Employment Agreement - RedRoller Inc. and William Van Wyck
EMPLOYMENT AGREEMENT
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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 William Van Wyck ("Executive"). Certain
capitalized terms used herein shall have the meanings set forth in Section 18
below.
WITNESSETH:
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WHEREAS, the Company has determined that it is in its best interests to
insure the continued employment of Executive as the President and Chief
Executive Officer/Chairman 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 President and Chief
Executive Officer 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 President and
Chief Executive Officer 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"), which are consistent with his position as President and Chief
Executive Officer 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 does not significantly interfere with the confidentiality provisions or
performance of his duties hereunder.
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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 and Bonus. During the Term of this Agreement, the
Company shall pay Executive a base salary of $220,000 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 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 operation, and other
relevant or associated factors. In
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addition to the base salary, Executive shall receive a quarterly bonus of
Fifteen Thousand Dollars ($15,000), based on written performance objectives
defined by the Board or compensation committee thereof, to be paid within thirty
days of the end of each quarter. This bonus shall be paid to Executive each
quarter, even if performance objectives are not in place, unless the Board or
compensation committee thereof, votes to withhold or cancel such individual
bonus payment due to Executive's performance.
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
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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 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.
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(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 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. 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
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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
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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 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.
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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.
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
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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
(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
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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, 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.
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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, 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
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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:
A. "Change of Control" shall mean the occurrence of any one of the
following events:
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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, 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
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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 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
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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 reduction in Base Salary or 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 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
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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.
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/ Robert Crowell
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Name: Robert Crowell
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Title: Chairman of the Board
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"Executive"
/s/ William Van Wyck
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William Van Wyck
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EXHIBIT A
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RELEASE AGREEMENT
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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 William Van Wyck ("Executive").
WITNESSETH:
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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
A-1
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as a 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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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
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Date of Execution by Executive William Van Wyck
Execution witnessed by:
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AGREED TO AND ACCEPTED BY THE
-----------------------------
COMPANY
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RedRoller, Inc.
-----------------------------------
Date of Execution by the Company
By:
--------------------------------
Name:
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Title:
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Execution witnessed by:
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================================================================================
RECEIPT ACKNOWLEDGED BY EXECUTIVE
---------------------------------
----------------------------------- -----------------------------------
Date of Receipt by Executive William Van Wyck
Receipt witnessed by:
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