SEPARATION AGREEMENT AND RELEASE OF CLAIMS
EXHIBIT 10.25
SEPARATION AGREEMENT AND RELEASE OF CLAIMS
This Separation Agreement and Release Of Claims (hereinafter referred to as the
“Agreement”) is made and entered into this 6th day of August, 2009 (hereinafter referred to
as the “Execution Date”) by and between KONA GRILL, INC., a Delaware corporation, its
affiliates, subsidiaries, divisions, successors, and assigns, and the directors, officers, and
agents thereof (hereinafter collectively referred to as “Employer”) and XXXXXX X. XXXXX
(hereinafter referred to as “Employee”) (each a “Party” and collectively, the
“Parties”).
RECITALS
WHEREAS, Employee was employed by Employer as President and Chief Executive Officer;
WHEREAS, the terms and conditions of Employee’s employment with Employer were most recently
set forth in that certain Executive Employment Agreement dated May 11, 2009 (hereinafter referred
to as the “Employment Agreement”);
WHEREAS, Employee’s employment with Employer ended pursuant to Employee’s voluntary
resignation of employment, effective May 18, 2009 (hereinafter referred to as the “Separation
Date”);
WHEREAS, Employer and Employee, in order to settle, compromise and fully and finally release
any and all claims and potential claims against Employer and the Released Parties (as defined below
in Paragraph 5) arising out of Employee’s employment and the cessation thereof, and to settle,
compromise and fully and finally release those claims against Employee as set forth in Paragraph 6
herein, have agreed to resolve these matters on the terms and conditions set forth herein; and
WHEREAS, the Parties acknowledge that they are waiving rights and claims described herein in
exchange for consideration in addition to anything of value to which they are already entitled.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the
Parties agree as follows:
1. Recitals; Effective Date. The recitals set forth above are true, accurate, and
correct, and are incorporated in this Agreement by this reference and made a material part of this
Agreement. This Agreement shall become effective on the eighth calendar day after the Execution
Date so long as Employee has not revoked the Agreement pursuant to Paragraph 13 herein (hereinafter
referred to as the “Effective Date”).
2. Employment-Related Compensation. Employee acknowledges and agrees that he has
received from Employer all compensation to which he is entitled for services provided to Employer
through the Separation Date. Employee further acknowledges and agrees that he is not entitled to,
or has been provided all compensation due for, any accrued vacation or other benefits, and that he
has received reimbursement from Employer of all reasonable business expenses incurred by him
through the Separation Date, if any, in accordance with Employer’s expense reimbursement policy and
practices.
3. Severance Benefits. In consideration of the promises set forth herein, and
provided Employee does not revoke this Agreement pursuant to Paragraph 13 herein, Employer agrees
to treat Employee’s voluntary resignation of employment as a termination by Employer without Cause
pursuant and subject to the provisions of Section 6.3 of the Employment Agreement, and accordingly
provide Employee with the severance benefits provided for in Section 6.3.1 of the Employment
Agreement, subject to the terms and conditions set forth therein. In addition, consistent with
Employer’s
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agreement to treat Employee’s voluntary resignation as a termination by Employer without Cause
pursuant and subject to the provisions of Section 6.3 of the Employment Agreement, Employer further
agrees that the provisions set forth in Section 5.3(i) of the Employment Agreement relating to
vesting and exercise of stock options held by Employee shall apply. For purposes of clarification
and avoidance of doubt, provided Employee does not revoke this Agreement pursuant to Paragraph 13
herein, Employee shall receive the following as a severance benefit: (a) Base Salary earned but
unpaid as of the date of Employee’s termination; and (b) any other payments and/or benefits which
Employee is entitled to receive under any of the Benefit Plans or otherwise in accordance with the
terms of such plan or arrangement. Additionally, Employee will receive: (x) Base Salary in effect
at the time of the termination for a period of twelve (12) months (the “Continuation
Period”) following the termination of Employee’s employment with Employer, in the manner and at
such times as the Base Salary otherwise would have been payable to Employee; (y) continuation of
medical and dental benefits in effect under COBRA as of the date of termination of employment for
the Continuation Period; and (z) all unvested Stock Options scheduled to vest over a period of
twelve (12) months following the date of termination shall immediately vest and be immediately
exercisable for a period of three (3) months following the Separation Date. Employee acknowledges
and agrees that he shall not be entitled to any discretionary Incentive Bonus, or any pro-rata
portion of any such bonus, as any severance benefit, notwithstanding anything to the contrary
herein or in Section 6.3.1 of the Employment Agreement.
4. Adequate Consideration. Employee acknowledges and agrees that Paragraph 3 of this
Agreement provides substantial consideration to Employee in addition to anything of value to which
he is, as a matter of law, otherwise entitled.
5. Release of All Claims by Employee. In consideration of his receipt of the
severance benefits set forth in Paragraph 3 of this Agreement, Employee, for himself, his spouse
(if any), their marital community (if any), and their respective heirs, estates, representatives,
executors, successors and assigns, hereby fully, forever, irrevocably, and unconditionally release
and discharge Employer, and its subsidiaries, parent companies, employee benefit plans, any
co-employers or joint employers, and each of such persons and entities, their officers, directors,
employees, agents, advisors, attorneys, administrators, representatives, successors, heirs,
assigns, and all persons acting by, through, under, or in concert with them (collectively referred
to hereinafter as the “Released Parties”), from any and all claims which he or they may
have against them, or any of them, which could have, directly or indirectly, arisen out of any act
or omission to act occurring from the beginning of time to the Effective Date of this Agreement,
whether now known or unknown, asserted or unasserted. This release includes, but is not limited to,
any and all claims brought or that could be brought under any agreement between Employer and
Employee (except for this Agreement), as well as any and all claims brought or that could be
brought to pursuant to or under the Americans with Disabilities Act, Title VII of the Civil Rights
Act of 1964, the Age Discrimination in Employment Act, the Civil Rights Act of 1991, the National
Labor Relations Act, the Fair Labor Standards Act, the Employee Retirement and Income Security Act
(ERISA), the Securities and Exchanges Acts of 1933 and 1934; the Xxxxxxxx-Xxxxx Act (SOX), the
Consolidated Omnibus Budget Reconciliation Act (COBRA), the Family and Medical Leave Act, the Equal
Pay Act, the Arizona Constitution, the Arizona Civil Rights Act, the Arizona Employment Protection
Act, Arizona’s wage and hour statutes, and any other statute set forth in the United States Code or
the statutes or codes of any state, including but not limited to Arizona, Minnesota, or South
Dakota, that pertain or relate to, or otherwise touches upon, the employment relationship between
Employer and Employee and the Released Parties; including (but not limited to) any and all actions
for breach of contract, express or implied; breach of the covenant of good faith and fair dealing,
express or implied; promissory estoppel; fraudulent inducement; wrongful termination in violation
of public policy; all other claims for wrongful termination and constructive discharge, and all
other tort claims, including, but not limited to, assault; battery; false imprisonment; intentional
interference with contractual relations; intentional or negligent infliction of emotional distress;
invasion of privacy; negligence; negligent investigation; negligent hiring supervision, or
retention; defamation; intentional or negligent misrepresentation; fraud; and any and all other
laws and regulations relating to employment; employment termination; employment discrimination;
harassment and/or retaliation; wages; hours; employee benefits; compensation; or sexual harassment;
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and any and all claims for attorneys’ fees and costs, pursuant to or arising under any
federal, state, or local statute, law, regulation, ordinance, or order. This release of claims
expressly includes, but is not limited to, any and all claims arising out of and/or in any way
related to Employee’s employment with Employer or the circumstances of the termination of that
employment, whether known by him at the time of execution of this Agreement or not, including any
such claims that could be brought for breach of the Employment Agreement, and further including,
without limitation, any claim(s) for any unpaid wages, bonus amounts, or any other compensation
from Employer. By signing this Agreement, however, Employee does not waive any rights or claims
that may arise after the Effective Date of this Agreement, nor does he waive any vested rights he
may have under the terms of any stock option plan or any profit-sharing, retirement, or similar
employee welfare benefit plan administered or sponsored by Employer.
6. Release of Certain Claims by Employer. In consideration of Employee’s execution of
this Agreement, Employer, for itself, its subsidiaries, parent companies, employee benefit plans,
any co-employers or joint employers, and each of such persons and entities, their officers,
directors, employees, agents, advisors, attorneys, administrators, representatives, successors,
heirs, assigns and all persons acting by, through, under or in concert with them, hereby fully,
forever, irrevocably, and unconditionally release and discharge Employee, including his spouse,
their marital community, and their respective heirs, estates, representatives, executors,
successors, and assigns, from any and all claims which it has or may have against him that are
known to Employer as of the Effective Date of this Agreement, or that should be known to Employer
as of the Effective Date of this Agreement through the exercise of ordinary care and diligence,
which could have, directly or indirectly, arisen out of any act or omission to act occurring from
the beginning of time to the Effective Date of this Agreement. Notwithstanding anything set forth
herein to the contrary, Employer does not release Employee for any claim not known by it as of the
Effective Date of this Agreement that it would not know of through the exercise of ordinary care
and diligence, nor does Employer release Employee for any claims based on fraud, willful
misconduct, or gross negligence of Employee.
7. No Pending Claims. Employee represents and warrants that there are no claims,
charges, lawsuits, or any similar matters of any kind filed by him or on his behalf or for his
benefit presently pending against Employer or the Released Parties, or any of them, in any forum
whatsoever, including, without limitation, in any state or federal court, or before any federal,
state, or local administrative agency, board, or governing body. Employer also represents and
warrants that there are no claims, charges, lawsuits, or any similar matters of any kind filed by
it or on its behalf or for its benefit presently pending against Employee in any forum whatsoever,
including, without limitation, in any state or federal court, or before any federal, state, or
local administrative agency, board, or governing body.
8. Covenant Not to Xxx. The Parties specifically covenant not to file or commence, or
threaten to file or commence, any lawsuits, complaints, claims, or charges, either on their own
behalf or in any representative capacity, in any state or federal court or before any federal,
state, or local administrative agency, board, or governing body against Employer or the Released
Parties, or any of them, or against Employee, on and/or for any and all of the claims released by
this Agreement.
9. Preclusive Effect of Agreement. The Parties acknowledge, understand, and agree
that, except as provided in Paragraph 6 above, this Agreement may be pled as a complete bar to any
action or suit before any court or administrative body with respect to any lawsuit, complaint,
charge, or claim under federal, state, local, or other law relating to any possible claim that
existed or may have existed against either Party or the Released Parties, or any of them, arising
out of any event occurring from the beginning of time through the Effective Date of this Agreement.
10. Return of Property. Prior to or on the date Employee signs this Agreement,
Employee agrees to and shall return to Employer all Employer property in his actual or constructive
possession, if he has not already done so, including, but not limited to, all key cards, access
badges, keys, credit cards, computers, books, records, and Employer email and software systems and
content, belonging to Employer. In addition, Employee acknowledges that he is in possession of an
American Express credit card that is guaranteed by Employer. Employee shall pay the balance of
that card in full
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on a timely basis, and Employer may offset any amounts owed to Employee hereunder by any
amount Employer may be obligated to pay to American Express should Employee fail to comply with his
obligations hereunder with respect to payment of that card. Employee shall cancel this American
Express card, or alternatively, that shall take all necessary actions to remove Employer as a
guarantor on the card, within three (3) business days of the Effective Date of this Agreement.
Employer also agrees to return all Employee property currently in its possession.
11. Non-Admission. Execution of this Agreement and compliance with its terms shall
not be considered or deemed an admission by the Parties of any liability whatsoever, or as an
admission by either of any violation of the other’s rights or the rights of any other person, a
violation of any order, law, statute or duty, or breach of any duty owed to either or any other
person. The Parties specifically disclaim any and all such liability.
12. Review. A copy of this Agreement was initially delivered to Employee on or about
May 20, 2009, and a revised version with modifications agreed upon between the parties was
delivered to Employee on July 26, 2009. If Employee executes this Agreement before the expiration
of twenty-one (21) days, he acknowledges that he has done so for the purpose of expediting the
payment of the consideration provided for herein, and that he has expressly waived his right to
take twenty-one (21) days to consider this Agreement.
13. Revocation. Employee may revoke this Agreement for a period of seven (7) days
after he signs it. Employee agrees that if he elects to revoke this Agreement, he will notify
Employer, in writing (care of Xxxxxx X. Xxxxxxxxx, Xxxxxxxxx Xxxxxxx, LLP, 0000 Xxxx Xxxxxxxxx
Xxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 85016), via certified mail, on or before the expiration of the
revocation period. Receipt of proper and timely notice of revocation by Employer cancels and voids
this Agreement. Provided that Employee does not provide notice of revocation, this Agreement will
become effective upon expiration of the revocation period, as provided in Paragraph 1 above.
14. Knowing and Voluntary; ADEA Waiver. Employee represents and warrants that he was
advised by Employer to consult with an attorney of his own choosing concerning the provisions set
forth herein, and that he was represented in the negotiation of this Agreement by Xxxxxx Xxxxx,
Esq. Employee further represents and warrants that he has carefully read and fully understands all
of the provisions of this Agreement, including the fact that he is releasing all claims and
potential claims against Employer and the Released Parties, and that he is entering into this
Agreement, without coercion, and with full knowledge of its significance and the legal consequences
thereof. Employee represents and warrants that as part of this Agreement, he is knowingly and
voluntarily releasing and waiving any claims he believes he may have under the Age Discrimination
in Employment Act.
15. Acknowledgement and Confirmation of Continuing Obligations. Employee acknowledges
and confirms that the obligations set forth in Section 9 of the Employment Agreement continue
after, and shall survive, Employee’s termination of employment with Employer.
16. Confidentiality.
(a) Employee agrees to keep confidential, and to not divulge, the existence and terms of this
Agreement, its negotiation, its execution, and/or its implementation to any person or organization,
including but not limited to, current or former employees of Employer or the Released Parties,
members of the press and media, and other members of the public. Notwithstanding the foregoing,
Employee may permissibly disclose the existence and terms of this Agreement to his spouse, however,
his spouse shall be bound to the confidentiality provisions set forth in this paragraph, and they
specifically agree to not divulge the existence and terms of this Agreement, its negotiation, its
execution, and/or its implementation to any person or organization, including but not limited to
employees or former employees of Employer or the Released Parties, members of the press and media,
and other members of the public. This paragraph shall not prohibit Employee and his attorney(s)
from disclosing the terms of
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this Agreement to his tax advisor(s) to the extent necessary to prepare his income tax returns
and to represent his in connection with any proceedings relating thereto, or from advising a
governmental taxing authority of the consideration being paid to him, or of the existence of this
Agreement in response to a question or questions posed by such taxing authority. The Parties agree
that it shall not be a breach of this Agreement if Employee’s disclosure of such information has
been compelled through the issuance of compulsory legal process, provided, however, that in such
case, Employee agrees to give Employer reasonable notice (care of Xxxxxx X. Xxxxxxxxx, Xxxxxxxxx
Xxxxxxx, LLP, 0000 Xxxx Xxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxx, Arizona 85016) of the order or subpoena
in question and an opportunity to challenge the disclosure of any such information before the
appropriate court or agency. It shall not be a breach of this paragraph for Employee to disclose
the terms of this Agreement in a suit to enforce the terms of this Agreement or defend a claim that
this Agreement has been breached. Employee understands and agrees that this confidentiality
provision is a material term of this Agreement, and that his agreement to this provision concerning
confidentiality is a material inducement to Employer’s willingness to enter into this Agreement.
(b) Employer agrees to keep confidential, and to not divulge, the existence and terms of this
Agreement, its negotiation, its execution, and/or its implementation to any person or organization,
including but not limited to, current or former employees of Employer or the Released Parties,
members of the press and media, and other members of the public, except as required by law, and
will not publicize, directly or indirectly, the existence and terms of this Agreement to current or
former Employer employees, any members of the press and media, or any other members of the public.
Employee agrees, however, that Employer may inform certain necessary Employer employees of this
Agreement, including its terms, for purposes of risk management, taxes, and accounting, as well as
may make any disclosures concerning this Agreement as may be required by applicable securities
laws, and that Employer shall be permitted to disclose the terms of this Agreement in a suit or
arbitration to enforce the terms of this Agreement or defend a claim that this Agreement has been
breached.
17. Cooperation. Employee agrees, for a reasonable period of time following the
Separation Date, to provide reasonable assistance to Employer (including assistance with litigation
and arbitration matters), upon Employer’s reasonable request, concerning Employee’s previous
employment-related responsibilities. Such assistance may include, but is not limited to,
communicating and/or meeting with Employer’s attorneys, giving deposition testimony, attending
depositions, reviewing pleadings, including discovery pleadings, and attending and giving testimony
in court and arbitration proceedings.
18. Non-Disparagement. Employee agrees that neither he nor anyone acting on his
behalf will make any adverse, derogatory, or disparaging statement about Employer and/or the
Released Parties, or any of them, to any individual or entity, including but not limited to,
Employer’s actual or potential clients, customers, vendors, business partners, suppliers,
employees, financial or credit institutions, or the media, nor directly or indirectly take any
action which is intended to embarrass any of them. Employer similarly agrees that neither it nor
any person authorized to act on its behalf will make any adverse, derogatory, or disparaging
statement about Employee to any individual or entity, including but not limited to, prospective
Employer customers, contractors, vendors, directors, officers, shareholders, employees, or
affiliates, to any member of the press or media, or to any other persons about Employee, nor
directly or indirectly take any action which is intended to embarrass Employee. For purposes of
this Paragraph 18, an adverse, derogatory, or disparaging statement is any communication, oral or
written, which would cause to tend to cause the recipient of the communication to question the
business condition, integrity, competence, fairness, ethics, practices, strategy, or good character
of the person to whom or entity to which the communication relates.
19. Amendment. This Agreement shall be binding upon the Parties and may not be
amended, supplemented, changed, or modified in any manner, orally or otherwise, except by an
instrument in writing of concurrent or subsequent date signed by both of the Parties hereto.
20. Entire Agreement. This Agreement contains and constitutes the entire
understanding and agreement between the Parties hereto with respect to the subject matter hereof,
and, except as otherwise provided herein, cancels all prior or contemporaneous oral or written
understandings, negotiations, agreements, commitments, representations, and promises in connection
herewith.
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21. Paragraph Titles. The paragraph titles in this Agreement are for convenience
only; they form no part of this Agreement and shall not affect its interpretation.
22. Construction. The Parties hereto acknowledge and agree that each Party has
participated in the drafting of this Agreement and has had the opportunity to have this document
reviewed by the respective legal counsel for the Parties hereto and that the normal rule of
construction to the effect that any ambiguities are to be resolved against the drafting party shall
not be applied to the interpretation of this Agreement. No inference in favor of, or against, any
Party shall be drawn from the fact that one Party has drafted any portion hereof.
23. Execution in Counterparts; Facsimile Signatures. This Agreement may be executed
in any number of counterparts, each of which shall be deemed to be an original as against any Party
whose signature appears thereon, and all of which shall together constitute one and the same
instrument. This Agreement shall become binding when one or more counterparts hereof, individually
or taken together, shall bear the signatures of the Parties reflected hereon as the signatories.
Facsimile signatures shall be sufficient and fully binding.
24. Choice of Law and Venue. This Agreement shall be governed by the laws of the
State of Arizona, without regard to the conflicts of laws principles thereof. With respect to any
litigation based on, arising out of, or in connection with this Agreement, the Parties expressly
submit to the personal jurisdiction of the United State District Court for the District of Arizona
or the Superior Court of Maricopa County, Arizona (but only if the United States District Court for
the District of Arizona lacks jurisdiction), and the Parties hereby expressly waive, to the fullest
extent permitted by law, any objection that they may now or hereafter have to the laying of venue
of any such litigation brought in any such court referred to above, including without limitation
any claim that any such litigation has been brought in an inconvenient forum.
25. Severability. Should any provision in this Agreement or any provision of any
agreement incorporated or referenced herein, be declared or determined by any court to be illegal
or invalid, the validity of he remaining parts, terms, or provisions shall not be affected, and the
illegal or invalid part, term, or provision shall be deemed not to be a part of this Agreement.
26. Waiver. The failure of a Party to insist upon strict adherence to any obligation
of this Agreement shall not be considered a waiver or deprive that Party of the right thereafter to
insist upon strict adherence to that term or any other term of this Agreement. Any waiver of any
provision of this Agreement must be in a written instrument signed and delivered by the Party
waiving the provision.
27. Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of, as applicable, the Parties’ respective successors, assigns, heirs, estates, and
representatives.
28. Defined Terms. Capitalized terms set forth herein not defined in this Agreement
shall have the meaning and definition provided for them in the Employment Agreement.
29. Attorneys’ Fees and Costs. Employee and Employer agree that each Party will bear
its own costs and attorneys’ fees in connection with all matters related to the subject matter of
this Agreement and the settlement of those matters encompassed by this Agreement. Should any legal
action be commenced arising out of this Agreement, the prevailing Party in any such action shall be
entitled to an award of attorneys’ fees and costs incurred therein.
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30. Indemnification. Employer agrees that if Employee is made a party to or involved
in, or is threatened to be made a party to or otherwise to be involved in, any action, suit or
proceeding, whether civil, criminal, administrative or investigative (a “Proceeding”), by reason
of the fact that he is or was an officer or employee of Employer or is or was serving at the
request of Employer as an officer, member, employee or agent of another corporation, limited
liability corporation, partnership, joint venture, trust or other enterprise, including service
with respect to employee benefit plans, whether or not the basis of such Proceeding is Employee’s
alleged action in an official capacity while serving as an officer, member, employee or agent,
Employee shall be indemnified, protected, defended, and held harmless by Employer against any and
all liabilities, losses, expenses, judgments, penalties, fines and amounts reasonably paid in
settlement or as a result of a judgment in connection therewith, and shall be advanced reasonable
expenses (including attorneys’ fees and costs) as and when incurred in connection therewith, to the
fullest extent legally permitted or authorized by Employer’s By-laws or, if greater, by the laws of
the State of Delaware, as may be in effect from time to time, except that this Paragraph 30 shall
not apply to the following Proceedings: (a) any Proceeding initiated or brought voluntarily by
Employee against Employer or its directors, officers, employees, or other indemnified parties,
unless the Board has authorized or consented to the initiation of the Proceeding (or any part of
the Proceeding), (b) for an accounting of profits made from the purchase and sale (or sale and
purchase) by Employee of securities of Employer within the meaning of Section 16(b) of the Exchange
Act or any similar successor statute, and (c) any litigation brought against Employee by Employer
under Paragraphs 6, 15, 17, and/or 18 of this Agreement. The rights conferred on Employee by this
Paragraph 30 shall not be exclusive of any other rights which Employee may have or hereafter
acquire under any statute, Employer’s By-laws, agreement, vote of stockholders or disinterested
directors, or otherwise. The indemnification and advancement of expenses provided for by this
Paragraph 30 shall continue until and terminate upon the latest of: (a) the statute of limitations
applicable to any claim that could be asserted against Employee or Employer with respect to which
he may be entitled to indemnification under this Paragraph 30; (b) ten years after the date that
Employee has ceased to serve as a director or officer of Employer or as a director, officer,
employee, member, or agent of any other corporation, limited liability corporation, partnership,
joint venture, trust or other enterprise at the request of Employer; or (c) if, at the later of the
dates referred to in (a) and (b) above, there is a pending Proceeding in respect of which Employee
is granted rights of indemnification under this Paragraph 30, one year after the final termination
of such Proceeding, including any and all appeals. The indemnification and advancement of expenses
provided for by this Paragraph shall inure to the benefit of Employee’ heirs, executors and
administrators.
31. D&O Insurance. Notwithstanding the separation of his employment with Employer,
Employee shall continue to be covered under Employer’s Director and Officer liability insurance
policy(ies) to the extent permitted and provided for under the terms and conditions of that
policy(ies).
By signing below, the Parties acknowledge that they have carefully read and fully understand
all of the provisions of this Agreement and that they are voluntarily entering into this Agreement.
| Kona Grill, Inc., | ||||||
| a Delaware corporation | ||||||
| “Employer” | ||||||
/s/ Xxxxxx X. Xxxxx
|
By: | /s/ Xxxxx X. Xxxxx | ||||
Xxxxxx X. Xxxxx
|
Title: | Assistant Secretary | ||||
“Employee” |
||||||
| Dated: August 6, 2009 | Dated: August 10, 2009 | |||||
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