EXHIBIT 10.14
May 10, 2006
Kevin A. Green (SENT VIA EMAIL)
[Address]
Dear Kevin:
Celebrate Express, Inc. (the "Company") is pleased to offer you employment as
President and Chief Executive Officer ("CEO") of the Company on the following
terms:
1. POSITION; EFFECTIVE DATE. As President and CEO, you will report to the
Company's Board of Directors (the "Board"), and will perform the duties
customarily associated with this position and such other duties assigned by the
Board. Your first date of full time employment with the Company (the "Start
Date") will be no later than May 15, 2006. You will also be elected to the Board
of Directors of the Company at its first regularly-scheduled meeting following
the Start Date. Except as provided in Section 3.1 herein, you will devote your
full time and attention to the business affairs of the Company, except for
vacations as provided in Section 2.4 hereof and periods of illness or
incapacity. This agreement is being entered into with the approval of the
Compensation Committee of the Board (the "Compensation Committee") and will be
effective upon the date of the parties' execution.
2. COMPENSATION AND EMPLOYEE BENEFITS.
2.1 BASE SALARY. Your annual base salary will be $350,000, less
payroll deductions and required withholdings, paid according to the Company's
regular payroll schedule and procedures. At no time during your employment with
the Company will such annual base salary be reduced below $350,000 unless such
reduction is made in connection with and in an amount commensurate with an
across-the-board reduction of the salaries of senior executive employees of the
Company.
2.2 PERFORMANCE BONUS. Beginning with the fiscal year beginning June
1, 2006, you will be eligible to earn an annual performance bonus with a target
of one hundred percent (100%) of your annual base salary based on the Company's
performance and your achievement of individual performance goals and objectives
agreed upon by you and the Compensation Committee for a given fiscal year, as
determined in good faith by the Compensation Committee in its sole discretion.
You will be eligible for any such bonus if you are employed at the end of the
fiscal year and any bonus payment will be subject to payroll deductions and
required withholdings.
2.3 SIGNING BONUS. You will receive a $75,000 signing bonus that
will be paid on your first regularly scheduled pay date after your Start Date,
according to the Company's regular payroll schedule and procedures.
2.4 EMPLOYEE BENEFITS. You will be entitled to all benefits,
including vacation, health and disability benefits, for which you are eligible
under the terms and conditions of the standard Company benefit plans, which may
be in effect from time to time and provided by the Company to its senior
executive level employees generally. You will earn four (4) weeks of paid
vacation per year.
2.5 STOCK OPTIONS.
(a) You will be awarded a nonqualified stock option to
purchase three hundred thousand (300,000) shares of the Company's Common Stock
by the Compensation Committee at its next meeting following the Start Date. The
per share exercise price of such stock option will be equal to the closing price
of the Company Common Stock on Nasdaq on the date of grant. The term of such
stock option is ten (10) years, subject to earlier expiration in the event of
the termination of your continuous service with the Company. The shares subject
to the grant will vest as follows: 1/4 of the total number of option shares will
vest on the one-year anniversary of the grant date and 1/16 of the total number
of option shares will vest on each quarterly anniversary thereafter such that
all option shares will be vested on the four-year anniversary of the grant date.
Notwithstanding the foregoing, a portion of the shares subject to your
outstanding stock options may vest on an accelerated basis pursuant to Section 6
below. Except as provided herein, such stock options will be subject to the
provisions of the equity incentive plan of the Company under which the options
are granted and the applicable form of stock option agreement thereunder.
(b) Incrementally, you will be eligible to participate in the
Company's equity incentive plans in the same manner as the Company's other
senior executive level employees generally.
2.6 EXPENSES. The Company will reimburse you an aggregate amount not
to exceed $100,000 for expenses related to (i) the packing, transportation, and
unpacking of your household goods, (ii) a temporary residence and/or hotel
accommodations in the Greater Seattle area, (iii) relocation related travel and
lodging, (iv) the sale of your existing home and the purchase of a new primary
residence in the Greater Seattle area and (v) your attorney in connection with
negotiations of this Agreement. You agree to provide documentation to support
any such expenses in accordance with the Company's generally applicable
policies.
3. OTHER ACTIVITIES DURING EMPLOYMENT.
3.1 ACTIVITIES. Except with the prior written consent of the Board,
you will not during your employment undertake or engage in any other employment,
occupation or business enterprise. You may engage in civic and not-for-profit
activities, so long as such activities do not interfere with the performance of
your job duties.
3.2 INVESTMENT AND INTERESTS. Except as permitted by Section 3.3
below, during your employment you agree not to acquire, assume or participate
in, directly or indirectly, any position, investment or interest known by you to
be adverse or antagonistic to the Company, or its business or prospects,
financial or otherwise.
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3.3 NONCOMPETITION.
(a) During the term of your employment by the Company, except
on behalf of the Company, you will not, without the prior written consent of the
Board, directly or indirectly, whether as an officer, director, shareholder,
partner, proprietor, associate, representative, consultant, or in any capacity
whatsoever engage in, become financially interested in, be employed by or have
any business connection with any other person, corporation, firm, partnership or
other entity whatsoever that competes with the products or services being
developed or exploited by the Company during your employment; provided, however,
that anything above to the contrary notwithstanding, you may own, as a passive
investor, securities of any entity, so long as your direct holdings in any one
such corporation do not in the aggregate constitute more than one percent (1%)
of the voting stock of such corporation.
(b) If your employment with the Company is terminated by you
for any reason, for one year following the termination of your employment you
will not, without the prior written consent of the Board, directly or
indirectly, whether as an officer, director, shareholder, partner, proprietor,
associate, representative, consultant, or in any capacity whatsoever engage in,
become financially interested in, be employed by or have any business connection
with any other person, corporation, firm, partnership or other entity whatsoever
that competes with the Business of the Company; provided, however, that anything
above to the contrary notwithstanding, (i) you may own, as a passive investor,
securities of any entity, so long as your direct holdings in any one such
corporation do not in the aggregate constitute more than one percent (1%) of the
voting stock of such corporation, (ii) you may work for a division, entity or
subgroup of any of such companies that engage in the Business so long as such
particular division, entity or subgroup does not engage in the Business, or
(iii) you may work for a company that engages in the Business if the Company (or
its subsidiaries) ceases to engage in the Business. For purposes of this Section
3.3(b), "Business" means the designing, manufacturing or selling of party
products, costumes or any other product category (or business line) representing
greater than ten percent (10%) of the Company's revenues.
3.4 SOLICITATION OF EMPLOYEES, CONSULTANTS AND OTHER PARTIES. During
the term of your employment with the Company, and for a period of one year
following the termination of your employment with the Company for any reason,
you agree that you will not directly or indirectly hire or solicit, induce,
recruit or encourage any of the Company's employees or consultants to terminate
their relationship with the Company to work for yourself or any other person or
entity with which you are affiliated. For a period of one year following
termination of your relationship with the Company for any reason, you agree that
you will not solicit any licensor to or customer of the Company or third-party
provider of the Company's products or services, with respect to any business,
products or services that are competitive to the products or services offered by
the Company or under development as of the date of termination of your
relationship with the Company.
4. PROPRIETARY INFORMATION AND INVENTIONS ASSIGNMENT AGREEMENT;
INDEMNIFICATION AGREEMENT; COMPANY POLICIES. You agree to execute a Proprietary
Information and Inventions Assignment Agreement, a copy of which is attached
hereto as Exhibit A. The parties agree to execute the Indemnification Agreement
attached hereto as Exhibit B providing certain indemnification rights to you.
You further agree to abide by the Company's rules, policies and procedures.
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5. TERMINATION OF EMPLOYMENT.
5.1 AT-WILL EMPLOYMENT RELATIONSHIP. Your employment with the
Company will be at-will. The Company may terminate the employment relationship
at any time, with or without Cause (as defined below) upon thirty (30) days
advance notice (or the Company may pay your salary for such thirty (30) days in
lieu of notice). You may terminate the employment relationship at any time, with
or without Cause and upon thirty (30) days advance notice to the Company, or
such shorter period as the Company may deem acceptable.
5.2 VOLUNTARY TERMINATION.
(a) If you terminate your employment at any time, without Good
Reason (as defined below), you will not be entitled to severance pay, pay in
lieu of notice or any other such compensation other than payment of accrued
salary and vacation and such other benefits as expressly required in such event
by applicable law or the terms of applicable benefit plans. The continued
vesting of any stock options held by you will cease on the termination date, and
your right to exercise vested option shares will be governed by the terms of the
Company's applicable equity incentive plans and the corresponding stock option
agreements. If you terminate your employment without Good Reason less than
twelve (12) months after your Start Date, then the amounts paid to you pursuant
to Sections 2.3 and 2.6 will become due and payable by you to the Company within
sixty (60) days of the termination date.
5.3 TERMINATION FOR CAUSE, DEATH OR DISABILITY.
(a) If the Company terminates your employment at any time for
Cause (as defined below) or if your employment is terminated by reason of your
death or disability (defined as the inability, in the opinion of a qualified
physician acceptable to the Company, because of illness or physical or mental
incapacity or disability to perform the essential functions of your position,
whether with or without reasonable accommodations, for a continuous period of
more than 90 days) your salary will cease on the date of termination and you
will not be entitled to severance pay, pay in lieu of notice or any other such
compensation other than payment of accrued salary and vacation and such other
benefits as expressly required in such event by applicable law or the terms of
applicable benefit plans. The continued vesting of any stock options held by you
will cease on the termination date, and your right to exercise vested option
shares will be governed by the terms of the Company's equity incentive plan and
the corresponding stock option agreements. If the Company terminates your
employment for Cause within twelve (12) months of the Start Date, but not in the
event of the termination of your employment by reason of death or disability,
then amounts paid to you pursuant to Sections 2.3 and 2.6 will become due and
payable by you to the Company within sixty (60) days of the termination date.
(b) DEFINITION OF CAUSE. For purposes of this agreement,
"Cause" means the occurrence of any one or more of the following: (i) your
conviction of, or plea of no contest with respect to, any felony; (ii) your
participation in a fraud or act of dishonesty that results, or is likely to
result, in material harm to the Company; (iii) your violation of a fiduciary
duty owed to the Company; (iv) your material violation of any contract or
agreement between you and the Company, including but not limited to this
agreement or your Proprietary Information and Inventions Agreement; or (v) your
willful and deliberate non-performance of your job duties (other than by reason
of your physical or mental illness, incapacity or disability) or failure to
comply with the direct instructions of the Board (unless such instructions are
illegal), or your commission of an act involving willful misconduct or gross
negligence that results, or is reasonably likely to result, in
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material harm to the Company, or any action taken by you without adequate
authority from the Board; provided that, with respect to Section 5.3(b)(iv) or
(v), the Board has given you written notice specifying the nature of the
violation, failure or action and a reasonable opportunity of not less than
fifteen (15) days to cure the condition giving rise to the alleged violation,
failure or action.
5.4 SEVERANCE BENEFITS FOR TERMINATION WITHOUT CAUSE OR RESIGNATION
FOR GOOD REASON.
(a) If the Company terminates your employment without Cause or
you resign your employment for Good Reason (defined below), you will receive
your regular salary, benefits and other compensation through the termination
date, including any bonus earned for the prior calendar year that is unpaid as
of the termination date. In addition, you will receive an additional twelve (12)
months of your base salary in effect as of such termination date and any
performance bonus (or portion thereof) payable to you for the current calendar
year for objectives or business results actually achieved as of the termination
date, if any, as determined by the Compensation Committee. This base salary will
be paid according to the Company's payroll procedures during the twelve (12)
month period following the termination date. Your receipt of any severance
benefits under this Section 5.4 is contingent upon your signing and not revoking
the Release Agreement (attached as Exhibit C) and your signing and not revoking
a "Separation Agreement" in a form reasonably acceptable to you and the Company.
The Separation Agreement will include (i) a mutual obligation to maintain the
Separation Agreement in confidence, subject to disclosure by the Company as
reasonably necessary to implement the terms of the Separation Agreement,
disclosure by you to your spouse, legal counsel and accountant; and disclosure
by either party in response to a subpoena, order or as otherwise required by
law; (ii) a mutual obligation for non-disparagement; (iii) an obligation for
your future cooperation with Company in response to investigations,
administrative claims, or judicial proceedings (provided that the Company will
pay your reasonable expenses and will pay you a reasonable hourly rate for your
time after the time period encompassed by your salary continuation (maximum of
two years and minimum of one year) has expired); (iv) an obligation to promptly
notify the Company in the event you are requested and/or subpoenaed to testify
in any administrative and/or judicial proceeding concerning the Company and/or
your employment with the Company; (v) an obligation to reasonably cooperate with
the Company and its legal counsel with respect to testimony in civil matters,
and testimony in administrative and/or criminal matters in which your penal
interests are not potentially affected; (vi) an obligation not to solicit or
encourage any current and/or former employee of the Company to become adverse to
and/or commence legal proceedings against the Company; and (vii) such other
matters as the Company's counsel and your counsel reasonably agree are
reasonable to be incorporated into an employee separation agreement with
executive employees.
(b) DEFINITION OF GOOD REASON. For purposes of this Agreement,
"Good Reason" will mean any one of the following events that occurs without your
consent: (i) the material reduction in your responsibilities, authorities or
functions as an employee of the Company; (ii) a reduction in your level of
compensation (including base salary, fringe benefits and target bonuses under
any corporate-performance based bonus or incentive programs, other than in
connection with a commensurate across-the-board reduction); (iii) a relocation
of your place of employment resulting in an increase of your commute to work by
more than fifty (50) miles; (iv) the Company files any petition or action for
relief under any bankruptcy, reorganization, insolvency or moratorium law or any
other law for the relief of, or relating to, debtors, now or hereafter in
effect, or makes any assignment for the benefit of creditors or takes any
corporate action in
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furtherance of any of the foregoing; or (v) the Company's material breach of
this Agreement. Notwithstanding the foregoing, you must provide the Company with
thirty (30) days' advance written notice of Company's conduct giving rise to
Good Reason (the "Cure Period") and during the Cure Period, the Company may
attempt to rescind or correct the matter giving rise to Good Reason. If the
Company does not rescind or correct the conduct giving rise to Good Reason to
your reasonable satisfaction by the expiration of the Cure Period, your
employment will then terminate with Good Reason.
6. CHANGE IN CONTROL.
6.1 DEFINITION. "Change in Control" will mean (a) any consolidation
or merger of the Company with or into any other corporation or other entity or
person, or any corporate reorganization in which the shareholders of the Company
immediately prior to such consolidation, merger or reorganization, own less than
fifty percent (50%) of the voting power of the surviving entity immediately
after such consolidation, merger or reorganization, (b) any transaction or
series of related transactions to which the Company is a party in which in
excess of fifty percent (50%) of the Company's voting power is transferred,
excluding (i) any consolidation or merger effected exclusively to change the
domicile of the Company or (ii) any transaction or series of transactions
principally for bona fide equity financing purposes, or (c) a sale of all or
substantially all of the assets of the Company.
6.2 STOCK OPTIONS.
(a) In the event that within twelve (12) months following a
Change in Control, the Company terminates your employment without Cause or you
resign for Good Reason (a "Change in Control Termination"), any remaining
unvested portion of all stock options held by you will have the vesting
accelerated such that all options are fully vested and exercisable as of the
date of the Change in Control Termination (the "Acceleration").
(b) Notwithstanding Section 6.2(a), if your employment is
terminated by the Company without Cause prior to a Change in Control and the
Board determines that such termination (i) was at the request of a third party
who has indicated an intention or taken steps reasonably calculated to effect a
Change in Control and who subsequently effectuates a Change in Control or (ii)
otherwise occurred in connection with, or in anticipation of, a Change in
Control which actually occurs, then, your termination of employment will be
deemed a Change in Control Termination and you will receive the Acceleration.
Your receipt of the Acceleration is contingent upon your signing and making
effective the Release Agreement.
7. GENERAL PROVISIONS.
7.1 SEVERABILITY. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, but such invalid, illegal or
unenforceable provision will be reformed, construed and enforced in such
jurisdiction so as to render it valid, legal, and enforceable consistent with
the intent of the parties insofar as possible.
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7.2 ENTIRE AGREEMENT. This Agreement, together with its exhibits,
constitutes the entire and exclusive agreement between you and the Company, and
it supersedes any prior agreement, promise, representation, or statement,
written or otherwise, between you and the Company with regard to this subject
matter, including that certain offer letter dated April 6, 2006. It is entered
into without reliance on any promise, representation, statement or agreement
other than those expressly contained or incorporated herein, and it cannot be
modified or amended except in a writing signed by you and a duly authorized
officer of the Company.
7.3 SUCCESSORS AND ASSIGNS. This Agreement is intended to bind and
inure to the benefit of and be enforceable by you, the Company and your and its
respective successors, assigns, heirs, executors and administrators, except that
you may not assign any of your duties hereunder and you may not assign any of
your rights hereunder without the written consent of the Company, which will not
be withheld unreasonably.
7.4 GOVERNING LAW. All questions concerning the construction,
validity and interpretation of this Agreement will be governed by the law of the
State of Washington as applied to contracts made and to be performed entirely
within Washington.
7.5 ARBITRATION. Any and all controversies, claims or disputes
between you and the Company (including any employee, officer, director,
shareholder or benefit plan of the Company in their capacity as such or
otherwise) arising out of, relating to, or resulting from your employment with
Company or the termination of your employment with Company will be submitted to
and settled by binding arbitration in King County in the State of Washington in
accordance with the Employment Dispute Resolution Rules then in effect of the
American Arbitration Association (the "AAA Rules"). Arbitration will be
conducted by one arbitrator, mutually selected by you and the Company. The final
decision of the arbitrator(s) will be furnished to you and the Company in
writing and will constitute a conclusive determination of the issue(s) in
question, binding upon you and the Company and will not be contested by either
you or the Company. You acknowledge and agree that you are agreeing to arbitrate
disputes voluntarily and without any duress or undue influence by the Company or
anyone else. You further acknowledge and agree that you have carefully read
these terms and that you have asked any questions needed for you to understand
the terms, consequences and binding effect of this agreement and fully
understand it, including that you are waiving your right to a jury trial.
Finally, you agree that you have been provided an opportunity to seek the advice
of an attorney of your choice before signing up to these terms.
[THIS SPACE INTENTIONALLY LEFT BLANK]
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To indicate your acceptance of the Company's offer of employment, please
sign and date this Agreement in the space provided below and return it to me.
Sincerely,
CELEBRATE EXPRESS, INC.
BY: /s/ JEAN REYNOLDS
-------------------------------
Jean Reynolds
Lead Independent Director and
Chair of the Compensation Committee
of the Board of Directors
ACCEPTED AND AGREED:
/s/ Kevin A. Green 5/10/06
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Kevin A. Green Date
EXHIBIT A - Proprietary Information and Inventions Assignment Agreement
EXHIBIT B - Indemnification Agreement
EXHIBIT C - Release Agreement
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EXHIBIT A
PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT
In exchange for my becoming employed by Celebrate Express, Inc. or any of
its current or future subsidiaries, affiliates, successors or assigns
(collectively, the "Company"), and for any cash and equity compensation for my
services, I hereby agree as follows:
1. CONFIDENTIALITY OBLIGATION. I understand and agree that all Proprietary
Information (as defined below) shall be the sole property of the Company and its
assigns, including all trade secrets, patents, copyrights and other rights in
connection therewith. I hereby assign to the Company any rights I may acquire in
such Proprietary Information. I will hold in confidence and not directly or
indirectly to use or disclose, both during my employment by or consulting
relationship with the Company and for a period of three years after its
termination (irrespective of the reason for such termination), any Proprietary
Information, whether or not during working hours, except to the extent
authorized by the Company, until such Proprietary Information becomes generally
known. I agree not to make copies of such Proprietary Information except as
authorized by the Company. Upon termination of my employment or consulting
relationship or upon an earlier request of the Company, I will return or deliver
to the Company all tangible forms of such Proprietary Information in my
possession or control, including but not limited to drawings, specifications,
documents, records, devices, models or any other material and copies or
reproductions thereof.
2. OWNERSHIP OF PHYSICAL PROPERTY. All document, apparatus, equipment and
other physical property in any form, whether or not pertaining to Proprietary
Information, furnished to me by the Company or produced by me or others in
connection with my employment or consulting relationship shall be and remain the
sole property of the Company. I shall return to the Company all such documents,
materials and property as and when requested by the Company, except only (i) my
personal copies of records relating to my compensation; (ii) if applicable, my
personal copies of any materials evidencing shares of the Company's capital
stock purchased by me and/or options to purchase shares of the Company's capital
stock granted to me; (iii) my copy of this Agreement and (iv) my personal
property and personal documents I bring with me to the Company and any personal
correspondence and personal materials that I accumulate and keep at my office
during my employment (my "Personal Documents"). Even if the Company does not so
request, I shall return all such documents, materials and property upon
termination of my employment or consulting relationship, and, except for my
Personal Documents, I will not take with me any such documents, material or
property or any reproduction thereof upon such termination.
3. ASSIGNMENT OF INVENTIONS.
(a) Without further compensation, I hereby agree promptly to
disclose to the Company, all Inventions (as defined below) which I may solely or
jointly develop or reduce to practice during the period of my employment or
consulting relationship with the Company which (i) pertain to any line of
business activity of the Company, (ii) are aided by the use of time, material or
facilities of the Company, whether or not during working hours or (iii) relate
to any of my work during the period of my employment or consulting relationship
with the Company, whether or not during normal working hours ("Company
Inventions"). During the term of my employment or consultancy, all Company
Inventions that I conceive, reduce to practice, develop or have developed (in
whole or in part, either alone or jointly with others) shall be the sole
property of the Company and its assigns to the maximum extent permitted by law
(and to the fullest extent permitted by law shall be deemed "works made for
hire"), and the Company and its assigns shall be the sole owner of all patents,
copyrights, trademarks, trade secrets and other rights in connection therewith.
I hereby assign to the Company any rights that I may have or acquire in such
Company Inventions.
(b) I attach hereto as Exhibit A-1 a complete list of all
Inventions, if any, made by me prior to my employment or consulting relationship
with the Company that are relevant to the Company's business, and I represent
and warrant that such list is complete. If no such list is attached to this
Agreement,
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I represent that I have no such Inventions at the time of signing this
Agreement. If in the course of my employment or consultancy (as the case may be)
with the Company, I use or incorporate into a product or process an Invention
not covered by Section 3(a) of this Agreement in which I have an interest, the
Company is hereby granted a nonexclusive, fully paid-up, royalty-free,
perpetual, worldwide license of my interest to use and sublicense such Invention
without restriction of any kind.
NOTICE REQUIRED BY REVISED CODE OF WASHINGTON 49.44.140:
ANY ASSIGNMENT OF INVENTIONS REQUIRED BY THIS AGREEMENT DOES NOT APPLY TO
AN INVENTION FOR WHICH NO EQUIPMENT, SUPPLIES, FACILITY OR TRADE SECRET
INFORMATION OF THE COMPANY WAS USED AND WHICH WAS DEVELOPED ENTIRELY ON THE
EMPLOYEE'S OWN TIME, UNLESS (a) THE INVENTION RELATES (I) DIRECTLY TO THE
BUSINESS OF THE COMPANY OR (II) TO THE COMPANY'S ACTUAL OR DEMONSTRABLY
ANTICIPATED RESEARCH OR DEVELOPMENT OR (b) THE INVENTION RESULTS FROM ANY WORK
PERFORMED BY THE EMPLOYEE FOR THE COMPANY.
4. FURTHER ASSISTANCE; POWER OF ATTORNEY. I agree to perform, during and
after my employment or consulting relationship, all acts deemed necessary or
desirable by the Company to permit and assist it, at its expense, in obtaining
and enforcing the full benefits, enjoyment, rights and title throughout the
world in the Inventions assigned to the Company as set forth in Section 3 above.
Such acts may include, but are not limited to, execution of documents and
assistance or cooperation in legal proceedings. I hereby irrevocably designate
the Company and its duly authorized officers and agents as my agent and
attorney-in fact, to execute and file on my behalf any such applications and to
do all other lawful acts to further the prosecution and issuance of patents,
copyright and mask work registrations related to such Inventions. This power of
attorney shall not be affected by my subsequent incapacity.
5. INVENTIONS. As used in this Agreement, the term "Inventions" means
discoveries, developments, concepts, designs, ideas, know-how, improvements,
inventions, trade secrets and/or original works of authorship, whether or not
patentable, copyrightable or otherwise legally protectable. This includes, but
is not limited to, any new product, machine, article of manufacture, biological
material, method, procedure, process, technique, use, equipment, device,
apparatus, system, compound, formulation, composition of matter, design or
configuration of any kind, or any improvement thereon.
6. PROPRIETARY INFORMATION. As used in this Agreement, the term
"Proprietary Information" means information or physical material not generally
known or available outside the Company or information or physical material
entrusted to the Company by third parties. This includes, but is not limited to,
Inventions, confidential knowledge, copyrights, product ideas, techniques,
processes, formulas, object codes, biological materials, mask works and/or any
other information of any type relating to documentation, laboratory notebooks,
data, schematics, algorithms, flow charts, mechanisms, research, manufacture,
improvements, assembly, installation, marketing, forecasts, sales, pricing,
customers, the salaries, duties, qualifications, performance levels and terms of
compensation of other employees, and/or cost or other financial data concerning
any of the foregoing or the Company and its operations. Proprietary Information
may be contained in material such as drawings, samples, procedures,
specifications, reports, studies, customer or supplier lists, budgets, cost or
price lists, compilations or computer programs, or may be in the nature of
unwritten knowledge or know-how.
7. NO CONFLICTS. I represent that my performance of all the terms of this
Agreement as an employee of or consultant to the Company does not and will not
breach any agreement to keep in confidence proprietary information, knowledge or
data acquired by me in confidence or in trust prior to my becoming an employee
or consultant of the Company, and I will not disclose to the Company, or induce
the Company to use, any confidential or proprietary information or material
belonging to any previous employer or others. I agree not to enter into any
written or oral agreement that conflicts with the provisions of this Agreement.
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8. NO INTERFERENCE. I certify that, to the best of my information and
belief, I am not a party to any other agreement which will interfere with my
full compliance with this Agreement.
9. EFFECTS OF AGREEMENT. This Agreement (a) shall survive for a period of
five years beyond the termination of my employment by or consulting relationship
with the Company, (b) inures to the benefit of successors and assigns of the
Company and (c) is binding upon my heirs and legal representatives.
10. INJUNCTIVE RELIEF. I acknowledge that violation of this Agreement by
me may cause irreparable injury to the Company, and I agree that the Company
will be entitled to seek extraordinary relief in court, including, but not
limited to, temporary restraining orders, preliminary injunctions and permanent
injunctions without the necessity of posting a bond or other security and
without prejudice to any other rights and remedies that the Company may have for
a breach of this Agreement.
11. MISCELLANEOUS. This Agreement supersedes any oral, written or other
communications or agreements concerning the subject matter of this Agreement,
and may be amended or waived only by a written instrument signed by me and an
executive officer of the Company. This Agreement shall be governed by the laws
of the State of Washington applicable to contracts entered into and performed
entirely within the State of Washington, without giving effect to principles of
conflict of laws. If any provision of this Agreement is held to be unenforceable
under applicable law, then such provision shall be excluded from this Agreement
only to the extent unenforceable, and the remainder of such provision and of
this Agreement shall be enforceable in accordance with its terms.
12. ACKNOWLEDGMENT. I certify and acknowledge that I have carefully read
all of the provisions of this Agreement and that I understand and will fully and
faithfully comply with such provisions.
CELEBRATE EXPRESS, INC. KEVIN A. GREEN
By: ____________________________________________ ______________________
Kevin A. Green
Title:____________________________________________
Dated:___________________________________ ,______. Dated: May 10, 2006.
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Exhibit A-1
CELEBRATE EXPRESS, INC.
11220 120th Avenue NE
Kirkland, WA 98033
Ladies and Gentlemen:
1. The following is a complete list of all Inventions relevant to the
subject matter of my employment by the Company that have been made or conceived
or first reduced to practice by me, alone or jointly with others or which has
become known to me prior to my employment by the Company. I represent that such
list is complete.
2. I propose to bring to my employment or consultancy the following
materials and documents of a former employer:
______ No materials or documents.
______ See below:
By: _________________________
Kevin A. Green
1
EXHIBIT B
INDEMNIFICATION AGREEMENT
This Indemnification Agreement (this "Agreement") is made as of May __,
2006 by and between Celebrate Express, Inc. (the "Company"), and Kevin A. Green
("Indemnitee").
RECITALS
A. Indemnitee is an officer or director of the Company and in such
capacity is performing valuable services for the Company.
B. The Company and Indemnitee recognize the difficulty in obtaining
directors' and officers' liability insurance, the significant cost of such
insurance and the general reduction in the coverage of such insurance.
C. The Company and Indemnitee further recognize the substantial increase
in litigation subjecting officers and directors to expensive litigation risks at
the same time that such liability insurance has been severely limited.
D. As of the date hereof, the Company has provisions for indemnification
of its directors in Article V of its Amended and Restated Articles of
Incorporation (the "Articles of Incorporation") and Article X of its Amended and
Restated Bylaws (the "Bylaws") which provide for indemnification of the
Company's directors and officers to the fullest extent permitted by the
Washington Business Corporation Act (the "Statute").
E. The Articles of Incorporation, Bylaws and the Statute specifically
provide that they are not exclusive, and thereby contemplate that contracts may
be entered into between the Company and the members of its Board of Directors
and its officers with respect to indemnification of such directors and officers.
F. The Bylaws provide that the Company may maintain, at its expense,
insurance to protect itself and any of its directors and officers against
liability asserted against such persons incurred in such capacity whether or not
the Company has the power to indemnify such persons against the same liability
under Section 23B.08.510 or .520 of the Statute or a successor statute.
G. In order to induce Indemnitee to continue to serve as an officer and/or
director, as the case may be, of the Company, the Company has agreed to enter
into this Agreement with Indemnitee.
AGREEMENT
NOW, THEREFORE, in consideration of the recitals above, the mutual
covenants and agreements herein contained, and Indemnitee's continued service as
an officer and/or director, as the case may be, of the Company after the date
hereof, the parties to this Agreement agree as follows:
1. INDEMNITY OF INDEMNITEE
(a) Scope. The Company agrees to hold harmless and indemnify
Indemnitee to the fullest extent permitted by law, notwithstanding that such
indemnification is not specifically authorized
2
by this Agreement, the Company's Articles of Incorporation, the Bylaws, the
Statute or otherwise. In the event of any change, after the date of this
Agreement, in any applicable law, statute or rule regarding the right of a
Washington corporation to indemnify a member of its board of directors or an
officer, such changes, to the extent that they would expand Indemnitee's rights
hereunder, shall be within the purview of Indemnitee's rights and the Company's
obligations hereunder, and, to the extent that they would narrow Indemnitee's
rights hereunder, shall be excluded from this Agreement; provided, however, that
any change that is required by applicable laws, statutes or rules to be applied
to this Agreement shall be so applied regardless of whether the effect of such
change is to narrow Indemnitee's rights hereunder.
(b) Nonexclusivity. The indemnification provided by this Agreement
shall not be deemed exclusive of any rights to which Indemnitee may be entitled
under the Company's Articles of Incorporation, the Bylaws, any agreement, any
vote of shareholders or disinterested directors, the Statute, or otherwise,
whether as to action in Indemnitee's official capacity or otherwise.
(c) Additional Indemnity. If Indemnitee was or is made a party, or
is threatened to be made a party, to or is otherwise involved (including,
without limitation, as a witness) in any Proceeding (as defined below), the
Company shall hold harmless and indemnify Indemnitee from and against any and
all losses, claims, damages, liabilities, expenses (including attorneys' fees),
judgments, fines, ERISA excise taxes or penalties, amounts paid in settlement
(if such settlement is approved in advance by the Company, which approval shall
not be unreasonably withheld) actually and reasonably incurred by Indemnitee in
connection with such Proceeding if Indemnitee acted in good faith and in a
manner Indemnitee reasonably believed to be in or not opposed to the best
interests of the Company, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe Indemnitee's conduct was unlawful
(collectively, "Damages").
(d) Definition of Proceeding. For purposes of this Agreement,
"Proceeding" shall mean any actual, pending or threatened action, suit, claim or
proceeding, whether civil, criminal, administrative or investigative (including
actions, suits, or proceedings brought by or in the right of the Company) and
whether formal or informal, in which Indemnitee is, was or becomes involved as a
party or otherwise, by reason of the fact that Indemnitee is or was a director,
officer, employee or agent of the Company or that, being or having been such a
director, officer, employee or agent, Indemnitee is or was serving at the
request of the Company as a director, officer, employee, trustee or agent of
another corporation or of a partnership, joint venture, trust or other
enterprise (collectively a "Related Company"), including service with respect to
an employee benefit plan, whether the basis of such proceeding is alleged action
(or inaction) by Indemnitee in an official capacity as a director, officer,
employee, trustee or agent or in any other capacity while serving as a director,
officer, employee, trustee or agent; provided, however, that, except with
respect to an action to enforce the provisions of this Agreement, Proceeding
shall not include any action, suit, claim or proceeding instituted by or at the
direction of Indemnitee unless such action, suit, claim or proceeding is or was
authorized by the Company's Board of Directors.
(e) Determination of Entitlement. In the event that a determination
of Indemnitee's entitlement to indemnification is required pursuant to Section
23B.08.550 of the Statute or any successor thereto or pursuant to other
applicable law, the appropriate decision-maker shall make such determination;
provided, however, that Indemnitee shall initially be presumed in all cases to
be entitled to indemnification, that Indemnitee may establish a conclusive
presumption of any fact necessary to such a determination by delivering to the
Company a declaration made under penalty of perjury that such fact is true and
that, unless the Company shall deliver to Indemnitee written notice of a
determination that Indemnitee is not entitled to indemnification within twenty
(20) days of the Company's receipt of Indemnitee's initial written request for
indemnification, such determination shall conclusively be deemed to have been
made in favor of the Company's provision of indemnification and the Company
hereby agrees not to assert otherwise.
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(f) Survival. The indemnification provided under this Agreement
shall apply to any and all Proceedings, notwithstanding that Indemnitee has
ceased to be a director, officer, employee, trustee or agent of the Company or a
Related Company.
2. EXPENSE ADVANCES
(a) Generally. The right to indemnification of Damages conferred by
Section 1 shall include the right to have the Company pay Indemnitee's expenses
in any Proceeding as such expenses are incurred and in advance of such
Proceeding's final disposition (such right is referred to hereinafter as an
"Expense Advance"). Any Expense Advance to be made under this Agreement shall be
paid by the Company to Indemnitee within twenty (20) days following delivery of
a written request therefor by Indemnitee to the Company.
(b) Conditions to Expense Advance. The Company's obligation to
provide an Expense Advance is subject to the following conditions:
(i) Undertaking. If the Proceeding arose in connection with
Indemnitee's service as a director or officer of the Company (and not in any
other capacity in which Indemnitee rendered service, including service to any
Related Company), then Indemnitee or his or her representative shall have
executed and delivered to the Company an undertaking, which need not be secured
and shall be accepted without reference to Indemnitee's financial ability to
make repayment, by or on behalf of Indemnitee to repay all Expense Advances if
and to the extent that it shall ultimately be determined by a final,
unappealable decision rendered by a court having jurisdiction over the parties
and the question that Indemnitee is not entitled to be indemnified for such
Expense Advance under this Agreement or otherwise.
(ii) Cooperation. Indemnitee shall give the Company such
information and cooperation as it may reasonably request and as shall be within
Indemnitee's power.
(iii) Affirmation. Indemnitee shall furnish, upon request by
the Company and if required under applicable law, a written affirmation of
Indemnitee's good faith belief that any applicable standards of conduct have
been met by Indemnitee.
3. PROCEDURES FOR ENFORCEMENT
(a) Enforcement. In the event that a claim for indemnity, an Expense
Advance or otherwise is made hereunder and is not paid in full within sixty days
(twenty days for an Expense Advance) after written notice of such claim is
delivered to the Company, Indemnitee may, but need not, at any time thereafter
bring suit against the Company to recover the unpaid amount of the claim (an
"Enforcement Action").
(b) Presumptions in Enforcement Action. In any Enforcement Action
the following presumptions (and limitation on presumptions) shall apply:
(i) The Company shall conclusively be presumed to have entered
into this Agreement and assumed the obligations imposed on it hereunder in order
to induce Indemnitee to continue as an officer and/or director, as the case may
be, of the Company;
(ii) Neither (i) the failure of the Company (including the
Company's Board of Directors, independent or special legal counsel or the
Company's shareholders) to have made a determination prior to the commencement
of the Enforcement Action that indemnification of Indemnitee
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is proper in the circumstances nor (ii) an actual determination by the Company,
its Board of Directors, independent or special legal counsel or shareholders
that Indemnitee is not entitled to indemnification shall be a defense to the
Enforcement Action or create a presumption that Indemnitee is not entitled to
indemnification hereunder; and
(iii) If Indemnitee is or was serving as a director, officer,
employee, trustee or agent of a corporation of which a majority of the shares
entitled to vote in the election of its directors is held by the Company or in
an executive or management capacity in a partnership, joint venture, trust or
other enterprise of which the Company or a wholly owned subsidiary of the
Company is a general partner or has a majority ownership, then such corporation,
partnership, joint venture, trust or enterprise shall conclusively be deemed a
Related Company and Indemnitee shall conclusively be deemed to be serving such
Related Company at the request of the Company.
(c) Attorneys' Fees and Expenses for Enforcement Action. In the
event Indemnitee is required to bring an Enforcement Action, the Company shall
indemnify and hold harmless Indemnitee against all of Indemnitee's fees and
expenses in bringing and pursuing the Enforcement Action (including attorneys'
fees at any stage, including on appeal); provided, however, that the Company
shall not be required to provide such indemnity for such attorneys' fees or
expenses if a court of competent jurisdiction determines that each of the
material assertions made by Indemnitee in such Enforcement Action was not made
in good faith or was frivolous.
4. LIMITATIONS ON INDEMNITY; MUTUAL ACKNOWLEDGMENT
(a) Limitation on Indemnity. No indemnity pursuant to this Agreement
shall be provided by the Company:
(i) On account of any suit in which a final, unappealable
judgment is rendered against Indemnitee for an accounting of profits made from
the purchase or sale by Indemnitee of securities of the Company in violation of
the provisions of Section 16(b) of the Securities Exchange Act of 1934 and
amendments thereto;
(ii) For Damages that have been paid directly to Indemnitee by
an insurance carrier under a policy of officers' and directors' liability
insurance maintained by the Company;
(iii) On account of Indemnitee's conduct which is finally
adjudged to have been intentional misconduct, a knowing violation of law or the
RCW 23B.08.310 or any successor provision of the Statute, or a transaction from
which Indemnitee derived benefit in money, property or services to which
Indemnitee is not legally entitled; or
(iv) If a final decision by a court having jurisdiction in the
matter shall determine that such indemnification is not lawful.
(b) Mutual Acknowledgment. The Company and Indemnitee acknowledge
that, in certain instances, federal law or public policy may override applicable
state law and prohibit the Company from indemnifying Indemnitee under this
Agreement or otherwise. For example, the Company and Indemnitee acknowledge that
the Securities and Exchange Commission (the "SEC") has taken the position that
indemnification is not permissible for liabilities arising under certain federal
securities laws, and federal legislation prohibits indemnification for certain
ERISA violations. Furthermore, Indemnitee understands and acknowledges that the
Company has undertaken or may be required in the future to undertake with the
SEC to submit the question of indemnification to a court in certain
circumstances for a determination of the Company's right under public policy to
indemnify Indemnitee.
-5-
5. NOTIFICATION AND DEFENSE OF CLAIM
(a) Notification. Promptly after receipt by Indemnitee of notice of
the commencement of any Proceeding, Indemnitee will, if a claim in respect
thereof is to be made against the Company under this Agreement, notify the
Company in writing of the commencement thereof; but the omission to notify the
Company will not relieve the Company from any liability which it may have to
Indemnitee under this Agreement unless and only to the extent that such omission
can be shown to have prejudiced the Company's ability to defend the Proceeding.
(b) Defense of Claim. With respect to any such Proceeding as to
which Indemnitee notifies the Company of the commencement thereof:
(i) The Company may participate therein at its own expense;
(ii) The Company, jointly with any other indemnifying party
similarly notified, may assume the defense thereof, with counsel satisfactory to
Indemnitee. After notice from the Company to Indemnitee of its election to
assume the defense thereof, the Company shall not be liable to Indemnitee under
this Agreement for any legal or other expenses (other than reasonable costs of
investigation) subsequently incurred by Indemnitee in connection with the
defense thereof unless (i) the employment of counsel by Indemnitee has been
authorized by the Company, (ii) Indemnitee shall have reasonably concluded that
there may be a conflict of interest between the Company and Indemnitee in the
conduct of the defense of such action, or (iii) the Company shall not in fact
have employed counsel to assume the defense of such action, in each of which
cases the fees and expenses of counsel shall be at the expense of the Company.
The Company shall not be entitled to assume the defense of any action, suit or
proceeding brought by or on behalf of the Company or as to which Indemnitee
shall have made the conclusion provided for in (ii) above;
(iii) The Company shall not be liable to indemnify Indemnitee
under this Agreement for any amounts paid in settlement of any Proceeding
effected without its written consent;
(iv) The Company shall not settle any action or claim in any
manner which would impose any penalty or limitation on Indemnitee without
Indemnitee's written consent; and
(v) Neither the Company nor Indemnitee will unreasonably
withhold its, his or her consent to any proposed settlement.
(c) Notice to Insurers. If, at the time of the receipt of a notice
of a claim pursuant to Section 5(a) hereof, the Company has director and officer
liability insurance in effect, the Company shall give prompt notice of the
commencement of such proceeding to the insurers in accordance with the
procedures set forth in the respective policies. The Company shall thereafter
take all necessary or desirable action to cause such insurers to pay, on behalf
of the Indemnitee, all amounts payable as a result of such proceeding in
accordance with the terms of such policies.
6. SEVERABILITY. Nothing in this Agreement is intended to require or shall
be construed as requiring the Company to do or fail to do any act in violation
of applicable law. The Company's inability, pursuant to court order, to perform
its obligations under this Agreement shall not constitute a breach of this
Agreement. The provisions of this Agreement shall be severable, as provided in
this Section 6. If this Agreement or any portion hereof shall be invalidated on
any ground by any court of competent jurisdiction, then the Company shall
nevertheless indemnify Indemnitee to the full extent permitted by any applicable
portion of this Agreement that shall not have been invalidated, and the balance
of this Agreement not so invalidated shall be enforceable in accordance with its
terms.
-6-
7. NO EMPLOYMENT RIGHTS. Nothing contained in this Agreement is intended
to create in Indemnitee any right to continued employment.
8. OFFICER AND DIRECTOR LIABILITY INSURANCE. The Company shall, from time
to time, make the good faith determination whether or not it is practicable for
the Company to obtain and maintain a policy or policies of insurance with
reputable insurance companies providing the officers and directors of the
Company with coverage for losses from wrongful acts, or to ensure the Company's
performance of its indemnification obligations under this Agreement. Among other
considerations, the Company will weigh the costs of obtaining such insurance
coverage against the protection afforded by such coverage. In all policies of
director and officer liability insurance, Indemnitee shall be named as an
insured in such a manner as to provide Indemnitee the same rights and benefits
as are accorded to the most favorably insured of the Company's directors, if
Indemnitee is a director; or of the Company's officers, if Indemnitee is not a
director of the Company but is an officer; or of the Company's key employees, if
Indemnitee is not an officer or director but is a key employee. Notwithstanding
the foregoing, the Company shall have no obligation to obtain or maintain such
insurance if the Company determines in good faith that such insurance is not
reasonably available, if the premium costs for such insurance are
disproportionate to the amount of coverage provided, if the coverage provided by
such insurance is limited by exclusions so as to provide an insufficient
benefit, or if Indemnitee is covered by similar insurance maintained by a parent
or subsidiary of the Company.
9. PARTIAL INDEMNIFICATION. If Indemnitee is entitled under any provision
of this Agreement to indemnification by the Company for some or a portion of the
expenses, judgments, fines or penalties actually or reasonably incurred in the
investigation, defense, appeal or settlement of any civil or criminal action,
suit or proceeding, but not, however, for the total amount thereof, the Company
shall nevertheless indemnify Indemnitee for the portion of such expenses,
judgments, fines or penalties to which Indemnitee is entitled.
10. MISCELLANEOUS
(a) Governing Law. This Agreement and all acts and transactions
pursuant hereto and the rights and obligations of the parties hereto shall be
governed, construed and interpreted in accordance with the laws of the State of
Washington, without giving effect to principles of conflict of law.
(b) Entire Agreement; Enforcement of Rights. This Agreement sets
forth the entire agreement and understanding of the parties relating to the
subject matter herein and merges all prior discussions between them. No
modification, amendment or termination of this Agreement, nor any waiver of any
rights under this Agreement, shall be effective unless in writing signed by the
parties to this Agreement. The failure by either party to enforce any rights
under this Agreement shall not be construed as a waiver of any rights of such
party.
(c) Construction. This Agreement is the result of negotiations
between and has been reviewed by each of the parties hereto and their respective
counsel, if any; accordingly, this Agreement shall be deemed to be the product
of all of the parties hereto, and no ambiguity shall be construed in favor of or
against any one of the parties hereto.
(d) Notices. Any notice, demand or request required or permitted to
be given under this Agreement shall be in writing and shall be deemed sufficient
when delivered personally or sent by telegram or forty-eight (48) hours after
being deposited in the U.S. mail, as certified or registered mail, with postage
prepaid, and addressed to the party to be notified at such party's address as
set forth below or as subsequently modified by written notice.
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(e) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument.
(f) Successors and Assigns. This Agreement shall be binding upon
Indemnitee and upon the Company, its successors and assigns, and shall inure to
the benefit of Indemnitee, Indemnitee's heirs, personal representatives and
assigns and to the benefit of the Company, its successors and assigns.
(g) Subrogation. In the event of payment under this Agreement, the
Company shall be subrogated to the extent of such payment to all of the rights
of recovery of Indemnitee, who shall execute all documents required and shall do
all acts that may be necessary to secure such rights and to enable the Company
to effectively bring suit to enforce such rights.
[Signature page follows]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on and
as of the day and year first above written.
CELEBRATE EXPRESS, INC.
_________________________________
By: _____________________________
Its:_____________________________
AGREED TO AND ACCEPTED:
_________________________________
Kevin A. Green
Address:_________________________
_________________________
1
EXHIBIT C
RELEASE AGREEMENT
(TO BE SIGNED ON OR AFTER THE SEPARATION DATE)
I understand that my employment with Celebrate Express, Inc. (the
"Company") terminated effective _____________________, ____ (the "Separation
Date"). The Company has agreed that if I choose to sign this Release Agreement
("Release"), the Company will provide certain severance benefits (minus the
required withholdings and deductions) pursuant to the terms of the employment
agreement dated April ___, 2006 (the "Agreement"). I understand that I am not
entitled to such severance benefits unless I sign this Release, and it becomes
fully effective. I understand that, regardless of whether I sign this Release,
the Company will pay me all of my accrued salary and vacation through the
Separation Date, to which I am entitled by law.
In consideration for the severance benefits I am receiving under the
Agreement, as described therein, I hereby agree to release the Company and its
officers, directors, agents, attorneys, employees, shareholders, parents,
subsidiaries, affiliates, successors, and assigns, of and from any and all
claims, liabilities, demands, causes of action, costs, expenses, attorneys'
fees, damages, indemnities and obligations of every kind and nature, in law,
equity, or otherwise, known or unknown, suspected and unsuspected, disclosed and
undisclosed, liquidated or contingent, arising out of or in any way related to
agreements, events, acts or conduct at any time prior to and including the
execution date of this Release, including but not limited to: any and all such
claims and demands directly or indirectly arising out of or in any way connected
with my employment with the Company or the termination of that employment;
claims or demands related to salary, bonuses, commissions, incentive payments,
stock, stock options, or any ownership or equity interests in the Company,
vacation pay, personal time off, fringe benefits, expense reimbursements,
severance benefits, or any other form of compensation; claims pursuant to any
federal, any state or any local law, statute, common law or cause of action
including, but not limited to, the federal Civil Rights Act of 1964, as amended;
the federal Americans with Disabilities Act of 1990; the federal Employee
Retirement Income Security Act; the federal Age Discrimination in Employment Act
of 1967, as amended ("ADEA"); the Fair Labor Standards Act, as amended; the
Washington Family Leave Act, as amended; the Washington Minimum Wage Act as
amended; Chapter 49.60 of the Revised Code of Washington; tort law; contract
law; wrongful discharge; discrimination; harassment; fraud; misrepresentation;
defamation; libel; emotional distress; and breach of the implied covenant of
good faith and fair dealing.
I represent and warrant that I have not breached my obligations to the
Company under the terms of the Proprietary Information and Invention Assignment
Agreement (the "Confidentiality Agreement") that I signed with the Company, and
I will continue to maintain the confidentiality of all Company confidential
and/or proprietary information as provided in the Confidentiality Agreement. I
acknowledge and agree that the provisions of the Agreement and the
Confidentiality Agreement that survive termination by their terms will continue
to be applicable to me after the Termination Date, including without limitation
Section 3 of the Agreement (regarding noncompetition and nonsolicitation).
Additionally, I further agree to return all the Company's property and
confidential and proprietary information in my possession or control, and any
copies or duplicates thereof, to the Company within five (5) business days.
I acknowledge that I am knowingly and voluntarily waiving and releasing
any rights I may have under the ADEA and that the consideration given for the
waiver in the above paragraphs is in addition to anything of value to which I
was already entitled. I have been advised by this writing, as required by the
ADEA, that: (a) my waiver and release do not apply to any claims that may arise
after my signing of this Release; (b) I should consult with an attorney prior to
signing this Release; (c) I have twenty-one (21) days within which to consider
this Release (although I may choose to voluntarily sign this Release earlier);
(d) I have seven (7) days after I sign this Release to revoke it; and (e) this
Release will not be effective until the eighth day after this Release has been
signed by me.
I ACCEPT AND AGREE TO THE TERMS AND CONDITIONS STATED ABOVE:
_________________________________ _________________________________
Date Kevin A. Green