Exhibit 10.60
EMPLOYMENT AGREEMENT
This employment agreement ("Agreement") is entered into effective as of
April 1, 2005 ("Effective Date") by and between Kirk A. Benson (the "Executive")
and Headwaters Incorporated, a Delaware corporation (the "Company").
1. DUTIES AND SCOPE OF EMPLOYMENT.
(A) POSITION. For the term of his employment under this Agreement, the
Company agrees to employ the Executive in the position of Chairman of the Board
and Chief Executive Officer, and Executive agrees to accept such employment. The
Executive shall report to the Company's Board of Directors (the "Board").
(B) OBLIGATIONS OF THE EXECUTIVE. During his employment, the Executive
shall devote his full business efforts and time to the Company, consistent with
the position of Chairman and Chief Executive Officer and with duties assigned by
the Board. During his employment, without the prior written approval of the
Board, the Executive shall not render services in any capacity to any other
person or entity and shall not act as a sole proprietor or partner of an other
entity or as a shareholder owning more that five percent of the stock of any
other corporation; provided that the Executive may devote a reasonable amount of
time to charitable, educational, civic, political, personal investment and
family business activities. The Executive shall comply with the Company's
policies and rules, as they may be in effect from time to time during his
employment.
(C) NO CONFLICTING OBLIGATIONS. The Executive represents and warrants
to the Company that he is under no obligations or commitments, whether
contractual or otherwise, that are inconsistent with or in conflict with his
obligations under this agreement. The Executive represents and warrants that he
will not use or disclose any trade secrets or other proprietary information or
intellectual property gained or used in his employment, in which the Company has
any right, title or interest.
(D) TERM OF EMPLOYMENT. Executive's employment under this Agreement
shall commence effective on April 1, 2005 and continue until March 31, 2010,
unless it is terminated earlier either by Executive or the Company or is
extended by both Executive and the Company in a signed writing. Executive's
employment under this Agreement is terminable at will by Executive or the
Company at any time (for any reason or for no reason).
2. CASH AND INCENTIVE COMPENSATION.
(A) SALARY. The Company shall pay the Executive as compensation for his
services a base salary in accordance with standard company payroll procedures,
subject to normal payroll deductions, and deductions authorized by the
Executive. Such base salary shall be an annualized rate according to the
following schedule, unless modified by the Compensation Committee or employment
is terminated:
(i) $600,000 for the period April 1, 2005 to March 31, 2006;
(ii) $650,000 for the period April 1, 2006 to March 31, 2007;
(iii) $700,000 for the period April 1, 2007 to March 31, 2008;
(iv) $750,000 for the period April1, 2008 to March 31, 2009; and
(v) $800,000 for the period April 1, 2009 to March 31, 2010.
(B) SHORT TERM INCENTIVE BONUSES. The Executive shall be eligible to be
considered for annual incentive bonuses. Such bonuses shall be awarded based on
objective or subjective criteria established in advance by the Board or
Compensation Committee of the Board, in its sole discretion. Any and all awards
will be approved by the Board. If provided in section 10 below, upon termination
of employment, the Executive will be eligible to receive a prorated bonus based
upon the portion of the year employed.
(C) LONG TERM INCENTIVE COMPENSATION. The Executive shall be eligible
to participate in long term incentive plans for executives of the Company
adopted by the Board. On April 29th, 2005 the Compensation Committee granted to
the Executive of (1) 318,750 SARs from the Headwaters 2003 Stock Incentive Plan
(the grant of which shall not be subject to any payment or deferral by
Executive) and (2) 181,250 SARs from the Headwaters 2005 Long Term Incentive
Compensation Plan. Executive's participation in long term incentive plans shall
be in accordance with the terms and conditions of such plans.
(D) CONTINGENT PERFORMANCE STOCK. To provide additional incentives and
further align Executive's interest with that of stockholders of the Company,
upon execution of this Agreement the Company will award the Executive
performance stock under the Company Long Term Incentive Compensation Plan,
subject to following terms and conditions:
(i) The performance stock award will be for up to 25,000
shares of Company common stock to be issued to the Executive upon the
achievement of the performance goals below.
(ii) The performance stock will vest on March 31, 2010 unless
the Executive is not employed by the Company.
(iii) If the closing price of Company common stock on March
31, 2010 is $49.99 per share or less, then no stock will be issued to the
Executive. (iv) If the closing price of Company common stock on March 31, 2010
is at or between $50.00 to $59.99, then 10,000 shares of stock will be issued to
the Executive.
(v) If the closing price of Company common stock on March 31,
2010 is at or above $60.00 per share, then 25,000 shares of stock will be issued
to the Executive.
(E) FINANCIAL, TAX, AND ESTATE PLANNING. During the term of his
employment, the Company will reimburse Executive for fees and expenses related
to personal financial planning, tax planning and estate planning, according to
the following schedule, unless employment is terminated.
(i) For the period between the Effective Date to March 31,
2006, an amount not to exceed $25,000.00; and,
(ii) For each additional 12 month period, beginning April 1,
2006 and ending March 31, 2010, an amount not to exceed $10,000.00 for each 12
month period.
Executive shall present invoices for such planning services stated above to the
Chairman of the Compensation Committee for approval within 30 days of receipt of
invoices for such services. Reimbursement will occur through normal Company
procedures.
3. VACATION AND EMPLOYEE BENEFITS. During his employment, the Executive shall be
eligible for paid vacations in accordance with the Company's vacation policy, as
it may be amended from time to time. The Executive shall be eligible to
participate in the employee benefit plans maintained by the Company, subject to
applicable terms and conditions of the plan in question, and subject to the
determinations of any person or committee administering such plan. The Executive
shall also be entitled to any other perquisites that the Company makes available
to its executive officers.
4. BUSINESS EXPENSES. During his employment, the Executive shall be authorized
to incur necessary and reasonable travel, entertainment and other business
expenses in connection with duties hereunder, including the completion of his
PhD in general business management from Claremont Graduate University. The
Company shall reimburse the Executive for such expenses upon presentation of an
itemized account and appropriate supporting documentation, all in accordance
with the Company's applicable procedures.
5. EMPLOYMENT AT WILL. Executive's employment with the Company shall be "at
will," meaning that either the Executive or the Company shall be entitled to
terminate this Employment Agreement at any time for any reason, with or without
cause. Termination by the Company or by the Executive shall be made in writing.
6. COVENANT NOT TO COMPETE. Executive agrees that his knowledge and access to
proprietary information of the Company is unique, and that, if released to
others, or used by him other than for the benefit of the Company, could cause
the Company to suffer irreparable injury. For a one year period following
termination of employment, Executive shall not directly or indirectly, engage in
or become the owner of, render any service to, enter the employment of, or
represent or solicit for any business that competes with any activity of the
Company conducted at any time during the two years prior to termination, or
conducted during the six months period following the termination, as a result of
plans initiated prior to such termination, including acquisitions.
Further, during the restrictive period of this Agreement, Executive shall not
employ, directly or indirectly, any management individual employed by the
Company.
Legal or beneficial ownership by Executive of an equity interest that
constitutes less than five percent of the outstanding voting power in a
competitive business entity, shall not be deemed to constitute a breach of the
terms of this Agreement.
Obligations established under this Agreement shall be enforceable both at law
and in equity, by injunction, specific performance, damages or other remedies,
and the right of the Company to obtain such a remedy shall be cumulative and not
alternative.
7. MUTUAL GENERAL RELEASE. Executive and the Company agree to sign and deliver a
comprehensive mutual release of all claims in the form attached as Exhibit A
upon the termination of this Agreement. Any other provision of this Agreement
notwithstanding, the provisions of section 8 below shall not apply unless the
Executive has executed the release of all claims in the form attached as Exhibit
A and has returned all property of the Company in Executive's possession.
8. CONSULTING AGREEMENT. The Company and Executive agree that Executive has
broad, special and unique knowledge and information which may be useful to the
Company, and Executive desires to assist the Company in ways useful to the
Company. Upon termination of employment, the Company and Executive will enter
into a consulting agreement requiring no more than 20% of Executive's time for a
three year period performing such reasonable duties and tasks as the Board or
the new Chief Executive Officer my request. As compensation for his services,
Executive will receive remuneration which will not be subject to deductions
since Executive is no longer an employee of the Company, according to the
following schedule.
Year 1 - $200,000
Year 2 - $150,000
Year 3 - $150,000
Executive will not be eligible to participate in the Company's program of
benefits, except to the extent allowed by individual plans for employees who
have left the employ of the Company.
9. DEFINITIONS.
(A) DEFINITION OF "CAUSE". For all purposes under this Agreement,
"Cause" shall mean:
(i) The willful failure by Executive to substantially perform
his duties under this Agreement, other than a failure resulting from the
Executive's complete or partial incapacity due to physical or mental illness;
(ii) A willful act by the Executive which constitutes gross
misconduct or fraud and which is materially injurious to the Company;
(iii) An unauthorized use or disclosure by the Executive of
the Company's confidential information or trade secrets, which use or disclosure
causes material harm to the Company; or
(iv) The conviction of Executive of, or plea of "guilty" or
"no contest" to, a felony under the laws of the United States or any state
thereof.
No act, or failure to act, by the Executive shall be considered "willful" unless
committed without a reasonable belief that the act or omission was in the
Company's best interest.
(B) DEFINITION OF "GOOD REASON". For all purposes under this Agreement,
"Good Reason" shall mean that the Executive has not been terminated for Cause
and elects to resign for one or more of the following reasons:
(i) The involuntary reduction of the Executive's base salary
(not including the voluntary reductions provided in section 2(B) above);
(ii) The diminution or reduction of Executive's title,
authority, duties or responsibilities, including his removal from his position
as the Company's Chief Executive Officer, or Chairman of the Board, provided
that the removal is not voluntary or initiated by Executive;
(iii) The Executive, at any time after the Company has been
subject to a Change in Control is assigned to any position other than the Chief
Executive Officer of the surviving entity, unless Executive is assigned to a
position substantially comparable with comparable pay and benefits, and
Executive agrees to accept such position;
(iv) The relocation of the Executive's principal place of
employment by more than 25 miles from its present location, provided the
relocation is not a change of offices in the general Salt Lake City area;
(v) Any breach by the Company of any material provision of
this Agreement.
(C) DEFINITION OF "CHANGE OF CONTROL". For all purposes under this
Agreement, "Change of Control" shall mean:
(i) The consummation of a merger or consolidation of the
Company with or into another entity, or any other corporate reorganization, if
persons who were not stockholders of the Company immediately prior to such
merger, consolidation, or reorganization, own, immediately after such merger,
consolidation, or reorganization, 50% or more of the voting power of any
outstanding securities of each of the (A) surviving entity and (B) any direct or
indirect parent corporation of such continuing or surviving entity;
(ii) The sale, transfer or other disposition of all or
substantially all of the company's Assets;
(iii) A change in the composition of the Board, as a result of
which fewer than 50% of the incumbent directors are directors who either:
A) Had been directors of the Company on the date 24
months prior to the Date of such change in composition of the Board (the
"Original Directors"); or,
B) Were appointed to the Board, or nominated for
election to the Board with the affirmative votes of at least a majority of the
aggregate of (I) the Original Directors who were in office at the time of their
appointment or nomination and (II) the Directors whose appointment or nomination
was previously approved in a manner consistent with this subparagraph B);
C) Subsections (A) and (B) above are not intended to
trigger `Change in Control' actions if changes in Board composition are a result
of normal Board turnover, or changes resulting from retirement or resignations
which have no connection to change in the majority of the Company ownership; or
(iv) Any transaction as a result of which any person is the "
beneficial owner" (as defined in Rule 13d3 under the Securities Exchange act of
1934) directly or indirectly, of securities of the Company representing at least
50% of the total voting power represented by the Company's then outstanding
voting securities. For purposes of this Paragraph (iv), the term "person" shall
have the same meaning as when used in sections 13(d) and 14(d) of the Securities
Exchange Act of 1934 but shall exclude (A) a trustee or other fiduciary holding
securities under an employee benefit plan of the Company or of a parent or
subsidiary of the company and (B) a corporation owned directly or indirectly by
the stockholders of the Company in substantially the same proportions as their
ownership of the common stock of the Company.
A transaction shall not constitute a Change of Control if its sole purpose is to
change the state of the Company's incorporation or to create a holding company
that will be owned in substantially the same proportions by the persons who held
the Company's securities immediately before such transactions.
10. PAYMENTS AND BENEFITS UNDER VARIOUS TERMINATION CIRCUMSTANCES.
The following states the obligations of the Company upon various termination
circumstances, but otherwise subject to the specific provisions of each plan,
and where applicable, notices of grant, and agreements (collectively, "Plan
Documents"). In the event of a conflict between this section and Plan Documents,
the provisions of this section shall control.
(A) Retirement or voluntary resignation.
(i) Severance Pay. No payment to be made.
(ii) Stock Options/SARs. Vesting and exercise rights according
to Plan Documents.
(iii) Restricted stock. Vesting and exercise rights according
to Plan Documents.
(iv) Short term bonus. Prorated payment. All terms and
conditions of 2004 Incentive Plan (or its successor) apply, including banking
and distribution; provided, however, if the Executive retires from Employment
after having attained age 57 and has not been terminated for Cause, then
previously withheld or "banked" bonuses shall be immediately paid to the
Executive notwithstanding the terms of any applicable Plan Documents.
(v) Long term Incentive. All provisions of Plan Documents and
successor Plan Documents apply.
(B) Death or disabling illness or disability.
(i) Stock Options/SARs. Vesting and exercise rights according
to Plan Documents.
(ii) Restricted stock. Vesting and exercise rights according
to Plan Documents.
(iii) Short term bonus. Prorated payment. All terms and
conditions of 2004 Incentive Plan (or its successor) apply, including banking
and distribution; provided, however, if the Executive dies or is disabled after
having attained age 57, then previously withheld or "banked" bonuses shall be
immediately paid to the Executive's estate or to Executive notwithstanding the
terms of any applicable Plan Documents.
(iv) Long term Incentive. All provisions of Plan Documents and
successor Plan Documents apply.
(C) Termination for Cause.
(i) Severance Pay. No payment to be made.
(ii) Stock options/SARs. Vesting and exercise rights according
to Plan Documents.
(iii) Restricted Stock. Vesting and exercise rights according
to Plan Documents.
(iv) Short term bonus. No payments.
(v) Long term incentive. All provisions of Plan Documents and
successor Plan Documents apply.
(D) Resignation for "Good Reason".
(i) Severance Pay. Company makes lump sum payment of 300% of
annual base salary then in effect, less required deductions within 30 days of
resignation.
(ii) Stock options. All options/SARs become fully vested and
exercisable at time of Resignation.
(iii) Restricted stock. All restricted stock becomes fully
vested at time of Resignation. (iv) Short term bonus. Prorated bonus and payment
of all "banked" amounts
(v) Long term incentive. All provisions of Plan Documents and
successor Plan Documents apply.
(E) Company termination other than Cause.
(i) Severance pay. Company makes lump sum payment of 300% of
annual base pay then in effect, subject to required deductions within 30 days of
resignation.
(ii) Stock options/SARs. All options/SARs are fully vested and
exercisable at time of termination.
(iii) Restricted stock. All restricted stock fully vested at
time of termination.
(iv) Short term bonus. Prorated bonus and payment of all
"banked" amounts
(v) Long term incentive. All provisions of Plan Documents and
successor Plan Documents apply.
Any other benefits not specifically stated above will be paid to the Executive
pursuant to the appropriate plan governing the benefit.
11. SUCCESSORS.
(A) Executive's Successors. This agreement and all rights of the
Executive hereunder shall inure to the benefit of, and be enforceable by, the
Executive's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees.
(B) Company's Successors. This Agreement shall be binding upon any
successor (whether direct or indirect and whether by purchase, lease, merger,
consolidation, liquidation or otherwise) to all or substantially all of the
Company's business or assets. For all purposes under this Agreement, the term
"Company" shall include any successor to the Company's business and/or assets
which become bound by this Agreement.
12. ARBITRATION.
(A) Scope of Arbitration Requirement. The parties hereby waive their
rights to a trial before a judge or jury and agree to arbitrate before a neutral
arbitrator (who must be a member of the American Arbitration Association) any
and all claims or disputes arising out of this Agreement and any and all claims
arising from or relating to the Executive employment, including (but not limited
to) claims against any current or former employee, director or agent of the
Company, claims of wrongful termination, retaliation, discrimination,
harassment, breach of contract, breach of the covenant of good faith and fair
dealing, defamation, invasion of privacy, fraud, misrepresentation, constructive
discharge, or claims regarding commissions, stock options or bonuses, or unfair
business practices.
(B) Procedure. The arbitrators' decision shall be written and shall
include the findings of fact and law that support the decision. The arbitrators'
decision shall be final and binding on both parties, except to the extent
applicable law allows for judicial review of arbitration awards. The arbitrators
may award any remedies that would otherwise be available to the parties if they
were to bring the dispute in court. The arbitration shall be conducted in
accordance with the National Rules for the Resolution of Employment Disputes of
the American Arbitration Association; provided, however that the arbitrators
shall allow the discovery that the arbitrators deem necessary for the parties to
vindicate their respective claims or defenses. The arbitration shall take place
in Salt Lake County, Utah.
(C) Costs. The Executive shall bear one-half of the arbitration costs
and one-half of the arbitration costs shall be borne by the Company. Both the
Company and the Employee shall be responsible for their own attorneys' fees.
(D) Applicability. This Section 12 shall not apply to (i) workers'
compensation or unemployment insurance claims or (ii) claims concerning the
validity, infringement or enforceability of any trade secret, patent right,
copyright or any other trade secret or intellectual property held or sought by
either the Executive or the Company. Notices and all other communications
contemplated by this Agreement shall be in writing and shall be deemed to have
been duly given when personally delivered or when mailed by U.S. registered or
certified mail, return receipt requested and postage prepaid. In the case of the
Executive, mailed notices shall be addressed to him at the home address that he
most recently communicated to the Company in writing. In the case of the
Company, mailed notices shall be addressed to its corporate headquarters, and
all notices shall be directed to the attention of its Secretary with a copy to
Chairman of the Compensation Committee of the Board of Directors.
13. NOTICE. Notices and all other communications contemplated by this Agreement
shall be in writing and shall be deemed to have been duly given when personally
delivered or when mailed by U.S. registered or certified mail, return receipt
requested and postage prepaid. In the case of the Executive, mailed notices
shall be addressed to him at the home address that he most recently communicated
to the Company in writing. In the case of the Company, mailed notices shall be
addressed to its corporate headquarters, and all notices shall be directed to
the attention of its Secretary with a copy to Chairman of the Compensation
Committee of the Board of Directors.
14. MODIFICATIONS AND WAIVERS. No provision of this Agreement shall be modified,
waived or discharged unless the modification, waiver or discharge is agreed to
in writing and signed by the Executive and by an authorized member of the Board
of Directors (other than the Executive). No waiver by either party of any breach
of, or of compliance with, any condition or provision of this Agreement by the
other party shall be considered a waiver of any other condition or provision or
of the same condition or provision at another time.
15. WHOLE AGREEMENT. No other agreements, representations or understandings
(whether oral or written and whether express or implied) that are not expressly
set forth in this Agreement have been made or entered into by either party with
respect to the subject matter hereof. This Agreement contains the entire
understanding of the parties with respect to the subject matter hereof.
16. WITHHOLDING TAXES. All payments made under this Agreement shall be subject
to reduction to reflect taxes or other charges required to be withheld by law.
17. CHOICE OF LAW AND SEVERABILITY. This Agreement shall be interpreted in
accordance with the laws of the State of Utah (except their provisions governing
the choice of law). If any provision of this Agreement becomes or is deemed
invalid, illegal or unenforceable in any applicable jurisdiction by reason of
the scope, extent or duration of its coverage, then such provision shall be
deemed amended to the minimum extent necessary to conform to applicable law so
as to be valid and enforceable or, if such provision cannot be so amended
without materially altering the intention of the parties, then such provision
shall be stricken and the remainder of this Agreement shall continue in full
force and effect. If any provision of this Agreement is rendered illegal by any
present or future statute, law, ordinance or regulation (collectively the
"Law"), then such provision shall be curtailed or limited only to the minimum
extent necessary to bring such provision into compliance with the Law. All the
other terms and provisions of this Agreement shall continue in full force and
effect without impairment or limitation.
18. NO ASSIGNMENT. This Agreement and all rights and obligations of the Employee
hereunder are personal to the Executive and may not be transferred or assigned
by the Employee at any time. The Company may assign its rights under this
Agreement to any entity that assumes the Company's obligations hereunder in
connection with any sale or transfer of all or a substantial portion of the
Company's assets to such entity.
19. COUNTERPARTS. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, each of the parties has executed this Agreement, in
the case of the Company by its duly authorized Chairman of the Compensation
Committee, as of this 25th day of August 2005.
EXECUTIVE
/s/ Kirk A. Benson
Kirk A. Benson
HEADWATERS INCORPORATED
By: /s/ James A. Herickhoff
James A. Herickhoff
Title: Chairman, Compensation Committee
Headwaters Board of Directors
Exhibit A
Mutual General Release and Certification
This General Release and Certification ("Release") is effective this
___ day of __________, ____ ("Effective Date").
In accordance with Section 7 of that Employment Agreement ("Agreement")
dated _________, 2005 between Kirk A. Benson ("Executive") and Headwaters
Incorporated (the "Company") and in exchange for the compensation and other
consideration to be provided to the Executive pursuant to Section 8 of the
Agreement, the Executive and the Company execute and deliver this Release to
each other.
Executive Release of Claims. Executive voluntarily, knowingly and
willingly releases and forever discharges the Company and its subsidiaries, and
affiliates and all their respective officers, directors, partners, shareholders,
employees, attorneys, and agents from any and all claims and rights of any
nature whatsoever which Executive now has or in the future may have against them
from the beginning of the world up to the Effective Date.
This release includes, but is not limited to, any rights or claims
relating in any way to your employment relationship with the Company, any rights
or claims relating to the termination of your employment relationship with the
Company, any wrongful termination claims, any contract claims (expressed or
implied, written or oral), or any rights or claims under any federal, state or
local statute, including, without limitation, the Americans with Disabilities
Act, the Age Discrimination in Employment Act, the Older Workers' Benefit
Protection Act, the Rehabilitation Act of 1973 (including Section 504 thereof),
the Family Medical Leave Act, Title VII of the 1964 Civil Rights Act, the Civil
Rights Act of 1866 (42 U.S.C. ss. 1981), the Civil Rights Act of 1991, the Equal
Pay Act, the Fair Labor Standards Act, the National Labor Relations Act, and the
Employees Retirement Income Security Act of 1974, all as amended.
This release specifically includes, but is not limited to, any claims
based upon the right to the payment of wages, bonuses, stock, stock options,
stock appreciation rights or other stock-based rights, vacation, pension
benefits, retirement benefits, health benefits or any other employee benefits or
any other rights arising under federal, state or local laws prohibiting
discrimination and/or harassment on the basis of race, color, religion, creed,
sex, affectional or sexual orientation, national origin, ancestry, nationality,
age, mental or physical disability or handicap, alienage/citizenship status,
genetic information, marital status, familial status, atypical hereditary
cellular or blood trait, or any other basis prohibited by law. Executive agrees
and promises that Executive will not file any lawsuit asserting any released
claims.
Subject to the terms of section 10 of the Agreement, it is understood
and agreed that the waiver of benefits and claims contained in this Release does
not include a waiver of the right to payment of any vested, nonforfeitable
benefits to which the Executive or a beneficiary of the Executive may be
entitled under the terms and provisions of any employee benefit plan of the
Company which have accrued as of the Effective Date and does not include a
waiver of the right to benefits and payment of consideration to which Executive
may be entitled under the Agreement. Executive acknowledges that he is only
entitled to the benefits and compensation set forth in the Agreement, and that
all other claims for any other benefits or compensation are hereby waived,
except those expressly stated in the preceding sentence. In furtherance of the
foregoing, Executive and the Company agree that the Executive has stock options,
stock appreciation rights, etc. as set forth on the attached Schedule A.
Acknowledgment of Waiver of Claims under ADEA; EEOC. Executive
acknowledges that Executive is waiving and releasing any rights Executive may
have under the Age Discrimination in Employment Act of 1967 ("ADEA") and that
the waiver and release is knowing and voluntary. Executive and the Company agree
that the waiver and release does not apply to any rights or claims that may
arise under ADEA after the Effective Date. Executive acknowledges that the
consideration given for the waiver and release of claims under this Release is
in addition to anything of value to which you were already entitled.
Executive also acknowledges that Executive has been advised by this
writing that (a) Executive should consult with an attorney prior to executing
this Release; (b) Executive has at least twenty one (21) days within which to
consider the Release; (c) Executive has at least seven (7) days following
execution of the Release to revoke the Release; and (d) the Release shall not be
effective until the revocation period has expired. This Release recognizes the
rights and responsibilities of the Equal Employment Opportunity Commission
("EEOC") to enforce the statutes which come under its jurisdiction and is not
intended to prevent Executive from filing a charge or participating in any
investigation or proceeding conducted by the EEOC; provided, however, that
nothing herein limits or affects the finality or the scope of section 12 of the
Agreement to submit claims to final and binding arbitration.
Certification of Return of Property. Executive hereby certifies to the
Company that Executive has returned all property of the Company in the
Executive's possession.
Company Release of Claims. The Company voluntarily, knowingly and
willingly releases and forever discharges the Executive and his heirs, executor
or administrator, estate, assigns, insurers, attorneys, agents, and other
persons or entities acting on Executive's behalf from any and all claims and
rights of any nature whatsoever which the Company now has or in the future may
have against them from the beginning of the world up to the Effective Date.
In Witness Whereof, the parties have executed this General Release and
Certification as of the Effective date:
Executive
___________________________
Kirk A. Benson
Headwaters Incorporated
___________________________
Name:______________________
Title:_____________________
Schedule A
[Outstanding options, stock appreciation rights, etc. to be supplied.]