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Author Topic: Razorback Foundation and Bret Bielema Agree Upon Release (ATTACHMENT)  (Read 861 times)

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Scott Marshall

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FULL AGREEMENT ATTACHED

5.   Guaranty Payment, Duty of Mitigation, and the Foundation's Right of Offset.
A.   Guaranty Payment. In consideration of the irrevocable release and waiver of any and all Claims granted by Bielema in this Agreement (including, but not limited to, the Release) as well as his performance of all other tenns and conditions in this Agreement and the Employment Agreement with the University (as amended), the Foundation shall pay Bielema the first monthly sum of Sixty-Four Thousand One Hundred Sixty-Six and 67/100 Dollars ($64, 166.67) for the pro-rata period of November 25, 2017 through November 30, 2017, and all remaining monthly payments will be in equal amounts of Three Hundred Twenty Thousand Eight Hundred Thirty-Three and 33/100 Dollars ($320,833.33) for the period beginning on December 1, 2017, and ending on December 3 1, 2020, subject to Bielema's duty of mitigation and the Foundation's right of offset, with each such payment being paid on the final working day of each calendar month. Accordingly, subject to Bielema's duty of mitigation and a possible reduction due to the Foundation's right of offset specified herein, the maximum total amount of the payment owed to Bielema shall not exceed a maximum of Eleven Million Nine Hundred ThirtyFive Thousand and No/ 100 Dollars ($11,935,000.00) (the "Guaranty Payment"). Given that the Guaranty Payment may be adjusted to reflect any offsets permitted under this Agreement, the Parties understand and agree that the term "Guaranty
 
Payment" shall refer to the actual amount owed to Bielema as adjusted for any offsets and thus may be less than $11,935,000.00, as specified, but in no event shall it exceed that sum. Bielema covenants and agrees that the Foundation, the University and the other Releasees shall not owe him any other sums or amounts of any kind or nature whatsoever other than those expressly set forth in this Agreement.
B.   Bielema's Duty of Mitigation and the Foundation's Right of Offset.
 Bielema shall have an affirmative duty of mitigation to diligently seek and to obtain other employment. Every six (6) months during the life of this Agreement, Bielema shall provide a written summary to the Foundation of his efforts to find other employment.
(ii)   The Parties understand and agree that if Bielema is successful in gaining such re-employment, or alternative employment of any kind by Bielema personally or through business entities owned or controlled by Bielema ("Other Employment"), Bielema shall notify the Foundation in writing of his Other Employment and his total Other Income (as herein defined). Upon the Foundation's written request, Bielema shall cooperate and provide records verifying such Other Income (as defined herein).
(iii)   The Foundation shall have the following right of offset. The Foundation's obligation to make the monthly payments of the Guaranty Payment shall be reduced (i. e. , offset) dollar-for-dollar by the amount of compensation (including, the dollar value of any benefits packages) Bielema earns from
Other Employment as specified herein. The Foundation's right to reduce
(i. e. , offset) the Guaranty Payment shall be ongoing beginning on November 25, 2017, and ending on December 31, 2020. Except as expressly excluded herein, the Foundation's right to offset shall apply to all income earned or received, whether the type of such income is athletically related or not athletically related, including, without limitation, gross income from base salary or wages, talent fees, or any other types of compensation paid to Bielema or any business entity owned by or controlled by Bielema, including but not limited to, the following:
consulting fees, honoraria, fees received as an independent contractor, or any other income or compensation of any kind whatsoever (collectively referred to as "Other Income").
(iv)   The Foundation's right to offset shall have the following exclusions. The Foundation's right to offset shall not include: (a) amounts Bielema eams from passive investments or interest not associated with any new

B.   Bielema's Duty of Mitigation and the Foundation's Right of Offset.
 Bielema shall have an affirmative duty of mitigation to diligently seek and to obtain other employment. Every six (6) months during the life of this Agreement, Bielema shall provide a written summary to the Foundation of his efforts to find other employment.
(ii)   The Parties understand and agree that if Bielema is successful in gaining such re-employment, or alternative employment of any kind by Bielema personally or through business entities owned or controlled by Bielema ("Other Employment"), Bielema shall notify the Foundation in writing of his Other Employment and his total Other Income (as herein defined). Upon the Foundation's written request, Bielema shall cooperate and provide records verifying such Other Income (as defined herein).
(iii)   The Foundation shall have the following right of offset. The Foundation's obligation to make the monthly payments of the Guaranty Payment shall be reduced (i. e. , offset) dollar-for-dollar by the amount of compensation (including, the dollar value of any benefits packages) Bielema earns from
Other Employment as specified herein. The Foundation's right to reduce
(i. e. , offset) the Guaranty Payment shall be ongoing beginning on November 25, 2017, and ending on December 31, 2020. Except as expressly excluded herein, the Foundation's right to offset shall apply to all income earned or received, whether the type of such income is athletically related or not athletically related, including, without limitation, gross income from base salary or wages, talent fees, or any other types of compensation paid to Bielema or any business entity owned by or controlled by Bielema, including but not limited to, the following:
consulting fees, honoraria, fees received as an independent contractor, or any other income or compensation of any kind whatsoever (collectively referred to as "Other Income").
(iv)   The Foundation's right to offset shall have the following exclusions. The Foundation's right to offset shall not include: (a) amounts Bielema eams from passive investments or interest not associated with any new employment; and (b) shall not include the amounts specified in the following schedule for each individual year:
   Time Period   AMOUNT
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Nov. 25, 2017 to Dec. 31, 2017   $150,000.00
Jan. 1, 2018 to Dec. 31, 2018   $150,000.00
Jan. l , 2019 to Dec. 31, 2019   $125,000.00
Jan. 1, 2020 to Dec. 31, 2020   $1 oo,ooo.oo
The foregoing amounts are non-cumulative and apply solely to exclude income earned by Bielema during each specific year. For convenience, the foregoing amounts shall be referred to as "Excluded Income." The Foundation's right to offset shall not apply to Excluded Income.
(v)   For purposes of this Agreement, the name "Bielema" shall mean Bret Bielema, individually, and shall also mean and include, but not be limited to, any business or legal entity, trust, financial vehicle or other structure of any kind or type that is paid, receives or holds Other Income from Other Employment in any amount for Bielema, whether directly or indirectly, or as designated by Bielema to be paid to any other person, entity or thirdparty. Given Bielema's duty of mitigation and the Foundation's right to offset, Bielema (including, but not limited to, any individual or entity acting on his behalf) agrees to use his best efforts to maximize his earning potential with any new employer(s) consistent with compensation rates for similar positions in the given industry at the time such Other Employment is obtained. Except for Excluded Income, the Foundation's right to offset shall apply to the following amounts, whichever is greater, on a dollar-for dollar reduction basis: (i) any and all Other Income paid to Bielema for the period beginning on November 25, 2017, and ending on December 31 , 2020; or (ii) the "Average Annual Compensation" (as defined herein) to be paid to Bielema over the term of any multi-year contracts (for purposes of this Agreement, a series of one-year contracts with a single employer shall be treated as a multi-year contract).
For purposes of this Agreement, the term "Average Annual Compensation" shall mean the average annual value of all amounts required to be paid to Bielema during the term of any multi-year contracts (multi-year contracts shall include a series of one-year contracts with a single employer), including, but not limited to, the following elements: the average annual value of all salary, benefits, speaking fees, coaching shows (via radio, television, Internet, or any other form of media such as podcasts or streaming services), the average annual value of any deferred compensation, other forms of compensation, and/or guaranteed payments to be paid over the life of any multi-year contract. The term "Average Annual Compensation" shall not include the annual value of any prospective, but unrealized bonus or other incentive compensation payments (collectively, "Incentive Compensation"); provided, however, the Foundation shall have the right to offset against any Incentive
Compensation earned by Bielema during the period between November
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25, 2017, and December 31, 2020 (regardless of the timing of any such payments), including, but not limited to, any Incentive Compensation earned for bowl game participation or wins, victories, conference or national championships, or other performance objectives arising from the 2020 football season, including any bowl games played in January, 2021
 
Within 60 days after each calendar year ending on December 3 1 , 2018, December 31, 2019, and December 31, 2020, the Parties will meet in person or via telephone to conduct a reconciliation meeting regarding any outstanding amounts owed to either of them. The Parties will cooperate in good faith and share all necessary records to conduct and complete the reconciliation process. In the event the Foundation's right to offset is applied to the compensation set forth in Paragraph 5(B)(v)(ii), the Parties agree to reconcile the difference between the following amounts: (a) the value of the Average Annual Compensation (as defmed above) to which the Foundation applied its offset; and (b) the value of all combined annual compensation actually earned by Bielema during the preceding year, including, but not limited to, the value of all salary, benefits, bonuses, speaking or appearance fees, Incentive Compensation, other payments or compensation, the annual average value of any deferred compensation, and/or any guaranteed payments. If the difference in these two values establishes that the Foundation offset more income than Bielema actually earned as part of his Average Annual Compensation (as defined above), then the Foundation shall make a payment to Bielema within 30 calendar days to cover this differential. Similarly, if the difference in these two values establishes that the Foundation offset less income than Bielema actually earned as part of his Average Annual Compensation (as defined above), then Bielema shall issue a refund payment for this differential to the Foundation within 30 calendars days or the Parties, for convenience and upon their mutual agreement, may include any such amount in future offsets.
  The Parties shall work in good faith to share any required information and make all permitted reductions or offsets required by this Ageement.
6.   Governing Law. This Agreement shall be governed by the laws of the State of Arkansas without regard to its choice of law principles. Washington County, Arkansas, shall be the exclusive venue for any action arising under or relating to this Agreement. Nothing contained in this Agreement shall be deemed, construed or operate as a waiver of any immunities to suit available to the Board of Trustees of the University of Arkansas or its trustees, officers, representatives and employees.
7.   Counterparts; Digital Copies, and Facsimiles. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. For purposes of executing the
Agreement, a document signed and transmitted by facsimile machine, electronic mail, or other
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commercially accepted electronic or mechanical means is to be treated as an original document and shall make this Agreement binding upon the Parties.
8.   Entire Agreement. This Agreement contains the entire agreement of the Parties with respect to the matters contained herein, and there are no other agreements, whether oral or written, between the Parties concerning the subject matter of this Agreement. Notwithstanding the foregoing, this Agreement does not cancel or limit any release and waiver provisions contained in the Employment Agreement (as amended) or Guaranty Agreement.
9.   Severability. Each provision of this Agreement is severable from all other provisions of the Agreement. If any governmental authority having jurisdiction over the matters herein determines, during or at the conclusion of any litigation, that any provision of the Agreement is invalid or unenforceable, the provision will be deemed modified only to the extent necessary to render it valid and enforceable, and all remaining provisions of the Agreement will remain in full force and effect.
10.   Third-Party Beneficiaries. For the avoidance of all doubt, the Foundation and Bielema covenant and agree that the Board of Trustees of the University of Arkansas, its Trustees, and the University of Arkansas, Fayetteville, its officers, representatives, and employees (all in their individual and official capacities) are express third-party beneficiaries under this Agreement, are covered by the term "Releasees" as defined in this Agreement, and each and all of whom shall have the legal right to enforce each and every term of this Release.
11.   Non-Disparagement. The Parties agree not to make disparaging remarks regarding Bielema, the Foundation, its directors, offcers, and employees, or the University of Arkansas, its governing Board, or its officers, representatives and employees, and to state, if asked, that any differences befiveen or among them were resolved on an amicable basis. The promises set forth in this Agreement, and the document itself, shall not be used by either Party in any manner, whether directly or indirectly, for any purpose other than to enforce their respective rights hereunder, unless otherwise compelled by law.
12.   Enforcement of Agreement. The Parties agree that a violation on their part of any covenants contained in this Agreement, following notice and reasonable opportunity to cure, will give rise to an action to enforce this Agreement to the extent permitted by Arkansas law. Such remedy shall be cumulative and nonexclusive of any other remedies the Parties may have, including, but not limited to, the recovery of any sums paid to Bielema and any remaining obligations owed to the Foundation by Bielema pursuant to this Agreement. Nothing contained in this provision or this Agreement, however, shall be construed, interpreted or operate as a waiver of any immunities to suit available to any of the Releasees (including in their official or individual capacities), and all immunities to suit are affirmatively reserved.
13.   No Implied Waiver. The waiver by any Party hereto of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach by any Party, nor shall any such waiver operate or be construed as a rescission of this Agreement.
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14.   Construction. The agree that the rule of constnEtion that ambiguity is  the drafting Party shall have no  in any dispute over interpretation of this Ayærnalt. By enta•ing into this Agreement, ffe Parties do not adrnit liability with  regard to any matter relating to Bielema's employmem and termination of employment at the University, and the Parties deny all such liability. Moreover, the fact that the  altered imo this Agreanent shall not be used to any such liability.
15.   Taxes and CosÉ. The Parties shall each be responsible for their own taxes and attomey's and costs in connection with all mattes giving rise to this Agreenent
16, Headings and RecitaLs. The headings in this Agreement are for convalience purposes only and shall not   any substantive meaning in the interpretation and  application of this Agreement. The Recinl Clauses set forth at beginning of this Agreement are substantive provisions ofthis Agreement and shall be treated as stEh and constiEd in harmony
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DLUXHOG

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I think Bielema just became my daddy.....
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PorkSoda

Re: Razorback Foundation and Bret Bielema Agree Upon Release (ATTACHMENT)
« Reply #2 on: January 30, 2018, 05:19:46 pm »

but but the democrat gazette posted that the UofA only owe him 6 million...


(in ten years here, I finally got my "I told you so" moment, lol)
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TebowHater

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Re: Razorback Foundation and Bret Bielema Agree Upon Release (ATTACHMENT)
« Reply #3 on: January 30, 2018, 07:09:17 pm »

but but the democrat gazette posted that the UofA only owe him 6 million...


(in ten years here, I finally got my "I told you so" moment, lol)

The ADG  is complete and total fake news. They are truly awful.

Not really their fault; papers are a thing of the past (outside of the big two NYT/WaPo who are read online across the country). ADG should just shut it down rather than continue to peddle in the spreading and creation of fake news. Very disappointing and not helpful to the program or state.
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Flrazrback

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Re: Razorback Foundation and Bret Bielema Agree Upon Release (ATTACHMENT)
« Reply #4 on: January 30, 2018, 07:18:07 pm »

Wish our attorney would get with his attorney, iron out the deal and resolve this train wreck. Pay the man and be done with it.
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99toLife

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I think Bielema just became my daddy.....

Well at least the PTB big money boys and the BOT agreed to that, and they are the ones that get to pay most of it.
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TebowHater

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Re: Razorback Foundation and Bret Bielema Agree Upon Release (ATTACHMENT)
« Reply #6 on: January 30, 2018, 07:28:51 pm »

Wish our attorney would get with his attorney, iron out the deal and resolve this train wreck. Pay the man and be done with it.

That exact thing happened. That's what this release agreement is. It's done.
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mckinneyhog5

Re: Razorback Foundation and Bret Bielema Agree Upon Release (ATTACHMENT)
« Reply #7 on: January 30, 2018, 08:06:32 pm »

Well at least the PTB big money boys and the BOT agreed to that, and they are the ones that get to pay most of it.
Yep..BUT JEFF LONG!!!!!!!!!!! The PTB agreed to this but they're like cockroaches, they'll survive a nuclear attack.
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rhames

Re: Razorback Foundation and Bret Bielema Agree Upon Release (ATTACHMENT)
« Reply #8 on: January 31, 2018, 10:48:36 am »

The ADG  is complete and total fake news. They are truly awful.

Not really their fault; papers are a thing of the past (outside of the big two NYT/WaPo who are read online across the country). ADG should just shut it down rather than continue to peddle in the spreading and creation of fake news. Very disappointing and not helpful to the program or state.


Well they went off the contract he had with the school not knowing there was one with the foundation as well.
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gguillo

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Re: Razorback Foundation and Bret Bielema Agree Upon Release (ATTACHMENT)
« Reply #9 on: January 31, 2018, 10:56:24 am »

College Coaching & Boxing.

2 professions where you can make enough money for your kids, kids, kids, kids by simply getting YOUR A$$ WHIPPED!
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Bob Slydell

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Re: Razorback Foundation and Bret Bielema Agree Upon Release (ATTACHMENT)
« Reply #10 on: January 31, 2018, 11:36:23 am »

Never understood the concept of an offset with a buyout.  Seems to me you either owe him the money or you don't.  What I owe my grocer at the checkout doesn't depend on what he's also getting from the guy behind me. 
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hawgon

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Re: Razorback Foundation and Bret Bielema Agree Upon Release (ATTACHMENT)
« Reply #11 on: January 31, 2018, 11:50:27 am »

Never understood the concept of an offset with a buyout.  Seems to me you either owe him the money or you don't.  What I owe my grocer at the checkout doesn't depend on what he's also getting from the guy behind me.

It’s a concept in contract law.  You always have a duty to mitigate damages.  For instance, if you break your lease, the landlord has to try to rent the place out and he can’t charge you AND the new renter even though you broke the lease.
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gguillo

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Re: Razorback Foundation and Bret Bielema Agree Upon Release (ATTACHMENT)
« Reply #12 on: January 31, 2018, 12:15:14 pm »

As coach I would've won 1/3 of the games Bielema won in the SEC, for an 1/8 of the money...

4 SEC wins for $1.49 million

That's a hell of a deal!
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Inhogswetrust

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Re: Razorback Foundation and Bret Bielema Agree Upon Release (ATTACHMENT)
« Reply #13 on: January 31, 2018, 12:23:35 pm »

College Coaching & Boxing.

2 professions where you can make enough money for your kids, kids, kids, kids by simply getting YOUR A$$ WHIPPED!

The difference is in college coaching you will still have a brain to remember how many kids you have and their names...............................
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DeltaBoy

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Re: Razorback Foundation and Bret Bielema Agree Upon Release (ATTACHMENT)
« Reply #14 on: January 31, 2018, 01:08:50 pm »

We paid too much we should have subtracted 1 million per an SEC loss and 1.5 million for TCU TT and Toledo.
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ricepig

Re: Razorback Foundation and Bret Bielema Agree Upon Release (ATTACHMENT)
« Reply #15 on: January 31, 2018, 01:27:34 pm »

We paid too much we should have subtracted 1 million per an SEC loss and 1.5 million for TCU TT and Toledo.

Probably go over about as well as subtracting from your salary while on HV......
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Inhogswetrust

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Re: Razorback Foundation and Bret Bielema Agree Upon Release (ATTACHMENT)
« Reply #16 on: January 31, 2018, 01:39:13 pm »

Probably go over about as well as subtracting from your salary while on HV......



Delta pays to post on here. When Guv found out he paid in arrears and now is current.
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