Employment Agreement - RedRoller Inc. and Robert J. Crowell
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into
effective as of July 11, 2007, by and between RedRoller, Inc., a Delaware
corporation (the "Company"), and Robert J. Crowell ("Executive"). Certain
capitalized terms used herein shall have the meanings set forth in Section 18
below.
WITNESSETH:
WHEREAS, the Company has determined that it is in its best interests to
insure the continued employment of Executive as the Chairman of the Board of the
Company in accordance with the terms hereof.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, the Company and Executive agree as follows:
1. Duties. The Company hereby employs Executive as Chairman of the
Board of the Company on the terms set forth herein. During the course of his
employment, Executive shall have those duties and responsibilities, and the
authority, customarily possessed by the Chairman of a corporation and such
additional duties as may be assigned to him from time to time by the Board of
Directors of the Company (the "Board"). Nothing in this Agreement shall preclude
the Executive from devoting reasonable periods of time to charitable and
community activities or the management of his investment assets, provided such
activities do not significantly interfere with the performance by the Executive
of his duties hereunder. Furthermore, service by the Executive on the boards of
other companies shall not be deemed to be a violation of this Agreement,
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provided such service does not significantly interfere with the confidentiality
provisions or performance of his duties hereunder.
2. Term. Executive's employment hereunder shall commence on the date of
this Agreement (the "Commencement Date") and shall, unless terminated in
accordance with the terms hereof, continue for a three year period, which shall
then renew automatically for two year periods, unless the Company notifies
Executive in writing, within thirty (30) days after the date which is one year
prior to the expiration of the Agreement period, that the Company does not wish
to renew Executive's contract, or unless otherwise terminated under the
provisions herein (the "Term"). Executive's obligations and the Company's rights
under Sections 8 through 13 below, and Executive's other post-employment
covenants, shall survive the expiration or earlier termination of this Agreement
for any reason.
3. Base Salary. During the Term of this Agreement, the Company shall
pay Executive a base salary of $140,000 per year (the "Base Salary"), paid in
periodic payments in the manner that the Company normally pays its executives,
which Base Salary amount cannot be decreased without Executive's written
consent. If Executive has, or shall, take a voluntary and temporary pay
reduction in order to assist the Company to conserve cash, such decrease shall
not be considered a decrease in Base Salary for purposes of this Agreement. On
an annual basis, during the first one hundred and twenty (120) days of the
fiscal year (following the preparation of the Company's annual financial
statements), the Board of Directors (the "Board"), with Executive abstaining,
will review Executive's Base Salary or other compensation during the period of
his employment hereunder and, at the discretion of a majority of the Board, may
increase, but not decrease, Executive's Base Salary and benefits based upon his
performance, the Company's results of operation, and other relevant or
associated factors.
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4. Benefits.
A. Vacation. Executive shall be entitled to four (4) weeks
paid vacation, to be taken at a time or times acceptable to the Company and
otherwise consistent with the terms and conditions of this Agreement. Executive
may take up to two (2) weeks additional vacation or personal time without
compensation.
B. Term Life Insurance. The Company, in its discretion, may
purchase one or more term life insurance policies on the life of the Executive,
with the Company named as beneficiary, with an aggregate death benefit of up to
$5,000,000 (the "Company Policy"). In addition, the Company shall provide an
insurance benefit (the "Insurance Benefit") to the Executive, subject to the
limitations described herein, equal to the amount necessary to enable the
Executive to purchase one or more term life insurance policies on his life, with
a beneficiary(ies) as designated by the Executive, provided, however, that in
any one calendar year, the total premium cost to be paid by the Company to the
Executive shall be limited to $15,000. The Company and Executive shall fully
cooperate with each other by taking all actions reasonably necessary to carry
out the intentions of this section. Each party shall cooperate in purchasing any
insurance policies, including taking into consideration the wishes of the other
party with respect to the type of policy purchased and the quality of the
insurance provider, and the Executive shall submit to any application process,
including medical testing, requested by the Company or any applicable insurance
provider.
C. Other Fringe Benefits. Executive shall be included to the
extent eligible thereunder in Company benefit plans providing group life
insurance, hospitalization, medical, pension, financial services and any other
similar or comparable benefits available to other employees.
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5. Expenses. The Company shall reimburse Executive for reasonable
out-of-pocket business expenses incurred by him on behalf of the Company in the
performance of his duties as specified herein and documented in accordance with
the requirements of the Internal Revenue Service and the Company's policies in
effect from time to time.
6. Termination of Employment. The consequences of termination of
Executive's employment are described in this Section 6 and Section 7 below.
Unless otherwise agreed in writing, Executive and the Company expressly agree
not to discuss, except with official advisors (on a confidential basis), any
information or aspects of Executive's employment regarding the Company or the
Executive's termination circumstances unless and only to the extent required
under compulsion from a court of competent jurisdiction or otherwise required by
law.
A. Death or Disability. In the event of Executive's death, the
duties of the Company and Executive, one to the other, under this Agreement
shall terminate as of the date of Executive's death. In the case of Executive's
Disability being determined as set forth herein, the Company shall provide the
payments and other benefits specified in Section 7 below.
B. Termination by the Company.
(i) For Cause. The Company may terminate Executive's
employment at any time For Cause, as defined herein, upon unanimous
vote of the Board with Executive abstaining, in which case of
termination the duties of the Company and Executive, one to the other,
under this Agreement shall terminate as of the date of Executive's
termination of employment.
(ii) Other Than For Cause. Executive's employment may
be terminated at any time other than For Cause upon a majority vote of
the Board, with Executive abstaining, in which case the duties of the
Company and Executive, one to the other, under this Agreement shall
terminate as of the date of Executive's termination of employment,
subject to the Company providing the severance payments and other
benefits, specified in Section 7 below.
Any termination of Executive's employment by the Company shall be
communicated by written notice of termination to the other party hereto, which
shall set forth the reason if
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determined For Cause, the effective date and time of termination, and any other
relevant data. If Disabled, the Company shall not terminate Executive because of
a disability.
C. Voluntary Resignation. If the Executive voluntarily leaves
the employ of the Company during the Term of this Agreement, the duties of the
Company and the Executive, one to the other, under this Agreement shall
terminate as of the date of the Executive's termination of employment, provided,
however, that if Executive voluntarily leaves the employ of the Company during
the Term of this Agreement under circumstances that constitute a Resignation for
Good Reason after a Change of Control, the Company shall provide the severance
payments and other benefits, specified in Section 7 below.
D. Post-Employment Obligations. In the event that Executive's
employment with the Company is terminated due to any reason other than death,
the provisions of Sections 8 through 12 below and Executive's other
post-employment covenants shall survive any such termination.
7. Obligations upon Termination or Disability.
A. Disability. Subject to Board approval as defined herein, if
Executive becomes disabled, then Executive shall be considered Disabled and be
entitled to the following:
(i) The Company shall pay Executive an amount equal
to fifty percent (50%) of his Base Salary as it normally pays its
personnel, until and unless such disability is cured or otherwise
remedied. Such payment shall be made with respect to Executive's Base
Salary as in effect as of the date his disability is determined.
(ii) The Executive shall be entitled to Benefits
Continuation.
B. Termination by Company Other Than For Cause. If, during the
Term of this Agreement, Executive's employment with the Company is terminated by
the Company other than For Cause, then Executive shall be entitled to the
following severance benefits:
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(i) The Company shall, subject to the provisions of
Section 7.D. below, pay Executive a severance payment equal to a
multiple of three (3) times his Base Salary with 50% of such severance
payment being paid in a lump sum (payable promptly upon the first date
provided for such payment pursuant to Section 7.C below), and the
remaining fifty percent (50%) of such severance payment and any accrued
bonus, shall be payable in twelve (12) equal, monthly installments,
without interest. The multiple shall increase by 50% (.50) for each
year of Executive's service hereafter under this Agreement. Such
severance payment shall be made with respect to Executive's Base Salary
as in effect as of the date of his termination of employment with the
Company, but without giving effect to any reduction in Base Salary that
might have occurred after a Change of Control.
(ii) All of Executive's stock options shall become
immediately vested and exercisable (which exercise, at Executive's
option, may be a "cashless" exercise) for up to the longer of (i) five
(5) years after termination of Executive's employment with the Company,
or (ii) the remainder of the option period provided for in the
Company's option plan; and
(iii) For a five (5) year period following the date
of Executive's termination of employment with the Company, the
Executive shall be entitled to Benefits Continuation. If Executive
commences other full-time employment elsewhere where benefits of equal
or superior quality are available, the Company's obligation to provide
Benefits Continuation shall cease, except with respect to any
pre-existing conditions, which are not adequately covered by the newer
benefits.
C. Termination upon Executive's Resignation for Good Reason
After a Change of Control. If, during the Term of this Agreement, Executive's
employment with the Company is terminated by Executive's Resignation for Good
Reason after a Change of Control, then Executive shall be entitled to the
following severance benefits:
(i) The Company shall, subject to the provisions of
Section 7.D. below, pay Executive a severance payment equal to the
severance payment due under Paragraph 7.B (i), Termination by Company
Other Than For Cause. Such severance payment shall be made with respect
to Executive's Base Salary as in effect as of the date of his
termination of employment with the Company, but without giving effect
to any reduction in Base Salary that might have occurred after a Change
of Control.
(ii) Any stock options then owned by Executive shall
become immediately vested and exercisable (which exercise, at
Executive's option, may be a "cashless" exercise) for up to the longer
of (i) three years after termination of Executive's employment with the
Company, or (ii) the remainder of the exercise period provided for in
the applicable option agreement(s) or by the Board of Directors,
provided that this provision shall not extend the exercise period of
Executive's options beyond the term of the option and the Company
agrees to cause such exercise to be allowed (including
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following the request of the Compensation Committee to permit such
exercise) pursuant to the Company's Stock Option Plan(s) or the
comparable provision of any future plan or agreement; and
(iii) For a five (5) year period following the date
of Executive's termination of employment with the Company, Executive
shall be entitled to Benefits Continuation. If Executive commences
other full-time employment with equal or better health benefits, or
engages in consulting with any other company for compensation where he
is eligible for equal or better health benefits, the Company's
obligation to provide Benefits Continuation shall cease.
D. Release. As a condition to and in consideration for the receipt of
the severance payment(s) and other benefits to which Executive may be entitled
pursuant to Section 7.B or 7.C hereof, Executive agrees to execute a Release
Agreement with the Company, in substantially the same form as that attached
hereto as Exhibit A (the "Release Agreement"), within the thirty (30) day period
beginning twenty-one (21) days after the date of his cessation of employment
with the Company. The Company shall not be obligated to make any severance
payment or provide any other benefits unless and until the Company shall have
received from Executive a validly executed Release Agreement that shall not have
been revoked by Executive during the applicable Revocation Period (as such term
is defined in the Release Agreement). Provided that Company receives from
Executive a validly executed Release Agreement which is not revoked during the
applicable Revocation Period, the Company agrees to commence making the
severance payments and provide the other benefits theretofore withheld within
three (3) days of the end of the Revocation Period. Executive acknowledges and
agrees that the benefits provided by this Agreement constitute adequate
consideration to render enforceable such Release Agreement against Executive.
8. Noncompetition. Executive agrees that during the period (the
"Noncompetition Period") commencing on the date hereof and ending on the date
that is five (5) years after the later of the date of his cessation of
employment with the Company, or the last date on which he is
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supposed to be paid by the Company any severance payment provided for in this
Agreement, he will not, without the prior consent of the Board of Directors of
the Company, either directly or indirectly, in any capacity whatsoever, (a)
compete (as defined below) with the Company, or (b) operate, control, advise, be
employed and/or engaged by, perform any consulting services for, invest in
(other than the purchase of no more than five percent (5%) of the publicly
traded securities of a company whose securities are traded on a national stock
exchange) or otherwise become employed by or with, any person, company or other
entity who or which, at any time during the Noncompetition Period, competes with
the Company.
As used above, "compete" is defined as being employed by a
company engaged in the development, marketing, distribution or sale of package
or other shipping rate comparison system software used via the Internet in any
significant way similar to the Company's redroller.com system and related
services. Executive further expressly represents and understands that if
Executive's employment is terminated, this Agreement will prohibit the Executive
from future employment with all companies that compete with the Company, as
defined in this Agreement, and as such, will constrain some of the Executive's
overall possibilities for future employment. By Executive's signature to this
Agreement, Executive expressly represents that his training, education and
background are such that his ability to earn a living shall not be impaired by
the restriction in this Agreement.
9. Nondisclosure. Executive agrees during the period commencing on the
date hereof and thereafter, at all times to hold as a secret and confidential
(unless disclosure is required pursuant to court order, subpoena, in a
governmental proceeding, arbitration, or pursuant to other requirement of law)
any and all knowledge, technical information, business information,
developments, and trade secrets, of the Company or its business, including,
without limitation, (a) information or
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business secrets relating to the products, customers, business, or any of its
respective clients, customers, consultants or licensees; and (b) any of the
Company's customer lists, pricing and purchasing information or policies
(collectively, "Confidential Information"), of which he has acquired knowledge
during or after his employment with the Company, to the extent that such matters
(i) have not previously been made public or are not thereafter made public, or
(ii) do not otherwise become available to Executive, in either case, via a
source not bound by any confidentiality obligations to the Company. The phrase
"made public" as used in this Agreement shall apply to matters within the domain
of the general public or the Company's industry. Executive agrees not to use,
directly or indirectly, such knowledge for his own financial benefit or for the
financial benefit of others and/or disclose any of such Confidential Information
without prior written consent of the Company. At the cessation of employment
with the Company, the Executive agrees to promptly return to the Company any and
all written Confidential Information received from the Company which relates in
any way to any of the foregoing items covered in this paragraph and to destroy
any transcripts or copies the Executive may have of such Confidential
Information unless an alternative method of disposition is approved by the
Company.
10. Intellectual Property Assignment. Executive agrees that all ideas,
improvements, computer programs, code, flowcharts, inventions, and discoveries
that are directly related to the business of the Company (either as previously
conducted or as conducted at any time during Executive's employment), that
Executive may have made or that Executive may make or conceive, alone or jointly
with others, prior to or during Executive's employment with the Company, only to
the extent developed substantially during Company time and using Company
equipment, shall be the sole property of the Company, and Executive agrees:
(a) to promptly disclose any such ideas, improvements,
inventions, and discoveries to the Company; and
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(b) to treat such ideas, improvements, inventions, and
discoveries as Confidential Information and as the
trade secrets of the Company; and
(c) not to disclose such ideas, improvements, inventions,
and discoveries to anyone, both during and after
Executive's employment with the Company, without the
Company's prior written approval.
Executive hereby assigns all of Executive's right, title and interest in and to
any such ideas, improvements, inventions, or discoveries, including any
potential patent rights and any additional rights conferred by law upon
Executive as the author, designer, or inventor thereof, to (i) vest full title
in the idea, improvement, invention, or discovery in the Company, and (ii) to
enable the Company to seek, maintain or enforce patent or other protection
thereon anywhere in the world.
Executive agrees that the Company is the author (owner) of any
work of authorship or copyrightable work ("Work") created by Executive, in whole
or in part, during Executive's employment by the Company during Company time
and/or using Company equipment and directly relating to the business of the
Company as previously conducted or as conducted at any time during Executive's
employment. Executive acknowledges that each writing and other literary Work,
each drawing and other pictorial and/or graphic Work and any audio-visual Work,
created by Executive, in whole or in part, during Company time and/or using
Company equipment and directly relating to his position or responsibilities with
the Company has been prepared by Executive for the Company as a Work for hire.
Executive agrees that in the event that such Work is not considered Work for
hire, Executive hereby assigns all copyright and any other rights conferred in
law unto Executive in and to such Work to the Company. Executive agrees that at
the request of the Company, Executive will execute any documents deemed
necessary by the Company to (i) vest full title to the Work in the Company, and
(ii) enable the Company to register, maintain, or enforce copyrights in the Work
anywhere in the world.
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Executive will treat any such Work as Confidential Information and as the trade
secrets of the Company and will not disclose it to anyone both during and after
Executive's employment by the Company, without the Company's prior written
approval.
Executive recognizes that the ideas, improvements, inventions,
discoveries and Works directly relating to Executive's activities while working
for the Company and developed by him, alone or with others, within one (1) year
after termination of Executive's employment may have been developed in
significant part while employed by the Company. Accordingly, Executive agrees
that such ideas, improvements, inventions, discoveries and Works, if directly
related to any of the business activities or computer software or software
development of the Company, shall be presumed to have been developed during
Executive's employment with the Company and shall be and hereby are assigned in
accordance with the foregoing provisions, unless Executive receives prior
written consent from the Company otherwise.
11. Severability. In the event that Sections 8, 9 or 10 shall be found
by a court of competent jurisdiction to be invalid or unenforceable as written
as a matter of law, the parties hereto agree that such court(s) may exercise its
discretion in reforming such provision(s) to the end that Executive shall be
subject to noncompetition, nondisclosure, nonsolicitation/ noninterference and
intellectual property ownership covenants that are reasonable under the
circumstances and enforceable by the Company.
12. Acknowledgment. Executive specifically acknowledges that the
covenants set forth herein restricting competition, disclosure and
solicitation/interference are reasonable, appropriate and necessary as to
duration, scope and geographic area in view of the nature of the relationship
between Executive and the Company and the investment by the Company of
significant time and resources in the training, development and employment of
Executive.
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Executive warrants and represents that in the event that any of the restrictions
set forth in these covenants become operative, he will be able to engage in
other activities for the purpose of earning a livelihood, and shall not be
impaired by these restrictions.
Executive further acknowledges that the remedy at law for any
breach of these covenants, including monetary damages to which the Company may
be entitled, will be inadequate and that the Company, its successors and
assigns, shall be entitled to injunctive relief against any breach without bond.
Such injunctive relief shall not be exclusive, but shall be in addition to any
other rights or remedies which the Company may have for any such breach.
Executive acknowledges and agrees that the references in the
foregoing Sections 8, 9 and 10 to the "Company" are intended to be applicable
to, and for the benefit of, any affiliated entity controlling, controlled by or
under common control with the Company, and such term for all purposes thereof
shall include any such entities.
13. Limitation of Payment. Notwithstanding anything in this Agreement
to the contrary, if receipt of any of the benefits hereunder would subject the
Executive to tax or penalties under Section 4999 or 409(A) of the Code
(hereafter "Section 4999" or "409(A)"), the Company shall promptly pay to the
Executive a "gross up" amount that would allow the Executive to receive the net
after-tax amount he would have received but for the application of said Section
4999 or 409(A) to any payments hereunder, including any payments made pursuant
to this Section 13.
14. Governing Law. This Agreement shall be governed and performed in
accordance with, and only to the extent permitted by, the laws of the State of
Connecticut applicable to contracts made and to be performed entirely within
such State of Connecticut.
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15. Assignment. This Agreement shall inure to the benefit of, and shall
be binding upon, the Company, its successors and assigns. Executive shall not
assign this Agreement to any other party without the prior written consent of
the Company.
16. Entire Agreement; Amendments; Waivers. This Agreement contains the
entire agreement between the parties hereto with respect to the subject matter
hereof and replaces or supersedes any previous agreements (written or oral),
letters, offers, term sheets or other communication between the Company and
Executive on such subject matter. It may not be changed orally, but only by
agreement, in writing, signed by each of the parties hereto. The terms or
covenants of this Agreement may be waived only be a written instrument
specifically referring to this Agreement, executed by the party waiving
compliance. The failure of the Company at any time, or from time to time, to
require performance of any of Executive's obligations under this Agreement shall
in no manner affect the Company's right to enforce any provisions of this
Agreement at a subsequent time, and the waiver by the Company of any right
arising out of any breach shall not be construed as a waiver of any right
arising out of any subsequent breach.
17. Certain Definitions. The following terms when used in this
Agreement shall have the meanings as set forth below:
A. "Change of Control" shall mean the occurrence of any one of
the following events:
a. (i) The consummation of a merger or consolidation of
the Company with any other corporation or entity,
other than a merger or consolidation which would
result in the voting securities of the Company
outstanding and owned by the stockholders of the
Company immediately prior thereto continuing to
represent (either by remaining
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outstanding or by being converted into voting
securities of the surviving entity) more than fifty
percent (50%) of the combined voting power of the
voting securities of the Company or such surviving
entity, as applicable, outstanding and owned by such
holders immediately after such merger or
consolidation; or
(ii) Any "person" (as defined in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"))
is or becomes the "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of the Company representing
fifty percent (50%) or more of the combined voting power of the Company's then
outstanding securities; provided that a Change of Control shall not be deemed to
occur under this clause by reason of the acquisition of securities by the
Company or any of its subsidiaries or an employee benefit plan (or any trust
funding such a plan) maintained by the Company.
B. "Benefits Continuation" shall mean for the referenced
period of time following the date of Executive's termination of
employment with the Company or determination of Disability, that the
Company shall provide or otherwise make available to Executive, an
election (with respect to health and/or dental coverage under the
Company's group health plan or under continuation coverage provisions
of ERISA and the Code or under an individual paid plan) to ensure
continued health insurance coverage either individually or under the
Company's health, dental or other benefit plans and term life insurance
benefit (collectively, the "Continuation Plans") on not less than the
same terms and conditions as previously were in place for Executive.
The cost to Executive of including Executive, his spouse and his
dependents in any Continuation
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Plans shall be no more than that previously paid by the Executive and
may be deducted from any regular payments made to Executive under this
Agreement. If at any time, the Company is precluded by the terms of any
of the Continuation Plans from providing such coverage to Executive,
his spouse, or his dependents, for reasons to be beyond the control of
the Company, such coverage shall be provided by any other available
means and the Executive, his spouse and his dependents shall be
entitled to continuation of coverage pursuant to any statutory rights
Executive, his spouse or his dependents may then have under the group
health plan continuation coverage provisions of ERISA and the Code, or
otherwise, at the Company's expense. The prior provisions
notwithstanding, the right of Executive, his spouse or dependents, to
coverage as provided by the group health plan continuation coverage
provisions of ERISA and the Code or otherwise shall be deemed to run
concurrently with the continuation of health and/or dental benefits
under the first sentence of this paragraph. Any expense incurred by
Executive, legal or otherwise, incurred to enforce this or other
provision of this Agreement, shall be paid by the Company.
C. "Disability" shall mean Executive's ongoing inability, due
to a mental or physical condition, to continue to provide services to
the Company substantially consistent with past practice, as evidenced
by a written certification as to such condition from a physician to
Executive and subject to the approval of the Company's Board, with the
Board members using reasonable good faith judgment as to the
disability.
D. "For Cause" shall mean any of the following: (i) a
conviction of: theft from the Company, fraud, embezzlement, or any
other felony which affects the Company, not adhering to the written
instructions of the Board (excepting where a Change of Control has
occurred), (ii) the violation of Sections 8, 9 or 10 or any other
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provision of this Agreement or of any other written agreement with the
Company, which is not cured in all material respects within thirty (30)
days after the Board gives written notice thereof to the Executive; or
(iii) commission by the Executive, when carrying out the Executive's
duties under this Agreement, of acts or the omission of any act, which
constitutes willful misconduct against the Company, which is not cured,
if possible to be cured, in all material respects within thirty (30)
days after the Board gives written notice thereof to the Executive.
E. "Resignation for Good Reason After a Change in Control"
shall mean the resignation by Executive of his employment with the
Company as a result of the occurrence of any reduction in Base Salary
or significant reduction in the position or authority of the Executive
(a change of title from Chairman made with the permission of Executive
shall not constitute Good Reason by itself), any significant reduction
in the Executive's responsibilities or duties for the Company, any
adverse change or reduction in the Executive's benefits, perquisites or
fringe benefits provided to the Executive as of the date of this
Agreement (provided that any reduction in such aggregate Executive
benefits, perquisites or fringe benefits that is required by law shall
not constitute "Good Reason" as defined herein), any attempted
relocation of the Executive's principal place of work with the Company
without Executive's written waiver of this provision, to a place more
than twenty-five (25) miles from the Company's current headquarters
facility or the breach or default by the Company of any of its
agreements or obligations under any provision of this Agreement. The
Executive shall give written notice to the Company on or before the
date of termination of employment for Good Reason specifying the
reasons for such termination.
18. Headings. The headings in this Agreement are intended solely for
convenience of reference and shall be given no effect in the construction or
interpretation of this Agreement.
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19. Counterparts. This Agreement may be executed in multiple
counterparts each of which shall be deemed an original but all of which together
shall constitute one and the same document.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
RedRoller, Inc.
"Company"
By: /s/ William Van Wyck
--------------------------
Name: William Van Wyck
Title: President and CEO
"Executive"
/s/ Robert J. Crowell
------------------------------
Robert J. Crowell
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EXHIBIT A
RELEASE AGREEMENT
This RELEASE AGREEMENT (the "Agreement") is entered into as of the ___
day of ________, _______ (the "Effective Date") by and between RedRoller, Inc.
(the "Company"), a Delaware corporation, and Robert J. Crowell ("Executive").
WITNESSETH:
WHEREAS, Executive and the Company have entered into a certain
Employment Agreement dated as of (the "Employment Agreement"); and
WHEREAS, Executive is entitled to certain severance payments and other
benefits under the Employment Agreement, pursuant to which payment of the
severance payments and other benefits is made conditional upon and in
consideration for Executive's valid execution of a Release Agreement, all as
more completely described in the Employment Agreement (Capitalized terms not
otherwise defined herein shall have the meaning ascribed to them in the
Employment Agreement.).
NOW THEREFORE, to induce the Company to make the severance payments and
provide the other benefits pursuant to the Employment Agreement, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and Executive agree as follows:
1. Release. Executive does hereby, for Executive and for Executive's
heirs, executors, successors and assigns, release and forever discharge the
Company, and the subsidiaries, divisions and affiliated businesses of the
Company, together with all of their officers, directors, management,
representatives, employees, shareholders, agents, successors, assigns, attorneys
and other affiliated persons, both known and unknown, in both their personal and
agency capacities (collectively, the "Releasees"), of and from any and all
claims, demands, actions or causes of action, damages, or suits at law or
equity, of whatsoever kind or nature, including, but not limited to, all claims
and/or demands for back pay, reinstatement, hire or rehire, front pay, group
insurance or employee benefits of whatsoever kind (except as to rights expressly
provided for herein and in the Employment Agreement), claims for monies and/or
expenses, any claims arising out of or relating to the cessation of Executive's
employment with the Company, the sale of the stock or assets of the Company
and/or any of its subsidiaries, any claims for failing to obtain employment at
any other company or with any other person or employer, and/or demands for
attorneys' fees and legal expenses that Executive has or may have by reason of
any matter or thing arising out of, or in any way connected with, directly or
indirectly, any act and/or omission that has occurred prior to the date of this
Agreement. Executive further agrees not to directly or indirectly pursue or
initiate any action or legal proceeding of any kind against the Releasees
arising out of or related to the claims released in the preceding sentence of
this Section 1, including but not limited to the sale of the stock or assets of
the Company and/or any of its subsidiaries and also waives any right to recover
as a
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<PAGE>
result of any such proceedings initiated on Executive's behalf. Notwithstanding
the foregoing, Executive and the Company agree and acknowledge that this Release
shall not apply to the obligations of the Company arising solely under this
Agreement or under the Employment Agreement.
2. ADEA. Executive recognizes and understands that, by executing this
Agreement, Executive shall be releasing the Releasees from any and all claims
that Executive now has, or subsequently may have, under the Age Discrimination
in Employment Act of 1967, 29 U.S.C. ss.ss.621 et seq., as amended (the "ADEA"),
by reason of any matter or thing arising out of, or in any way connected with,
directly or indirectly, any acts or omissions which have occurred prior to and
including the Effective Date of this Agreement. In other words, Executive will
have none of the legal rights against the aforementioned Releasees that
Executive would have had otherwise under federal age discrimination law by
signing this Agreement.
3. Consideration Period. The Company hereby notifies Executive of his
right to consult with Executive's chosen legal counsel before executing this
Agreement. The Company shall afford, and Executive acknowledges receiving, not
less than twenty-one (21) calendar days in which to consider this Agreement to
insure that Executive's execution of this Agreement is knowing and voluntary. In
signing below, Executive expressly acknowledges that Executive has had at least
twenty-one (21) days to consider this Agreement and that Executive's execution
of same is with full knowledge of the consequences thereof and is of Executive's
own free will. If Executive signs this Agreement before the twenty-one (21) day
period has expired, then he understands that he has waived the twenty-one (21)
day period for consideration.
4. Revocation Period. Executive and the Company agree and recognize
that, for a period of seven (7) calendar days following Executive's execution of
this Agreement (the "Revocation Period"), Executive may revoke this Agreement by
providing written notice revoking the same, within the Revocation Period, to the
Company, 50 Day Street, Norwalk, CT 06854, Attn: Chief Financial Officer. Such
revocation of this Agreement by Executive will automatically revoke the
severance payments provided for in the Employment Agreement and Executive will
not be entitled to any of the severance payments described therein.
[Signature Page Follows]
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<PAGE>
IN WITNESS WHEREOF, Executive and the Company have executed this
Agreement effective and binding as of the Effective Date.
AGREED TO AND ACCEPTED BY
EXECUTIVE
----------------------------------- --------------------------------
Date of Execution by Executive Robert J. Crowell
Execution witnessed by:
--------------------------------
AGREED TO AND ACCEPTED BY
THE COMPANY
RedRoller, Inc.
-----------------------------------
Date of Execution by the Company
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
Execution witnessed by:
--------------------------------
--------------------------------------------------------------------------------
RECEIPT ACKNOWLEDGED BY
EXECUTIVE
---------------------------------- --------------------------------
Date of Receipt by Executive Robert J. Crowell
Receipt witnessed by:
--------------------------------
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