EXHIBIT 10.28
Execution Version
SEVERANCE AGREEMENT
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THIS SEVERANCE AGREEMENT (this "Agreement"), dated November 4, 1996, is
entered into between Amtech Corporation, a Texas corporation, with its principal
executive offices in Dallas, Texas (the "Company"), and Xxxxx X. York, an
individual currently residing in Arlington, Texas, who is currently employed as
Senior Vice President, Chief Financial Officer and Treasurer of the Company
("Employee").
Recitals
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A. The Company and Employee have entered into an Employment Agreement,
dated August 6, 1991, as amended (the "Employment Agreement"), which expires on
the date specified in Section 2 thereof (the "Expiration Date").
B. In lieu of extending the term of the Employment Agreement or
entering into a new employment agreement, the Company and Employee desire to
enter into this Severance Agreement, which will supplement the Employment
Agreement until the Expiration Date and thereafter survive it.
C. In consideration of the Company's agreements herein, Employee is
willing to continue working for the Company or an Affiliate, as applicable, on
an "at-will" basis after the Expiration Date.
Terms and Conditions
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In consideration of the recitals and the agreements herein and other good
and valuable consideration, the parties agree as follows:
1. Definitions.
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1.1 An "Acquiring Person" shall mean any person (including any "person" as
such term is used in Sections 13(d)(3) or 14(d)(2) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act")) that, together with all Affiliates
and Associates of such person, is the beneficial owner of 10% or more of the
outstanding Common Stock. The term "Acquiring Person" shall not include the
Company, any subsidiary of the Company, any employee benefit plan of the Company
or subsidiary of the Company, or any person to the extent such person is holding
Common Stock for or pursuant to the terms of any such plan. For the purposes of
this Agreement, a person who becomes an Acquiring Person by acquiring beneficial
ownership of 10% or more of the Common Stock at any time after the date of this
Agreement shall continue to be an Acquiring Person whether or not such person
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continues to be the beneficial owner of 10% or more of the outstanding Common
Stock.
1.2 "Affiliate" and "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and Regulations under
the Exchange Act in effect on the date of this Agreement.
1.3 The Company and its Affiliates shall have "Cause" to terminate
Employee's employment upon (1) the willful and continued failure by Employee to
substantially perform Employee's employment duties (other than any such failure
resulting from Employee's incapacity due to physical or mental illness), after
written demand for substantial performance is delivered by the Company or an
Affiliate, as applicable, that specifically identifies the manner in which the
Company or the Affiliate, as applicable, believes Employee has not substantially
performed Employee's duties; or (2) the willful engaging by Employee in
misconduct that is materially injurious to the Company or employing Affiliate,
as applicable; or (3) the conviction of Employee of any felony or crime of moral
turpitude; or (4) Employee attains the mandatory retirement age specified in any
applicable retirement plan of the Company or any succcessor-in-interest (but for
purposes of this clause (4), any such mandatory retirement age shall not be less
than age 65). For purposes of this definition no act, or failure to act, on
Employee's part shall be considered "willful" unless done, or omitted to be
done, by Employee not in good faith and without reasonable belief that
Employee's action or omission was in the best interest of the Company or the
applicable Affiliate(s), or both, as applicable. Notwithstanding the foregoing,
Employee shall not be deemed to have been terminated for Cause without the
following procedures having been adhered to: (a) reasonable written notice to
Employee, setting forth the reasons for the Company's or the Affiliate's
intention to terminate for Cause; (b) an opportunity for Employee, together with
Employee's counsel, to be heard before the Amtech Corporation Board of
Directors; and (c) delivery to Employee of a written Notice of Termination
finding that, in the good faith opinion of the Amtech Corporation Board of
Directors, Employee was guilty of conduct set forth above in clause (1), (2) or
(3) above, and specifying the particulars thereof in detail.
1.4 "Change in Control" shall mean the occurrence of any of the following
events:
(i) The Company is merged, consolidated or reorganized into or with
another corporation or other legal person, other than an Affiliate, and as
a result of such merger, consolidation or reorganization less than 51% of
the combined voting power to elect each class of directors of the then
outstanding securities of the remaining corporation
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or legal person or its ultimate parent immediately after such transaction
is owned, directly or indirectly, in the aggregate by persons who were
shareholders, directly or indirectly, of the Company immediately prior to
such merger, consolidation, or reorganization;
(ii) The Company sells all or substantially all of its assets to any
other corporation or other legal person, other than an Affiliate, and as a
result of such sale less than 51% of the combined voting power to elect
each class of directors of the then outstanding securities of such
corporation or legal person or its ultimate parent immediately after such
transaction is owned, directly or indirectly, in the aggregate by persons
who were shareholders, directly or indirectly, of the Company immediately
prior to such sale;
(iii) Any Acquiring Person has become the beneficial owner (as the
term "beneficial owner" is defined under Rule 13d-3 or any successor rule
or regulation promulgated under the Exchange Act) of securities which when
added to any securities already owned by such person would represent in the
aggregate 50% or more of the then outstanding securities of the Company
which are entitled to vote to elect any class of directors;
(iv) If at any time, the Continuing Directors then serving on the
Board of Directors of the Company cease for any reason to constitute at
least a majority thereof; or
(v) Any occurrence that would be required to be reported in response
to Item 6(e) of Schedule 14A of Regulation 14A or any successor rule or
regulation promulgated under the Exchange Act.
1.5 "Change in Control Payments" shall mean three times the higher of (i)
Employee's annual base salary in effect on the date of the Change in Control or
(ii) Employee's annual base salary in effect on the date of the Employee's
separation from employment following the Change in Control.
1.6 A "Continuing Director" shall mean a director of the Company who (i)
is not an Acquiring Person or an Affiliate or Associate thereof, or a
representative of an Acquiring Person or nominated for election by an Acquiring
Person, and (ii) was either a member of the Board of Directors of the Company on
the date of this Agreement or subsequently became a director of the Company and
whose initial election or initial nomination for election by the Company's
shareholders was approved by a majority of the Continuing Directors then on the
Board of Directors of the Company.
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1.7 "Disability" shall mean any medically determinable physical or mental
impairment that can reasonably be expected to prevent Employee from performing
substantially all of Employee's customary employment duties for at least six
months.
1.8 "Good Reason" shall mean the occurrence of any of the following
events:
(a) any material diminution in Employee's title and duties that has
not been cured within thirty days after notice of such noncompliance has
been given (within 30 days of the alleged material diminution) by Employee
to the Company or the employing Affiliate, as applicable. A change in title
or duties will not be considered to be a "material diminution" in title or
duties if, after such change, Employee is an officer of the Company;
Employee's reporting relationship does not change or Employee reports to
the Company's Chief Executive Officer or Chief Operating Officer; and a
substantial portion of Employee's duties are in Employee's field of
professional training or experience.
(b) a reduction of more than 10% in Employee's base salary (with the
10% being cumulative over the term of Employee's employment, but any
percentage reduction that is actually made is made against the Employee's
then current base salary).
EXAMPLE: assume Employee's base salary is $100,000. The Company or
Affiliate, as applicable, is permitted to reduce Employee's base salary by
up to 10% ($10,000) without giving Employee "Good Reason" to terminate
employment. Any further salary reductions would constitute "Good Reason"
to terminate employment.
EXAMPLE: assume Employee's base salary is $100,000. Assume the Company or
Affiliate, as applicable, reduces Employee's base salary by 8% ($8,000).
Then, assume Employee's base salary is subsequently increased to $120,000.
The Company or Affilate is entitled to reduce the $120,000 salary by up to
2% ($2,400) without giving Employee "Good Reason to terminate employment.
Any further salary reductions would constitute "Good Reason" to terminate
employment.
(c) any purported termination for Cause of Employee's employment that
is not effected pursuant to the procedural requirements of Subsection 1.3.
(d) the location of Employee's place of employment is moved more than
50 miles from its current location.
(e) Employee becomes the subject of a Disability.
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1.9 "Notice of Termination" shall mean a notice that shall indicate the
specific reasons for termination and shall set forth in reasonable detail the
facts and circumstances claimed to provide a basis for termination of Employee's
employment.
1.10 "Person" shall mean an individual, a corporation, a partnership, an
association, a joint-stock company, a trust, an incorporated organization or a
government or political subdivision thereof.
1.11 "Severance Payment" shall mean an amount equal to three months of
Employee's then-current monthly base salary for those Employees whose aggregate
period of employment with the Company or an Affiliate is a year or less. For
other Employees, the "Severance Payment" shall be an amount determined
according to the following formula:
M = 3 + [(Y-1) x 2]
M = the number of months of Employee's then-current monthly base salary
that the Company is required to pay to Employee as severance pay; provided
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that, in no event shall the value of M exceed 18; provided further that,
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from and after the Expiration Date if the event giving rise to the
Severance Payment occurs on or before the 180th day following a Change in
Control (with the day immediately following the day of the occurrence of
the Change in Control being day "1"), then the amount of the Severance
Payment shall be the greater of (i) the amount provided for under the
formula above or (ii) the amount provided for in Section 3 (as if Employee
had resigned from employment pursuant to Section 3); and provided further
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that, if either of the events specified in Section 2(a) or 2(b) occurs
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prior to the Expiration Date, then M shall be reduced by the number of
whole months of Employee's then-current monthly base salary, if any, that
the Company is required to pay to Employee under the Employment Agreement.
Y = number of years or partial years that Employee has been employed by the
Company or an Affiliate. For purpose of calculating "Y" with respect to
employment with an Affiliate of the Company only the years or partial years
during which the Affiliate was an "Affiliate" will be counted.
EXAMPLE: Assume Employee has been employed by the Company or an Affiliate
for an aggregate of 3-1/2 years. Then,
M = 3 + [(4-1) x 2];
M = 3 + [3 x 2];
M = 3 + 6
M = 9
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Thus, Employee would be entitled to receive 9 months of the Employee's
then-current monthly base salary as a Severance Payment.
2. Severance Payment. From and after the date hereof, upon the occurrence of
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either of the following events, and subject to receiving a release reasonably
satisfactory to the Company relating to employment matters, the Company will pay
to Employee the Severance Payment:
(a) Employee's employment with the Company and its Affiliates is
terminated by the Company or the employing Affiliate, as applicable, other
than for Cause; or
(b) Employee has Good Reason to terminate employment and actually does
so.
To terminate Employee's employment other than for Cause pursuant to 2(a),
the Company or the employing Affiliate, as applicable, shall give Employee
written notice of such termination. Such notice shall be effective 90 days
following the Employee's receipt thereof.
3. Change in Control Payment. From and after the Expiration Date, if Employee
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resigns from employment with the Company and its Affiliates on or before the
180th day following a Change in Control (with the day immediately following the
day of the occurrence of the Change in Control being day "1"), the Company shall
pay to Employee the Change in Control Payment.
4. Mode of Payment. The Severance Payment and the Change in Control Payment
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shall be paid in a lump sum (less applicable withholdings for taxes and other
withholdings required by applicable law) contemporaneously with the occurrence
of the applicable event. The Company's obligation to pay the Severance Payment
and the Change in Control Payment is absolute, and such payments shall not be
mitigated or offset by virtue of Employee obtaining new employment or failing to
seek new employment.
5. Confidential Information. Employee recognizes and acknowledges that
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Employee will have access to confidential information of the Company and its
Affiliates, including, without limitation, customer information, lists of
suppliers and costs, information concerning the business and operations of the
Company and its Affiliates and proprietary data, information, concepts and ideas
(whether or not patentable or copyrightable) relating to the business of the
Company and its Affiliates. Employee agrees not to disclose such confidential
information (except as may be necessary in the performance of Employee's duties)
to any Person and not to use such confidential information (other than for the
conduct of the business of the Company and its Affiliates), either during the
duration of Employee's employment
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or within the three years immediately following Employee's termination of
employment, unless Employee has received the written consent of the Company and
its Affiliates, as applicable, or unless such confidential information becomes
public knowledge through no wrongful act of Employee. Upon termination of
Employee's employment for any reason, Employee shall promptly deliver to the
Company all drawings, manuals, letters, notebooks, customer lists, documents,
records, equipment, files, computer disks or tapes, reports or any other
materials relating to the business of the Company or any of its Affiliates (and
all copies) which are in Employee's possession or under Employee's control.
Additionally, the parties acknowledge that Employee has previously executed an
Assignment of Inventions and Confidential Information Agreement, signed April 4,
1990, which shall survive Employee's separation from employment in accordance
with its terms.
6. Noncompetition. Employee agrees and covenants:
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(a) For a period (the "Non-Competition Term") of 12 months after
Employee ceases to be employed by the Company or an Affiliate, as the case
may be, Employee will not compete directly or indirectly with the Company
or its Affiliates in the Designated Geographical Area in any business or
businesses conducted by the Company and its Affiliates and in connection
therewith will not furnish advice to, solicit or do business with any past
or current customer of the Company or an Affiliate involving such business
or businesses. For purposes of this Section 6, "Competition" shall
include, without limitation, any engagement in any business whether as
proprietor, partner, joint venturer, employee, agent, officer or holder of
more than five percent (5%) of any class of equity ownership of a business
enterprise, which is competitive with any business or businesses conducted
by the Company or an Affiliate.
(b) For purposes of this Section 6, "Designated Geographical Area"
shall mean and include the United States and any foreign jurisdiction in
which the Company or an Affiliate is actively conducting business, directly
or indirectly, at the time Employee ceases to be employed by the Company or
an Affiliate.
(c) The non-competition covenant of Employee contained in this Section
6 (the "non-competition covenant") shall be construed as an agreement
independent of any other provision of this Agreement and the existence of
any claim or cause of action of Employee against the Company or any
Affiliate, whether predicated on this Agreement or otherwise, shall not
constitute a defense to the enforcement by the Company or an Affiliate of
the non-competition covenant. The Company and its Affiliates shall be
entitled
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to seek equitable relief to enforce the non-competition covenant.
(d) Although the Company and Employee have in good faith used their
best efforts to make the non-competition covenant reasonable in both
geographic area and in duration, and it is not anticipated, nor is it
intended, by either party to this Agreement that any court of competent
jurisdiction will find it necessary to reform the non-competition covenant
to make it reasonable in both geographic area and in duration, or
otherwise, the Company and Employee understand and agree that if a court of
competent jurisdiction determines it necessary to reform the non-
competition covenant in order to make it reasonable in either geographic
area or duration, or otherwise, damages, if any, for a breach of the non-
competition covenant, as so reformed, will be deemed to accrue to the
Company or an Affiliate as and from the date of such a breach only insofar
as the damages for such breach related to an action which accrued within
the scope of the geographic area and duration as so reformed.
7. Dispute Resolution. Employee and the Company agree to the alternate
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dispute resolution provisions contained in Exhibit A attached hereto.
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Specifically, if a dispute arises between the parties as to whether or not
Employee has "Good Reason" to terminate employment, Employee is not required to
resign from employment with the Company or an Affiliate, as applicable, to
"perfect" Employee's right to make a claim for the Severance Payment, although
Employee may resign from employment if Employee chooses. Such disputes shall be
resolved in accordance with the provisions of Exhibit A. If the dispute is
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resolved in Employee's favor and it is determined that Employee has "Good
Reason" to terminate employment, then Employee will be required to terminate
employment and provide the required release in order to collect the Severance
Payment.
8. General.
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8.1 The Employment Agreement shall continue to be effective in accordance
with its terms until the Expiration Date; until such Expiration Date the
provisions of this Agreement supplement the Employment Agreement, and until the
Expiration Date in the event of a conflict between this Agreement and the
Employment Agreement, the Employment Agreement shall govern. From and after the
Expiration Date, the provisions of Sections 5, 6, and 7 of this Agreement shall
supersede the analogous provisions in the Employment Agreement.
8.2 Except for the Employment Agreement, this Agreement embodies the
entire agreement between the parties and supersedes all prior agreements and
understandings relating to the subject
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matter hereof. This Agreement may be amended only by an instrument in writing
executed by both parties.
8.3 This Agreement will be binding upon and inure to the benefit of the
parties hereto and any successors in interest to the Company following a Change
in Control.
8.4 This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Texas (excluding its conflict of laws
rules).
8.5 This Agreement may be executed in a number of identical counterparts,
each of which constitute collectively, one agreement; but, in making proof of
this Agreement, it shall not be necessary to produce or account for more than
one counterpart.
AMTECH CORPORATION
By: /s/ G. Xxxxxxx Xxxxxxxxx
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G. Xxxxxxx Xxxxxxxxx,
President & Chief
Executive Officer
EMPLOYEE:
/s/ Xxxxx X. York
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EXHIBIT A
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ALTERNATIVE DISPUTE RESOLUTION
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A. Except as otherwise provided in this Exhibit A, Amtech Corporation, or
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its employing subsidiary, as applicable (individually and collectively, the
"Company"), and the Employee consent and agree to the resolution, in the manner
provided for in this Exhibit A, of all claims or controversies brought by the
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Employee ("Claims") for which a court otherwise would be authorized by law to
grant relief, in any way arising out of, relating to, or associated with (1) the
Employee's employment or termination from employment with the Company or any
adverse employment action by the Company, or (2) any other claims the Employee
may have against the Company, any benefit plans of the Company or any
fiduciaries, administrators, and affiliates of any benefit plan, or any of the
Company's officers, directors, employees, or agents in their capacity as such,
or (3) any issue concerning the formation, applicability, interpretation, or
enforceability of this Exhibit A.
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The Employee acknowledges that the Claims intended to be covered by this
Exhibit A include (but are not limited to) claims or controversies under or
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relating to the Employee's severance agreement (of which this Exhibit A is a
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part); any federal, state, or local constitution, law, or regulation prohibiting
discrimination, harassment, or discharge; an alleged or actual contract; any
Company policy or benefit; entitlement to wages or other compensation; and, any
claim for personal, emotional, physical, economic, or other injury.
B. The only Claims otherwise within the definition of Claims that are not
covered by this Exhibit A are: () any administrative actions that the Employee
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is permitted to pursue under applicable law that are not precluded by virtue of
the Employee having entered into this Exhibit A; () any Claim by the Employee
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for workers' compensation benefits or unemployment compensation benefits; or ()
any Claim by the Employee for benefits under a Company pension or benefit plan
that provides its own non-judicial dispute resolution procedure.
C. The Employee waives any right to assert a Claim, unless he or she
gives written notice of any Claim to Amtech Corporation by the earlier of (1)
the date that is one year after the day the Employee first has knowledge of the
event giving rise to the Claim or (2) the date upon which the applicable statute
of limitations expires.
D. Within 20 days of receipt of the notice of a Claim, THE COMPANY, IN
ITS SOLE DISCRETION, MAY ELECT TO SUBMIT ANY CLAIMS TO BINDING ARBITRATION IN
ACCORDANCE WITH THE PROVISIONS OF THIS
/s/
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Initial
A-1
EXHIBIT A. If the Company elects not to submit a Claim to binding arbitration,
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then the Employee may initiate or otherwise pursue the Claim by legal
proceedings other than binding arbitration (e.g., a lawsuit), except that IF THE
EMPLOYEE INITIATES A LAWSUIT, HE OR SHE HEREBY WAIVES THE RIGHT TO REQUEST OR
OBTAIN A JURY TRIAL WITH RESPECT TO ANY SUCH CLAIMS. The Employee agrees that if
he or she initiates litigation in violation of this Exhibit A, he or she will
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incur liability to the person(s) sued, including the obligation to pay their
legal fees and expenses. The sole and exclusive venue of any lawsuit initiated
by the Employee relating to any Claims shall be Dallas County, Texas.
E. The arbitration will be conducted in accordance with the provisions
of this Exhibit A and the Employment Dispute Resolution Rules of the American
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Arbitration Association ("AAA") in effect at the time the written notice of the
Claim is received. An arbitrator shall be selected in the manner provided for
in the Employment Dispute Resolution Rules of the AAA, except that the parties
agree that the arbitrator shall (1) be an attorney licensed in the state where
the arbitration is being conducted and (2) have expertise in the area of
employment law. The arbitration will be held in Dallas County, Texas.
F. Each party shall have the right to take one deposition of the other
party and any expert witness or other witness designated by the other party.
Additional deposition discovery may be taken only if the arbitrator so orders,
upon a showing of substantial need. The Employee understands that by agreeing to
submit Claims to arbitration he or she gives up the right to seek a trial by
court or jury and the right to an appeal from any errors of the court and
forgoes any and all related rights he or she may otherwise have under federal
and state laws.
G. In the event any provision of this Exhibit A is found by an arbitrator
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or court to be unenforceable, in whole or in part, the remaining provisions of
this Exhibit A shall nevertheless remain enforceable and the unenforceable
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provisions shall, to the extent permitted under applicable law, be modified so
as to be enforceable to the maximum extent possible under applicable law.
H. EMPLOYEE ACKNOWLEDGES THAT HE OR SHE HAS CAREFULLY READ THIS EXHIBIT
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A; THAT HE OR SHE UNDERSTANDS ITS TERMS; THAT ALL UNDERSTANDINGS BETWEEN THE
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EMPLOYEE AND THE COMPANY RELATING TO THE SUBJECTS COVERED IN THIS EXHIBIT A ARE
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CONTAINED IN THIS EXHIBIT A; AND, THAT HE OR SHE HAS ENTERED INTO THIS EXHIBIT A
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VOLUNTARILY AND NOT IN RELIANCE ON ANY PROMISES OR REPRESENTATIONS BY THE
COMPANY OTHER THAN THOSE CONTAINED IN THIS EXHIBIT A ITSELF OR THE EMPLOYMENT
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AGREEMENT (TO WHICH THIS EXHIBIT A IS A PART).
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/s/
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Initial
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