrees
to pay the Employee as compensation for his services a base salary at an annual
rate of Three Hundred Thousand Dollars ($300,000), or at such higher rate as the
Company may determine from time to time. Such salary shall be payable in
accordance with the Company's standard payroll procedures. (The annual
compensation specified in this Section 3, together with any increases in such
compensation that the Company may grant from time to time, is referred to in
this Agreement as "Base Compensation.") In addition, during the term of his
employment under this Agreement, the Company agrees that the Employee shall
participate in the Company's annual bonus plan with a target bonus percentage of
at least forty percent (40%) of Base Compensation.
4. EMPLOYEE BENEFITS, STOCK OPTIONS, AND INCENTIVE COMPENSATION, AND OTHER
COMPENSATION PLANS AND PROGRAMS.
During the term of his employment under this Agreement, the Employee shall
be eligible to participate in the employee benefit plans, stock option and other
equity-based incentive and compensation plans, and other executive incentive and
compensation programs maintained with respect to employees of the Company,
subject in each case to (i) the generally applicable terms and conditions of the
applicable plan or program and to the determinations of the Board of Directors
of the Company or any committee or other person administering such plan or
program, (ii) determinations by the Company, any such corporation or entity, or
any such Board, committee or person as to whether and to what extent Employee
shall so participate or cease to participate, and (iii) amendment, modification
or termination of any such plan or program in the sole and absolute discretion
of the Company or its parent, subsidiary or affiliated corporation or related
entity maintaining such plan.
5. BUSINESS EXPENSES.
In accordance with the Company's generally applicable policies, (i) during
the term of his employment under this Agreement, the Employee shall be
authorized to incur necessary and reasonable travel, entertainment and other
business expenses in connection with his duties hereunder, and (ii) the Company
shall reimburse the Employee for such expenses upon presentation of an itemized
account and appropriate supporting documentation.
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6. CERTAIN TERMINATIONS OF EMPLOYMENT FOLLOWING CHANGE IN CONTROL.
(a) Definition. For all purposes under this Agreement, "Change in
Control" shall mean that, after the date of this Agreement, any "person"
(as such term is used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended) other than a person that immediately
before the acquisition or aggregation of securities referred to immediately
hereafter, directly or indirectly controls, is controlled by, or is under
common control with the Company, through the acquisition or aggregation of
securities, becomes the beneficial owner, directly or indirectly, of
securities of the Company representing 51 percent or more of the combined
voting power of the then outstanding securities ordinarily (and apart from
rights accruing under special circumstances) having the right to vote at
elections of directors (the "Base Capital Stock"); except that any change
in the relative beneficial ownership of the Company's securities by any
person resulting solely from a reduction in the aggregate number of shares
of Base Capital Stock, and any decrease thereafter in such person's
ownership of securities shall be disregarded until such person increases in
any manner, directly or indirectly, such person's beneficial ownership of
any securities of the Company.
(b) Good Reason. For all purposes under this Agreement, "Good Reason"
shall mean that the Employee has incurred a reduction in his Base
Compensation or annual target bonus.
(c) Change in Control Payment and Severance Benefits. If, during the
term of this Agreement and (i) within one year after the occurrence of a
Change in Control, the Employee voluntarily resigns his employment for Good
Reason, (ii) within one year after the occurrence of a Change in Control,
the Company terminates the Employee's employment for any reason other than
Cause or Disability, then the Employee shall be entitled to receive a
severance payment from the Company (the "Change in Control Payment") and in
addition shall be entitled to Severance Benefits in accordance with
Subdivision (ii) of Section 7(a). No Change in Control payment shall be
made in case of termination of employment of Employee by reason of
resignation of Employee other than for Good Reason, death of Employee, or
any other circumstance not specifically and expressly described in the
immediately preceding sentence. The Change in Control Payment shall be in
an amount determined under Section 6(d) below and shall be made in a lump
sum not more than five (5) business days following the effective date of
the Employee's release as described in Section 8 below. The Change in
Control Payment shall be in lieu of (i) any further payments to the
Employee under Section 3, (ii) any further accrual of benefits under
Sections 4 and 6 with respect to periods subsequent to the date of the
employment termination and (iii) any entitlement to a Severance Payment (as
defined in Subdivision (i) of Section 7(a) below). In addition, at the time
of the employment termination, the Company shall pay to the Employee all
accrued and unpaid vacation.
(d) Amount of Change in Control Payment. The amount of the Change in
Control Payment shall be equal to one hundred forty percent (140%) of the
Employee's annual rate of Base Compensation, as in effect on the date of
the Change in Control.
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(e) Incentive Programs. If, during the term of this Agreement, a
Change in Control occurs, the Employee shall become fully vested in all
awards heretofore or hereafter granted to him under all incentive
compensation, deferred compensation, bonus, stock option, stock
appreciation rights, restricted stock, phantom stock or similar plans
maintained by the Company, any contrary provisions of such plans
notwithstanding.
(f) No Mitigation. The Employee shall not be required to mitigate the
amount of any payment or benefit contemplated by this Section 6 (whether by
seeking new employment or in any other manner), nor shall any such payment
or benefit be reduced by earnings or benefits that the Employee may receive
from any other source.
7. OTHER TERMINATIONS OF EMPLOYMENT.
(a) Severance Payment and Severance Benefits. In the event that,
during the term of this Agreement the Company terminates the Employee's
employment for any reason other than Cause or Disability or the Employee
voluntarily resigns his employment for Good Reason within one (1) month of
the occurrence of the event constituting Good Reason and Section 6 does not
apply, then:
(i) The Company shall pay an amount ("Severance Payment") in
installments (or a lump sum if the Company so elects), as provided
below, equal in the aggregate to one hundred percent (100%) of the
Employee's annual rate of Base Compensation as in effect on the date
of employment termination. If the Severance Payment is paid in
installments, it shall be paid at the same rate and in accordance with
the same schedule as Base Compensation would have been paid had
employment continued until the Severance Payment has been made in
full; provided, however, at its election the Company may at any time
pay any remainder of the Severance Payment in a lump sum. The
Severance Payment shall be paid commencing not more than five (5)
business days following the effective date of the Employee's release
as described in Section 8 below. In addition, at the time of the
employment termination, the Company shall pay to the Employee all
accrued and unpaid vacation.
(ii) For the period of one (1) year following such termination,
the Company shall (i) reimburse the Employee for dental and health
insurance premiums required to be paid by the Employee for such one
(1) year period to obtain COBRA continuation coverage within the
meaning of Section 4980B(f)(2) of the Internal Revenue Code of 1986,
as amended (the "Code"), provided the Employee elects such
continuation coverage, and (ii) cause group long-term disability
insurance coverage and basic term life insurance coverage then
provided to the Employee by the Company, if any, to be continued for
such one (1) year period (or, if such coverage cannot be continued or
can only be continued at a cost to the Company greater than the
Company would have incurred absent such termination, then, at the
Company's election, the Company may either provide such long-term
disability or term life insurance as may be available at no greater
cost than one hundred fifty percent (150%) of what the Company would
have incurred absent such termination or pay to the Employee one
hundred fifty percent (150%) of the amount of premiums the Company
would have incurred to continue such
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coverage absent such termination) (payments and benefits under this
Subdivision (ii) of Section 7(a), collectively "Severance Benefits").
(b) Termination of Severance Benefits. All Severance Benefits shall be
discontinued completely as of the date when the Employee returns to
employment or self-employment, whether full- or part-time, with an entity
that offers any group health insurance coverage to its employees or
independent contractors, regardless of whether such coverage is equivalent
to the insurance coverage contemplated by the Severance Benefits.
(c) No Mitigation. The Employee shall not be required to mitigate the
amount of any payment or benefit contemplated by this Section 7, nor shall
any such payment or benefit be reduced by earnings or benefits that the
Employee may receive from any other source.
8. CHANGE IN CONTROL PAYMENT, SEVERANCE PAYMENT AND SEVERANCE BENEFITS
CONDITIONED UPON EXECUTION OF EFFECTIVE RELEASE OF CLAIMS.
Notwithstanding any of the foregoing to the contrary, in no event shall the
Company be required to make any payment or provide any benefit pursuant to
Section 6 or 7 above (except for payments of accrued and unpaid vacation) unless
and until the Employee executes and delivers to the Company a release in the
form of Exhibit A, and such release becomes effective in accordance with its
terms; provided, however, that pending such execution and delivery of such a
release by the Employee, the Company will advance for the account of the
Employee premiums required to be paid during the period during which the
effectiveness of the release is pending if necessary to avoid lapse with respect
to the Employee within such period of a group dental, health or disability
policy to which Severance Benefits provided under Subdivision (ii) of Section
7(a) relate, which advance shall be repaid by the Employee on expiration of (i)
the period during which Employee is permitted to consider whether to execute the
release (if the Employee does not execute the release) or (ii) the period during
which the effectiveness of the release is pending (if the Employee executes the
release).
9. CERTAIN ADDITIONAL PAYMENTS.
If any payments, distributions or other benefits by or from the Company to
or for the benefit of the Employee (whether paid or payable or distributed or
distributable pursuant to the terms of this Agreement or otherwise, but
determined without regard to any additional payment required under this Section
9) (collectively, the "Payment") would be subject to the excise tax imposed by
Section 4999 of the Code or any interest or penalties are incurred by the
Employee with respect to such excise tax (such excise tax, together with any
such interest and penalties, are hereinafter collectively referred to as the
"Excise Tax"), then the Employee shall be entitled to receive from the Company
an additional payment (a "Gross-Up Payment") in an amount such that after
payment by the Employee of all taxes (including, without limitation, any income
and employment taxes and any interest and penalties imposed with respect
thereto) and the Excise Tax imposed upon the Gross-Up Payment, the Employee
retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon
the Payment. All calculations required by this Section 9 shall be performed by
the independent auditors retained by the Company most recently prior to the
Change in Control (the "Auditors"), based on information supplied by the
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Company and the Employee, and shall be final and binding on the Company and the
Employee. All fees and expenses of the Auditors shall be paid by the Company.
10. NONDISCLOSURE.
During the term of this Agreement and thereafter, the Employee shall not,
without the prior written consent of the Board, disclose or use for any purpose
(except in the course of his employment under this Agreement and in furtherance
of the business of the Company) confidential information or proprietary data of
the Company or any parent, subsidiary or affiliated corporation or related
entity of the Company, except as required by applicable law or legal process, in
which case promptly and before disclosure the Employee shall give notice to the
Company of any such requirement or process; provided, however, that confidential
information shall not include any information available from another source on a
nonconfidential basis, known generally to the public, or ascertainable from
public or published information (other than as a result of unauthorized
disclosure by the Employee) or any information of a type not otherwise
considered confidential by persons engaged in the same business as, or a
business similar to, that conducted by the Company. The Employee agrees to
deliver to the Company at the termination of his employment, or at any other
time the Company may request, all memoranda, notes, plans, records, reports and
other documents or electronic information (and copies thereof) relating to the
business of the Company or any parent, subsidiary or affiliated corporation or
related entity of the Company, which he may then possess or have under his
control. Nothing in this Section 10 or elsewhere in this Agreement shall be
deemed to waive, or to permit or authorize the Employee to take any action which
waives or could have the consequence of waiving, the attorney-client privilege,
the work product doctrine or any other privilege or doctrine with respect to any
information in the possession of the Employee or any communication between the
Employee and the Company, its parent, subsidiary and affiliated corporations,
any related entities or any of their respective directors, officers, employees,
agents or other representatives.
11. MISCELLANEOUS PROVISIONS.
(a) Successors. Subject to Section 11(j) below and provided that the
Employee may not delegate his duties hereunder without the consent of the
Board of Directors of the Company, this Agreement and all rights hereunder
shall inure to the benefit of, and be enforceable by, the parties'
successors, assigns, personal or legal representatives, executors,
administrators, heirs, distributees, devisees and legatees.
(b) Notice. Notices and all other communications contemplated by this
Agreement shall be in writing and shall be deemed to have been duly given
when personally delivered, when mailed by U.S. registered mail (return
receipt requested and postage prepaid), or when telecopied. In the case of
the Employee, mailed notices shall be addressed to him at the home address
which he most recently communicated to the Company in writing for income
tax withholding purposes or by notice given pursuant to this Section 11(b).
In the case of the Company, mailed notices shall be addressed to its
corporate headquarters as reflected in its most recent Report on Form 10-Q
or Form 10-K filed with the U.S. Securities and Exchange Commission,
directed to the attention of its Secretary. Telecopied notices shall be
sent to such telephone number as the Company and the Employee may specify
for this purpose.
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(c) Waiver. No provision of this Agreement shall be modified, waived
or discharged unless the modification, waiver or discharge is agreed to in
writing and signed by the Employee and by an authorized officer of the
Company (other than the Employee). No waiver by either party of any breach
of, or of compliance with, any condition or provision of this Agreement by
the other party shall be considered a waiver of any other condition or
provision or of the same condition or provision at another time.
(d) Whole Agreement. No agreements, representations or understandings
(whether oral or written and whether express or implied) which are not
expressly set forth in this Agreement have been made or entered into by
either party with respect to the subject matter hereof. Effective as of the
date hereof, this Agreement supersedes all prior employment agreements and
severance agreements between the parties, their parents, subsidiaries and
affiliates, and their respective predecessors (but not that certain
Indemnification Agreement dated as of December 17, 2001, between the
Company and the Employee, which remains in full force and effect).
(e) Withholding. All payments made under this Agreement shall be
subject to reduction to reflect taxes required to be withheld by law. The
Employee hereby declares under penalty of perjury that his Social Security
Number is __________________. To the extent permitted by applicable law,
the Company shall also be entitled to withhold from or offset against any
payments under this Agreement any amounts owed by the Employee (whether or
not liquidated) to the Company or any parent, subsidiary or affiliated
corporation or related entity or either of them.
(f) Certain Reductions and Offsets. Notwithstanding any other
provision of this Agreement to the contrary, any payments or benefits under
this Agreement shall be reduced by any severance payments and benefits
payable by the Company or an affiliate of the Company to the Employee under
any policy, plan, program or arrangement, including, without limitation, a
contract between the Employee and the Company or an affiliate of the
Company.
(g) Choice of Law. The validity, interpretation, construction and
performance of this Agreement shall be governed by the internal laws of the
State of California, without regard to where the Employee has his residence
or principal office or where he performs his duties hereunder.
(h) 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.
(i) Arbitration. Except as otherwise provided in Section 9, and except
for any action by the Company seeking injunctive relief against the
Employee, any controversy or claim arising out of or relating to this
Agreement, or the breach thereof, or the Employee's employment with the
Company or the terms and conditions or termination thereof, or any action
or omission of any kind whatsoever in the course of or connected in any way
with any relations between the Company and the Employee, including without
limitation all claims encompassed within the scope of the form of General
Release attached to this Agreement as Exhibit A, shall be finally settled
by binding arbitration in accordance with the Commercial Arbitration Rules
of the American
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Arbitration Association, and judgment on the award rendered by the
arbitrator may be entered in any court having jurisdiction thereof. The
arbitration shall be administered by the San Francisco, California regional
office of such Association and shall be conducted at the San Francisco,
California offices of such Association or at such other location in San
Francisco, California as such Association may designate. All fees and
expenses of the arbitrator and such Association shall be paid by the
Company. The Company and the Employee acknowledge and agree that any and
all rights they may have to resolve their claims by a jury trial are hereby
expressly waived.
(j) No Assignment. The rights of any person to payments or benefits
under this Agreement shall not be made subject to option or assignment,
either by voluntary or involuntary assignment or by operation of law,
including (without limitation) bankruptcy, garnishment, attachment or other
creditor's process, and any action in violation of this Section 11(j) shall
be void.
IN WITNESS WHEREOF, each of the parties has executed this Agreement, in the
case of the Company by its duly authorized officer, as of the day and year first
above written.
----------------------------------------
MARK H. PERRY
Date:
----------------------------------
URS CORPORATION
By:
-------------------------------------
Name: Kent P. Ainsworth
Title: Executive Vice President and
Chief Financial Officer
Date:
----------------------------------
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EXHIBIT A
GENERAL RELEASE
(INDIVIDUAL TERMINATION)
This General Release ("Release") is executed and delivered by MARK H. PERRY
("Employee") to and for the benefit of URS Corporation, a Delaware corporation,
and any parent, subsidiary or affiliated corporation or related entity of URS
Corporation (collectively, "Company").
In consideration of certain payments and benefits which Employee will
receive following termination of employment pursuant to the terms of the
Employment Agreement entered into as December 17, 2001, between the Employee and
the Company (the "Agreement"), the sufficiency of which Employee hereby
acknowledges, Employee hereby agrees not to sue and fully, finally, completely
and generally releases, absolves and discharges Company, its predecessors,
successors, subsidiaries, parents, related companies and business concerns,
affiliates, partners, trustees, directors, officers, agents, attorneys,
servants, representatives and employees, past and present, and each of them
(hereinafter collectively referred to as "Releasees") from any and all claims,
demands, liens, agreements, contracts, covenants, actions, suits, causes of
action, grievances, arbitrations, unfair labor practice charges, wages, vacation
payments, severance payments, obligations, commissions, overtime payments,
workers compensation claims, debts, profit sharing or bonus claims, expenses,
damages, judgments, orders and/or liabilities of whatever kind or nature in law,
equity or otherwise, whether known or unknown to Employee which Employee now
owns or holds or has at any time owned or held as against Releasees, or any of
them through the date Employee executes this Release ("Claims"), including
specifically but not exclusively and without limiting the generality of the
foregoing, any and all Claims arising out of or in any way connected to
Employee's employment with or separation of employment from Company including
any Claims based on contract, tort, wrongful discharge, fraud, breach of
fiduciary duty, attorneys' fees and costs, discrimination in employment, any and
all acts or omissions in contravention of any federal or state laws or statutes
(including, but not limited to, federal or state securities laws, any deceptive
trades practices act or any similar act in any other state and the Racketeer
Influenced and Corrupt Organizations Act), and any right to recovery based on
state or federal age, sex, pregnancy, race, color, national origin, marital
status, religion, veteran status, disability, sexual orientation, medical
condition, union affiliation or other anti-discrimination laws, including,
without limitation, Title VII, the Age Discrimination in Employment Act, the
Americans with Disabilities Act, the National Labor Relations Act, the
California Fair Employment and Housing Act, and any similar act in effect in any
jurisdiction applicable to Employee or the Company, all as amended, whether such
claim be based upon an action filed by Employee or by a governmental agency;
provided, however, that, expressly excluded from this Release are any and all
Claims Employee may have for indemnification under the Bylaws of the Company and
any Claims arising under the terms of the Indemnification Agreement between URS
Corporation and Employee dated as of December 17, 2001 and any amendment,
supplement or replacement thereof.
During the time Employee is entitled to any Change in Control Payment,
Severance Payment or Severance Benefits, as defined and provided in Sections 6
and 7 of the Agreement,
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Employee agrees (i) to assist, as reasonably requested by Company, in the
transition of Employee's responsibilities and (ii) not to solicit any employee
of Company to terminate or cease employment with Company. Without superseding
any other agreements, including the Agreement, and obligations Employee has with
respect thereto, (i) Employee agrees not to divulge any information that might
be of a confidential or proprietary nature relative to Company, and (ii)
Employee agrees to keep confidential all information contained in this Release
(except to the extent (A) Company consents in writing to disclosure, (B)
Employee is required by process of law to make such disclosure and Employee
promptly notifies Company of receipt by Employee of such process, or (C) such
information previously shall have become publicly available other than by breach
hereof on the part of Employee).
Employee acknowledges and agrees that neither anything in this Release nor
the offer, execution, delivery, or acceptance thereof shall be construed as an
admission by Company of any kind, and this Release shall not be admissible as
evidence in any proceeding except to enforce this Release.
It is the intention of Employee in executing this instrument that it shall
be effective as a bar to each and every claim, demand, grievance and cause of
action hereinabove specified. In furtherance of this intention, Employee hereby
expressly consents that this Release shall be given full force and effect
according to each and all of its express terms and provisions, including those
relating to unknown and unsuspected claims, demands and causes of action, if
any, as well as those relating to any other claims, demands and causes of action
hereinabove specified, and elects to assume all risks for claims that now exist
in Employee's favor, known or unknown, that are released under this Release.
Employee acknowledges Employee may hereafter discover facts different from, or
in addition to, those Employee now knows or believes to be true with respect to
the claims, demands, liens, agreements, contracts, covenants, actions, suits,
causes of action, wages, obligations, debts, expenses, damages, judgments,
orders and liabilities herein released, and agrees the release herein shall be
and remain in effect in all respects as a complete and general release as to all
matters released herein, notwithstanding any such different or additional facts.
If any provision of this Release or application thereof is held invalid,
the invalidity shall not affect other provisions or applications of the Release
which can be given effect without the invalid provision or application. To this
end, the provisions of this Release are severable.
Employee represents and warrants that Employee has not heretofore assigned
or transferred or purported to assign or transfer to any person, firm or
corporation any claim, demand, right, damage, liability, debt, account, action,
cause of action, or any other matter herein released.
Employee represents that he is not aware of any claims other than the
claims that are released by this instrument. Employee acknowledges that he is
familiar with the provisions of California Civil Code Section 1542, 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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Employee, being aware of such Code section, agrees to waive any rights he may
have thereunder, as well as under any other statute or common law principle of
similar effect.
NOTICE TO EMPLOYEE
The law requires that Employee be advised and Company hereby advises
Employee in writing to consult with an attorney and discuss this Release before
executing it. Employee acknowledges Company has provided to Employee at least
twenty-one (21) calendar days (forty-five (45) calendar days, in the case of a
group termination) within which to review and consider this Release before
signing it.
Should Employee decide not to use the full twenty-one (21) or forty-five
(45) days, as applicable, then Employee knowingly and voluntarily waives any
claims that Employee was not in fact given that period of time or did not use
the entire twenty-one (21) or forty-five (45) days to consult an attorney and/or
consider this Release. Employee acknowledges that Employee may revoke this
Release for up to seven (7) calendar days following Employee's execution of this
Release and that it shall not become effective or enforceable until such
revocation period has expired. Employee further acknowledges and agrees that
such revocation must be in writing and delivered to Company in accordance with
Section 11(b) of the Agreement and must be received by Company as so addressed
not later than midnight on the seventh (7th) day following Employee's execution
of this Release. If Employee so revokes this Release, the Release shall not be
effective or enforceable and Employee will not receive the monies and benefits
described above. If Employee does not revoke this Release in the time frame
specified above, the Release shall become effective at 12:00:01 A.M. on the
eighth (8th) day after it is signed by Employee.
In the case of a group termination, the law requires that Employee be
provided a detailed list of the job titles and ages of all employees who were
terminated in the group termination and the ages of all employees of the Company
in the same job classification or organizational unit who were not terminated.
Employee acknowledges that Employee has been provided with this information.
PLEASE READ CAREFULLY. THIS AGREEMENT CONTAINS A
GENERAL RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS.
I have read and understood the foregoing General Release, have been advised
to and have had the opportunity to discuss it with anyone I desire, including an
attorney of my own choice, and I accept and agree to its terms, acknowledge
receipt of a copy of the same and the sufficiency of the monies and benefits
described above, and hereby execute this Release voluntarily and with full
understanding of its consequences.
Dated: ----------------------------------------
---------------------- MARK H. PERRY
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