EMPLOYMENT AGREEMENT
Exhibit
10.2
Executive
THIS EMPLOYMENT AGREEMENT (the
“Agreement”) is dated as of the 15th day of May, 2019,
by and between Rekor Systems, Inc. (the “Company”), a
Delaware corporation, and Xxxxxx Xxxxxx (the
“Executive”). This Agreement supersedes the
Executive’s current employment agreement, which otherwise
expires by its terms on March 31, 2022.
WITNESSETH THAT:
The
Company desires to employ the Executive, and the Executive wishes
to accept such employment with the Company, upon the terms and
conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the
mutual promises and agreements set forth herein and other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto, intending to be legally
bound, agree as follows:
1.
Employment and Effective
Date.
a) The
Effective Date of this Agreement (the “Effective Date”)
is the date of execution and delivery by the Company and the
Executive.
b) The
Executive’s title as of the Effective Date shall continue to
be President and Chief Executive Officer of the Company. The
Executive shall report to the Company’s Board of Directors
(the “Board”). The position is considered
“exempt” and the Executive is not entitled to overtime
pay. The Executive hereby accepts such employment by the Company on
the terms and conditions hereinafter set forth.
c)
The Executive’s employment
hereunder shall be effective as of the Effective Date of this
Agreement and shall continue until April 7, 2024, unless terminated
earlier pursuant to Section 8 of this Agreement; provided that, on
such end date and each annual anniversary thereafter (such date and
each annual anniversary thereof, a “Renewal Date”), the
Agreement shall be deemed to be automatically extended, upon the
same terms and conditions, for successive periods of one year,
unless either party provides written notice of its intention not to
extend the term of the Agreement at least ninety (90) days prior to
the applicable Renewal Date. The period during which the Executive
is employed by the Company hereunder is hereinafter referred to as
the “Employment Term.”
2.
Compensation.
a) In
salary compensation for the Executive’s employment, the
Company shall pay the Executive a base salary at an annualized rate
of $495,000 (the “Base Salary”) in installments payable
in accordance with the Company’s customary payroll practices
and the law. The Executive shall be eligible for potential
discretionary increases to base salary on a regular
basis.
b) The
executive shall be considered for periodic performance bonuses as
determined by the Board in its sole discretion. The Executive
understands that nothing herein should be interpreted as a
guarantee of any discretionary performance bonus or pro-rata bonus
upon termination of employment.
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c) The
Executive shall be granted stock options (the
“Options”) to purchase shares of common stock of the
Company pursuant to the terms of the Company’s most Equity
Award Plan. The Options will allow the Executive to purchase
100,000 shares of common stock of the Company with an exercise
price per share as follows: 50,000 shares at $1.00, and50,000
shares at $1.50.
3.
Duties. The
Executive shall have such executive-level duties as are assigned or
delegated to him by the Board, consistent with his title. The
Executive shall devote substantially all his working time and
attention to the business of the Company, and shall cooperate fully
in the advancement of the best interests of the Company. Subject to
approval from the Company in writing in advance, the Executive,
during the term of this Agreement or any extensions or renewals
thereof agrees not to engage in any activities outside of the scope
of the Executive’s employment that would detract from, or
interfere with, the fulfillment of his responsibilities or duties
under this Agreement.
4.
Expenses. Subject
to Section 8 and subject to compliance by the Executive with such
policies regarding expenses and expense reimbursement as may be
adopted from time to time by the Company, the Executive is
authorized to incur reasonable expenses in the performance of his
duties hereunder in furtherance of the business and affairs of the
Company, provided that the Company will reimburse the Executive for
all such reasonable expenses upon the presentation by the Executive
of an itemized account satisfactory to the Company in
substantiation of such expenses when claiming
reimbursement.
5.
Employee Benefits;
Vacations. As of the first day of the month following the
first full month of employment, the Executive shall be eligible to
participate in such 401 (K), medical and other employee benefit
plans of the Company that may be in effect or modified from time to
time, to the extent eligible under the terms of those plans, on the
same basis as other similarly situated executive officers of the
Company. The Executive shall be entitled to paid vacation in
accordance with the policies of the Company in effect from time to
time, as determined by the Board.
6.
Indemnification and
Liability Insurance.
a)
The Executive shall be indemnified and held harmless consistent
with the provisions of the by-laws of the Company in effect at that
time but in no event shall the Executive receive diminished rights
or rights less than those rights provided by applicable
law.
b) During the Employment Term and for
a period of three (3) years thereafter, the Company shall purchase
and maintain, at its own expense, directors’ and
officers’ liability insurance providing coverage to the
Executive on terms that are no less favorable than the coverage
provided to other directors and similarly situated executives of
the Company.
7.
Taxation of Payments and
Benefits. The Company shall make deductions, withholdings
and tax reports with respect to payments and benefits under this
Agreement to the extent that it reasonably and in good faith
believes that it is required to make such deductions, withholdings
and tax reports. Payments under this Agreement shall be in amounts
net of any such deductions or withholdings. Nothing in this
Agreement shall be construed to require the Company to make any
payments to compensate the Executive for any adverse tax effect
associated with any payments or benefits or for any deduction or
withholding from any payment or benefit.
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8.
Termination. Either
the Executive or the Company may terminate the employment
relationship at any time, with or without Cause (as such term is
defined in Section 12) on advance notice as provided herein or
with immediate effect if the termination is for Cause. The
Executive agrees to give the Company at least fourteen
(14) days prior written notice if he decides to terminate his
employment. Except in the case of a termination for Cause, the
Company agrees that it will provide identical notice. Upon
termination of the Executive’s employment for any reason, the
Executive will be entitled to any earned but unpaid Base Salary,
any bonus approved prior to termination, reimbursement for unreimbursed expenses properly
incurred by the Executive prior the termination, his vested stock
grants and stock options. In addition, if terminated for reasons
other than Cause or if the Executive resigns for Good Reason, the
executive shall be entitled to such employee benefits, if any, to
which the Executive may be entitled under the Company’s
employee benefit plan(s) as of the termination.
Additionally:
a) In
the event the Executive dies during the term of this Agreement,
Executive’s employment hereunder shall automatically
terminate as of the date of death.
b) In
the event the Executive becomes totally disabled during the term of
this Agreement, this Agreement may be terminated by the Company as
of the date of total disability in its sole discretion. For
purposes of this Agreement, the Executive shall be deemed totally
disabled if the Executive becomes so physically or mentally
disabled as to be incapable, even with a reasonable accommodation
by the Company to the extent required by applicable law, of
performing the Executive’s duties for a period of ninety (90)
days in any twelve (12) month period. Any question as to the
existence of the Executive’s total disability as to which the
Executive and the Company cannot agree shall be determined in
writing by a qualified independent physician mutually acceptable to
the Executive or his representative(s) and the Company. Such
determination shall be final and conclusive for app purposes under
this Agreement.
c)
Subject to compliance with Sections 8(d) and (e), in the event
that the Executive’s employment is terminated by the Company
for reasons other than death, Disability (as defined above) or
Cause (as defined in Section 12) or in the event the Executive
resigns his employment for Good Reason (as defined in
Section 12), the Executive will be provided a severance
package equal to four (4) months of the Base Salary for each full
(1) year of employment, up to a maximum of 12 months (the
“Separation Payment”). The Separation Payment shall be
paid in twelve (12) equal monthly installments and shall begin
within fifteen (15) business days of the effective date of the
release noted in Section 8(g).
d) In
the event that the Executive’s employment is terminated for
Cause or the Executive resigns without Good Reason, the Executive
will not be entitled to any Separation Payment or any other
severance remuneration.
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e) Upon
a Change in Control during the Executive’s employment, the
Company shall be entitled to terminate the Executive’s
employment within one hundred and twenty (120) days of the Change
in Control. In such event, the Company shall pay to the Executive,
within forty-five (45) days of the termination (or otherwise in
accordance with applicable law, if the law requires earlier or
later payment), an amount equal to two (2) times the
Executive’s Base Salary then in effect. For purposes of this
Agreement, a Change in Control shall mean (i) a merger,
consolidation or statutory share exchange in which (x) the Company
is a constituent party and the Company issues capital shares
pursuant to such merger or consolidation, pursuant to which the
equity holders of the Company as constituted immediately prior to
such transaction will not own a majority, by voting power, of the
capital shares of (A) the surviving or resulting entity, or
(B) if the surviving or resulting entities a wholly-owned
subsidiary of another entity immediately following such merger or
consolidation, the parent corporation of such surviving or
resulting entity; (ii) the sale, exchange, lease, transfer,
exclusive license or other disposition of all or substantially all
of the assets of the Company and its subsidiaries, taken as a
whole, whether occurring as part of a single transaction or series
of related transactions, or the disposition (and whether by merger
or otherwise) of one or more of the subsidiaries if substantially
all of the assets of the Company and its Subsidiaries, taken as a
whole, are held by such subsidiary or subsidiaries, except where
such sale, exchange, lease, transfer, exclusive license or other
disposition is to a wholly-owned subsidiary of such person; or
(iii) a transaction or series of transactions pursuant to
which any person(s) acting together become(s) the “beneficial
owner”(as defined in federal securities law), directly or
indirectly, of more than fifty percent (50%) of the Company’s
equity securities.
f)
Notwithstanding any termination of the Executive’s employment
for any reason, the Executive will continue to be bound by the
provisions of the Proprietary Rights Agreement (as defined
below).
g) All
payments and benefits provided pursuant to Section 8(c) shall
be conditioned upon the Executive’s execution and
non-revocation of a general release of liabilities favoring the
Company which is prepared and provided by the Company,
substantially in the form of Exhibit A to this Agreement. The
Executive’s refusal to execute such general release shall
constitute a waiver by the Executive of any and all benefits
referenced in Section 8(c). The Company will not be obligated
to commence or continue any such payments to the Executive under
Section 8(c) in the event the Executive breaches the terms of
this Agreement or the Proprietary Rights Agreement and fails to
cure such breach within thirty (30) days of written notice
thereof detailing such breach, if such breach is deemed curable by
the Company in its reasonable discretion.
h) The
Company shall have the right to offset against any Separation
Payment (i) any undisputed amount owed by the Executive to the
Company, provided that the Company possesses, or obtains from the
Executive, written confirmation of such undisputed amount, and (ii)
the amount of any claims it has against the Executive by reason of
any breach of this Agreement.
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i)
Immediately upon termination for any reason, the Executive will
return any documents, records, data, apparatus, equipment and other
physical property that have been furnished to the Executive by the
Company or produced by the Executive in connection with
Executive’s employment, which will remain the sole property
of the Company.
9.
Confidentiality,
Non–Solicitation and Invention Assignment Agreement.
The Company considers the protection of its confidential
information and proprietary materials to be very important.
Therefore, as a condition of the Executive’s employment, the
Executive has been required to execute a confidentiality,
non-solicitation and invention assignment agreement in the form
attached hereto as Attachment A (the “Proprietary Rights
Agreement”) on the date hereof.
10.
Documents, Records,
etc. Subject to the terms and provisions of the Proprietary
Rights Agreement: (a) all documents, records, data, apparatus,
equipment and other physical property, whether or not pertaining to
Confidential Information (as defined in the Proprietary Rights
Agreement), which are furnished to the Executive by the Company or
are produced by the Executive in connection with the
Executive’s employment will be and remain the sole property
of the Company; (b) the Executive will return to the Company all
such materials and property as and when requested by the Company;
and (c) the Executive will return all such materials and property
within ten (10) days upon termination of the Executive’s
employment for any reason.
11.
No Conflict. Each
party hereby represents and warrants to the other that
(a) this Agreement constitutes that party’s legal and
binding obligation, enforceable against it or him in accordance
with its terms, (b) it or his execution and performance of
this Agreement does not and will not breach any other agreement,
arrangements, understanding, obligation of confidentiality or
employment relationship to which it or he is a party or by which it
he is bound, and (c) while the Executive is employed by the
Company, it or he will not enter into any agreement, either written
or oral, in conflict with this Agreement or its or his obligations
hereunder.
12.
Definitions.
a) The
term “Cause” shall mean
(i) discovery by the Company that any of the material
information provided to the Company concerning the
Executive’s qualifications, employment history and
experience, certifications or licenses was untrue or that the
Executive concealed a physical or mental condition that could
materially impair the Executive’s ability to perform his
responsibilities properly without reasonable accommodation as
required by applicable law, if any, (ii) the Executive’s
intentional, willful or knowing failure or refusal to follow,
support or enforce any legal or regulatory requirement applicable
to the Company or the Company’s lawful policies, as adopted
by the Board from time to time, or perform the Executive’s
duties (other than as a result of physical or mental illness,
accident or injury); (iii) the Executive’s intentional,
willful or knowing failure or unreasonable refusal to perform the
Executive’s duties (other than as a result of physical or
mental illness, accident or injury) provided the Executive is given
written notice describing such failure and fails to cure the same
within fifteen (15) days after receipt of such notice;
(iv) dishonesty, willful or gross misconduct, gross
ineptitude, or willful violation of any law, rule, or regulation
(other than minor traffic violations or similar offenses) or other
illegal conduct by the Executive in connection with the
Executive’s employment with the Company or breach of
fiduciary duty that involves personal profit; (v) the
Executive’s conviction of, or plea of guilty or nolo
contendere to, a charge of commission of a felony (exclusive of any
felony relating to negligent operation of a motor vehicle) or a
crime of moral turpitude; (vi) competition with the Company or
unauthorized use of any trade secret or other confidential
information; and (vii) a material breach by the Executive of this
Agreement, the Proprietary Rights Agreement or any other written
agreement between the Executive and the Company or any of its
affiliates; provided,
however, that the Company shall be required to give the
Executive fifteen (15) calendar days prior written notice of
its intention to terminate the Executive for Cause and to provide
the specific grounds thereof in the event the Company invokes
clause (ii) of this Section or a finding of “gross
ineptitude” as set forth in clause (iv) of this Section, and
the Executive shall have the opportunity during such fifteen
(15) day period to meet with a Company representative
designated by the Board and cure such event if such event is
capable of being cured; provided, further, that in the event that
the Executive terminates his employment with the Company during
such fifteen (15) day period for any reason, such termination
shall be considered a termination for Cause. For purposes of this
Section, (x) no act or failure to act on the part of the Executive
shall be considered “willful” unless it is
intentionally done, or intentionally omitted to be done, by the
Executive in bad faith or without reasonable belief that the
Executive’s action or omission was in the best interests of
the Company; and (y) any willful or grossly negligent conduct
of the Executive that results in the failure of the Company to
comply with a significant financial statutory or regulatory
requirement shall be considered grounds for termination for
Cause.
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b) The
term “Good
Reason” shall mean (i) any material reduction of
the Executive’s Base Salary, unless similar reductions are
imposed on all similarly situated executive officers of the
Company; (ii) any material breach by the Company of its
obligations under this Agreement including, but not limited to, its obligation to
assign Executive duties consistent with Section 3 of this
Agreement; (iii) a change without the Executive’s
consent in the principal location of the Company’s office to
an office that is more than sixty-five (65) driving miles by the
shortest reasonable driving route from the previous location (if
such move materially increases the Executive’s commute);
and (iv) the Company’s failure
to obtain an agreement from any successor to the Company to assume
and agree to perform this Agreement in generally the same manner
and to the same extent that the Company would be required to
perform if no succession had taken place, except where such
assumption occurs by operation of law; provided, however, that in any
case the Executive seeks to invoke “Good Reason” under
this Agreement, the Executive (x) must provide the Company
with written notice of the Executive’s intention to terminate
the Executive’s employment and the specific grounds thereof
within fifteen (15) days after the Executive’s discovery of
the event that the Executive believes constitutes Good Reason; (y)
must give the Company an opportunity to cure for fifteen
(15) days following receipt of such notice from the Executive,
if the event is capable of being cured, or, if not capable of being
cured, to have the Company’s representatives meet with the
Executive and the Executive’s counsel to be heard regarding
whether Good Reason exists; and (z) must terminate employment
within fifteen (15) days after the end of the cure period if the
Good Reason condition is not cured.
c) The
term “person” shall mean any
individual, corporation, firm, association, partnership, other
legal entity or other form of business organization.
13.
Section 409A of Internal Revenue Code.
a)
Anything in this Agreement to the contrary notwithstanding, if at
the time of the Executive’s separation from service within
the meaning of Section 409A of the Internal Revenue Code
(“Code”), the Company determines that the Executive is
a “specified employee” within the meaning of
Section 409A(a)(2)(B)(i) of the Code, then to the extent any
payment or benefit that the Executive becomes entitled to under
this Agreement on account of the Executive’s separation from
service would be considered deferred compensation subject to the 20
percent additional tax imposed pursuant to Section 409A(a) of
the Code as a result of the application of
Section 409A(a)(2)(B)(i) of the Code, such payment shall not
be payable and such benefit shall not be provided until the date
that is the earlier of (A) six months and one day after the
Executive’s separation from service, or (B) the
Executive’s death. If any such delayed cash payment is
otherwise payable on an installment basis, the first payment shall
include a catch-up payment covering amounts that would otherwise
have been paid during the six-month period but for the application
of this provision, and the balance of the installments shall be
payable in accordance with their original schedule.
b) The
parties intend that this Agreement will be administered in
accordance with Section 409A of the Code. To the extent that
any provision of this Agreement is ambiguous as to its compliance
with Section 409A of the Code, the provision shall be read in
such a manner so that all payments hereunder comply with
Section 409A of the Code. The parties agree that this
Agreement may be amended, as reasonably requested by either party,
and as may be necessary to fully comply with Section 409A of
the Code and all related rules and regulations in order to preserve
the payments and benefits provided hereunder without additional
cost to either party.
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c) The
determination of whether and when a separation from service has
occurred shall be made by the Company in accordance with the
presumptions set forth in Treasury Regulation
Section 1.409A-1(h).
d) The
Company makes no representation or warranty and shall have no
liability to the Executive or any other person if any provisions of
this Agreement are determined to constitute deferred compensation
subject to Section 409A of the Code but do not satisfy an
exemption from, or the conditions of, such Section.
14.
Successors and Assigns;
Entire Agreement; No Assignment. This Agreement shall be
binding upon, and shall inure to the
benefit of the parties and their respective successors, heirs,
distributes and personal representatives including, with respect to
the Company, any successor of
Company through merger, acquisition, corporate reorganization, or
any other business combination.
This Agreement and the Proprietary Rights Agreement contain the
entire agreement between the parties with respect to the subject
matter hereof and supersede other prior and/or contemporaneous
arrangements or understandings with respect
thereto. The Executive
may not assign this Agreement without
the prior written consent of the Company. The Company may assign this Agreement,
without the consent of the Executive, to any successor (whether
direct or indirect, by purchase, merger, consolidation, or
otherwise) to all or substantially all of the business or assets of
the part of the Company
in which the Executive works. In the event of such an assignment,
the term “Company” as used herein shall be deemed to
refer to such assignee or successor.
15.
Notices. All
notices and other communications required or permitted hereunder or
necessary or convenient in connection herewith shall be in writing
and shall be deemed to have been given when hand-delivered, mailed
by registered or certified mail (three days after deposited), or
sent by a nationally recognized courier service, to the following
address (provided that notice of change of address shall be deemed
given only when received):
If to
the
Company:
Rekor Systems, Inc.
0000
Xxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxx
00000
Attn:
General Counsel
If to
Executive:
Xxxxxx Xxxxxx
0000
Xxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, XX
00000
or to
such other names and addresses as the Company or the Executive, as
the case may be, shall designate by notice to each other person
entitled to receive notices in the manner specified in this
Section 15. A copy of any such
notice or communication under this Section 15 shall be transmitted
via electronic mail to the party’s corresponding email address on the same
day as the notice’s or communication’s hand-delivery,
mailing, or transmission by courier service.
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16.
Changes; No Waiver;
Remedies Cumulative. The terms and provisions of this
Agreement may not be modified or amended, or any of the provisions
hereof waived, temporarily or permanently, without the prior
written consent of each of the parties hereto. Either party’s
waiver or failure to enforce the terms of this Agreement or any
similar agreement in one instance shall not constitute a waiver of
any rights hereunder with respect to other violations of this or
any other agreement. No remedy conferred upon the Company or the
Executive by this Agreement is intended to be exclusive of any
other remedy, and each and every such remedy shall be cumulative
and shall be in addition to any other remedy given hereunder or now
or hereafter existing at law or in equity.
17.
Construction.
Neither this Agreement nor any uncertainty or ambiguity in this
Agreement shall be construed against any party hereto, whether
under any rule of construction or otherwise, because the parties
acknowledge that each party has cooperated in the drafting,
negotiation and preparation of this Agreement.
18.
Governing Law. This
Agreement and (unless otherwise provided) all amendments hereof and
waivers and consents hereunder shall be governed by the law of the
State of Maryland, without regard to conflicts of law
principles.
19.
Severability. The
Executive and the Company agree that should any provision of this
Agreement or the Proprietary Rights Agreement be declared illegal,
invalid or unenforceable by a Court of competent jurisdiction,
the validity of the
remaining parts, terms or provisions shall not be affected thereby,
and said illegal or invalid part, term or provision shall be deemed
not to be a part of this Agreement.
20.
Headings;
Counterparts. All section headings are for convenience only.
This Agreement may be executed in several counterparts, each of
which is an original, and may be transmitted electronically, with
such electronic copy serving as an original.
21.
Entire Agreement.
This Agreement and the Proprietary Rights Agreement contain the
entire agreement between the parties with respect to the subject
matter hereof and supersede other prior and contemporaneous
arrangements, agreements, promises, warranties and understandings
with respect thereto. No statement, representation, warranty,
covenant or agreement of any kind not expressly set forth in this
Agreement or the Proprietary Rights Agreement will affect, or be
used to interpret, change or restrict, the express terms and
provisions of this Agreement.
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IN WITNESS WHEREOF, the parties have
executed this Employment Agreement as of the date first above
written.
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By:
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/s/
Xxxxx XxXxxxxx
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Name:
Xxxxx XxXxxxxx
Title:
Chair, Board of Directors
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XXXXXX XXXXXX
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/s/ Xxxxxx
Xxxxxx
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9
EXHIBIT A
[FORM OF RELEASE AGREEMENT]
THIS AGREEMENT AND RELEASE (this
“Agreement”), dated as of [date] (the “Effective
Date”), is entered into by and between Xxxxxx Xxxxxx
(“Executive”) and Rekor Systems, Inc. (the
“Company”) (jointly, the
“Parties”).
WHEREAS, Executive is currently employed
by the Company; and
WHEREAS, Executive’s employment
with the Company will terminate effective as of [date].
NOW, THEREFORE, in consideration of the
mutual promises and covenants contained in this Agreement and other
good and valuable consideration, the sufficiency of which the
Parties hereby acknowledge, Executive and the Company hereby agree
as follows:
1. Executive shall be
provided severance pay and other benefits (the “Severance
Benefits”) in accordance with the terms and conditions of the
employment agreement by and between Executive and the Company (the
“Employment Agreement”); provided, that no such
Severance Benefits shall be paid or provided if Executive revokes
this Agreement pursuant to Section 4 below.
2. Executive, for and
on behalf of himself and his heirs, successors, agents,
representatives, executors and assigns, hereby waives and releases
any common law, statutory or other complaints, claims, demands,
expenses, damages, liabilities, or causes of action (each, a
“Claim”) arising out of or relating to
Executive’s employment or termination of employment with the
Company, both known and unknown, in law or in equity, which
Executive may now have or ever had against the Company or any
equity holder, agent, representative, administrator, trustee,
attorney, insurer, fiduciary, employee, director or officer of any
member of the Company, including their successors and assigns
(collectively, the “Company Releasees”). Released
Claims include, without limitation, any claim for any severance
benefit which might have been due Executive under any agreement
executed by and between the Company and Executive, and any
complaint, charge or cause of action arising out of his employment
with the Company under any federal or state Law or regulation,
including, but not limited to, the Age Discrimination in Employment
Act of 1967 (“ADEA,” a law which prohibits
discrimination on the basis of age against individuals who are age
40 or older), the National Labor Relations Act, the Civil Rights
Act of 1991, the Americans with Disabilities Act of 1990,
Title VII of the Civil Rights Act of 1964, the Employee
Retirement Income Security Act of 1974, the Family Medical Leave
Act, the Equal Pay Act, the Securities Act of 1933, the Securities
Exchange Act of 1934, the Rehabilitation Act of 1973, the Worker
Adjustment and Retraining Notification Act of 1988, all state
anti-discrimination and wage payment laws, all as amended, as well
an any other applicable federal, state and local statutes,
ordinances and regulations. By signing this Agreement, Executive
acknowledges that Executive intends to waive and release any rights
known or unknown Executive may have against the Company Releasees
under these and any other laws; provided, that Executive does
not waive or release (i) Claims with respect to the right to
enforce this Agreement or those provisions of the Employment
Agreement that expressly survive the termination of
Executive’s employment with the Company; (ii) Claims with
respect to any vested right Executive may have under any employee
benefit or compensation plan of the Company; (iii) any rights to
coverage under any applicable insurance policy; or (iv) Claims that
cannot be validly waived as a matter of law.
A-1
THIS MEANS THAT, BY SIGNING THIS RELEASE, EXECUTIVE WILL HAVE
WAIVED ANY RIGHT EXECUTIVE MAY HAVE HAD TO BRING A LAWSUIT OR MAKE
ANY CLAIM AGAINST THE COMPANY RELEASEES BASED ON ANY ACTS OR
OMISSIONS OF THE COMPANY RELEASEES UP TO THE DATE OF THE SIGNING OF
THIS RELEASE, TO THE EXTENT PROVIDED FOR ABOVE. NOTWITHSTANDING THE
ABOVE, NOTHING IN THIS AGREEMENT SHALL PREVENT EXECUTIVE FROM (I)
INITIATING OR CAUSING TO BE INITIATED ON HIS BEHALF ANY PROCEEDING
AGAINST THE COMPANY BEFORE ANY LOCAL, STATE OR FEDERAL AGENCY,
COURT OR OTHER BODY CHALLENGING THE VALIDITY OF THE WAIVER OF HIS
CLAIMS UNDER ADEA CONTAINED IN THIS AGREEMENT (BUT NO OTHER PORTION
OF SUCH WAIVER); OR (II) INITIATING OR PARTICIPATING IN (BUT
NOT BENEFITING FROM) AN INVESTIGATION OR PROCEEDING CONDUCTED BY A
GOVERNMENTAL AGENCY CHARGED WITH ENFORCING LAWS UNDER THEIR
JURISDICTION, SUCH AS THE EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION.
3. Executive
acknowledges that Executive has been given twenty-one (21) days
from the date of receipt of this Agreement to consider all of the
provisions of this Agreement and, to the extent he has not used the
entire 21-day period prior to executing this Agreement, Executive
does hereby knowingly and voluntarily waive the remainder of said
21-day period. Executive further acknowledges that he has read this
agreement carefully, has been advised by the Company to consult an
attorney, and fully understands that by signing below he is giving
up certain rights which he may have to xxx or assert a claim
against any of the Company Releasees, as described herein and the
other provisions hereof. Executive acknowledges that he has not
been forced or pressured in any manner whatsoever to sign this
agreement, and Executive agrees to all of its terms
voluntarily.
4. Executive shall
have seven (7) days from the date of Executive’s execution of
this Agreement to revoke the release, including with respect to all
claims referred to herein (including, without limitation, any and
all claims arising under ADEA). If Executive revokes the Agreement,
Executive will be deemed not to have accepted the terms of this
Agreement.
5. Each party and its
counsel have reviewed this Release and has been provided the
opportunity to review this Release and accordingly, the normal rule
of construction to the effect that any ambiguities are to be
resolved against the drafting party shall not be employed in the
interpretation of this Release. Instead, the language of all parts
of this Release shall be construed as a whole, and according to
their fair meaning, and not strictly for or against either
party.
6. This Agreement will
be deemed to be made and entered into in the State of Maryland, and
be governed by, and construed and enforced in accordance with, the
laws of the State of Maryland, without regard to its principles of
conflicts of laws.
A-2
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the Effective Date.
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By:
Name:
Title:
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Xxxxxx Xxxxxx
_________________________________________
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A-3
