is the number of days during the applicable performance period in which the Employee was an employee of the Company, and the denominator of which is the number of days in such performance period; (c) the vesting of the pro rata portion (as defined...
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AMENDED AND RESTATED SEVERANCE AGREEMENT March 1, 2024 Xxxxx of Xxxx Nevada Corporation l Xxxxx of Xxxx Plaza El Paso, Texas 79912 Attn: Board of Directors 1. Employment Relationship. Xxxxx Xxxxx (“Employee”) is currently employed by Xxxxx of Xxxx Nevada Corporation, a Nevada corporation (the “Company”) as Chief Legal Officer. Employee and the Company acknowledge that either party may terminate Employee’s employment relationship with the Company and any of its affiliates at any time and for any or no reason, provided that each party complies with the terms of this Amended and Restated Severance Agreement (this “Agreement”). Capitalized terms used but not otherwise defined in this Agreement are defined in Section 5 below. 2. Release of Claims. In consideration for and as a condition precedent to receiving the severance benefits outlined in this Agreement, Employee agrees to execute a Release of Claims in the form attached as Exhibit A (“Release of Claims”). Employee promises to execute and deliver the Release of Claims to the Company within 21 days (or, if required by applicable law, 45 days) from the last day of Employee’s active employment. Employee shall forfeit the severance benefits outlined in this Agreement in the event that Employee fails to execute and deliver the Release of Claims to the Company in accordance with the timing and other provisions of the preceding sentence or revokes such Release of Claims prior to the “Effective Date” (as such term is defined in the Release of Claims) of the Release of Claims. 3. Additional Compensation Upon Certain Termination Events. 3.1 Termination of Employee’s Employment (Not in Connection with a Change of Control or Retirement Termination of Employment). In the event of a Termination of Employee’s Employment and contingent upon the Employee’s execution of the Release of Claims without revocation within the time period described in Section 2 above and in compliance with Section 8 and Section 9 of this Agreement, Employee shall be entitled to the following benefits: (a) an amount equal to (i) twelve (12) months of Employee’s annual base pay at the rate in effect immediately prior to the date of Termination of Employee’s Employment plus (ii) 100% of the target annual incentive for the performance period during which Employee’s employment was terminated, which incentive payment would have been awarded to Employee under the Xxxxx of Xxxx Limited 2011 Annual Incentive Plan and any successor annual incentive plan or arrangement in which executive officers and employees of Xxxxx of Xxxx Limited, a Bermuda company (“Xxxxx of Xxxx”), and its subsidiaries are eligible to participate (as amended, restated or modified from time to time, the “Annual Incentive Plan”); (b) an amount equal to the pro rata portion (as defined below) of the annual incentive payable under the Annual Incentive Plan for the performance period during which Employee’s employment was terminated had Employee’s employment not been terminated, based upon the actual performance of Xxxxx of Xxxx at the end of such performance period and payable at the same time that such payment would be made during Employee’s regular employment with the Company. For purposes of this Section 3.1(b), the term “pro rata portion” shall mean a percentage, when expressed as a fraction, the numerator of which Exhibit 10.8
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shall otherwise be subject to the terms and conditions of the Stock Incentive Plan and the award agreement relating to such option; and (e) immediate vesting based on assumed performance attainment at target levels of all unvested performance-based RSUs and unvested performance-based RSAs issued pursuant to the Stock Incentive Plan that are outstanding as of immediately prior to the date of Termination of Employee’s Employment. Notwithstanding anything to the contrary in this Agreement, if any payments, awards or benefits are owed or required to be settled or delivered to Employee under Section 3.3(c), (d) and (e) and Employee has attained Retirement Eligibility, then Employee shall be awarded the payment or benefit under Section 3.3(c), (d) and (e), and Employee shall not be entitled to any payment or benefit under Section 3.2, except as provided in the immediately following sentence. If, following the end of the relevant performance period(s) for the performance-based RSAs the Employee received under Section 3.3(e), the number of Eligible RSAs that would have vested under Section 3.2(a) is, on an aggregate basis, greater than the number of RSAs that vested under Section 3.3(e) on an aggregate basis, then Employee will also be entitled to the vesting of the number of performance-based Eligible RSAs equivalent to the positive difference thereof, at the time required under Section 3.2(a). Solely for purposes of this paragraph, the determination of the Eligible RSAs shall assume that the date of Retirement Termination of Employment shall be deemed to have occurred as of the date of the termination of his or her employment regardless of whether such termination occurred due to a Termination of Employee’s Employment in connection with a Change of Control or a Retirement Termination of Employment. 3.4 The Company shall pay Employee any unpaid base salary or other benefit earned by her up to and including the date of Termination of Employee’s Employment or the date of Retirement Termination of Employment, as applicable (including any unpaid cash or equity incentive payment earned under the Annual Incentive Plan or the Stock Incentive Plan and vested prior to the effective date of such termination to the extent such payment would not violate Section 409A of the Code (“Section 409A”)). For purposes of this Agreement and any award or award agreement granted under any stock or other incentive plan of Xxxxx of Xxxx and its subsidiaries, Employee shall not be deemed to be eligible for or to have “earned” any performance-based award under such plan or such award agreement unless the applicable performance period has been fully completed and the applicable performance goals have been achieved. Subject to compliance with Section 13, the amounts described in this Section 3.4, if any, shall be paid on the date Employee would otherwise have received each such payment if his employment had not been terminated, subject to certification of the attainment of any performance goals by the Compensation Committee to the extent required by the Code or any stock or other incentive plan of Xxxxx of Xxxx and its subsidiaries or any related award agreement. 3.5 In the event of a Termination of Employee’s Employment under Section 3.1, a Retirement Termination of Employment under Section 3.2 or a Termination of Employee’s Employment under Section 3.3, the Company shall provide, to the extent permitted by benefit plans of Xxxxx of Xxxx and its subsidiaries, and applicable law, the continuation (by way of Company payment for the entire coverage under COBRA) of health insurance benefits for Employee and his eligible dependents for a maximum of (a) twelve (12) months, in the event of a Termination of Employee’s Employment under Section 3.1, or until Employee is covered by another health insurance policy or is eligible for coverage under an employer-sponsored group health plan, if that occurs earlier than twelve months following the Termination of Employee’s Employment under Section 3.1 or (b) eighteen (18) months, in the event of a Retirement Termination of Employment under Section 3.2 or a Termination of Employee’s Employment under Section 3.3, or until Employee is covered by another health insurance policy or is eligible for coverage under an employer-sponsored group health plan, if that occurs earlier than eighteen months following a Retirement Termination of Employment under Section 3.2 or the Termination of Employee’s
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(c) the Company requires Employee to move his residence more than fifty miles from El Paso, Texas; or (d) the refusal of any successor to assume this Agreement in accordance with the terms and conditions of Section 6. Notwithstanding anything to the contrary contained herein, no termination for Good Reason shall occur unless (i) Employee delivers written notice to the Company of the occurrence of the event described in this Section 5.9 that constitutes Good Reason within ninety (90) days of Employee learning of the initial existence of the event, (ii) the Company or Xxxxx of Xxxx, as applicable, fails to remedy the event within thirty (30) days of the delivery of such notice and (iii) Employee terminates his employment no later than thirty (30) days following the end of such cure period. 5.10 Grant Date. “Grant Date” means (a) with respect to any option, RSA or RSU, the date expressly stated as the “Grant Date” or “Date of Grant” or analogous term in the applicable award agreement or (b) if no such date is specified in the applicable award agreement, the date on which the Compensation Committee resolves to grant an option, RSA or RSU, as the case may be. 5.11 Outstanding Xxxxx of Xxxx Voting Securities. “Outstanding Xxxxx of Xxxx Voting Securities” means the then issued and outstanding voting securities of Xxxxx of Xxxx entitled to vote generally in the election of directors. 5.12 Retirement Eligibility. “Retirement Eligibility” means any time after the date (a) the sum of the Employee’s age and number of years of service of employment with the Company or any of its affiliates or subsidiaries is sixty-five (65) and (b) the Employee attains ten (10) consecutive years of employment with the Company or any of its affiliates or subsidiaries. 5.13 Retirement Termination of Employment. “Retirement Termination of Employment” means that Employee, by written notice to the Company, has voluntarily terminated his employment with the Company (including any affiliate or subsidiary of the Company) for any reason other than for Cause, death or Good Reason on or after the date Employee attains Retirement Eligibility. 5.14 Termination of Employee’s Employment. “Termination of Employee’s Employment” means that (a) the Company has terminated Employee’s employment with the Company (including any affiliate or subsidiary of the Company) other than for Cause, death, Disability or a Retirement Termination of Employment, or (b) Employee, by written notice to the Company, has terminated his employment with the Company (including any affiliate or subsidiary of the Company) for Good Reason other than due to a Retirement Termination of Employment. A Termination of Employee’s Employment is intended to mean a termination of employment which constitutes a “separation from service” under the Code for purposes of non-qualified deferred compensation payable hereunder on or by reference to the Employee’s separation from service. 5.15 Unvested Tranche. “Unvested Tranche” means, for any applicable period of determination, the period (a) between the Grant Date and the first vesting date of such Eligible RSA, if no portion of the Eligible RSA has vested as of such determination, and (b) between each vesting date under any Eligible RSA. 6. Successors; Binding Agreement. The rights and obligations of the Company under this Agreement shall inure to the benefit of, and shall be binding on, the Company and its successors and assigns, and the rights and obligations of Employee under this Agreement shall inure to the benefit of, and shall be binding upon, Employee and (other than obligations to perform services and to refrain from disparagement)
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his heirs, personal representatives and assigns; provided that Employee may not assign any of his rights, interests or obligations hereunder without the prior written consent of the Company or Xxxxx of Xxxx. The Company will require, and will cause Xxxxx of Xxxx to require, any successor (whether direct or indirect, by purchase, merger, acquisition of assets, consolidation or otherwise) to all or substantially all of the business and/or assets of Xxxxx of Xxxx to assume and agree to perform the duties and obligations of Xxxxx of Xxxx and the Company, as the case may be, under this Agreement in the same manner and to the same extent that Xxxxx of Xxxx and the Company would be required to perform if no such succession had taken place. 7. Entire Agreement; Conflicts with Other Agreements. With respect to the matters covered by this Agreement, this Agreement contains the entire understanding relating to the subject matter hereof and supersedes, amends and restates any prior written or oral agreements, representations, and understandings, whether written or not, if any, between the Company or any predecessor of the Company and Employee with respect to the subject matter hereto, including that certain Severance Agreement dated March 1, 2023 between Employee and the Company (“Prior Agreement”). As of the date hereof, this Agreement supersedes and replaces any and all severance pay plans, policies, practices, arrangements or programs, written or unwritten, that Xxxxx of Xxxx or any its subsidiaries may have had in effect for Employee from time to time prior to the date hereof including the Prior Agreement. In the event of any conflict or inconsistency between the terms of any other agreement between the Company, Xxxxx of Xxxx, or any of their respective subsidiaries and Employee or any plan of Xxxxx of Xxxx or its subsidiaries and the terms hereof, the terms of this Agreement shall govern. 8. Resignation of Corporate Offices. Employee will resign Employee’s office, if any, as a director, officer, trustee or other position of the Company, its subsidiaries or affiliates and of any other corporation, partnership, trust or other entity of which Employee serves as such at the request of the Company or its affiliates, effective as of the date of Termination of Employee’s Employment or the date of the Retirement Termination of Employment, as applicable. Employee agrees to provide the Company such written resignation(s) upon request and that no severance pay or other benefits will be paid until after such resignation(s) are provided. Employee agrees to execute all documents and take such further steps as may be required to effectuate such resignation(s). 9. No Disparagement. (a) Employee agrees, other than with regard to employees in the good faith performance of Employee’s duties with the Company while employed by the Company, both during the term of Employee’s employment and after Employee’s employment with the Company terminates, not to knowingly disparage the Company or its officers, directors, employees or agents in any manner likely to be harmful to it or them or its or their business, business reputation or personal reputation. This Section 9(a) shall not be violated by statements from Employee which are truthful, complete and made in good faith in required response to legal process or governmental inquiry. (b) Employee agrees that any breach of this Section 9 by Employee shall be deemed a material breach of this Agreement. Employee agrees and understands that the remedy at law for any breach by her of this Section 9 would be inadequate and that the damages flowing from such breach are not readily susceptible to being measured in monetary terms. Accordingly, it is acknowledged that, upon Employee’s violation of this Section 9, Xxxxx of Xxxx or its subsidiaries may be entitled to immediate injunctive relief and may obtain temporary orders or other injunctive or provisional relief restraining any further breach in a court of competent jurisdiction. Nothing in this Section 9 shall be deemed to limit the Company, Xxxxx of Xxxx or any of its subsidiaries’ remedies at law or in equity for any breach by Employee of any of the provisions of this Section 9 which may be pursued or availed of by the Company, Xxxxx of Xxxx or any of its subsidiaries.
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10. Governing Law and Venue. This Agreement, including all matters related to its validity, enforceability, construction, interpretation and performance, all aspects of the relationship between the parties contemplated hereby and any disputes or controversies arising therefrom or related thereto, will be governed by, construed and enforced in accordance with the laws of the State of Texas (without regard to its conflicts-of-law provisions or principles). The Company and Employee hereby irrevocably and unconditionally (a) agree that any action or proceeding arising out of or in connection with this Agreement shall be brought only in the state and federal courts of El Paso County, Texas (the “Texas Court”), and not in any other state or federal court in the United States of America or any court in any other country, (b) consent to submit to the exclusive jurisdiction of the Texas Court for purposes of any action or proceeding arising out of or in connection with this Agreement, (c) waive any objection to the laying of venue of any such action or proceeding in the Texas Court, and (d) waive, and agree not to plead or to make, any claim that any such action or proceeding brought in the Texas Court has been brought in an improper or inconvenient forum. 11. Amendment. No provision of this Agreement may be modified unless such modification is agreed to in writing signed by Employee and the Company. 12. Severability. If any of the provisions or terms of this Agreement shall for any reason be held invalid or unenforceable, such invalidity or unenforceability shall not affect any other terms of this Agreement, and this Agreement shall be construed as if such unenforceable term had never been contained in this Agreement. 13. Deferred Compensation. (a) It is the intention that no payment or entitlement pursuant to this Agreement will give rise to any adverse tax consequences under Section 409A or Section 457A of the Code (“Section 457A”) and that such payments or entitlements to which Employee is or could become entitled to under this Agreement are intended to be exempt from or comply with Section 409A and exempt from Section 457A, with the payments intended to be exempt under the “short-term deferral” and “separation pay” exceptions to the maximum extent permitted under Section 409A, and this Agreement shall be interpreted and administered in a manner consistent with such intent. Further, no effect shall be given to any provision herein in a manner that reasonably could be expected to give rise to adverse tax consequences under Section 409A or Section 457A. The Company and Employee agree to work together in good faith to consider amendments to this Agreement and to take such reasonable actions which are necessary, appropriate or desirable to avoid imposition of any additional tax or income recognition prior to actual payment to Employee under Section 409A or Section 457A. If Employee or the Company believes, at any time, that any benefit or right provided by this Agreement does not comply with Section 409A or Section 457A, it shall promptly advise the other and shall negotiate reasonably and in good faith to amend the terms of such benefits and rights such that they comply with Section 409A and Section 457A (with the most limited possible economic effect on Employee and on the Company). For purposes of Section 409A, each installment payment provided under this Agreement shall be treated as a separate and distinct payment. Nothing in this Agreement shall provide a basis for any person to take action against the Company or any affiliate thereof based on matters covered by Section 409A or Section 457A, including the tax treatment of any amount paid under this Agreement, and neither the Company nor any of its affiliates shall under any circumstances have any liability to Employee or his estate or any other party for any taxes, penalties or interest due on amounts paid or payable under this Agreement, including taxes, penalties or interest imposed under Section 409A. (b) Without limiting the generality of the foregoing and anything in this Agreement to the contrary notwithstanding, if amounts or benefits payable by reference to the timing of Employee’s termination of employment constitute non-qualified deferred compensation subject to Section 409A, as
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determined in the Company’s sole discretion, (i) such amounts or benefits shall not be paid unless Employee experiences a “separation from service” (within the meaning of Section 409A), (ii) to the extent that any payment period conditioned on Employee’s execution of a release commences in one calendar year and ends in the subsequent calendar year, such amounts or benefits shall be paid in the second calendar year; and (iii) if Employee is a “specified employee” (within the meaning of Section 409A) as of the date of Employee’s separation from service, such amounts or benefits shall not be paid until the date that is six months and one day following the date of Employee’s separation from service, or if earlier, the date of Employee’s death. 14. Notices. All notices, requests, demands and other communications under this Agreement shall be in writing and shall be deemed to have been duly given if (a) delivered by hand and receipted for by the party to whom said notice or other communication shall have been directed, (b) mailed by certified or registered mail with postage prepaid, on the third business day after the date on which it is so mailed, (c) mailed by reputable overnight courier and receipted for by the party to whom said notice or other communication shall have been directed or (d) sent by facsimile transmission, with receipt of oral confirmation that such transmission has been received: (i) If to Employee, at such address as Employee shall provide to the Company. (ii) If to the Company to: Xxxxx of Xxxx Nevada Corporation l Xxxxx of Xxxx Plaza El Paso, Texas 79912 Attn: Board of Directors With a copy to: Office of General Counsel 0 Xxxxx xx Xxxx Xxxxx Xx Xxxx, Xxxxx 00000 or to any other address as may have been furnished to Employee by the Company. 15. Clawback Policy. Notwithstanding any other provision of this Agreement or any other agreement between Employee, on the one hand, and the Company, Xxxxx of Xxxx, or the respective affiliates, on the other hand (including any award or similar agreement granted to Employee under the Annual Incentive Plan or the Stock Incentive Plan) (collectively, the “Other Employee Agreements”), to the contrary, any compensation pursuant to this Agreement and/or the other Employee Agreements (including any common shares issued thereunder, and/or any amount received with respect to any sale of any such common shares), shall be subject to potential cancellation, recoupment, rescission, payback or other action in accordance with (a) Section 304 of the Sarbanes Oxley Act of 2002, (b) Rule 10D-1 of the Exchange Act and any rules and/or regulations issued pursuant to the Xxxx-Xxxxx Act of 2010, and (c) any clawback policy in effect, adopted or implemented by the Company on or after the date hereof with respect to or pursuant to Sarbanes Oxley Act of 2002, the Exchange Act, Xxxx-Xxxxx Act of 2010, in each case as amended, any rules and/or regulations issued pursuant to or promulgated thereunder and any rules, standards or regulations of any stock exchange or market or quotation system on which the common shares of Xxxxx of Xxxx are traded or applicable Xxxxx of Xxxx (as such policy may be amended from time to time, the “Policy”). The Employee agrees and consents to the Company’s and its affiliates application, implementation and enforcement of (a) the Policy or any similar policy established by the Company or its affiliates that may apply to the Employee and (b) any provision of applicable law relating to cancellation,
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rescission, payback or recoupment of compensation, and expressly agrees that the Company and its affiliates may take such actions as are necessary to effectuate the Policy, any similar policy (as applicable to the Employee) or applicable law without further consent or action being required by the Employee. [Signature page follows.]
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A-1 EXHIBIT A RELEASE OF CLAIMS 1. Parties. The parties to Release of Claims (hereinafter “Release”) are Xxxxx Xxxxx and Xxxxx of Xxxx Nevada Corporation, a Nevada corporation, as hereinafter defined. 1.1 Employee and Releasing Parties. For the purposes of this Release, “Employee” means Xxxxx Xxxxx, and “Releasing Parties” means Employee and his attorneys, heirs, legatees, personal representatives, executors, administrators, assigns, and spouse. 1.2 The Company and the Released Parties. For the purposes of this Release, the “Company” means Xxxxx of Xxxx Nevada Corporation, a Nevada corporation, and “Released Parties” means the Company and its predecessors and successors, affiliates, and all of each such entity’s officers, directors, employees, insurers, agents, attorneys or assigns, in their individual and representative capacities. 2. Background and Purpose. Employee was employed by the Company. Employee’s employment is ending effective ________________ under the conditions described in Section 3.1,3.2 or 3.3, as applicable, of the Severance Agreement (“Agreement”) by and between Employee and the Company dated [__________ __, ____]. The purpose of this Release is to settle, and the parties hereby settle, fully and finally, any and all claims the Releasing Parties may have against the Released Parties, whether asserted or not, known or unknown, including, but not limited to, claims arising out of or related to Employee’s employment, separation of employment, any claim for reemployment, or any other claims whether asserted or not, known or unknown, past or future, that relate to Employee’s employment, separation of employment, reemployment, or application for reemployment (in each case except as set forth below). 3. Release. In consideration for the payments and benefits set forth in Section 3 of the Agreement and other promises by the Company all of which constitute good and sufficient consideration, Employee, for and on behalf of the Releasing Parties, waives, acquits and forever discharges the Released Parties from any obligations the Released Parties have and all claims the Releasing Parties may have as of the Effective Date (as defined in Section 4 below) of this Release, including but not limited to, obligations and/or claims arising from the Agreement (other than any claim Employee may have against the Company after the date hereof with respect to nonperformance of the payment obligations of the Company set forth in Section 3 of the Agreement) or any other document or oral agreement relating to employment, separation of employment, compensation, benefits, severance or post-employment issues. Employee, for and on behalf of the Releasing Parties, hereby releases the Released Parties from any and all claims, demands, actions, or causes of action, in law or equity, whether known or unknown, arising from or related in any way to any employment of or past failure or refusal to employ Employee by the Company, or any other past claim that relates in any way to Employee’s employment, separation of employment, compensation, benefits,
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A-2 reemployment, or application for employment, with the exception of any claim Employee may have against the Company for enforcement of the Agreement. The matters released include, but are not limited to, any claims under federal, state or local laws, including the Age Discrimination in Employment Act (“ADEA”) as amended by the Older Workers’ Benefit Protection Act (“OWBPA”), any common law tort, contract or statutory claims, and any claims for liquidated damages, compensatory or putative damages and for attorneys’ fees and costs. Further, Employee, for and on behalf of the Releasing Parties, waives and releases the Released Parties from any claims that this Release was procured by fraud or signed under duress or coercion so as to make the Release not binding. Employee is not relying upon any representations by the Company’s legal counsel in deciding to enter into this Release. Employee understands and agrees that by signing this Release, Employee, for and on behalf of the Releasing Parties, is giving up the right to pursue any legal claims that Employee or the Releasing Parties may have against the Released Parties with respect to the claims released hereby. Provided, nothing in this provision of this Release shall be construed to prohibit Employee from challenging the validity of the ADEA release in this Section of the Release or from filing a charge or complaint with the Equal Employment Opportunity Commission or any state agency or from participating in any investigation or proceeding conducted by the Equal Employment Opportunity Commission or state agency. However, the Released Parties will assert all such claims have been released in a final binding settlement. Employee should consult with an attorney regarding the terms of this Release before signing the Release. Employee understands and agrees that this Release extinguishes all released claims, whether known or unknown, foreseen or unforeseen. Employee fully understands that, if any fact with respect to any matter covered by this Release is found hereafter to be other than or different from the facts now believed by Employee to be true, Employee expressly accepts and assumes that this Release shall be and remain effective, notwithstanding such difference in the facts. 3.1 IMPORTANT INFORMATION REGARDING RELEASE OF AGE DISCRIMINATION CLAIMS. Employee understands and agrees that: a. Also included among the claims knowingly and voluntarily waived and released by Employee in Section 3 are any age discrimination, retaliation, harassment, or related claims under the Age Discrimination in Employment Act (“ADEA”), the Texas Commission on Human Rights Act, the Older Workers Benefit Protection Act (“OWBPA”), or any other federal, state, or local law; b. this Release is worded in an understandable way; c. claims under ADEA that may arise after the date Employee signs this Release are not waived; d. the rights and claims waived in this Release are in exchange for additional consideration over and above any consideration to which Employee was already undisputedly entitled; e. Employee has been advised to consult with an attorney prior to executing this Release and has had sufficient time and opportunity to do so; f. Employee has been given a period of time of 21 days (or, if required by applicable law, 45 days) (the “Statutory Period”), if desired, to consider this Release before signing it, and that if Employee signs this Release in less time than the full Statutory Period, then by doing so she voluntarily agreed to waive his right to the full Statutory Period;
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A-6 Before me: NOTARY PUBLIC - My commission expires: XXXXX OF XXXX NEVADA CORPORATION By: Name: Title: Dated: