Employment Agreement - RedRoller Inc. and Jason T. Ordway
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 Jason T. Ordway ("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 Chief Information Officer
("CIO") 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 CIO 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 CIO of a corporation and such additional duties as may
reasonably be assigned to him from time to time by the Board of Directors of the
Company (the "Board") or by his direct report, which are consistent with his
position as CIO of a corporation. 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, provided such
service
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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 one year periods, unless the either party notifies
notifies the other in writing, within thirty (30) days after the date which is
one year prior to the expiration of the Agreement period, that the such party
does not wish to renew this 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 and Bonus. During the Term of this Agreement, the
Company shall pay Executive a base salary of One Hundred and Eighty Thousand
dollars ($180,000) 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"), in conjunction with Executive's direct report, will
review Executive's Base Salary and bonus 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
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operation, and other relevant or associated factors. In addition to the base
salary, Executive shall be eligible to receive a quarterly bonus of Ten Thousand
Dollars ($10,000), based on written performance objectives defined by
Executive's direct report and countersigned by a member of the Board or as
approved by the compensation committee thereof, any such bonus payment to be
approved in writing by Executive's direct report and countersigned by a member
of the Board or as approved by the compensation committee thereof, and paid
within thirty days of the end of each quarter.
4. Benefits.
A. Vacation. Executive shall be entitled to three (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 one (1) week 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 $5,000. 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
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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.
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 a majority
vote of the Board in which case
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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 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:
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(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:
(i) The Company shall, subject to the provisions of
Section 7.C. below, pay Executive a severance payment equal to two (2)
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. 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
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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 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
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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 three (3) years after the later of the date of his cessation of
employment with the Company, or the last date on which he is 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 only for the
period set forth above, 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.
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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 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.
Notwithstanding, any provision in this non-disclosure paragraph to the contrary,
unless the Company suffers an actual loss from a disclosure by the Executive,
such disclosure shall not be actionable. Further, any claim under this provision
must be instituted within three years after the termination of this agreement.
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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, 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
(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
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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. 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, if 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
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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. 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, may 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
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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.
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:
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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
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,
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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 financial or other 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 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. Notwithstanding any other
provision in this definition of benefits continuation to the contrary, the
Company shall pay for all
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benefits to be continued at the same level as of the date of termination and for
the period of benefit continuation.
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
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 significant reduction in
the position or authority of the Executive, 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
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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.
F. "Direct Report" or "direct report" shall mean the Chief
Executive Officer of the Company.
18. Limitation on claims. Not with standing, any provision in this
agreement to the contrary including but not limited to the sections 8 through 12
unless Company suffers any actual material loss as a result of any action by the
Executive no claim shall be made against Executive. Further, any claim under
this provision must be instituted within two years after the termination of this
agreement.
19. Health Insurance. It is recognized that Executive is entitled to
health insurance and that full coverage for executive and his family shall be
made available commencing January 1, 2008 and thereafter and for all purposes
under this agreement it shall be deemed that executive had health insurance
benefit as of the date of execution hereof. Meaning and intending to accord
executive with benefits continuation at the cost and expense of the Company
after termination of this agreement whenever applicable.
20. 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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21. 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/ Robert J. Crowell
---------------------------
Name: Robert J. Crowell
Title: Chairman of Board
"Executive"
/s/ Jason T. Ordway
-------------------------------
Jason T. Ordway
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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 Jason T. Ordway ("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
<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 Jason T. Ordway
Execution witnessed by:
AGREED TO AND ACCEPTED BY
THE COMPANY
RedRoller, Inc.
--------------------------------
Date of Execution by the Company
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
Execution witnessed by:
--------------------------------
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RECEIPT ACKNOWLEDGED BY
EXECUTIVE
---------------------------- --------------------------------
Date of Receipt by Executive Jason T. Ordway
Receipt witnessed by:
--------------------------------
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