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Exhibit(d)(3)
EMPLOYMENT AGREEMENT
([NAME])
This EMPLOYMENT AGREEMENT (this "Agreement") is made as of November 6,
2000 between VerticalNet, LLC, a Delaware limited liability company (the
"Company"), SierraCities.com Inc., a Delaware corporation ("SierraCities"), and
[name](the "Employee").
RECITALS
WHEREAS, pursuant to that certain Agreement and Plan of Merger and
Reorganization (the "Merger Agreement") made as of November 6, 2000 by and among
VerticalNet, Inc., a Pennsylvania corporation ("VerticalNet"), Truckee
Acquisition Corp. ("Merger Sub"), a Delaware corporation, and SierraCities,
Merger Sub shall be merged with and into SierraCities, and SierraCities shall
become a wholly owned subsidiary of VerticalNet.
WHEREAS, the Company is a wholly owned subsidiary of VerticalNet;
WHEREAS, the Employee has served as an officer of SierraCities prior to
the execution of the Merger Agreement;
WHEREAS, the Company intends to establish VerticalNet Credit as a
division of the Company that will be the successor to the business of
SierraCities ("VerticalNet Credit") after completion of the transactions
described in the Merger Agreement;
WHEREAS, the Company wishes to assure itself of the services of the
Employee for the period provided in this Agreement; and
WHEREAS, the Employee is willing to serve in the employ of the Company
on a full-time basis for such period.
WITNESSETH:
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, the parties hereto, each intending to be legally bound hereby,
agree as follows:
1. EMPLOYMENT. This Agreement shall become effective on the closing date
of the exchange offer under the Merger Agreement (the "Effective Date"). During
the term of employment under this Agreement (the "Employment Term"), the
Employee shall be the [title] of VerticalNet Credit and shall perform such
duties as are assigned by the Board of Directors of the Company (the "Board"),
or the Board's designee. The Employee's principal place of employment shall be
in the Houston, Texas metropolitan area.
2. PERFORMANCE.
2.1 The Employee shall devote substantially all of his business
efforts to the performance of his duties hereunder. Notwithstanding the
foregoing, the Employee may (i) serve on no more than three corporate, civic or
charitable boards or committees or (ii) manage Employee's personal investments,
so long as such activities under (i) and (ii) do not materially interfere with
Employee's responsibilities hereunder.
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2.2 The Employee shall at all times comply with the policies and
procedures adopted by the Company for its employees, including without
limitation the procedures and policies adopted by the Company regarding
conflicts of interest and VerticalNet's policy regarding trading of its Common
Stock (the "VerticalNet Common Stock") by its employees.
3. TERM. The Employment Term of this Agreement shall commence on the
Effective Date and shall continue for a term of 3 years, unless otherwise
terminated in accordance with Section 10 hereof.
4. BASE COMPENSATION. For all services rendered by the Employee hereunder,
the Company shall pay the Employee an annual salary for each full year of the
Employment Term (the "Salary"), payable in installments at such times as the
Company customarily pays its employees (but in any event no less often than
monthly). The Salary shall be at the initial rate of $_______ (the "Initial
Salary"). The Salary shall be reviewed at least annually by the Board or its
designee to determine if any change is appropriate, which change shall be in the
sole discretion of the Board or its designee; provided, however, that the Salary
shall never be less than the Initial Salary. The Employee alone shall be
responsible for the payment of all federal, state and local taxes in respect of
the payments to be made and benefits to be provided under this Agreement or
otherwise (except to the extent withheld by the Company), provided, however,
that the Employee shall not be responsible for the Company's share of payments
to be made by the Company under applicable law, including, without limitation,
the Company's portion of FICA.
5. OTHER BENEFITS.
5.1 Standard Benefits. The Employee shall be entitled to
participate in and receive any fringe benefits customarily provided by the
Company to its employees of comparable standing with the Employee (including,
but not limited to, any profit-sharing, pension, hospital, major medical
insurance, group life insurance plans and paid vacation in accordance with the
terms of such plans).
5.2 Bonus. Employee shall be entitled to participate in any annual
incentive compensation programs established by the Company for its employees
generally, based on achievement of annual individual or business performance
objectives specified and approved by the Board (or its designee) in its sole
discretion, with a target amount equal to 40% of the Salary (the "Bonus").
5.3 Option-Based Compensation.
5.3.1 Effective as of the Effective Date, the Employee
shall receive a grant of options to purchase _______ shares of VerticalNet
Common Stock pursuant to the VerticalNet, Inc. Equity Compensation Plan for
Employees (1999) or the VerticalNet, Inc. 2000 Equity Compensation Plan. Such
options shall be subject to a 3 year vesting schedule based on 28% after one
year from grant date, and 3% per month thereafter.
5.3.2 Effective as of the Effective Date, the Employee
shall receive a grant of options to purchase _______ shares of VerticalNet
Common Stock pursuant to the VerticalNet, Inc. Equity Compensation Plan for
Employees (1999) or the VerticalNet, Inc. 2000 Equity Compensation Plan. Such
options shall vest in full 5 years from the date of grant, subject to earlier
vesting upon the achievement of performance milestones.
5.4 [Bonus provision].
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6. EXPENSES. The Employee shall be reimbursed for the reasonable business
expenses incurred by him in connection with his performance of services
hereunder during the Employment Term to the extent that such expenses are
customarily paid to employees of the Company upon presentation of an itemized
account and written proof of such expenses.
7. CONFIDENTIAL INFORMATION.
7.1 The Employee agrees that the Confidential Information (as
defined in Section 7.4) is the Company's exclusive property and shall not be
copied or removed from the Company's premises except for the purpose of Company
business.
7.2 The Employee will not, without the Company's prior written
permission, disclose to anyone outside of the Company or use in other than the
furtherance of the Company's business, either during or after the term of his
employment with the Company, any Confidential Information. If the Employee
leaves the employ of the Company, the Employee will return all copies of any
Confidential Information to the Company.
7.3 The Employee will hold all third-party confidential or
proprietary information in the strictest confidence and do all such things as
the Company requests of the Employee and as are legally permissible and
commercially reasonable for the Employee to do in order for the Company to
comply with the provisions of all contracts to which the Company is a party.
7.4 For purposes of this Agreement, "Confidential Information"
shall mean confidential or other proprietary information received by the
Employee that is generated by, or utilized in the operations of, the Company,
including, without limitation, hardware and software designs and code, product
specifications and documentation, business and product plans, customer lists and
other confidential business information. Confidential Information shall not
include information that becomes public knowledge without any action by, or
involvement of, the Employee.
8. ASSIGNMENT OF INVENTIONS AND ORIGINAL WORKS.
8.1 The Employee hereby assigns to the Company, or to any party
designated by the Company, the entire right, interest and title to all
Developments (as defined in Section 8.3) made, conceived or first reduced to
practice solely or jointly by the Employee, whether or not such Developments are
patentable, copyrightable or developed during normal working hours, which (i)
were made, conceived or first reduced to practice in the course of performance
of the Employee's employment duties, or with the use of the Company's time,
materials, funds or facilities, or (ii) are related to information, technology
or investigations of the Company to which the Employee has access as part of
work for the Company. The Employee acknowledges that all original works of
authorship which are made by the Employee within the scope of his Employment and
which are protectable by copyright are "works made for hire," within the meaning
of 17 U.S.C. Section 101.
8.2 In connection with any of the Developments assigned by Section
8.1 hereof, the Employee will (i) promptly disclose them to the Company and (ii)
on request of the Company, promptly execute an assignment to the Company and do
anything else necessary to enable the Company to secure a patent, copyright or
other form of protection therefor. The Employee waives and releases, to the
extent permitted by law, all rights to the foregoing.
8.3 For purposes of this Agreement, "Developments" shall mean any
idea, invention, improvement, design of a useful article (whether the design is
ornamental or otherwise),
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computer program (including source and object code), data base, documentation
and original works of authorship.
9. NON-COMPETITION AND NON-SOLICITATION.
9.1 During [term of non-compete], the Employee shall not, directly
or indirectly, own, manage, operate, finance, join, control or otherwise
participate in the ownership, management, operation, financing or control of, or
in any way be connected as an officer, employee, partner, principal, agent,
representative, or consultant, or otherwise with, any business or enterprise
engaged anywhere in the world (i) in any business in which SierraCities was
engaged on the date hereof, including but not limited to the business of
equipment leasing and developing and operating on-line equipment leasing,
commercial leasing and business financing, or (ii) in the ownership or operation
of a business in which VerticalNet Credit is engaged during the Employment Term,
nor shall the Employee assist any person that shall be engaged in any such
foregoing business activities. The foregoing restriction, however, shall not
restrict the Employee's ability to own, as a passive investment, up to 5% of any
entity whose equity securities are traded on NASDAQ or on any other national
securities exchange. In addition, during [term of non-compete], the Employee
shall not solicit any employee of the Company for the purposes of having any
such employee terminate his or her employment with the Company. If a court
determines that the foregoing restrictions are too broad or otherwise
unreasonable under applicable law, including with respect to time or space, the
court is hereby requested and authorized by the parties hereto to revise the
foregoing restriction to include the maximum restrictions allowable under
applicable law. The Employee acknowledges that this Section 9.1 has been
negotiated by the parties.
9.2 The Employee acknowledges and understands that (i) the Company
is, and will be, relying upon the covenants made by the Employee in Section 9.1
in entering into this Agreement, (ii) that any violation of the restrictions
contained in Section 9.1 will result in irreparable injury to the Company, (iii)
the covenants contained in Section 9.1 are reasonable as to geographic and
temporal scope, (iv) that the Company competes in the Business in which it is
currently engaged and that Confidential Information known by the Employee makes
it necessary for the Company to restrict the Employee's activities in all
markets where the Company competes and where the Employee's access to
Confidential Information and other proprietary information could be used to the
detriment of the Company, and (v) the Employee has the skills and training to be
able to continue to earn a livelihood without violating the terms of the
covenants contained in Section 9.1.
9.3 The terms of this Section 9 shall apply to any person
controlled by the Employee to the same extent as if it were a party hereto, and
each such party shall take whatever actions may be necessary to cause any such
party to adhere to the terms of this Section 9.
10. TERMINATION. The Employment Term, the Salary and any and all other
rights of the Employee under this Agreement or otherwise as an employee of the
Company will terminate (except as otherwise provided in this Section 10):
10.1 Disability. If the Employee becomes totally disabled (as
defined below), thereafter the Company shall have no further liability or
obligation to the Employee hereunder except as follows: the Employee shall
receive (i) any unpaid Salary that has accrued through the date of termination,
(ii) continued Salary for three months following the date Employee is considered
totally disabled, (iii) a payment equal to a pro-rata portion of any then
applicable Bonus for the calendar year in which the Employee becomes totally
disabled (i.e., if in 2001, the
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Employee becomes totally disabled on the 100th day of the calendar year and the
targets necessary to earn a Bonus are achieved in such year (as a result of the
efforts of the Employee's successor or otherwise), the Employee would be
entitled to 100/365th's of the Bonus that the Employee would have been entitled
to had the Employee not become totally disabled), payable in accordance with the
terms of the then applicable Bonus, and (iv) whatever benefits that he may be
entitled to receive under any then existing disability benefit plans of the
Company. For the purposes hereof, the Employee shall be deemed to be "totally
disabled" if the Employee is considered totally disabled under VerticalNet's
group disability plan in effect at that time, if any, or in the absence of any
such plan, under applicable Social Security regulations. In the event that any
dispute arises as to the disability of the Employee under this Section 10.1, the
Employee shall submit to a physical examination by a licensed physician mutually
satisfactory to the Company and the Employee, the cost of such examination to be
paid by the Company, and the determination of such physician shall be final.
10.2 Death. If the Employee dies, thereafter the Company shall not
have any further liability or obligation to the Employee, the Employee's
executors, administrators, heirs, assigns or any other person claiming under or
through the Employee except (i) that the Employee's estate shall receive any
unpaid Salary that has accrued through the date of termination and a payment
equal to a pro-rata portion of any then applicable Bonus actually paid for the
calendar year in which the Employee dies, calculated in the same manner as the
example set forth in Section 10.1 hereof, and (ii) to the extent the Company may
have obligations remaining under the benefit agreements described in Section
5.1.
10.3 Termination for "Cause". If the Company terminates the
Employee for "cause" immediately upon notice from the Company, and thereafter
the Company shall not have any further liability or obligation to the Employee,
except that the Employee shall receive any unpaid Salary that has accrued
through the date of termination. For purposes of this Agreement, "cause" shall
mean (i) the material breach by the Employee (other than by reason of illness,
injury or incapacity) of the Employee's obligations under this Agreement
(including, without limitation, the Confidential Information, Assignment of
Inventions and Original Works, Non-Competition and Non-Solicitation in Sections
7, 8 and 9 above), that the Employee shall not have remedied within 30 days
after receiving written notice from the Board specifying the details thereof,
(ii) the appropriation (or attempted appropriation) of a material business
opportunity of VerticalNet or its affiliate companies, including attempting to
secure or securing any personal profit in connection with any transaction
entered into on behalf of VerticalNet or its affiliate companies, (iii) the
misappropriation (or attempted misappropriation) of any of the funds or property
of VerticalNet or its affiliate companies, (iv) willful misconduct or material
neglect of the Company's or VerticalNet Credit's business, after written notice
thereof and a 30 day opportunity to cure, (v) conviction of a felony or other
crime involving moral turpitude, or (vii) habitual insobriety.
10.4 Termination Without "Cause". The Company may terminate the
Employee without "cause" at any time by giving the Employee written notice of
termination. [Under such circumstances, the Employee shall not be entitled to
any compensation under this Agreement and the shall not be required to adhere to
the covenants against non-competition contained in the first sentence of Section
9.1; provided, however, if the Employee executes and delivers to the Company
(after notice of termination but before 30 days after termination) a release, in
the form attached as Exhibit "A", by which the Employee releases VerticalNet and
its affiliate companies from any obligations and liabilities of any type
whatsoever, except for the Company's obligation to provide the Severance
Payment, and except to the extent the Company may have obligations remaining
under the benefit agreements described in Section 5.1, or under Section 6 of
this Agreement, then (1) the Company will pay to the Employee lump sum severance
payment within
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30 days of termination in the amount set forth on Exhibit "B" (the "Severance
Payment"), and (2) the Employee will remain subject to the to the covenants
against non-competition contained in the first sentence of Section 9.1 for such
period of time, not to exceed 18 months, from the termination date until the
then final date of the Employment Term. The parties hereto acknowledge that the
Severance Payment to be provided under this Section 10.4 is to be provided in
consideration for the above-specified release. ]
10.5 [Termination for "Good Reason". The Employee may terminate the
Agreement for "good reason" (as defined below) at any time by giving the Company
written notice of termination. Under such circumstances, the Employee shall not
be entitled to any compensation under this Agreement and the shall not be
required to adhere to the covenants against non-competition contained in the
first sentence of Section 9.1; provided, however, if the Employee executes and
delivers to the Company (after notice of termination but before 30 days after
termination) a release, in the form attached as Exhibit "A", by which the
Employee releases VerticalNet and its affiliate companies from any obligations
and liabilities of any type whatsoever, except for the Company's obligation to
provide the Severance Payment, and except to the extent the Company may have
obligations remaining under the benefit agreements described in Section 5.1, or
under Section 6 of this Agreement, then (1) the Company will pay to the Employee
a lump sum severance payment within 30 days of termination in the amount set
forth on Exhibit "B" (the "Severance Payment"), and (2) the Employee will remain
subject to the to the covenants against non-competition contained in the first
sentence of Section 9.1 for such period of time, not to exceed 18 months, from
the termination date until the then final date of the Employment Term. The
parties hereto acknowledge that the Severance Payment to be provided under this
Section 10.5 is to be provided in consideration for the above-specified release.
For purposes of this Agreement, "good reason" shall mean (a) the transfer,
without the Employee's prior written consent, to a location that is more than 50
miles from Houston, Texas, or (b) the removal (which includes being placed on
administrative leave for more than 30 days) from the Employee's position as
President of VerticalNet Credit, except for "cause" (as defined in Section 10.3
hereof) or by reason of the Employee's "disability" (as defined in Section 10.1
hereof).]
11. OFFSET. VerticalNet or the Company, in addition to all other rights and
remedies, shall have the right to offset against all moneys due to the Employee
any sums actually due to VerticalNet or its affiliate companies from the
Employee under this Agreement or under the terms of the Purchase Agreement,
provided that the Employee shall be given notice of the sums actually due five
days prior to such offset. If the Employee fails to pay the amount set forth on
such notice prior to the end of the five-day period, VerticalNet or the Company
shall have the right to offset against all moneys due to VerticalNet its
affiliate companies.
12. REMEDIES.
12.1 The parties hereto acknowledge that the remedy at law for
breaches of any provision in this Agreement may cause irreparable harm to the
non-breaching party, that the non-breaching party's remedies at law for such
breach may be inadequate, and that upon any such breach or threatened breach,
the non-breaching party may seek injunctive relief in any court of competent
jurisdiction, in equity or otherwise, and to enforce the specific performance of
the breaching party's obligations under the applicable provisions. Subject to
the remainder of this Section 12, the rights conferred upon the non-breaching
party by the preceding sentence shall not be exclusive of, but shall be in
addition to, any other rights or remedies which the non-breaching party may have
at law, in equity or otherwise.
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12.2 Except as otherwise provided in this Agreement, any disputes
between the Employee and the Company arising out of this Agreement with the
Company or the termination of his employment, including, without limitation any
claim of discrimination under state or federal law, shall be resolved by an
impartial arbitrator in Houston, Texas pursuant to the Rule for Resolution of
Employment Disputes of the American Arbitration Association ("AAA") provided
that the parties shall have available to them all rights to conduct discovery
available to opposing parties in federal district court litigation in the
Eastern District of Texas. The arbitrator shall be selected by agreement between
the Employee and the Company, but if they do not agree on the selection of an
arbitrator within 30 days after the date of a request for arbitration, the
arbitrator shall be selected pursuant to the rules of the AAA. The award
rendered by the arbitrator shall be conclusive, final and binding upon the
Employee and the Company. Each party shall pay its own expenses for the
arbitration and the fee and expenses of the arbitrator shall be shared equally.
12.3 In the event of a lawsuit by either party to enforce an
arbitral award pursuant to clause 12.2 above, the prevailing party shall be
entitled to recover all reasonable costs, expenses and reasonable attorney's
fees from the other party.
13. GENERAL.
13.1 The terms of this Agreement shall be governed by the internal
laws of the Commonwealth of Pennsylvania.
13.2 For purposes of Section 12, the term "Company" shall be deemed
to include any incorporated or unincorporated subsidiaries or affiliates of
VerticalNet and any subsidiaries thereof.
13.3 All notices given under this Agreement shall be in writing and
shall be deemed to have been given when personally delivered, sent by facsimile
or when mailed by registered or certified mail, postage prepaid, return receipt
requested, or when sent by Federal Express or other overnight delivery service,
addressed as follows:
To the Company:
VerticalNet, LLC
700 Dresher Road, Suite 100
Horsham, Pennsylvania 19044
Attn: Michael J. Hagan
FAX:
with a required copy to:
VerticalNet, Inc.
700 Dresher Road
Horsham, PA 19044
FAX: (215) 658-1872
E-Mail: legal@verticalnet.com
Attention: General Counsel
To the Employee:
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[name]
with a required copy to:
Kent Jonas, Esq.
Thelen, Reid & Priest
101 Second Street, 18th
San Francisco, CA 94105
E-mail: kjonas@thelenreid.com
13.4 This Agreement sets forth the entire understanding among the
parties hereto, and effective as of and conditioned upon Effective Date, shall
supercede all prior employment, severance and change of control agreements and
any related agreements (including, without limitation, the Employment Agreement
dated as of [date] between Employee and SierraCities (the "Prior Employment
Agreement")) between SierraCities or any subsidiary, or any predecessor company,
on the one hand and the Employee on the other hand. At the Effective Date, all
such agreements (including the Prior Employment Agreement) shall terminate and
be of no further force and effect with no payment of any kind having been made
or triggered for severance, change of control or termination. In the event the
Merger Agreement shall terminate without becoming effective, this Agreement
shall terminate and be of no force and effect.
13.5 This Agreement may not be modified or amended in any way
except upon written amendment executed by the Employee and approved by the
Company; provided, however, this Agreement may not be amended prior to the
Effective Date except by an instrument in writing signed on behalf of the
Employee, the Company, VerticalNet and SierraCities. Without limitation, nothing
in this Agreement shall be construed as giving the Employee any right to be
retained in the employ of the Company beyond the expiration of the Employment
Term.
13.6 All of the terms and provisions of this Agreement shall be
binding upon and inure to the benefit and be enforceable by the respective
heirs, representatives, successors (including any successor as a result of a
merger or similar reorganization) and assigns of the parties hereto, except that
the duties and responsibilities of the Employee hereunder are of a personal
nature and shall not be assignable in whole or in part by the Employee.
13.7 Notwithstanding the termination of this Agreement and of the
Employee's employment by the Company, including but not limited to by virtue of
Section 12, this Agreement shall continue to bind the parties for so long as any
obligations remain under the terms of this Agreement.
13.8 No waiver of any breach of this Agreement shall be construed
to be a waiver as to succeeding breaches.
13.9 If any provision of this Agreement or application thereof to
anyone under any circumstances is adjudicated to be invalid or unenforceable in
any jurisdiction, such invalidity or unenforceability shall not affect any other
provisions or applications of this Agreement which can be given effect without
the invalid or unenforceable provision or application and shall not invalidate
or render unenforceable such provision in any other jurisdiction.
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13.10 All section headings are for convenience only and shall not
define or limit the provisions of this Agreement.
13.11 NOTWITHSTANDING ANYTHING TO THE CONTRARY PROVIDED HEREIN, THIS
AGREEMENT SHALL BECOME EFFECTIVE ON THE CLOSING DATE UNDER THE PURCHASE
AGREEMENT. IN THE EVENT THE CLOSING DATE SHALL NOT OCCUR AND THE PURCHASE
AGREEMENT IS TERMINATED IN ACCORDANCE WITH ITS TERMS, THIS AGREEMENT SHALL BE
VOID AB INITIO AND OF NO FORCE OR EFFECT.
13.12 This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original and shall be binding as of the date
first written above, and all of which shall constitute one and the same
instrument.
[Remainder of this page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto, intending to be legally bound,
have hereunto duly executed this Employment Agreement as of the day and year
first written above.
VERTICALNET, LLC:
By:
-------------------------------
Name:
Title:
SIERRACITIES.COM INC.
By:
-------------------------------
Name:
Title:
EMPLOYEE:
-------------------------------
Name:
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EXHIBIT "A"
CONFIDENTIAL SEPARATION AGREEMENT
AND GENERAL RELEASE
THIS CONFIDENTIAL SEPARATION AGREEMENT AND GENERAL RELEASE, entered
into on this ____ day of ________________, by and between VerticalNet, LLC. (the
"Company") and _______________________ ("Executive").
WHEREAS, the Company and Executive previously entered into an
Employment Agreement dated November 6, 2000 (the "Employment Agreement"); and
WHEREAS, Executive has terminated employment as of _____________; and
WHEREAS, the Company and Executive wish to enter into this agreement
(referred to as the "Release") to provide for a mutual release as to any claims
including, without limitation, claims that might be asserted by Executive under
the Employment Agreement and the Age Discrimination in Employment Act, as
further described herein;
NOW, THEREFORE, in consideration of the mutual promises contained
herein, the parties hereto, intending to be legally bound, hereby agree as
follows:
1. The Company and Executive hereby agree that Executive's
termination of employment shall be effective on __________________.
2. Notwithstanding Executive's termination of employment and the
termination of the Employment Agreement, in consideration of the release
provided by Executive under Paragraph 4 below, the Company shall pay or cause to
be paid or provided to Executive, subject to applicable employment and income
tax withholdings and deductions, all amounts and benefits required under Section
10 of the Employment Agreement.
3. Executive agrees and acknowledges that the Company, on a
timely basis, has paid, or agreed to pay, to Executive all other amounts due and
owing based on his prior services and that the Company has no obligation,
contractual or otherwise, to Executive, except as provided herein, nor does it
have any obligation to hire, rehire or re-employ Executive in the future.
4. In full and complete settlement of any claims that Executive
may have against the Company, including any possible violations of the Age
Discrimination in Employment Act, 29 U.S.C. Section 621, ("ADEA") in connection
with Executive's termination of employment, and for and in consideration of the
undertakings of the Company described herein, Executive does hereby REMISE,
RELEASE, AND FOREVER DISCHARGE the Company, and each of its subsidiaries and
affiliates, their officers, directors, shareholders, partners, employees and
agents, and their respective successors
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and assigns, heirs, executors and administrators (hereinafter all included
within the term the "Company"), of and from any and all manner of actions and
causes of actions, suits, debts, claims and demands whatsoever in law or in
equity, which he ever had, now has, or hereafter may have, or which Executive's
heirs, executors or administrators hereafter may have, by reason of any matter,
cause or thing whatsoever from the beginning of Executive's employment to the
date of this Release; and particularly, but without limitation of the foregoing
general terms, any claims arising from or relating in any way to Executive's
employment relationship, the Employment Agreement and his termination from that
employment relationship, including but not limited to, any claims which have
been asserted, could have been asserted, or could be asserted now or in the
future under any federal, state or local laws, including any claims under ADEA,
the Pennsylvania Human Relations Act, 43 P.C.S.A. Section 951 et seq. ("PHRA"),
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Section 2000e
et seq. ("Title VII"), the Employee Retirement Income Security Act of 1974, as
amended, 29 U.S.C. Section 1001 et seq. ("ERISA"), the Rehabilitation Act of
1973, the Americans with Disabilities Act, 42 U.S.C. Section 12101 et seq.
("ADA"), the Family and Medical Leave Act, and any common law claims now or
hereafter recognized and all claims for counsel fees and costs; provided,
however, that nothing herein shall preclude Executive from joining the Company,
and the Company shall defend and indemnify Executive, in any action brought
against him which arises out of actions taken within the scope of his employment
by the Company and for which he would have been indemnified pursuant to the
bylaws of the Company as of the date hereof, unless later limited in accordance
with applicable law, or under applicable law (in which case he shall notify the
Company within five business days after receiving service of process as to the
commencement of the action and give the Company the right to control the defense
of any such action). Notwithstanding the foregoing, nothing contained herein
shall prevent Executive from requiring the Company to fulfill its obligations
hereunder, under Section 10 of the Employment Agreement or under any employee
plan, as defined in Section 3(3) of ERISA, maintained by the Company and in
which Executive participated.
5. Executive further agrees and covenants that neither he, nor
any person, organization or other entity on his behalf, will file, charge,
claim, sue or cause or permit to be filed, charged, or claimed, any action for
personal equitable, monetary or other similar relief against the Company,
involving any matter occurring at any time in the past up to the date of this
Release, or involving any continuing effects of any actions or practices which
may have arisen or occurred prior to the date of this Release, including any
charge of discrimination under ADEA, Title VII, the Workers' Compensation Act or
state or local laws. In addition, Executive further agrees and covenants that
should he, or any other person, organization or entity on his behalf, file,
charge, claim, sue or cause or permit to be filed, charged, or claimed, any
action for personal equitable, monetary or other similar relief, despite his
agreement not to do so hereunder, or should he otherwise fail to abide by any of
the terms of this Release, then the Company will be relieved of all further
obligations owed hereunder, he will forfeit all monies paid to him hereunder
(including without limitation all amounts and benefits required under the
Employment Agreement) and he will pay all of the costs and expenses of the
Company (including reasonable attorneys' fees) incurred in the defense of any
such action or undertaking.
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6. Executive hereby agrees and acknowledges that under the
Employment Agreement, the Company has agreed to provide him with compensation
that is in addition to any amounts to which he otherwise would have been
entitled in the absence of the Employment Agreement, and that such additional
compensation is sufficient to support the covenants and agreements by Executive
herein.
7. Executive further agrees and acknowledges that the
undertakings of the Company as provided in this Release are made to provide an
amicable conclusion of Executive's employment by the Company and, further, that
Executive will not require the Company to publicize anything to the contrary.
Executive and the Company, its officers and directors, will not disparage the
name, business reputation or business practices of the other. In addition, by
signing this Release, Executive agrees not to pursue any internal grievance with
the Company.
8. Executive hereby certifies that he has read the terms of this
Release, that he has been advised by the Company to consult with an attorney and
that he understands its terms and effects. Executive acknowledges, further, that
he is executing this Release of his own volition, without any threat, duress or
coercion and with a full understanding of its terms and effects and with the
intention, as expressed in Paragraph 4 hereof, of releasing all claims recited
herein in exchange for the consideration described herein, which he acknowledges
is adequate and satisfactory to him provided the Company meets all of its
obligations under this Release. The Company has made no representations to
Executive concerning the terms or effects of this Release other than those
contained in this Release.
9. Executive hereby acknowledges that he was presented with this
Release on ___________________, and that he was informed that he had the right
to consider this Release and the release contained herein for a period of
twenty-one (21) days prior to execution. Executive also understands that he has
the right to revoke this Release for a period of seven (7) days following
execution, by giving written notice to the Company at 700 Dresher Road, Horsham,
PA 19044, in which event the provisions of this Release shall be null and void,
and the parties shall have the rights, duties, obligations and remedies afforded
by applicable law.
10. This Release shall be interpreted and enforced under the laws
of the Commonwealth of Pennsylvania.
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IN WITNESS WHEREOF, the parties hereto have executed this Release on
the day and year first above written.
VERTICALNET, LLC
By:
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Name:
EXECUTIVE
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Name:
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