EXHIBIT 10.1
SEPARATION AGREEMENT AND RELEASE
THIS SEPARATION AGREEMENT AND RELEASE (this "AGREEMENT") is made and
entered into effective this 8th day of August, 2005 by and between Gary
Campanaro ("EXECUTIVE"), on the one side, and The Keith Companies, Inc., a
California corporation ("TKC" or the "COMPANY"), on the other side.
RECITALS:
A. Executive has been employed by the Company as Chief Financial Officer and
Secretary.
B. Executive and the Company are party to that certain Change in Control
Agreement, dated as of March 22, 2001 (the "CHANGE IN CONTROL AGREEMENT").
C. The Company has entered into that certain Agreement and Plan of Merger,
dated as of April 14, 2005 (the "MERGER AGREEMENT"), among the Company,
Stantec, Inc. and Stantec Consulting California Inc. ("STANTEC Consulting")
pursuant to which the Company will merge (the "MERGER") with and into
Stantec Consulting.
D. Pursuant to the Change in Control Agreement, in the event of a change of
control of the Company (as defined in the Change in Control Agreement) and
the occurrence of certain other events, Campanaro will be entitled to
receive certain payments from the Company.
E. Subject to the terms of this Agreement, the parties agree that Executive's
employment with the Company will terminate by the end of business (Irvine
time), on the date on which the Merger is consummated and the Company files
a certificate of merger with the Secretary of State for the State of
California in accordance with Section 1.02 of the Merger Agreement (the
"EFFECTIVE TIME").
F. Without making any admission of liability whatsoever, it is the desire of
Executive and the Company to settle fully and finally all differences or
potential differences between them that arise out of or relate to any
amounts payable by the Company in connection with the Merger under the
Change in Control Agreement (the "Disputes").
NOW, THEREFORE, in consideration of the foregoing and the representations,
warranties, covenants and agreements set forth in this Agreement, intending to
be legally bound by the terms of this Agreement, Executive and the Company agree
as follows:
1. TERMINATION OF EMPLOYMENT. Subject to the consummation of the Merger, as of
the Effective Time, Executive's employment by and with the Company will
terminate (such event, the "TERMINATION"). During the period after signing
this Agreement and prior to the Effective Time, Executive's employment and
his base salary, bonus (as provided for below) and all of his employee
benefits in effect immediately prior to signing this Agreement will
continue, subject to Executive's continued good faith discharge of his
employment duties and compliance
with the Company's employment policies and procedures in the same manner as
other company executives.
2. CONSIDERATION. Conditioned upon and subject to the consummation of the
Merger, Executive shall receive, in full settlement of any compensation and
benefits to which Executive would otherwise be entitled under (i) the
Change in Control Agreement or under any other compensation or benefits
plan, program, policy or arrangement maintained by the Company in which
Executive has at any time been a participant, and (ii) for accrued vacation
and other paid time off, the following compensation and benefits:
2.1 Executive shall be entitled to payment ("SEPARATION PAYMENT") in the
following amounts:
2.1.1 Any accrued and unpaid base salary and prorated auto allowance
attributable to his services rendered through the Effective Time;
plus,
2.1.2 Any accrued and unpaid vacation through the Effective Time; plus
2.1.3 $1,750,000, as consideration in connection with his separation
from the Company; plus
2.1.4 $150,000 as a bonus for the 2005 fiscal year; plus
2.1.5 $25,000 as reimbursement of Executive's legal fees in connection
with the negotiation of this Agreement; plus
2.1.6 The Gross-Up Payment called for in Section 2.3.
2.2 The amounts determined under Section 2.1.1 through 2.1.6 hereof shall
be reduced by applicable income and employment tax withholding and
benefit plan deductions, including any excise tax pursuant to IRC
section 4999 in accordance with the provisions of Section 2.3 hereof.
The amount provided for in Section 2.1.5 shall be paid directly by the
Company to the Law Offices of Jeffrey L. Davidson upon execution
hereof. The amounts provided for in Sections 2.1.1 through 2.1.4, net
of applicable deductions and withholding, shall be paid to Executive
by wire transfer (Executive will give Company wire transfer
instructions at least two business days before payment is due) within
10 days following the Effective Time. Such payment at that time shall
be contingent only upon Executive's non-revocation of the release
provided for in Section 7 and the execution by Executive, delivery and
non-revocation of the Supplemental Release by Executive described in
Section 8 covering the period of employment between the date Executive
signs this Agreement through the Effective Time. The amount provided
for in Section 2.1.6 shall be paid as provided for in Section 2.3.
2.3 Company and Executive agree that the payments set forth in Section
2.1.1 through 2.1.6, inclusive, whether paid, or payable or
distributed or distributable pursuant to the terms of this Agreement
or otherwise, but determined without regard to any additional payments
required under this Section 2.3, and the acceleration of the vesting
of certain of Executives stock options on Company stock and restricted
Company stock pursuant to Section 2.5, hereinbelow (a "PAYMENT"), will
be subject to the excise tax imposed by Section 4999 of the Code.
Company
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agrees to indemnify Executive for such excise tax and any interest and
any penalties incurred by Executive with respect to such excise tax
(collectively "EXCISE TAX") and pay to Executive an additional payment
("GROSS-UP PAYMENT") in an amount such that after payment by Executive
of all taxes (including interest or penalties imposed with respect to
such taxes), including without limitation, any state and Federal
income taxes (and any interest and penalties imposed with respect
thereto) and Excise Tax imposed upon the Gross-Up Payment, Executive
retains an amount of the Gross-Up Payment equal to the Excise Tax
imposed upon the Payments. Notwithstanding the foregoing provisions of
this Section 2.3, if Executive is entitled to a Gross-Up Payment, but
the Payments do not exceed 110% of the greatest amount ("REDUCED
AMOUNT") that could be paid to Executive such that the receipt of
Payments would not give rise to any Excise Tax, then no Gross-Up
Payment shall be made to Executive and the Payments, in the aggregate,
shall be reduced to the Reduced Amount. In connection with any
Gross-Up Payment, the Company will report the appropriate amount of
such Gross-Up Payment on Executive's form W-2 and withhold in
accordance with Sections 2.2 and this Section 2.3. Provided Company
delivers Executive a supporting schedule of how to account for these
matters on or before March 15, 2006, Executive agrees that he will not
take any positions with respect to any payments under this Agreement
on his tax returns that are inconsistent with the Company's reporting
of these matters. Any Gross-Up payments will be remitted directly to
the Internal Revenue Service and the California Franchise Tax Board on
behalf of Executive as well as any additional assessments which
constitute Gross-Up Payments. Executive agrees that the Company shall
have the option to contest or dispute any claim made by the Internal
Revenue Service with respect to the assertion of a deficiency in
income tax, excise tax, or interest or penalties on any such tax
related to any part or all of the Payment.
2.4 In connection with the Company's right to contest or dispute such
deficiency claims, Executive agrees that he will (i) give the Company
any information reasonably requested by it relating to such claim,
(ii) take such action in connection with such claim as the Company
shall reasonably request in writing from time to time, including
without limitation, accepting legal representation with respect to
such claim by an attorney reasonably selected by the Company, (iii)
cooperate with the Company in good faith in order support of Company's
efforts to contest such claim, (iv) provide counsel chosen by the
Company with any necessary power of attorney that the Company may
reasonably request authorizing such counsel to represent Executive
before the Internal Revenue Service with respect to the dispute,
including without limitation, the execution of Internal Revenue
Service Form 2848 or any State of California equivalent, and (v)
permit the Company to participate in any proceedings in relating to
such claim. In connection with any such claim or determination that
the Company elects to dispute or contest, the Company shall bear and
pay directly all costs and expenses (including additional interest and
penalties) incurred in connection with Company's efforts to contest
and shall indemnify and hold Executive harmless, on an after-tax basis
(i.e. grossed-up in the same way as the Payment), for any Excise Tax
or income tax (including interest and penalties with respect thereto)
imposed as a result of such representation and payment of costs and
expenses. Without limiting the foregoing provisions of this Section
2.3, Executive agrees that the Company shall control all proceedings
taken in connection with such contest the Company's control of the
contest shall be limited to issues with respect to which the Gross-Up
Payment would be payable hereunder) and Executive shall be entitled to
settle or contest, as the case may be, any other issues raised by the
Internal Revenue Service or any other taxing authority and, at its
sole option, either direct Executive to pay the tax claimed and sue
for a refund or contest the claim in any
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permissible manner, and Executive agrees to prosecute such contest to
a determination before any administrative tribunal, including a court
of initial jurisdiction and in one or more appellate courts as the
Company shall determine, provided, however, that if the Company
directs Executive to pay such claim and sue for a refund, the Company
shall advance the amount of such payment to Executive, on an
interest-free basis and shall indemnify and hold Executive harmless on
an after-tax basis (i.e. grossed-up in the same way as the Payment),
from any Excise Tax, or income tax (including interest or penalties
with respect thereto) imposed with respect to such advance, and
further provided that any extension of the statute of limitations
relating to payment of taxes for the taxable year with respect to
which such contested amount is claimed to be due is limited solely to
such contested amount. In the event that the Company exhausts its
remedies pursuant to this Section and Executive thereafter is required
to make a payment of any Excise Tax, the Company shall promptly pay
such taxes, penalties and interest (i.e. grossed-up in the same way as
the Payment). If after receipt by Executive of an amount advanced by
the Company pursuant to this Section 2.3, Executive becomes entitled
to receive any refund with respect to such claim, Executive shall
(subject to the Company's complying with the requirements of Section
2.3) promptly pay to the Company the amount of such refund (together
with any interest paid or credited thereon after taxes applicable
thereto). If after receipt by Executive of an amount advance by the
Company pursuant to this section, a determination is made that
Executive shall not be entitled to any refund with respect to such
claim and the Company does not notify Executive in writing of its
intent to contest such denial of refund prior to the expiration of 30
days after such determination, then such advance shall be forgiven and
shall not be required to be repaid and the amount of such advance
shall offset, to the extent thereof, the amount of Gross-Up Payment
required to be paid.
2.5 Company acknowledges and agrees that all unvested stock options and
all shares of unvested restricted stock of the Company held by
Executive that were granted or awarded pursuant to the terms of the
Company's Amended and Restated 1994 Stock Incentive Plan, and are
outstanding immediately prior to the Effective Time, shall become 100%
vested at the Effective Time. Under the Merger Agreement, the Company
will offer to all of its employees holding unvested stock options the
opportunity to receive a cash payment in the amount of the difference
between the Cash Payment (as that term is defined in the Merger
Agreement) and the exercise price of the stock option. The Company
acknowledges that Executive may accept such an offer and if he elects
to do so, the options with respect to which he accepts the offer will
not be unvested and outstanding immediately prior to the Effective
Time and will not vest pursuant to this Section 2.5. Further, the
Company will extend to Executive any offer made to employees generally
to allow such employees to exercise vested options on a cash free
basis, including any options that vest immediately prior to the
Effective Time pursuant to this Section 2.5. No election by the
Executive under this Section 2.5 will modify the Company's obligations
under Section 2.3 hereof.
2.6 Executive shall be entitled to receive the following benefits to the
extent available under the group insurance plans or other arrangements
maintained by the Company, subject to the following:
2.6.1 Executive may elect to continue health benefit coverage under
the Company's group health plan (medical and dental coverage) for
Executive, Executive's spouse and eligible dependents to the
extent available under the terms of the plan pursuant to the
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healthcare coverage continuation provisions of the Consolidated
Omnibus Budget Reconciliation Act of 1985, as amended ("COBRA"),
at the same coverage level provided immediately prior to the
Effective Time. Executive will pay the cost of any such COBRA
coverage that he or his family decides to elect.
2.6.2 Executive shall be entitled to benefits accrued through the
Effective Time under the Company's 401(k) plan according to the
terms of such plan and Executive's rights and the Company's
obligations thereunder shall not be affected by this Agreement.
2.7 Executive shall be entitled to receive liability insurance coverage
and indemnification benefits as follows:
2.7.1 To the extent that the Company at the Effective Time maintains
any errors and omissions or other liability insurance covering
officers and directors ("Insurance"), Executive shall be covered
under such policy or policies, including tail coverage if
acquired, in accordance with the terms thereof. However, nothing
herein shall in any way obligate or require the Company to
continue to maintain any Insurance except as may be required of
Stantec Consulting under the Merger Agreement.
2.7.2 The Company and Executive have entered into an Indemnification
Agreement in the form filed with the Securities and Exchange
Commission providing for indemnification for certain losses
incurred by Executive in connection with the Executive's service
to the Company or any of its affiliates as an officer or
director. The terms of such indemnification agreement shall
survive and continue with respect to third-party claims arising
in connection with Executive's service as an officer or director
of the Company and its affiliates prior to the Effective Time.
2.8 Executive acknowledges and agrees that except as otherwise
specifically provided by this Agreement, the payment and benefits as
expressly provided for herein, are in complete satisfaction of any and
all obligations the Company may otherwise have to provide any
contractual post-termination severance or any other benefit or
perquisites following the Effective Time in accordance with the Change
in Control Agreement or any other agreement, plan or policy of the
Company and the Change in Control Agreement shall terminate as of the
Effective Time.
3. NON-ADMISSION OF DISCRIMINATION OR WRONGDOING.
3.1 This Agreement shall not in any way be construed as an admission that
the Company or any individual has any liability to or acted wrongfully
in any way with respect to Executive or any other person. The Company
specifically denies that it has any liability to or that it has done
any wrongful or discriminatory acts against Executive or any other
person on the part of itself, or its officers, employees or agents.
3.2 Executive understands and agrees that Executive has not suffered any
discrimination in terms, conditions or privileges of employment based
on age, race, gender, religious creed, color, national origin,
ancestry, physical disability, mental disability, medication
condition, marital status, sexual orientation or sexual or racial
harassment. Executive
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understands and agrees that Executive has no claim for employment
discrimination under any legal or factual theory.
3.3 This Agreement shall not in any way be construed as an admission that
Executive has any liability to, or has acted wrongfully in any way
with respect to, the Company, STANTEC CONSULTING, or any of their
respective officers, directors, shareholders, employees, agents and
representatives (the "COMPANY REPRESENTATIVES") or any other person.
Executive specifically denies that Executive has any liability to, or
that Executive has committed any wrongful or discriminatory acts
against, the Company or any other person as to itself, or its
officers, employees or agents.
4. SEPARATION OF EMPLOYMENT. Executive acknowledges that Executive's
employment with the Company shall terminate as of the Effective Time and
that effective as of the Effective Time he has resigned from all officer
and director positions held by him at the Company and its affiliates.
5. COMPANY PROPERTY. Executive represents and agrees that to the extent
Executive has not turned over to the Company all equipment, files,
memoranda, records, and other documents, and any other physical or personal
property which are the property of the Company of which Executive has
possession, custody or control at the time this Agreement is executed he
agrees to do so on or before the Effective Time.
6. NO LAWSUITS.
6.1 Each party promises never to file, or assist any other party in
connection with, a lawsuit, administrative complaint, or charge of any
kind with any court, governmental or administrative agency or
arbitrator against the other or any Company Representative asserting
any claims that are released in this Agreement.
6.2 Each Party represents and agrees that, prior to signing this
Agreement, he or it has not filed or pursued any complaints, charges
or lawsuits of any kind with any court, governmental or administrative
agency or arbitrator against the other or any Company Representative,
asserting any claims that are released in this Agreement.
7. RELEASES
7.1 In exchange for the accommodations by the Company provided herein and
the mutual obligations set forth herein, and except for the
obligations set forth herein, Executive knowingly and voluntarily
waives and releases all rights and claims, known and unknown, which
Executive may have against the Company, and or any of the Company's
related or affiliated entities or successors, or any of their current
or former officers, directors, managers, employees shareholders or
representatives (collectively, the "COMPANY RELEASED PARTIES") arising
out of or relating to Executive's Change in Control Agreement,
employment or termination of employment with the Company (the "COMPANY
RELEASE"), including any and all charges, complaints, claims,
liabilities, obligations, promises, agreements, contracts,
controversies, damages, actions, causes of action, suits, rights,
demands, costs, losses, debts and expenses of any kind, at law, equity
or otherwise, whether known or unknown, suspected or unsuspected
(collectively, "LIABILITIES"), which Executive has or may have against
the Company Released
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Parties. This Company Release extends to and includes, but is not
limited to, claims for employment discrimination, wrongful
termination, constructive termination, violation of public policy,
breach of any express or implied contract, breach of any implied
covenant, fraud, intentional or negligent misrepresentation, emotional
distress, or any other claims relating to the Change in Control
Agreement, Executive's employment or termination of employment with
the Company. This Company Release also includes a release of any
claims by Executive under federal, state or local employment laws or
regulations, including, but not limited to: (1) Title VII of the Civil
Rights Act of 1964, 42 U.S.C. Section 2000(e), ET. SEQ. (race, color,
religion, sex, and national origin discrimination); (2) the Age
Discrimination in Employment Act, 29 U.S.C. ss.621, ET. SEQ. (age
discrimination); (3) Section 1981 of the Civil Rights Act of 1866, 42
U.S.C. s. 1981 (race discrimination); (4) the Equal Pay Act of 1963,
29 U.S.C. s. 206 (equal pay) ; (5) the California Fair Employment and
Housing Act, Cal. Gov't. Code ss. 12900, ET. SEQ. (discrimination,
including race, color, national origin, ancestry, disability, medical
condition, marital status, sex, sexual or racial harassment and age);
(6) the California Labor Code ss. 200, ET. SEQ. (salary,
commission, compensation, benefits and other matters); (7) the Fair
Labor Standards Act, 29 U.S.C. ss. 201, ET. SEQ. (wage and hour
matters, including overtime pay); (8) the Consolidated Omnibus Budget
Reconciliation Act of 1985 (COBRA), 42 U.S.C. s. 1395(c) (group
health plan matters); (9) Executive Order 11141 (age discrimination);
(10) Section 503 of the Rehabilitation Act of 1973, 29 U.S.C. ss.
701, ET. SEQ. (disability discrimination); (11) the Executive
Retirement Income Security Act of 1974, 29 U.S.C. ss. 1001, ET.
SEQ. (employee benefits); (12) Title I of the Americans with
Disabilities Act (disability discrimination); California Labor Code
s.132(a) (discrimination based on filing a workers' compensation
claim); and (13) any applicable California Industrial Welfare
Commission Order (wage matters). However, this release does not waive
(i) any of the obligations set forth in this Agreement, (ii) any
continuing obligation the Company may have to provide indemnification
for third party claims arising out of Executive's service as an
employee, officer or director of the Company for periods prior to the
Effective Time or eligibility for coverage under the terms of any
directors and officers liability insurance policy or policies that the
Company, in its discretion, may choose to maintain; provided, nothing
herein shall obligate the Company to provide such insurance coverage
or (iii) any other rights to indemnification or contribution that
Executive may have under applicable law with respect to any
third-party claim. This Company Release is provided for the benefit of
the Company and the Company Representatives and no other party
(including, but not limited to, any insurers with contracts of
insurance with the Company) shall have any rights or benefits under
the Company Release whatsoever.
7.2 In exchange for the accommodations by the Executive provided herein
and the mutual obligations set forth herein, and except for the
obligations set forth herein, the Company, for itself and each of the
Company Representatives claiming through it, knowingly and voluntarily
waives and releases all rights and claims, known and unknown, which
the Company may have against the Executive, and or any of the
Executive's related or affiliated entities or successors,
(collectively, the "EXECUTIVE RELEASED PARTIES," and collectively with
the Company Released Parties, the "RELEASED PARTIES") arising out of
or relating to the Change in Control Agreement or the Disputes (the
"EXECUTIVE RELEASE," and collectively with the Company Release, the
"RELEASES"), including any and all Liabilities which the Company has
or may have against the Executive Released Parties with respect
thereto. However, this release does not waive (i) any of the
obligations set forth in this Agreement, (ii) or (ii) any other rights
to indemnification or contribution that the Company or the Company
Representatives may have
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under applicable law with respect to any third-party claim. This
Company Release is provided for the benefit of the Executive and the
Executive Representatives and no other party shall have any rights or
benefits under the Executive Release whatsoever.
7.3 The parties acknowledge that:
7.3.1 This Agreement constitutes a voluntary waiver of any and all
rights and claims each may have against the Released Parties with
respect to the matters released by this Agreement as of the date
of the execution of this Agreement, including rights or claims
arising under the Age Discrimination in Employment Act, 29 U.S.C.
ss. 621 ET. SEQ.;
7.3.2 Each party has waived rights or claims pursuant to this
Agreement in exchange for consideration;
7.3.3 Each party acknowledges that he or it has in fact consulted with
an attorney of his or its choosing concerning this Agreement
prior to executing it;
7.3.4 Executive has been afforded a period of at least 21 days within
which to consider the terms of this Agreement, and in the event
Executive should decide to execute this Agreement in fewer than
21 days, Executive has done so after consulting with an attorney
or with the express understanding that Executive has been given
and declined the opportunity to consider this Agreement for a
full 21 days.
7.3.5 Each party further acknowledges that it has read and understands
this Agreement, that its signature below is truly voluntary, and
that it has entered into this Agreement knowingly and willfully;
and
7.3.6 Executive may revoke this Section 7.3 at any time during the
seven (7) days following the date of execution of this Agreement,
and this Section 7.3 shall not become effective or enforceable
until such revocation period has expired.
7.4 Each party hereby warrants, represents and agrees that, as a condition
of this Agreement, that party expressly releases all rights and claims
covered by the Releases that he or it knows about as well as those
they may not know about as of the date of this Agreement, except for
the obligations set forth in this Agreement. Each party hereby
warrants, represents and agrees that he or it is fully aware of the
provisions of California Civil Code Section 1542, which provides 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."
Each party knowingly and voluntarily waives the provisions of California
Civil Code Section 1542, and any other statutes or common law principle of
similar effect, as to any and all Liabilities covered by the Releases, except
for the obligations set forth in this Agreement, and further agrees that this
waiver is a material aspect of the consideration for entering into this
Agreement.
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8. NON-RELEASE OF FUTURE CLAIMS. This Agreement does not waive or release any
rights or claims that either party may have which arise after the execution
hereof or any rights or claims that the Company or Executive may have for a
breach of the provisions of this Agreement. For purposes of clarification,
the Agreement does waive and release known and unknown rights and claims
that arise at or prior to the execution hereof as provided in Section 7.4.
Notwithstanding the foregoing, however, Executive covenants and agrees, as
an additional condition to be entitled to payment of the consideration in
Section 2.1 of this Agreement, that he will execute and deliver a
Supplemental Release that reconfirms the terms of the Company Release in
Sections 7.1, 7.3 and 7.4 hereof covering the period of employment between
the date Executive signs this Agreement through the Effective Time.
9. NO REPRESENTATIONS. The parties and each of them represent and agree that
no promises, statements or inducements have been made to them that have
caused them to sign this Agreement other than those expressly stated in
this Agreement.
10. SUCCESSORS. All of the terms and provisions contained in this Agreement
shall inure to the benefit of and shall be binding upon the parties hereto
and there respective heirs, legal representatives, successors and assigns.
11. SEVERABILITY, GOVERNING LAW AND ARBITRATION.
11.1 Should any of the provisions in this Agreement be declared or be
determined to be illegal or invalid, all remaining parts, terms or
provisions shall be valid, and the illegal or invalid part, term or
provision shall be deemed not to be a part of this Agreement.
11.2 This Agreement is made and entered into in the State of California and
shall in all respects be interpreted, enforced and governed under the
laws of California.
11.3 The Company and the undersigned Executive are WAIVING THE RIGHT TO A
JURY TRIAL for all disputes arising under this Agreement. The parties
hereby agree that any dispute under this Agreement must be submitted
for resolution by mandatory, binding arbitration. Both the Company and
the Executive shall be precluded from bringing or raising in court or
another forum any dispute that was or could have been submitted to
binding arbitration. This arbitration requirement DOES NOT apply to
claims for workers' compensation benefits, claims arising under ERISA
(29 U.S.C. ss. 1001 ET SEQ.) or provisional remedies under California
Code of Civil Procedure Section 1281.8. Binding arbitration under this
Agreement shall be conducted in accordance with California Code of
Civil Procedure Section 1280 ET. SEQ. The arbitration shall be
conducted in Orange County, California before a neutral arbitrator
selected by both parties in accordance with California Code of Civil
Procedure Section 1281.6. from (1) the American Arbitration
Association Labor and Employment Arbitrators Panel; (2) Judicial
Arbitration and Mediation Services, Inc.; or (3) Action Dispute
Resolution Services. Any dispute with any party which arises from this
Agreement must be submitted to binding arbitration within the
applicable statute of limitations prescribed by law. The parties will
be permitted to conduct discovery as provided by the California Code
of Civil Procedure Section 1283.05. The arbitrator shall, within
thirty days of the conclusion of the arbitration, issue a written
opinion setting forth the factual and legal bases for his or her
decision. Each party shall pay for its own costs and attorney's fees.
Notwithstanding the foregoing, in the event of an arbitration, the
prevailing party shall be
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entitled to recover the reasonable costs of pursuing such arbitration,
including reasonable attorney's fees, provided that the arbitrator
shall have the discretion in its decision to determine that neither
party is the prevailing party.
12. CONTINUING COVENANTS.
12.1 Concurrently with the execution of this Agreement, Executive has
entered into a separate agreement with the Company addressing the
protection of the confidentiality of trade secret and confidential
information of the Company. It is understood and agreed that
Executive's obligations under that agreement are unaffected by this
Agreement and such other agreement will remain in full force and
effect.
12.2 Each of the Company and the Executive agrees that he and it shall not
make, or cause any other person or entity to make, any disparaging
statement, written or oral, to any person or entity (including
individuals and private and public entities) regarding the Released
Parties and each of them. The Company and Executive may, however,
disclose to potential employers of Executive the fact that he was a
Company employee and the dates of his tenure and the positions held
while a Company employee. The Company will inform each of its
directors, executive officers and the supervisor of its human
resources department of the Company's obligations under this Section
12.2.
12.3 At any time following the date the Executive's resignation becomes
effective, the Executive shall cooperate with the Company to the
extent reasonably necessary and reasonably feasible for Executive
taking into account his work and vacation schedules in any litigation
or administrative proceedings involving any matters with which the
Executive was involved during his employment by the Company provided
that the Company agrees that the scope of such cooperation will be
reasonable and will not unreasonably interfere with Executive's work
or personal time. The Company shall reimburse the Executive for
reasonable expenses, if any, incurred in providing such assistance and
compensate him at reasonable rates of compensation, which will be
mutually agreed to at the time of rendering any such assistance.
13. PROPER CONSTRUCTION.
13.1 The language of all parts of this Agreement shall in all cases be
construed as a whole according to its fair meaning, and not strictly
for or against any of the parties.
13.2 As used in this Agreement, the term "or" shall be deemed to include
the singular or plural number shall be deemed to include the other
whenever the context so indicates or requires.
13.3 The paragraph headings used in this Agreement are intended solely for
convenience of reference and shall not in any manner amplify, limit,
modify or otherwise be used in the interpretation of any of the
provisions hereof.
14. COUNTERPARTS; EXECUTION. This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts,
each of which when executed shall be deemed to be an original, but all of
which taken together shall constitute one
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and the same agreement. A facsimile of an executed copy of this Agreement
shall be treated as an original.
15. ENTIRE AGREEMENT. This Agreement is the entire agreement between Executive
and the Company and fully supersedes any and all prior agreements or
understandings between the parties pertaining to its subject matter.
PLEASE READ CAREFULLY. THIS SEPARATION AGREEMENT AND RELEASE INCLUDES A
RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day
and year first above written.
"EXECUTIVE"
_______________________________________
Gary Campanaro, an individual
"COMPANY"
The Keith Companies, Inc.
By:____________________________________
APPROVAL
By its execution below, Stantec Consulting California Inc. consents to the
Company entering into the forgoing Agreement, and in the event that it acquires
the Company or merges with Company pursuant to the Merger Agreement agrees that
pursuant to Section 10 it will succeed to Company's obligations set forth
herein.
Stantec Consulting California Inc.
By: ___________________________
Its: __________________________
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EXHIBIT A
FORM OF SUPPLEMENTAL RELEASE
SUPPLEMENTAL RELEASE
THIS SUPPLEMENTAL RELEASE (this "RELEASE") is made and entered into
effective this______ day of ______, 2005 by and between Gary Campanaro
("EXECUTIVE"), on the one side, and The Keith Companies, Inc., a California
corporation ("TKC" or the "COMPANY"), on the other side.
RECITALS:
A. Executive and Company have entered into that certain Separation and Release
Agreement, dated as of July 26, 2005 ("SEPARATION AGREEMENT").
B. Pursuant to the Separation Agreement, as an additional condition to be
entitled to payment of the consideration in Section 2.1 of Separation
Agreement, Executive has agreed to provide the Company with a release of
claims that may have arisen between the date of the Separation Agreement
and the date hereof.
NOW, THEREFORE, in consideration of the foregoing and the representations,
warranties, covenants and agreements set forth in this Release, intending to be
legally bound by the terms of this Release, Executive and the Company agree as
follows:
1. RELEASE
1.1 In exchange for the accommodations by the Company provided in the
Separation Agreement and the mutual obligations set forth in the
Separation Agreement, and except for the obligations set forth in the
Separation Agreement, Executive knowingly and voluntarily waives and
releases all rights and claims, known and unknown, which Executive may
have against the Company, and or any of the Company's related or
affiliated entities or successors, or any of their current or former
officers, directors, managers, employees shareholders or
representatives (collectively, the "COMPANY RELEASED PARTIES") arising
out of or relating to Executive's Change in Control Agreement,
employment or termination of employment with the Company (the "COMPANY
RELEASE"), including any and all charges, complaints, claims,
liabilities, obligations, promises, agreements, contracts,
controversies, damages, actions, causes of action, suits, rights,
demands, costs, losses, debts and expenses of any kind, at law, equity
or otherwise, whether known or unknown, suspected or unsuspected
(collectively, "LIABILITIES"), which Executive has or may have against
the Company Released Parties. This Company Release extends to and
includes, but is not limited to, claims for employment discrimination,
wrongful termination, constructive termination, violation of public
policy, breach of any express or implied contract, breach of any
implied covenant, fraud, intentional or negligent misrepresentation,
emotional distress, or any other claims relating to the Change in
Control Agreement, Executive's employment or termination of employment
with the Company. This Company Release also includes a release of any
claims by Executive under federal, state or local employment laws or
regulations, including, but not limited to: (1) Title VII of the Civil
Rights Act of 1964, 42 U.S.C. Section 2000(e), ET. SEQ. (race, color,
religion, sex, and national origin discrimination); (2) the Age
Discrimination in Employment Act, 29 U.S.C.
ss.621, ET. SEQ. (age discrimination); (3) Section 1981 of the Civil
Rights Act of 1866, 42 U.S.C. s. 1981 (race discrimination); (4) the
Equal Pay Act of 1963, 29 U.S.C. s. 206 (equal pay); (5) the
California Fair Employment and Housing Act, Cal. Gov't. Code ss.
12900, ET. SEQ. (discrimination, including race, color, national
origin, ancestry, disability, medical condition, marital status, sex,
sexual or racial harassment and age); (6) the California Labor Code
ss. 200, ET. SEQ. (salary, commission, compensation, benefits and
other matters); (7) the Fair Labor Standards Act, 29 U.S.C. ss. 201,
ET. SEQ. (wage and hour matters, including overtime pay); (8) the
Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA), 42
U.S.C. s. 1395(c) (group health plan matters); (9) Executive Order
11141 (age discrimination); (10) Section 503 of the Rehabilitation Act
of 1973, 29 U.S.C. ss. 701, ET. SEQ. (disability discrimination); (11)
the Executive Retirement Income Security Act of 1974, 29 U.S.C. ss.
1001, ET. SEQ. (employee benefits); (12) Title I of the Americans with
Disabilities Act (disability discrimination); California Labor Code
s. 132(a) (discrimination based on filing a workers' compensation
claim); and (13) any applicable California Industrial Welfare
Commission Order (wage matters). However, this release does not waive
(i) any of the obligations set forth in the Separation Agreement, (ii)
any continuing obligation the Company may have to provide
indemnification for third party claims arising out of Executive's
service as an employee, officer or director of the Company for periods
prior to the Effective Time or eligibility for coverage under the
terms of any directors and officers liability insurance policy or
policies that the Company, in its discretion, may choose to maintain;
provided, nothing herein shall obligate the Company to provide such
insurance coverage or (iii) any other rights to indemnification or
contribution that Executive may have under applicable law with respect
to any third-party claim. This Company Release is provided for the
benefit of the Company and the Company Representatives and no other
party (including, but not limited to, any insurers with contracts of
insurance with the Company) shall have any rights or benefits under
the Company Release whatsoever.
1.2 Executive acknowledges that:
1.2.1 This Release constitutes a voluntary waiver of any and all
rights and claims he may have against the Company Released
Parties with respect to the matters released by this Release as
of the date of the execution of this Release, including rights or
claims arising under the Age Discrimination in Employment Act, 29
U.S.C. ss. 621 ET. SEQ.;
1.2.2 Executive has waived rights or claims pursuant to this Release
in exchange for consideration;
1.2.3 Executive acknowledges that he has in fact consulted with an
attorney of his choosing concerning this Release prior to
executing it;
1.2.4 Executive has been afforded a period of at least 21 days within
which to consider the terms of this Release, and in the event
Executive should decide to execute this Release in fewer than 21
days, Executive has done so after consulting with an attorney or
with the express understanding that Executive has been given and
declined the opportunity to consider this Release for a full 21
days.
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1.2.5 Executive further acknowledges that it has read and understands
this Release, that its signature below is truly voluntary, and
that it has entered into this Release knowingly and willfully;
and
1.2.6 Executive may revoke this Section 1 at any time during the
seven (7) days following the date of execution of this Release,
and this Section 1 shall not become effective or enforceable
until such revocation period has expired.
1.3 Executive hereby warrants, represents and agrees that, as a condition
of this Release, he expressly releases all rights and claims covered
by the Company Release that he knows about as well as those he may not
know about as of the date of this Release, except for the obligations
set forth in the Separation Agreement. Executive hereby warrants,
represents and agrees that he is fully aware of the provisions of
California Civil Code Section 1542, which provides 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."
Executive knowingly and voluntarily waives the provisions of California
Civil Code Section 1542, and any other statutes or common law principle of
similar effect, as to any and all Liabilities covered by the Company Release,
except for the obligations set forth in the Separation Agreement, and further
agrees that this waiver is a material aspect of the consideration for the
entering into the Separation Agreement by the Company.
2. NON-RELEASE OF FUTURE CLAIMS. This Release does not waive or release any
rights or claims that either party may have which arise after the execution
hereof or any rights or claims that the Company or Executive may have for a
breach of the provisions of this Release or the Separation Agreement. For
purposes of clarification, the Release does waive and release known and
unknown rights and claims that arise at or prior to the execution hereof as
provided in Section 1.3.
3. SUCCESSORS. All of the terms and provisions contained in this Release shall
inure to the benefit of and shall be binding upon the parties hereto and
there respective heirs, legal representatives, successors and assigns.
4. SEVERABILITY, GOVERNING LAW AND ARBITRATION.
4.1 Should any of the provisions in this Release be declared or be
determined to be illegal or invalid, all remaining parts, terms or
provisions shall be valid, and the illegal or invalid part, term or
provision shall be deemed not to be a part of this Release.
4.2 This Release is made and entered into in the State of California and
shall in all respects be interpreted, enforced and governed under the
laws of California.
4.3 The Company and the undersigned Employee are WAIVING THE RIGHT TO A
JURY TRIAL for all disputes arising under this Release. The parties
hereby agree that any dispute
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under this Release must be submitted for resolution by mandatory,
binding arbitration. Both the Company and the Executive shall be
precluded from bringing or raising in court or another forum any
dispute that was or could have been submitted to binding arbitration.
This arbitration requirement DOES NOT apply to claims for workers'
compensation benefits, claims arising under ERISA (29 U.S.C. ss. 1001
ET SEQ.) or provisional remedies under California Code of Civil
Procedure Section 1281.8. Binding arbitration under this Release shall
be conducted in accordance with California Code of Civil Procedure
Section 1280 ET. SEQ. The arbitration shall be conducted in either
Orange County, California before a neutral arbitrator selected by both
parties in accordance with California Code of Civil Procedure Section
1281.6. from (1) the American Arbitration Association Labor and
Employment Arbitrators Panel; (2) Judicial Arbitration and Mediation
Services, Inc.; or (3) Action Dispute Resolution Services. Any dispute
with any party which arises from this Release must be submitted to
binding arbitration within the applicable statute of limitations
prescribed by law. The parties will be permitted to conduct discovery
as provided by the California Code of Civil Procedure Section 1283.05.
The arbitrator shall, within thirty days of the conclusion of the
arbitration, issue a written opinion setting forth the factual and
legal bases for his or her decision. Each party shall pay for its own
costs and attorney's fees. Notwithstanding the foregoing, in the event
of an arbitration, the prevailing party shall be entitled to recover
the reasonable costs of pursuing such arbitration, including
reasonable attorney's fees, provided that the arbitrator shall have
the discretion in its decision to determine that neither party is the
prevailing party.
5. PROPER CONSTRUCTION.
5.1 The language of all parts of this Release shall in all cases be
construed as a whole according to its fair meaning, and not strictly
for or against any of the parties.
5.2 As used in this Release, the term "or" shall be deemed to include the
singular or plural number shall be deemed to include the other
whenever the context so indicates or requires.
5.3 The paragraph headings used in this Release are intended solely for
convenience of reference and shall not in any manner amplify, limit,
modify or otherwise be used in the interpretation of any of the
provisions hereof.
6. COUNTERPARTS; EXECUTION. This Release may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts,
each of which when executed shall be deemed to be an original, but all of
which taken together shall constitute one and the same agreement. A
facsimile of an executed copy of this Release shall be treated as an
original.
7. ENTIRE AGREEMENT. This Release and the Separation Agreement constitute the
entire agreement between Executive and the Company and fully supersedes any
and all prior agreements or understandings between the parties pertaining
to its subject matter.
PLEASE READ CAREFULLY. THIS RELEASE INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN
CLAIMS.
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IN WITNESS WHEREOF, the parties hereto have executed this Release the day
and year first above written.
"EXECUTIVE"
_______________________________________
Gary Campanaro, an individual
"COMPANY"
The Keith Companies, Inc.
By:____________________________________
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