Transition and Release Agreement by and between Prestige Cruise Services LLC and Jason Montague, entered into on December 13, 2022
Exhibit 10.3
TRANSITION AND RELEASE AGREEMENT
THIS TRANSITION AND RELEASE AGREEMENT (this “Agreement”) is made and entered into this 13 day of December 2022, by and between Prestige Cruise Services LLC, a company organized under the laws of Delaware (the “Company”), and Jason M. Montague (the “Employee”).
RECITALS
THE PARTIES ENTER THIS AGREEMENT on the basis of the following facts, understandings and intentions:
A. The Employee was a party to an employment agreement dated September 16, 2016 (the “Original Agreement”) as amended by an amendment agreement dated February 14, 2022 (the “Amendment” and together, the “Prior Agreement”).
B. The Company desires to offer the Employee the benefits set forth in this Agreement and provide for the services of the Employee on the terms and conditions set forth in this Agreement.
C. This Agreement shall govern the employment relationship between the Employee and the Company and all of its affiliates from and after the date hereof, and supersedes and negates any previous agreements with respect to such relationship.
AGREEMENT
NOW, THEREFORE, in consideration of the above recitals incorporated herein and the mutual covenants and promises contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby expressly acknowledged, the parties agree as follows:
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(a) | Employee be entitled to the $2,000,000 retention bonus awarded to Employee in the letter agreement dated March 1, 2022 as of December 31, 2022 (the “Retention Bonus”), with such Retention Bonus to be paid on the next following payroll payment date following December 31, 2022. |
(b) | Employee will be entitled to continue to participate in the employee cruise benefits available to active employees at the Brand President level during the Post-Transition Period of Employment and following the Termination Date (the “Cruise Benefits,” and with the One-Time Equity Award, Retention Bonus and Cruise Benefits being referred to collectively as the “Transition Benefits”). |
(c) | Notwithstanding the foregoing provisions of this Section 5.3, if the Employee breaches Employee’s obligations under Section 6 of this Agreement at any time, from and after the date of such breach and not in any way in limitation of any right or remedy otherwise available to the Company, or the Employee fails to sign the Bring-Down Release (as defined below) or revokes such Bring-Down Release pursuant to any revocation rights afforded by applicable law, the Employee will no longer be entitled to, and the Company will no longer be obligated to pay, any remaining unpaid portion of the Transition Benefits, and to the extent that such Transition Benefits have already been paid, Employee will be required to repay the before tax value of such Transition Benefits to the Company; provided that, if the Employee provides the Bring-Down Release (as defined below) contemplated by Section 5.4, in no event shall the Employee be entitled to a Transition Benefit payment of less than $5,000, which amount the parties agree is good and adequate consideration, in and of itself, for the Employee’s Bring-Down Release contemplated by Section 5.4. |
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(a) | Employee, on behalf of Employee, Employee’s descendants, dependents, heirs, executors, administrators, assigns, and successors, and each of them, hereby covenants not to sue and fully releases and discharges the Company and each of its parents, subsidiaries and affiliates, past and present, as well as its and their trustees, directors, officers, members, managers, partners, agents, attorneys, insurers, employees, stockholders, representatives, assigns, and successors, past and present (and including, without limitation, any current or former President and Chief Executive Officer to whom Employee reported), and each of them, hereinafter together and collectively referred to as the “Releasees,” with respect to and from any and all claims, wages, demands, rights, liens, agreements or contracts (written or oral), covenants, actions, suits, causes of action, obligations, debts, costs, expenses, attorneys’ fees, damages, judgments, orders and liabilities of whatever kind or nature in law, equity or otherwise, whether now known or unknown, suspected or unsuspected, and whether or not concealed or hidden (each, a “Claim”), which he now owns or holds or he has at any time heretofore owned or held or may in the future hold as against any of said Releasees (including, without limitation, any Claim arising out of or in any way connected with Employee’s service as an officer, director, employee, member or manager of any Releasee, Employee’s separation from Employee’s position as an officer, director, employee, manager and/or member, as applicable, of any Releasee, or any other transactions, occurrences, acts or omissions or any loss, damage or injury whatever), whether known or unknown, suspected or unsuspected, resulting from any act or omission by or on the part of said Releasees, or any of them, committed or omitted prior to the date of this Agreement including, without limiting the generality of the foregoing, any Claim under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, the Americans with Disabilities Act, the Family and Medical Leave Act of 1993, or any other federal, state or local law, regulation, or ordinance, or any Claim for severance pay, equity compensation, bonus, sick leave, holiday pay, vacation pay, life insurance, health or medical insurance or any other fringe benefit, workers’ compensation or disability (the “Release”); provided, however, that the foregoing Release does not apply to any obligation of the Company to Employee pursuant to any of the following: (1) any equity-based awards previously granted by the Company or its affiliates to Employee, to the extent that such awards continue after the termination of Employee’s employment with the Company in accordance with the applicable terms of such awards (and subject to any limited period in which to exercise such awards following such termination of employment); (2) any right to indemnification that Employee may have pursuant to the Bylaws of the Company, its Articles of Incorporation or under any written indemnification agreement with the Company (or any corresponding provision of any subsidiary or affiliate of the Company) or |
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applicable state law with respect to any loss, damages or expenses (including but not limited to attorneys’ fees to the extent otherwise provided) that Employee may in the future incur with respect to Employee’s service as an employee, officer or director of the Company or any of its subsidiaries or affiliates; (3) with respect to any rights that Employee may have to insurance coverage for such losses, damages or expenses under any Company (or subsidiary or affiliate) directors and officers liability insurance policy; (4) any rights to continued medical or dental coverage that Employee may have under COBRA (or similar applicable state law); (5) any rights to payment of benefits that Employee may have under a retirement plan sponsored or maintained by the Company or its affiliates that is intended to qualify under Section 401(a) of the Internal Revenue Code of 1986, as amended. In addition, this Release does not cover any Claim that cannot be so released as a matter of applicable law. Employee acknowledges and agrees that he has received any and all leave and other benefits that he has been and is entitled to pursuant to the Family and Medical Leave Act of 1993; or (6) any rights, benefits, or other remuneration the Employee is entitled to under this Agreement. |
(b) | ADEA Waiver. Employee expressly acknowledges and agrees that by entering into this Agreement, Employee is waiving any and all rights or Claims that he may have arising under the Age Discrimination in Employment Act of 1967, as amended (the “ADEA”), which have arisen on or before the date of execution of this Agreement. Employee further expressly acknowledges and agrees that: |
(i) | In return for this Agreement, Employee will receive consideration beyond that which the Employee was already entitled to receive before entering into this Agreement; |
(ii) | Employee is hereby advised in writing by this Agreement to consult with an attorney before signing this Agreement; |
(iii) | Employee has voluntarily chosen to enter into this Agreement and has not been forced or pressured in any way to sign it; |
(iv) | Employee was given a copy of this Agreement on December 6, 2022 and informed that he had twenty one (21) days within which to consider this Agreement and that if he wished to execute this Agreement prior to expiration of such 21-day period, he should execute the Endorsement attached hereto; |
(v) | Employee was informed that he had seven (7) days following the date of execution of this Agreement in which to revoke this Agreement, and this Agreement will become null and void if Employee elects revocation during that time. Any revocation must |
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be in writing and must be received by the Company during the seven-day revocation period. In the event that Employee exercises Employee’s right of revocation, neither the Company nor Employee will have any obligations under this Agreement (including, without limitation, any obligations to pay or provide the Transition Benefits); |
(vi) | Nothing in this Agreement prevents or precludes Employee from challenging or seeking a determination in good faith of the validity of this waiver under the ADEA, nor does it impose any condition precedent, penalties or costs from doing so, unless specifically authorized by federal law. |
(c) | Upon or promptly following the Termination Date (and in any event within twenty-one (21) days following the Termination Date), Employee hereby agrees to execute an additional release in the same form as included in this Agreement in Exhibit A (the “Bring-Down Release”) in order to cover the Post-Transition Period of Employment. Employee hereby agrees that the Bring-Down Release will require Employee to acknowledge and agree that (subject to the Employee receiving all payments, benefits, and other remuneration the Employee is entitled to under this Agreement) Employee has received all amounts owed for Employee’s regular and usual salary (including, but not limited to, any overtime, bonus, accrued vacation, commissions, or other wages), reimbursement of expenses, sick pay and usual benefits. Employee acknowledges that the Company’s obligation to pay the Transition Benefits under Section 5.3 for the period following the Termination Date is subject to Employee’s execution of the Bring-Down Release and Employee not revoking the Bring-Down Release pursuant to any revocation rights afforded by applicable law. |
(d) | The Employee agrees that the payments and benefits contemplated by Section 5.3 shall constitute the exclusive and sole remedy for any termination of Employee’s employment, including Employee’s transition from his role as President and Chief Executive Officer, Regent Seven Seas Cruises to Special Advisor and the Employee covenants not to assert or pursue any other remedies, at law or in equity, with respect to any termination of employment. The Company and the Employee acknowledge and agree that there is no duty of the Employee to mitigate damages under this Agreement. All amounts paid to the Employee pursuant to Section 5.3 shall be paid without regard to whether the Employee has taken or takes actions to mitigate damages. The Employee agrees to resign, on the Transition Date, as an officer and director of the Company and any Affiliate of the Company, and as a fiduciary of any benefit plan of the Company or any Affiliate of the Company, and to promptly execute and provide to the Company any further documentation, as requested by the Company, to confirm such resignation. |
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(a) | As used herein, “Affiliate” of the Company means a Person that directly or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, the Company. As used in this definition, the term “control,” including the correlative terms “controlling,” “controlled by” and “under common control with,” means the possession, directly or indirectly, of the power to direct or cause the direction of management or policies (whether through ownership of securities or any partnership or other ownership interest, by contract or otherwise) of a Person. |
(b) | As used herein, “Cause” shall mean, as reasonably determined by the President and Chief Executive Officer, Norwegian Cruise Line Holdings Ltd. based on the information then known to him, that one or more of the following has occurred: |
(i) | the Employee has committed a felony (under the laws of the United States or any relevant state, or a similar crime or offense under the applicable laws of any relevant foreign jurisdiction), other than through vicarious liability not related to the Company or any of its Affiliates; |
(ii) | the Employee has engaged in acts of fraud, dishonesty or other acts of willful misconduct; |
(iii) | the Employee willfully fails to perform or uphold Employee’s duties under this Agreement and/or willfully fails to comply with reasonable directives of the Board and/or President and Chief Executive Officer, Norwegian Cruise Line Holdings Ltd., in either case after there has been delivered to the Employee a written demand for performance from the Company and the Employee fails to remedy such condition(s) within ten (10) days of receiving such written notice thereof; or |
(iv) | any breach by the Employee of the provisions of Section 6, or any material breach by the Employee of any other contract he is a party to with the Company or any of its Affiliates. |
(c) | As used herein, “Disability” shall mean a physical or mental impairment which, as reasonably determined by the Board, renders the Employee unable to perform the essential functions of Employee’s employment with the Company, even with reasonable accommodation that does not impose an undue hardship on the Company, for more than 90 days in any 180-day period, unless a longer period is required by federal or state law, in which case that longer period would apply. |
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(d) | As used herein, the term “Person” shall be construed broadly and shall include, without limitation, an individual, a partnership, a limited liability company, a corporation, an association, a joint stock company, a trust, a joint venture, an unincorporated organization and a governmental entity or any department, agency or political subdivision thereof. |
(e) | As used herein, a “Separation from Service” occurs when the Employee dies, retires, or otherwise has a termination of employment with the Company that constitutes a “separation from service” within the meaning of Treasury Regulation Section 1.409A-1(h)(1), without regard to the optional alternative definitions available thereunder. Employee and the Company hereby agree that if Employee remains employed through the Termination Date, Employee’s Separation from Service shall occur on the Termination Date. |
(a) | If the Employee is a “specified employee” within the meaning of Treasury Regulation Section 1.409A-1(i) as of the date of the Employee’s Separation from Service, the Employee shall not be entitled to any additional payment or benefit pursuant to Sections 5.3 until the earlier of (i) the date which is six (6) months after Employee’s Separation from Service for any reason other than death, or (ii) the date of the Employee’s death. The provisions of this paragraph shall only apply if, and to the extent, required to avoid the imputation of any tax, penalty or interest pursuant to Section 409A of the Code. For purposes of clarity, the six (6) month delay shall not apply in the case of any short-term deferral as contemplated by Treasury Regulation Section 1.409A-1(b)(4) or severance pay contemplated by Treasury Regulation Section 1.409A-1(b)(9)(iii) to the extent of the limits set forth therein. Any amounts otherwise payable to the Employee upon or in the six (6) month period following the Employee’s Separation from Service that are not so paid by reason of this Section 5.7(a) shall be paid (without interest) as soon as practicable (and in all events within thirty (30) days) after the date that is six (6) months after the Employee’s Separation from Service (or, if earlier, as soon as practicable, and in all events within thirty (30) days, after the date of the Employee’s death). |
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(b) | To the extent that any benefits pursuant to Sections 5.3 or reimbursements pursuant to Section 4.2 are taxable to the Employee, any reimbursement payment due to the Employee pursuant to any such provision shall be paid to the Employee on or before the last day of the Employee’s taxable year following the taxable year in which the related expense was incurred. The benefits and reimbursements pursuant to Section 5.3 and Section 4.2 are not subject to liquidation or exchange for another benefit and the amount of such benefits and reimbursements that the Employee receives in one taxable year shall not affect the amount of such benefits or reimbursements that the Employee receives in any other taxable year. |
(c) | Any installment payments provided for in this Agreement shall be treated as separate payments for purposes of Section 409A of the Code. This Agreement is intended to comply with the requirements of Section 409A of the Code and shall be interpreted consistent with this intent so as to avoid the imputation of any tax, penalty or interest pursuant to Section 409A of the Code. |
(a) | The Employee shall not disclose or use at any time, either during the Period of Employment or thereafter, any Confidential Information (as defined below) of which the Employee is or becomes aware, whether or not such information is developed by Employee, except to the extent that such disclosure or use is directly related to and required by the Employee’s performance in good faith of duties for the Company. The Employee will take all appropriate steps to safeguard Confidential Information in Employee’s possession and to protect it against disclosure, misuse, espionage, loss and theft. The Employee shall deliver to the Company at the Termination Date, or at any time the Company may request, all memoranda, notes, plans, records, reports, computer tapes and software and other documents and data (and copies thereof) relating to the Confidential Information or the Work Product (as hereinafter defined) of the business of the Company or any of its Affiliates which the Employee may then possess or have under Employee’s control. Notwithstanding the foregoing, the Employee may truthfully respond to a lawful and valid subpoena or other legal process, but shall give the Company the earliest possible notice thereof, shall, as much in advance of the return date as possible, make available to the Company and its counsel the documents and other information sought, and shall assist the Company and such counsel in resisting or otherwise responding to such process. Nothing in this Agreement prohibits Employee from reporting possible violations of federal law or regulation to any governmental agency or entity, or making other disclosures that are protected under the whistleblower provisions of federal law or regulation. Employee does not need the prior authorization |
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to make any such reports or disclosures and is not required to notify the Company of such reports or disclosures. In accordance with the Defend Trade Secrets Act of 2016, Employee will not be held criminally or civilly liable under any federal or state trade secret law or this Agreement for the disclosure of a trade secret that: (1) is made (i) in confidence to a federal, state or local government official, either directly or indirectly, or to an attorney and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (2) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual files any document containing the trade secret under seal, and does not disclose the trade secret, except pursuant to court order. Employee shall not be required to give prior notice to (or get prior authorization from) the Company regarding any such communication or disclosure. |
(b) | As used in this Agreement, the term “Confidential Information” means information that is not generally known to the public and that is used, developed or obtained by the Company or its Affiliates in connection with their businesses, including, but not limited to, information, observations and data obtained by the Employee while employed by the Company or any predecessors thereof (including those obtained prior to the date of this Agreement) concerning (i) the business or affairs of the Company (or such predecessors), (ii) products or services, (iii) fees, costs and pricing structures, (iv) designs, (v) analyses, (vi) drawings, photographs and reports, (vii) computer software, including operating systems, applications and program listings, (viii) flow charts, manuals and documentation, (ix) data bases, (x) accounting and business methods, (xi) inventions, devices, new developments, methods and processes, whether patentable or unpatentable and whether or not reduced to practice, (xii) customers and clients and customer or client lists, (xiii) other copyrightable works, (xiv) all production methods, processes, technology and trade secrets, and (xv) all similar and related information in whatever form. Confidential Information will not include any information that has been published (other than a disclosure by the Employee in breach of this Agreement) in a form generally available to the public prior to the date the Employee proposes to disclose or use such information. Confidential Information will not be deemed to have been published merely because individual portions of the information have been separately published, but only if all material features comprising such information have been published in combination. |
(c) | As used in this Agreement, the term “Work Product” means all inventions, innovations, improvements, technical information, systems, software developments, methods, designs, analyses, drawings, reports, service |
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marks, trademarks, trade names, logos and all similar or related information (whether patentable or unpatentable, copyrightable, registerable as a trademark, reduced to writing, or otherwise) which relates to the Company’s or any of its Affiliates’ actual or anticipated business, research and development or existing or future products or services and which are conceived, developed or made by the Employee (whether or not during usual business hours, whether or not by the use of the facilities of the Company or any of its Affiliates, and whether or not alone or in conjunction with any other person) while employed by the Company (including those conceived, developed or made prior to the date this Agreement is signed) together with all patent applications, letters patent, trademark, trade name and service mark applications or registrations, copyrights and reissues thereof that may be granted for or upon any of the foregoing. All Work Product that the Employee may have discovered, invented or originated during Employee’s employment by the Company or any of its Affiliates prior to the date this Agreement is signed or that he may discover, invent or originate during the Period of Employment under this Agreement or the Prior Agreement or at any time prior to the Termination Date, shall be the exclusive property of the Company and its Affiliates, as applicable, and Employee hereby assigns all of Employee’s right, title and interest in and to such Work Product to the Company or its applicable Affiliate, including all intellectual property rights therein. Employee shall promptly disclose all Work Product to the Company, shall execute at the request of the Company any assignments or other documents the Company may deem necessary to protect or perfect its (or any of its Affiliates’, as applicable) rights therein, and shall assist the Company, at the Company’s expense, in obtaining, defending and enforcing the Company’s (or any of its Affiliates’, as applicable) rights therein. The Employee hereby appoints the Company as Employee’s attorney-in-fact to execute on Employee’s behalf any assignments or other documents deemed necessary by the Company to protect or perfect the Company’s (and any of its Affiliates’, as applicable) rights to any Work Product. |
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(a) | This Agreement is personal to the Employee and without the prior written consent of the Company shall not be assignable by the Employee otherwise than by will or the laws of descent and distribution. This Agreement shall inure to the benefit of and be enforceable by the Employee’s legal representatives. |
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(b) | This Agreement shall inure to the benefit of and be binding upon the Company and its successors and assigns. Without limiting the generality of the preceding sentence, the Company will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Company to assume expressly and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform it if no such succession had taken place. As used in this Agreement, “Company” shall mean the Company as hereinbefore defined and any successor or assignee, as applicable, which assumes and agrees to perform this Agreement by operation of law or otherwise. |
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if to the Company:
Prestige Cruise Services LLC
7665 Corporate Center Drive
Miami, FL 33126
Attn: Executive Vice President and Chief Talent Officer
with a copy to:
Prestige Cruise Services LLC
7665 Corporate Center Drive
Miami, FL 33126
Attn: Executive Vice President and General Counsel
if to the Employee, to the address most recently on file in the payroll records of the Company.
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(Signature Page to Follow)
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IN WITNESS WHEREOF, the Company and the Employee have executed this Agreement as of the date hereof.
“COMPANY”
Prestige Cruise Services LLC
a company organized under the laws of Delaware
By: /s/Lynn White
Name: Lynn White
Title: Executive Vice President, Chief Talent Officer
“EMPLOYEE”
/s/Jason Montague
Jason Montague
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ENDORSEMENT
I, Jason Montague, hereby acknowledge that I was given 21 days to consider the foregoing Agreement and voluntarily chose to sign the Agreement prior to the expiration of the 21-day period.
I declare under penalty of perjury under the laws of the United States and the State of Florida that the foregoing is true and correct.
EXECUTED this 8 day of December 2022.
/s/Jason Montague
Print Name: Jason Montague
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Exhibit A
FORM OF BRING-DOWN RELEASE AGREEMENT
This Bring-Down Release Agreement (this “Release Agreement”) is entered into this ___ day of ___________ 20__, by and between Jason Montague, an individual (“Employee”), and Prestige Cruise Services LLC, a company organized under the laws of Delaware (the “Company”).
WHEREAS, Employee has been employed by the Company or one of its subsidiaries; and
WHEREAS, Employee’s employment by the Company or one of its subsidiaries has terminated and Employee is required to enter into this Release Agreement upon the terms set forth herein pursuant to the Employee’s Transition and Release Agreement with the Company, dated as of [______________] (the “Transition and Release Agreement”) in order to receive the Transition Benefits provided for under the Transition and Release Agreement;
NOW, THEREFORE, in consideration of the covenants undertaken, benefits provided and the releases contained in this Release Agreement, and in consideration of the obligations of the Company to pay transition and other benefits (conditioned upon this Release Agreement) under and pursuant to the Transition and Release Agreement, Employee and the Company agree as follows. Capitalized terms used in this Release Agreement without definition shall have the same meanings as in the Transition and Release Agreement.
1.Termination of Employment. Employee’s employment with the Company terminated on [_________, __________] (the “Separation Date”). Employee waives any right or claim to reinstatement as an employee of the Company and each of its affiliates. Employee hereby confirms that Employee does not hold any position as an officer, director or employee with the Company and each of its affiliates. Employee acknowledges and agrees that Employee has received all amounts owed for Employee’s regular and usual salary (including, but not limited to, any overtime, bonus, accrued vacation, commissions, or other wages), reimbursement of expenses, sick pay and usual benefits.
2.Release. Employee, on behalf of Employee, Employee’s descendants, dependents, heirs, executors, administrators, assigns, and successors, and each of them, hereby covenants not to sue and fully releases and discharges the Company and each of its parents, subsidiaries and affiliates, past and present, as well as its and their trustees, directors, officers, members, managers, partners, agents, attorneys, insurers, employees, stockholders, representatives, assigns, and successors, past and present (and including, without limitation, any current or former Chief Executive Officers to whom Employee reported), and each of them, hereinafter together and collectively referred to as the “Releasees,” with respect to and from any and all claims, wages, demands, rights, liens, agreements or contracts (written or oral), covenants, actions, suits, causes of action, obligations, debts, costs, expenses, attorneys’ fees, damages, judgments, orders and liabilities of whatever kind or nature in law, equity or otherwise, whether now known or unknown, suspected or unsuspected, and whether or not concealed or
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hidden (each, a “Claim”), which he now owns or holds or he has at any time heretofore owned or held or may in the future hold as against any of said Releasees (including, without limitation, any Claim arising out of or in any way connected with Employee’s service as an officer, director, employee, member or manager of any Releasee, Employee’s separation from Employee’s position as an officer, director, employee, manager and/or member, as applicable, of any Releasee, or any other transactions, occurrences, acts or omissions or any loss, damage or injury whatever), whether known or unknown, suspected or unsuspected, resulting from any act or omission by or on the part of said Releasees, or any of them, committed or omitted prior to the date of this Release Agreement including, without limiting the generality of the foregoing, any Claim under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, the Americans with Disabilities Act, the Family and Medical Leave Act of 1993, or any other federal, state or local law, regulation, or ordinance, or any Claim for severance pay, equity compensation, bonus, sick leave, holiday pay, vacation pay, life insurance, health or medical insurance or any other fringe benefit, workers’ compensation or disability (the “Release”); provided, however, that the foregoing Release does not apply to any obligation of the Company to Employee pursuant to any of the following: (1) any equity-based awards previously granted by the Company or its affiliates to Employee, to the extent that such awards continue after the termination of Employee’s employment with the Company in accordance with the applicable terms of such awards (and subject to any limited period in which to exercise such awards following such termination of employment); (2) any right to indemnification that Employee may have pursuant to the Bylaws of the Company, its Articles of Incorporation or under any written indemnification agreement with the Company (or any corresponding provision of any subsidiary or affiliate of the Company) or applicable state law with respect to any loss, damages or expenses (including but not limited to attorneys’ fees to the extent otherwise provided) that Employee may in the future incur with respect to Employee’s service as an employee, officer or director of the Company or any of its subsidiaries or affiliates; (3) with respect to any rights that Employee may have to insurance coverage for such losses, damages or expenses under any Company (or subsidiary or affiliate) directors and officers liability insurance policy; (4) any rights to continued medical or dental coverage that Employee may have under COBRA (or similar applicable state law); (5) any rights to the transition benefits payable under Section 5.3 of the Transition and Release Agreement (the “Transition Benefits”) in accordance with the terms of the Transition and Release Agreement; or (6) any rights to payment of benefits that Employee may have under a retirement plan sponsored or maintained by the Company or its affiliates that is intended to qualify under Section 401(a) of the Internal Revenue Code of 1986, as amended. In addition, this Release does not cover any Claim that cannot be so released as a matter of applicable law. Employee acknowledges and agrees that he has received any and all leave and other benefits that he has been and is entitled to pursuant to the Family and Medical Leave Act of 1993.
3.ADEA Waiver. Employee expressly acknowledges and agrees that by entering into this Release Agreement, Employee is waiving any and all rights or Claims that he may have arising under the Age Discrimination in Employment Act of 1967, as amended (the “ADEA”), which have arisen on or before the date of execution of this Release Agreement. Employee further expressly acknowledges and agrees that:
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A.In return for this Release Agreement, the Employee will receive consideration beyond that which the Employee was already entitled to receive before entering into this Release Agreement;
B.Employee is hereby advised in writing by this Release Agreement to consult with an attorney before signing this Release Agreement;
C.Employee has voluntarily chosen to enter into this Release Agreement and has not been forced or pressured in any way to sign it;
D.Employee was given a copy of this Release Agreement on [_________, 20__] and informed that he had twenty one (21) days within which to consider this Release Agreement and that if he wished to execute this Release Agreement prior to expiration of such 21-day period, he should execute the Endorsement attached hereto;
E.Employee was informed that he had seven (7) days following the date of execution of this Release Agreement in which to revoke this Release Agreement, and this Release Agreement will become null and void if Employee elects revocation during that time. Any revocation must be in writing and must be received by the Company during the seven-day revocation period. In the event that Employee exercises Employee’s right of revocation, neither the Company nor Employee will have any obligations under this Release Agreement and the Company will not have any obligations to continue paying the Transition Benefits and to the extent that such Transition Benefits have already been paid, Employee will be required to repay the before tax value of such Transition Benefits to the Company;
F.Nothing in this Release Agreement prevents or precludes Employee from challenging or seeking a determination in good faith of the validity of this waiver under the ADEA, nor does it impose any condition precedent, penalties or costs from doing so, unless specifically authorized by federal law.
4.Non-Disparagement. Employee agrees not to make, directly or indirectly, whether verbal or in writing, any damaging or disparaging statements, representations or remarks about or concerning the Company or any of the Releasees.
5.No Transferred Claims. Employee warrants and represents that the Employee has not heretofore assigned or transferred to any person not a party to this Release Agreement any released matter or any part or portion thereof and he shall defend, indemnify and hold the Company and each of its affiliates harmless from and against any claim (including the payment of attorneys’ fees and costs actually incurred whether or not litigation is commenced) based on or in connection with or arising out of any such assignment or transfer made, purported or claimed.
6.Severability. It is the desire and intent of the parties hereto that the provisions of this Release Agreement be enforced to the fullest extent permissible under the laws and public policies applied in each jurisdiction in which enforcement is sought. Accordingly, if any particular provision of this Release Agreement shall be adjudicated by a court of competent jurisdiction to be invalid, prohibited or unenforceable under any present or future law, such
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provision, as to such jurisdiction, shall be ineffective, without invalidating the remaining provisions of this Release Agreement or affecting the validity or enforceability of such provision in any other jurisdiction; furthermore, in lieu of such invalid or unenforceable provision there will be added automatically as a part of this Release Agreement, a legal, valid and enforceable provision as similar in terms to such invalid or unenforceable provision as may be possible. Notwithstanding the foregoing, if such provision could be more narrowly drawn so as not to be invalid, prohibited or unenforceable in such jurisdiction, it shall, as to such jurisdiction, be so narrowly drawn, without invalidating the remaining provisions of this Release Agreement or affecting the validity or enforceability of such provision in any other jurisdiction.
7.Counterparts. This Release Agreement may be executed in separate counterparts, each of which is deemed to be an original and all of which taken together constitute one and the same agreement. This Release Agreement shall become binding when one or more counterparts hereof, individually or taken together, shall bear the signatures of all of the parties reflected hereon as the signatories. Photographic or other electronic copies of such signed counterparts may be used in lieu of the originals for any purpose.
8.Successors. This Release Agreement is personal to Employee and shall not, without the prior written consent of the Company, be assignable by Employee. This Release Agreement shall inure to the benefit of and be binding upon the Company and its respective successors and assigns and any such successor or assignee shall be deemed substituted for the Company under the terms of this Release Agreement for all purposes. As used herein, “successor” and “assignee” shall include any person, firm, corporation or other business entity which at any time, whether by purchase, merger, acquisition of assets, or otherwise, directly or indirectly acquires the ownership of the Company, acquires all or substantially all of the Company’s assets, or to which the Company assigns this Release Agreement by operation of law or otherwise.
9.Governing Law. THIS RELEASE AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH UNITED STATES FEDERAL LAW AND, TO THE EXTENT NOT PREEMPTED BY UNITED STATES FEDERAL LAW, THE LAWS OF THE STATE OF FLORIDA, WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICTING PROVISION OR RULE (WHETHER OF THE STATE OF FLORIDA OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE LAWS OF ANY JURISDICTION OTHER THAN UNITED STATES FEDERAL LAW AND THE LAW OF THE STATE OF FLORIDA TO BE APPLIED. IN FURTHERANCE OF THE FOREGOING, APPLICABLE FEDERAL LAW AND, TO THE EXTENT NOT PREEMPTED BY APPLICABLE FEDERAL LAW, THE INTERNAL LAW OF THE STATE OF FLORIDA, WILL CONTROL THE INTERPRETATION AND CONSTRUCTION OF THIS RELEASE AGREEMENT, EVEN IF UNDER SUCH JURISDICTION’S CHOICE OF LAW OR CONFLICT OF LAW ANALYSIS, THE SUBSTANTIVE LAW OF SOME OTHER JURISDICTION WOULD ORDINARILY APPLY.
10.Amendment and Waiver. The provisions of this Release Agreement may be amended and waived only with the prior written consent of the Company and Employee, and no course of conduct or failure or delay in enforcing the provisions of this Release Agreement shall
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be construed as a waiver of such provisions or affect the validity, binding effect or enforceability of this Release Agreement or any provision hereof.
11.Descriptive Headings. The descriptive headings of this Release Agreement are inserted for convenience only and do not constitute a part of this Release Agreement.
12.Construction. Where specific language is used to clarify by example a general statement contained herein, such specific language shall not be deemed to modify, limit or restrict in any manner the construction of the general statement to which it relates. The language used in this Release Agreement shall be deemed to be the language chosen by the parties to express their mutual intent, and no rule of strict construction shall be applied against any party.
13.Nouns and Pronouns. Whenever the context may require, any pronouns used herein shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns and pronouns shall include the plural and vice-versa.
14.Relationship to Transition Agreement. This Release Agreement is being entered into pursuant to the Transition and Release Agreement. This Release Agreement shall in no way amend, terminate or supersede the Transition and Release Agreement in any respect, and the Transition and Release Agreement and each of the Company’s and Employee’s obligations under the Transition and Release Agreement shall continue in full force and effect.
15.Legal Counsel. Each party recognizes that this is a legally binding contract and acknowledges and agrees that they have had the opportunity to consult with legal counsel of their choice. Employee acknowledges and agrees that he has read and understands this Release Agreement completely, is entering into it freely and voluntarily, and has been advised to seek counsel prior to entering into this Release Agreement and he has had ample opportunity to do so.
The undersigned have read and understand the consequences of this Release Agreement and voluntarily sign it. The undersigned declare under penalty of perjury under the laws of the State of Florida that the foregoing is true and correct.
EXECUTED this ____ day of _________ 20__, at _________
“Employee”
Print Name:
Prestige Cruise Services LLC
a company organized under the laws of Delaware,
By:
Name:
Title:
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ENDORSEMENT
I, ________________, hereby acknowledge that I was given 21 days to consider the foregoing Release Agreement and voluntarily chose to sign the Release Agreement prior to the expiration of the 21-day period.
I declare under penalty of perjury under the laws of the United States and the State of Florida that the foregoing is true and correct.
EXECUTED this [____] day of [__________ 202__].
Print Name:
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