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8-K - FORM 8-K - Archrock, Inc. | h84209e8vk.htm |
Exhibit 10.1
SEVERANCE BENEFIT AGREEMENT
THIS SEVERANCE BENEFIT AGREEMENT (this Agreement) is made and entered into effective as
of August 11, 2011 (the Effective Date), by and between Exterran Holdings, Inc., a Delaware
corporation (the Company) and _______________ (the Employee).
W I T N E S S E T H:
WHEREAS, the Employee is employed as the _______________ of [the Company] [_______________, an
affiliate of the Company]; and
WHEREAS, the Company and the Employee mutually desire to arrange for the Employees separation
from employment with the Company and all Company affiliates in certain circumstances;
NOW, THEREFORE, in consideration of the premises, the terms and provisions set forth herein,
the mutual benefits to be gained by the performance thereof and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Term. This Agreement shall begin on the Effective Date and shall continue until
August 15, 2013 plus, in the event of the Employees Qualifying Termination of Employment for Good
Reason, any additional time period necessitated by the Companys right to cure as set forth in the
definition of Good Reason (the Term). This Agreement shall automatically terminate as of the
last day of the Term or, if earlier, the date of the Employees termination of employment with the
Company and all of its affiliates (Termination Date). Termination of this Agreement shall not
alter or impair any rights of the Employee arising under this Agreement on or prior to such
termination.
2. Qualifying Termination of Employment. If the Employee incurs a Qualifying
Termination of Employment during the Term, the Employee shall be entitled to the benefits provided
in Section 3 hereof, subject to the terms and conditions of this Agreement. If the Employees
employment terminates for any reason other than for a Qualifying Termination of Employment during
the Term, then the Employee shall not be entitled to any benefits under this Agreement.
For purposes of this Agreement:
(a) A Qualifying Termination of Employment shall mean a termination of the Employees
employment with the Company (and all of its affiliates) during the Term either (i) by the
Company other than for Cause or (ii) by the Employee for a Good Reason. The Employees
death or Disability during the Term shall not constitute a Qualifying Termination of
Employment.
(b) Cause shall mean the Companys termination of the Employees employment due to
one of the following reasons:
(i) | the commission by the Employee of an act of fraud, embezzlement or willful breach of a fiduciary duty to the Company or an affiliate (including the unauthorized disclosure of confidential or proprietary material information of the Company or an affiliate); | ||
(ii) | a conviction of the Employee (or a plea of nolo contendere in lieu thereof) for a felony or a crime involving fraud, dishonesty or moral turpitude; | ||
(iii) | willful failure of the Employee to follow the written directions of the Board of Directors of the Company (the Board); | ||
(iv) | willful failure of the Employee to render services to the Company or an affiliate in accordance with the Employees employment arrangement, which failure amounts to a material neglect of the Employees duties to the Company or an affiliate; or | ||
(v) | the Employees substantial dependence, as determined in the sole discretion of the Board, on any drug, immediate precursor or other substance listed on Schedule IV of the Federal Comprehensive Drug Abuse Prevention and Control Act of 1970, as amended. |
(c) Good Reason shall mean the occurrence of any of the following events without the
Employees express written consent:
(i) | A diminution in the Employees title, duties or responsibilities in effect as of the Effective Date or a permanent change in the Employees duties or responsibilities which are inconsistent with either the type of duties and responsibilities of the Employee or the Employees title as of the Effective Date, but excluding any such change that is in conjunction with and consistent with a promotion of the Employee; | ||
(ii) | a reduction in the Employees then current base salary; | ||
(iii) | a reduction in the Employees then current annual target bonus percentage of base salary; | ||
(iv) | a reduction in the Employees employee benefits (without regard to bonus compensation, if any) if such reduction results in the Employee receiving benefits which are, in the aggregate, materially less than the benefits received by other comparable employees of the Company generally; | ||
(v) | the Employees being required to be based at any other office or location of employment more than 50 miles from the Employees primary office or location of employment as of the Effective Date (other than in the case of repatriation); or | ||
(vi) | willful failure by the Company to pay any compensation to the Employee when due; |
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provided, however, that, Good Reason shall not exist with respect to such an event unless
the Employee provides the Company a written notice of termination that sets forth in
reasonable detail the facts and circumstances supporting the occurrence of such event within
30 days of the date of first occurrence of such event. If the Employee fails to provide
such notice of termination timely, the Employee shall be deemed to have waived all rights
the Employee may have under this Agreement with respect to such event. The Company shall
have 30 business days from the date of such notice of termination to cure the event. If the
Company cures the event, such notice of termination shall be deemed rescinded. If the
Company fails to cure the event timely, the Employee shall be deemed to have terminated for
Good Reason at the end of such 30-day cure period.
3. Severance and Other Entitlements. In consideration for the Employees execution of
this Agreement, including the provisions in Section 4 of this Agreement, and subject to the
execution of the Waiver and Release attached hereto as Attachment A (the Waiver), without
revocation (as described in Section 3(e) below), the Company and the Employee agree as follows:
(a) Accrued Obligations. The Company shall pay to the Employee his base salary
earned but unpaid, his earned but unused vacation days and any unreimbursed business
expenses (the Accrued Obligations), as of the date of the Qualifying Termination of
Employment (the Separation Date), in accordance with its normal payroll practice, but in
no event later than 30 days following the Separation Date.
(b) Severance Payment. The Company shall pay the Employee a lump sum amount
equal to the Severance Payment on the 35th day after the Separation Date, subject
to the Waiver requirement described in Section 3(e) below. The Severance Payment shall be
the sum of:
(i) | the sum of (A) the Employee annual rate of base salary (without regard to bonus compensation) as in effect immediately prior to the Separation Date, plus (B) the amount of Employees annual incentive award opportunity calculated as a percentage of his annual base salary for the year in which the Separation Date occurs at the target percent (the Incentive Opportunity) (not prorated); plus |
(ii) | the product of (A) the Employees Incentive Opportunity for the year in which the Separation Date occurs, prorated to the Separation Date, multiplied by the greater of (B)(i) 50% or (ii) the actual performance percentage achieved as of the Separation Date under the Companys annual short term incentive plan then in effect (as determined by the Company). |
(c) Equity. The Employees outstanding restricted stock, restricted stock
units and 2010 performance shares granted under the Amended and Restated Exterran Holdings,
Inc. 2007 Stock Incentive Plan (2007 SIP) and, subject to the consent of the Compensation
Committee of the Board of Directors of Exterran GP LLC, outstanding phantom units granted
under the Exterran Partners, L.P. Long-Term Incentive Plan that would have vested during the
twelve (12)-month period beginning immediately following
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the Separation Date and ending on the first (1st) anniversary of the
Separation Date will be fully vested as of the Separation Date and paid or delivered in
accordance with the terms of the applicable award agreements. With respect to the
Employees 2010 performance share award, if any, granted under the 2007 SIP, if the
Separation Date occurs on or prior to March 4, 2012, then the Company will pay the Employee
a lump cash sum payment on the 35th day after the Separation Date equal to the
closing price of a share of Exterran Holdings, Inc. common stock (Common Stock) multiplied
by one-half of the number of shares of Common Stock awarded to the Employee pursuant to the
award agreement.
(d) Medical Benefits. During the period commencing on the Separation Date and
ending on the earlier of (i) the first (1st) anniversary of the Separation Date
or (ii) the date the Employee and his eligible dependents are eligible for coverage under
the medical plan of a subsequent employer of the Employee, the Employee and his eligible
dependents will be eligible to continue to be covered under the Companys medical plan and,
if eligible, the Medical Expense Reimbursement Plan (MERP) as each is in effect during
such period, subject to the Employees timely payment of the plan premiums, at the active
employee rates as in effect from time to time during such period. (For the avoidance of
doubt, if the Employee and his eligible dependents become eligible for coverage under the
medical plan of the Employees subsequent employer, then as of the date of such eligibility
the Employees coverage under the MERP, if eligible for such coverage, will cease.) The
foregoing notwithstanding, the Company may amend, modify or terminate either plan, without
the consent of the Employee. The parties further agree that any such action by the Company
(including the termination of the MERP) will not be a breach of this Agreement by the
Company nor will it entitle the Employee to any payment or replacement benefits. The
Employee acknowledges that the portion of the premiums paid by the Company (or an affiliate
of the Company) is taxable income to the Employee and the Company (or an affiliate) will
report such portion of the premiums as imputed income to the Employee on the applicable IRS
tax reporting forms.
(e) Waiver. The foregoing to the contrary notwithstanding, the Employees
entitlement to the payment and benefits described in this Section 3, other than the Accrued
Obligations provided in Section 3(a) and the payments and entitlements described in Section
3(f) hereof (solely for purposes of this Section 3(e), the Excluded Payments), are subject
to, and contingent upon the Employees binding execution, without revocation during the
seven-day revocation period following execution, of the Waiver within 30 days of the
Separation Date (but not before the Separation Date). The parties hereto acknowledge that
the consideration to be provided under this Section 3 includes, in part, consideration for
the Waiver. The Companys obligation to make any payments otherwise due under this Section
3, other than the Excluded Payments, shall cease in the event the Employee fails to execute
the Waiver within the time period set forth herein, and thus the Employee shall not be
entitled to any of the payments and entitlements provided in this Section 3 other than the
Excluded Payments. No payments shall be made until the expiration of the seven-day
revocation period following the Employees execution of the Waiver (the Waiver Effective
Date). Regardless of whether the Employee executes the Waiver, the Employee is entitled to
elect COBRA coverage under the Companys group health plan continuation coverage for himself
and
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his covered dependents, subject to the Employees payment of the full COBRA cost and
without any reimbursement by the Company of any portion of that cost.
(f) Other Benefits. Nothing herein shall be deemed to affect the Employees
rights to any accrued and/or vested benefits as of the Separation Date, including, without
limitation, pursuant to any deferred compensation plan or program, the Companys Employee
Stock Purchase Plan or the Companys 401(k) plan, in accordance with the terms and
conditions of the applicable agreements, plans and programs for such benefits. The parties
acknowledge and agree that the Severance Payment is not eligible compensation for purposes
of the Companys 401(k) plan (and thus is not eligible for a matching contribution
thereunder).
4. Nondisparagement Covenant. The Employee, acting alone or in concert with others,
agrees that from and after the Separation Date he will not publicly criticize or disparage the
Company, or privately criticize or disparage the Company in a manner intended or reasonably
calculated to result in public embarrassment to, or injury to the reputation of, the Company;
provided, however, that nothing in this Agreement shall apply to or restrict in any way the
communication of information by the Employee to any state or federal law enforcement or regulatory
agency or any legislative or regulatory committee or require notice to the Company thereof.
5. Return of Property. On or immediately following the Separation Date, the Employee
shall promptly return all Property (as hereinafter defined) which had been entrusted or made
available to the Employee by the Company; provided that if such Property is in electronic form the
Employee shall be deemed to comply with this Section 5 if he deletes such Property from his
computers. The term Property shall mean all records, files, memoranda, reports, keys, codes,
computer hardware and software, documents, videotapes, written presentations, brochures, drawings,
notes, correspondence, manuals, models, specifications, computer programs, e-mail, voice mail,
electronic databases, maps, drawings, architectural renditions and all other writings or materials
of any type and other property of any kind or description (whether in electronic or other form)
prepared, used or possessed by the Employee during his employment by the Company (and any
duplicates of any such property) together with any and all information, ideas, concepts,
discoveries, and inventions and the like conceived, made, developed or acquired at any time by the
Employee individually or with others during his employment which relate to the Companys business,
products or services.
6. Post-Separation Date Assistance. Following the Separation Date, the Employee
agrees that he will reasonably and appropriately respond to all inquiries from the Company relating
to any current or future litigation of which he may have relevant information, and shall make
himself reasonably available to confer with the Company and otherwise provide testimony as the
Company may deem necessary in connection with such litigation, subject in all cases to his other
business and personal commitments. Such assistance shall not exceed 5 days per year and shall be
provided by the Employee without remuneration, but the Company shall pay or reimburse the Employee
for all reasonable expenses actually incurred or paid by the Employee in complying with this
Section 6 upon the presentation of expense statements or vouchers or such other supporting
information as the Company may reasonably require of the Employee.
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7. Assignment. This Agreement and all of the Companys rights and obligations
hereunder shall not be assignable by the Company without the Employee prior written consent except
as incident to a reorganization, merger or consolidation, or transfer of all or substantially all
of the Companys assets. The Employee may not assign this Agreement or any of his rights and
obligations under this Agreement without the prior written consent of the Company. Subject to the
foregoing, this Agreement shall be binding on, and inure to the benefit of, the Company and the
Employee and their respective successors and assigns.
8. No Waiver. No term or condition of this Agreement shall be deemed to have been
waived, nor shall there be an estoppel against the enforcement of any provision of this Agreement,
except by written instrument of the party charged with such waiver or estoppel.
9. Arbitration. Any dispute, controversy or claim arising out of or relating to the
obligations under this Agreement, shall be settled by final and binding arbitration in accordance
with the American Arbitration Association Employment Dispute Resolution Rules. The arbitrator
shall be selected by mutual agreement of the parties, if possible. If the parties fail to reach
agreement upon appointment of an arbitrator within 30 days following receipt by one party of the
other partys notice of desire to arbitrate, the arbitrator shall be selected from a panel or
panels submitted by the American Arbitration Association (the AAA). The selection process shall
be that which is set forth in the AAA Employment Dispute Resolution Rules, except that, if the
parties fail to select an arbitrator from one or more panels, AAA shall not have the power to make
an appointment but shall continue to submit additional panels until an arbitrator has been
selected. Either party may appeal the arbitration award and judgment thereon and, in actions
seeking to vacate an award, the standard of review to be applied to the arbitrators findings of
fact and conclusions of law will be the same as that applied by an appellate court reviewing a
decision of a trial court sitting without a jury. This agreement to arbitrate shall not preclude
the parties from engaging in voluntary, non-binding settlement efforts including mediation. All
fees and expenses of the arbitration, including a transcript if requested but not including the
legal costs and fees incurred by any party to such arbitration, will be borne by the parties
equally. Each party shall be responsible for its own legal costs and fees.
10. Notices. All notices or communications hereunder shall be in writing, addressed
as follows:
To the Company: | ||||
Exterran Holdings, Inc. | ||||
16666 Northchase Drive | ||||
Houston, TX 77060 | ||||
Attention: General Counsel | ||||
To the Employee: | ||||
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All such notices shall be conclusively deemed to be received and shall be effective: (i) if sent by
hand delivery or by overnight delivery service, upon receipt, (ii) if sent by telecopy or facsimile
transmission, upon confirmation of receipt by the sender of such transmission or (iii) if sent by
registered or certified mail, on the fifth (5th) day after the day on which such notice
is mailed.
11. At Will Employment. Nothing in this Agreement modifies the nature of the
employment relationship between the Company and its affiliates and the Employee which continues to
be an at will relationship.
12. Tax Withholding. The Company may withhold from any amounts payable under this
Agreement all federal, state, city or other taxes that will be required pursuant to any law or
governmental regulation or ruling.
13. Severability. If any provision of this Agreement is held to be invalid, illegal
or unenforceable, in whole or part, such invalidity will not affect any otherwise valid provision,
and all other valid provisions will remain in full force and effect.
14. Counterparts. This Agreement may be executed in two or more counterparts, each of
which will be deemed an original, and all of which together will constitute one document.
15. Titles. The titles and headings preceding the text of the paragraphs and
subparagraphs of this Agreement have been inserted solely for convenience of reference and do not
constitute a part of this Agreement or affect its meaning, interpretation or effect.
16. Governing Law. This Agreement will be construed and enforced in accordance with
the laws of the State of Texas.
17. Venue. Except as provided in Section 9, any suit, action or other legal
proceeding arising out of this Agreement shall be brought in the United States District Court for
the Southern District of Texas, Houston Division, or, if such court does not have jurisdiction or
will not accept jurisdiction, in any court of general jurisdiction in Harris County, Texas. Each
of the Employee and the Company consents to the jurisdiction of any such court in any such suit,
action, or proceeding and waives any objection that it may have to the laying of venue of any such
suit, action, or proceeding in any such court.
18. Section 409A. Payments pursuant to this Agreement are intended to comply with or
be exempt from Section 409A of the Code and accompanying regulations and other binding guidance
promulgated thereunder (Section 409A), and the provisions of this Agreement will be administered,
interpreted and construed accordingly. Whenever payments under this Agreement are to be made in
installments, each such installment shall be deemed to be a separate payment for purposes of
Section 409A.
All reimbursements provided under this Agreement shall be made or provided in accordance with
the requirements of Section 409A, including, where applicable, the requirement that (i) any
reimbursement shall be for expenses incurred during the Employees lifetime (or during a shorter
period of time specified in this Agreement), (ii) the amount of expenses eligible for reimbursement
during a calendar year may not affect the expenses eligible for reimbursement in any other calendar
year, (iii) the reimbursement of an eligible expense will be made on or
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before the last day of the calendar year following the year in which the expense is incurred,
and (iv) the right to reimbursement is not subject to liquidation or exchange for another benefit.
Notwithstanding any provision of this Agreement to the contrary, the Company and the Employee
agree that any benefit or benefits under this Agreement that the Company determines are subject to
the suspension period under Section 409A(a)(2)(B) of the Code shall not be paid or commence until
the first business day next following the earlier of (i) the date that is six (6) months and one
day following the date of the Employees termination of employment, (ii) the date of the Employees
death or (iii) such earlier date as complies with the requirements of Section 409A.
19. Entire Agreement. Each party acknowledges that this Agreement is the complete and
exclusive statement of the agreement between the parties regarding the subject matter herein and
supersedes any other oral or written agreements between the parties with respect to the subject
matter hereof; provided, however, that the Change of Control Agreement between the Company and the
Employee dated ______________ (the Change of Control Agreement) shall remain in full force and
effect through the Separation Date (and if there is a Qualifying Termination of Employment under
the Change of Control Agreement, then the Change of Control Agreement shall apply in lieu of this
Agreement (and this Agreement shall be of no further force and effect)). This Agreement may not be
modified or altered except by a written instrument duly executed by both parties.
[Execution Page Follows]
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IN WITNESS WHEREOF, the parties have executed this Agreement in multiple counterparts, all of
which shall constitute one agreement, effective as of the Effective Date.
EXTERRAN HOLDINGS, INC. | ||||||
By: | ||||||
EMPLOYEE | ||||||
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Attachment A
WAIVER AND RELEASE
In exchange for the consideration offered under the Severance Benefit Agreement between me and
Exterran Holdings, Inc. (the Company), dated effective ____________, 2011 (the Agreement), I
hereby waive all of my claims and release the Company, any affiliate, subsidiary or venture of the
Company, including, but not limited to, Exterran Partners, LP and Exterran GP LLC, and any of their
respective officers, directors, employees, partners, investors, counsel or agents, their benefit
plans and the fiduciaries and agents of said plans (collectively referred to as the Corporate
Group) from any and all claims, demands, actions, liabilities and damages.
I understand that signing this Waiver and Release is an important legal act. I acknowledge
that the Company has advised me in writing to consult an attorney before signing this Waiver and
Release. I understand that I have at least 21 calendar days to consider whether to sign and return
this Waiver and Release to the Company by first-class mail or by hand delivery in order for it to
be effective.
In exchange for the consideration offered to me by the Agreement, which I acknowledge provides
consideration to which I would not otherwise be entitled, I agree not to sue or file any charges of
discrimination, or any other action or proceeding with any local, state and/or federal agency or
court regarding or relating in any way to the Company with respect to the claims released by me
herein, and I knowingly and voluntarily waive all claims and release the Corporate Group from any
and all claims, demands, actions, liabilities, and damages, whether known or unknown, arising out
of or relating in any way to the Corporate Group, except with respect to rights under the
Agreement, rights under employee benefit plans or programs other than those specifically addressed
in the Agreement, and such rights or claims as may arise after the date this Waiver and Release is
executed. This Waiver and Release includes, but is not limited to, claims and causes of action
under: Title VII of the Civil Rights Act of 1964, as amended; the Age Discrimination in Employment
Act of 1967, as amended, including the Older Workers Benefit Protection Act of 1990; the Civil
Rights Act of 1866, as amended; the Civil Rights Act of 1991; the Americans with Disabilities Act
of 1990; the Energy Reorganization Act, as amended, 42 U.S.C. § 5851; the Workers Adjustment and
Retraining Notification Act of 1988; the Pregnancy Discrimination Act of 1978; the Employee
Retirement Income Security Act of 1974, as amended; the Family and Medical Leave Act of 1993; the
Fair Labor Standards Act; the Occupational Safety and Health Act; claims in connection with
workers compensation or whistle blower statutes; and/or contract, tort, defamation, slander,
wrongful termination or any other state or federal regulatory, statutory or common law. Further, I
expressly represent that no promise or agreement which is not expressed in the Agreement or this
Waiver and Release has been made to me in executing this Waiver and Release, and that I am relying
on my own judgment in executing this Waiver and Release, and that I am not relying on any statement
or representation of any member of the Corporate Group or any of their agents. I agree
that this Waiver and Release is valid, fair, adequate and reasonable, is with my full knowledge and
consent, was not procured through fraud, duress or mistake and has not had the effect of
misleading, misinforming or failing to inform me. I acknowledge and agree that the Company will
withhold any taxes required by law from the amount payable to me under the Agreement and that such
amount shall be reduced by any monies owed by me to the Company.
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This Waiver and Release includes a release of claims of discrimination or retaliation on the
basis of workers compensation status, but does not include workers compensation claims. Excluded
from this Waiver and Release are any claims which by law cannot be waived in a private agreement
between an employer and employee, including but not limited to claims under the Fair Labor
Standards Act and the right to file a charge with or participate in an investigation conducted by
the Equal Employment Opportunity Commission (EEOC) or any state or local fair employment
practices agency. I waive, however, the right to any monetary recovery or other relief should the
EEOC or any other agency pursue a claim on my behalf.
Notwithstanding the foregoing, I do not release and expressly retain (a) all rights to
indemnity, contribution, advancement of expenses and a defense, and directors and officers and
other liability coverage that I may have under any statute, the bylaws of the Company or by other
agreement; and (b) the right to any unpaid reasonable business expenses and any accrued benefits
payable under any Company welfare plan, tax-qualified plan or other Benefit Plans. For the
avoidance of doubt, the term Benefit Plans includes any outstanding equity awards under an equity
incentive plan, any deferred compensation plan, the Companys Employee Stock Purchase Plan and the
Companys 401(k) plan and the Severance Payment under the Agreement is not eligible compensation
for purposes of the Companys 401(k) plan (and thus is not eligible for a matching contribution
thereunder).
Should any of the provisions set forth in this Waiver and Release be determined to be invalid
by a court, agency or other tribunal of competent jurisdiction, it is agreed that such
determination shall not affect the enforceability of other provisions of this Waiver and Release.
I understand that for a period of seven calendar days following my signing this Waiver and
Release (the Waiver Revocation Period), I may revoke my acceptance of the offer by delivering a
written statement to the Company by hand or by registered mail, addressed to the address for the
Company specified in the Agreement, in which case the Waiver and Release will not become effective.
In the event I revoke my acceptance of this offer, the Company shall have no obligation to provide
me the consideration offered under the Agreement to which I would not otherwise have been entitled.
I understand that failure to revoke my acceptance of the offer within the Waiver Revocation Period
will result in this Waiver and Release being permanent and irrevocable.
I acknowledge that I have read this Waiver and Release, have had an opportunity to ask
questions, have it explained to me and had the opportunity to seek independent legal advice
with respect to the matters addressed in this Waiver and Release and that I understand
that this Waiver and Release will have the effect of knowingly and voluntarily waiving any action I
might pursue, including breach of contract, personal injury, retaliation, discrimination on the
basis of race, age, sex, national origin or disability and any other claims arising prior to the
date of this Waiver and Release, except for those claims specifically not released by me herein.
[Execution Page Follows]
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By execution of this document, I do not waive or release or otherwise relinquish any legal
rights I may have which are attributable to or arise out of acts, omissions or events of the
Company or any other member of the Corporate Group which occur after the date of execution of this
Waiver and Release.
AGREED TO AND ACCEPTED this
______ day of _______________, 201__
______ day of _______________, 201__
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