CONFIDENTIAL SEPARATION AGREEMENT AND GENERAL RELEASE
This
CONFIDENTIAL SEPARATION AGREEMENT AND GENERAL RELEASE (the “Agreement”),
dated
as of May 10, 2008, is hereby made between XXXXX XXXXXXXX (“Employee”)
and
DOCUMENT SECURITY SYSTEMS, INC. and its divisions, affiliates, subsidiaries,
predecessors, successors and assigns (collectively, “DSS”).
Employee and DSS are hereinafter referred to individually as a “Party”
and
collectively as the “Parties.”
This
Agreement will become effective on the Effective Date (as hereafter defined).
WHEREAS,
Employee and DSS have mutually agreed to terminate Employee’s employment with
DSS effective as of the close of business on May 9, 2008 (the “Termination
Date”);
WHEREAS,
Employee and DSS have agreed to settle fully and finally any and all matters
and/or controversies between them under the terms and conditions set forth
in
this Agreement.
NOW,
THEREFORE, with the intent to be legally bound hereby, and in consideration
of
the mutual promises and covenants contained herein and other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, DSS
and Employee agree to the terms and conditions set forth below.
1. Payment
and Other Consideration.
1.1. Employee
shall be entitled to the following payments from DSS:
(a) If
the
Restricted Stock Proceeds (as defined in Section 1.6) shall be less than
$212,000, DSS shall pay Employee, in cash or stock at the option of DSS, within
thirty days after the end of the Restricted Stock Sale Period (as defined in
Section 1.6) the difference between the Restricted Stock Proceeds and $212,000.
If DSS chooses to issue additional shares of stock pursuant to the immediately
preceding sentence, DSS agrees to issue such shares promptly and to cooperate
with Employee in any such disposition by Employee of such shares.
(b)
The
payments, if any, payable under Section 1.1(a) shall includes payment of all
unused eligible PTO (Paid Time Off), including without limitation vacation
days
and sick days.
1.2. Employee
shall receive reimbursement by DSS for all reasonable business expenses incurred
prior to the Termination Date in accordance with DSS’s policies.
1.3. Any
applicable payments hereunder shall be less required withholdings for taxes
and
benefit plan contributions (if any).
1.4. Concurrent
with, or shortly after, the execution of this Agreement, DSS and Employee
anticipate executing a Consulting Agreement (the “Consulting
Agreement”).
Employee acknowledges and agrees that during the period of this agreement,
he
will comply with and be subject to DSS’s xxxxxxx xxxxxxx policy during the term
of the Consulting Agreement.
1.5. Subject
to the approval of the Compensation and Management Resources Committee of the
Board of Directors of the Company, DSS and Employee agree that the “Expiration
Date,” as that term is used in that certain Stock Option Agreement, dated
December 20, 2006, between DSS and Employee regarding an option to purchase
40,000 shares of the Company’s Common Stock, shall be amended to “November 1,
2009.”
1.6. Restricted
Stock Vesting; Restricted Stock Proceeds.
(a) Subject
to the approval of the Compensation and Management Resources Committee of the
Board of Directors of the Company, DSS and Employee agree that that certain
Restricted Stock Agreement, dated June 12, 2006, between DSS and Employee is
hereby amended so that the Restrictions (as defined in such Restricted Stock
Agreement) with respect to 33,333 unvested shares of restricted stock issued
under such Restricted Stock Agreement (the “Accelerated Restricted Stock”) shall
lapse as follows: 3,333 shares on each 1-month anniversary of the Effective
Date.
(b) Employee
agrees to promptly enter into a Rule 10b5-1 Plan that is acceptable to the
Company (the “Rule 10b5-1 Plan”) in which Employee shall instruct the applicable
broker to sell such each such 3,333 vesting shares on terms and conditions
acceptable to Employee but in no event later than thirty (30) days after the
applicable vesting of each such 3,333 shares.
(c) The
gross
proceeds of the sales of the Accelerated Restricted Stock shall be referred
to
as the “Restricted Stock Proceeds.” For purposes of calculating the Restricted
Stock Proceeds only, any shares of the Accelerated Restricted Stock that are
not
sold within thirty (30) days after the applicable vesting date of such portion
of the Accelerated Restricted Stock shall be considered to have generated gross
sale proceeds equal to the cost basis of such unsold shares of Accelerated
Restricted Stock, which cost basis shall equal the average of the high and
low
trades of the Company’s common stock on the trading day immediately prior to the
lapse of Restrictions with respect to the applicable shares of Accelerated
Restricted Stock.
(d) The
term
“Restricted Stock Sale Period” shall mean the period that begins on the first
lapse of Restrictions of the Accelerated Restricted Stock and ends on the
earlier of (i) the date that all such shares of the Accelerated Restricted
Stock
has been sold by Employee or (ii) thirty (30) days after the Restrictions have
lapsed on all of the Accelerated Restricted Stock.
1.7. DSS
and
Employee agree that that certain Restricted Stock Agreement, dated May 3, 2007,
between DSS and Employee is hereby terminated and Employee and DSS each
acknowledge and agree that he/it and the other party have no rights or
obligations under such Restricted Stock Agreement. Employee further agrees
that
other than as set forth in Section 1.5 and 1.6, he has no rights, including
without limitation to receive, vest or exercise any options and/or restricted
stock, pursuant to any Stock Option Agreement, Restricted Stock Agreement or
otherwise.
2. Benefits.
2.1. As
of the
Termination Date, Employee shall be eligible to elect the continuance of group
health and dental insurance (if Employee is currently enrolled in the DSS
sponsored plan), in accordance with federal COBRA law. If
Employee wishes to elect COBRA (continue coverage in the then-current group
medical and/or dental plan after the Termination Date), Employee must complete
and sign a COBRA Election Form and return it to DSS in accordance with COBRA.
Employee
will receive information, under separate cover, about Employee’s COBRA rights
and about Employee’s rights under the DSS 401(k) Savings Plan (if Employee is a
participant).
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2.2. Employee’s
premiums for any coverage under COBRA will be the then-published
rate.
2.3. After
the
Termination Date, Employee will not continue to accrue vacation benefits or
commissions, or continue to contribute to the DSS Savings Plan or 401(k) Plan,
and will not receive any other benefits from DSS, other than those specified
in
this Agreement. Employee’s rights with respect to any options to purchase DSS
stock or any restricted DSS stock that he may have received from DSS are
governed by the applicable award agreements and plan documents.
3. Payment
of all Outstanding Compensation.
Except
for those obligations specifically set forth in this Agreement and
in
the Consulting Agreement, and for those obligations set forth in the Stock
Option Agreement referred to in Section 1.5 and the Restricted Stock Agreement
referred to in Section 1.6, as of the Termination Date, any and all agreements
or arrangements between the Parties related to commissions, bonuses, ownership
or other interests in any entities or assets, payments and/or compensation
of
any kind (“Compensation”)
are
deemed null and void without any continuing obligation or liability of any
party
thereunder; it being understood that, among other things, from and after the
Termination Date except as expressly provided hereunder or under the Consulting
Agreement, DSS will have no obligation to pay Employee any Compensation or
have
any duties, responsibilities or other obligations to Employee with respect
to
any agreement or arrangement and Employee will have no rights
thereunder.
4. Equipment.
Employee will return any and all DSS property and equipment in his possession,
including, but not limited to, any and all DSS identification cards, card key
passes, keys, pagers, computers (laptops or desktops), cellular telephones,
BlackBerry or similar personal digital assistant devices, corporate credit
cards, corporate calling cards, and any other property or equipment in his
possession that DSS may not know of, on or before the Termination Date. Employee
may, at his option, transfer his current cellular telephone number to a cellular
phone owned by him.
5. Termination
of Employment; Resignation.
Employee acknowledges and agrees that his employment by DSS has terminated
on
the Termination Date, and that he will be deemed to have resigned from all
officer positions and directorships that he may hold with DSS (or otherwise
at
the request of DSS) at such time. Employee acknowledges and agrees that he
is
due no other compensation, commission payments, benefits or other consideration
of any kind other than as specifically identified in this Agreement and in
the
Consulting Agreement.. DSS agrees not to contest any application for
unemployment benefits of Employee.
6. Re-employment
or Reinstatement.
Employee recognizes and acknowledges that DSS has no obligation to recall,
rehire, or re-employ Employee in the future except for the services contemplated
in the Consulting Agreement.
7. Cooperation.
Through
the Severance Pay Period, Employee agrees to cooperate with reasonable requests
for advice, cooperation and/or assistance made by DSS, at no charge, in
connection with matters he worked on while employed by DSS, including, without
limitation, to assist in the orderly transition of his duties and
responsibilities and any outstanding projects to the individual (or individuals)
designated by DSS. Failure by Employee to provide complete and honest
cooperation will constitute a material breach of this Agreement.
No
Other Inducements.
Employee acknowledges that the payments described in Section
1
are made
solely in consideration of and in exchange for his execution of this Agreement
and the general release. Employee acknowledges that he is not otherwise entitled
to receive the payments and other items of value referenced above, absent his
execution of this Agreement, and that no other promise or agreements (oral
or
written) of any kind have been made to him or with him by any person or entity
whatsoever to cause him to sign this Agreement.
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8. Release.
8.1. For
good
and valuable consideration (the receipt and sufficiency of which hereby are
acknowledged) and as a material inducement to DSS to enter into this
Agreement and
the
Consulting Agreement, Employee, for himself and his heirs, executors,
administrators, personal representatives and members of his immediate family,
hereby voluntarily, irrevocably and unconditionally releases, acquits and
forever discharges DSS and its present and former officers, directors,
employees, shareholders, consultants, attorneys, advisors, agents and
representatives, and all persons acting by, through, under or in concert with
any of them (whether any of the aforementioned individuals were acting as agents
for DSS or in their individual capacities) (collectively, the “Released
Parties”)
from
any and all claims and causes of action (except those necessary to enforce
his
rights under this Agreement) including, but not limited to, claims related
to
Employee’s employment, or separation from employment; any claims for salary,
bonuses, commissions, payments related to severance pay, vacation pay or any
benefits under the Employee Retirement Income Security Act (except for vested
ERISA benefits which are not affected by this Agreement); any claims for option,
stock or other incentive awards; any claim under New York’s Wage and Hour Laws,
or other state wage and hour laws; any claim under the Worker Adjustment and
Retraining and Notification Act; any claim alleging sexual or other harassment,
or discrimination based on race, color, national origin, ancestry, religion,
marital status, sex, sexual orientation, citizenship status, pregnancy, medical
condition, handicap or disability (as defined by the Americans with Disabilities
Act or any foreign, federal, state or local law), age, or any other unlawful
discrimination (under the Age Discrimination in Employment Act, as amended
by
the Older Workers Benefit Protection Act of 1990, Title VII of the Civil Rights
Act of 1964, as amended, the Americans with Disabilities Act, the Equal Pay
Act,
the Violence Against Women Act, the New York Law Against Discrimination, or
any
other foreign, federal, state or local laws); discharge in violation of foreign,
state or federal “whistle blower” laws; discharge in violation of the federal
Family and Medical Leave Act or other foreign, state or federal family leave
laws; breach of implied or express contract, breach of promises,
misrepresentation, negligence, fraud, estoppel, defamation, infliction of
emotional distress, violation of public policy, retaliatory discharge, wrongful
or constructive discharge, retaliation, intentional tort or for attorneys’ fees,
which Employee or his heirs, executors, administrators, personal representatives
or members of his immediate family now have, ever had or may hereafter have,
whether known or unknown, suspected or unsuspected, up to and including the
date
both Parties have executed this Agreement.
8.2. Employee,
for himself and his heirs, executors, administrators, personal representatives
and members of his immediate family, also hereby waives all rights to file
any
charge or complaint against DSS arising out of Employee’s employment by or
termination thereof from DSS before any federal, state or local administrative
agency, except where any law prohibits such waivers. Employee, for himself
and
his heirs, executors, administrators, personal representatives and members
of
his immediate family, further waives all rights to recover any damages or
equitable or other relief in any claim or suit brought by or through the Equal
Employment Opportunity Commission, or any other federal, state or local agency
under the Age Discrimination in Employment Act, as amended by the Older Workers
Benefit Protection Act of 1990, Title VII of the Civil Rights Act of 1964,
as
amended, the Americans with Disabilities Act, the Equal Pay Act, the any other
foreign, federal, state, or local discrimination law, except where such waiver
is prohibited by law.
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8.3. Employee
further agrees, promises and covenants that neither he nor his heirs, executors,
administrators, personal representatives, members of his immediate family or
any
person, organization, or other entity acting on his behalf has filed, charged
or
claimed, or will file, charge or claim, or will cause or permit to be filed,
charged or claimed, any action for damages or other relief (including
injunctive, declaratory, monetary relief or other) against the Released Parties
involving any matter occurring in the past up to the Effective Date (as
hereafter defined), or involving or based upon any claims, demands, causes
of
action, obligations, damages or liabilities which are later
discovered.
8.4. Employee
further agrees that the releases contained in Sections
8.1
through
8.3
above
shall survive in the event of a breach by Employee (or any person, organization
or entity acting on his behalf) of this Agreement, or any representation,
warranty, promise, covenant or other obligation contained herein or
therein.
9. No
Admission of Liability.
The
making of this Agreement and anything contained herein is not intended, and
shall not be construed, as an admission that DSS has violated any foreign,
federal, state or local law (statutory or common law), ordinance or regulation;
breached any contract; or violated any right or obligation that it may owe
or
may have owed to Employee, or committed any wrong whatsoever against Employee.
Employee further acknowledges, covenants, and agrees that no final findings
or
final judgments have been made by any court or arbitration panel against DSS
in
favor of Employee, and that Employee does not purport and will not claim to
be a
prevailing party, for any purpose.
10. Confidentiality
of Agreement.
The
Parties agree that the consideration furnished under this Agreement and
the
Consulting Agreement, the discussions and correspondence that led to this
Agreement and the Consulting Agreement, and the terms and conditions of this
Agreement and the Consulting Agreement are confidential. Employee represents
that he, and any attorney he may have retained to review this Agreement and
the
Consulting Agreement, have not disclosed the terms or conditions of this
Agreement and the Consulting Agreement. Except as may be required by law or
to
enforce the terms hereof or thereof, neither Employee nor his attorney may
disclose the above information to any other person or entity, except that
Employee may disclose the provisions of this Agreement and
the
Consulting Agreement to his immediate family members and financial and/or tax
advisor, provided
that
Employee makes the person to whom disclosure is made aware of the
confidentiality provisions of this Agreement and the Consulting Agreement and
such person agrees in writing to keep confidential the terms of this Agreement.
If subpoenaed to appear in any civil or criminal litigation, or by any
governmental authority, to testify as to the contents of this
Agreement and/or
the Consulting Agreement, Employee agrees to immediately forward a copy of
the
subpoena to the General Counsel of DSS so that DSS may contest such subpoena,
or
any request, requirement or order related thereto, and to notify the proponent
of the subpoena that this Agreement and/or the Consulting Agreement are the
subject of an agreement of confidentiality. DSS may disclose the terms and
conditions of this Agreement and/or the Consulting Agreement to its respective
officers, directors, employees, accountants and counsel who have a business
need
to know, and as otherwise required by law. Employee further agrees that he
will
not encourage others who are not Parties to this Agreement and/or the Consulting
Agreement to demand any disclosure of the terms and conditions of this Agreement
and/or the Consulting Agreement.
5
11. Intellectual
Property and Non-Disclosure Obligations.
11.1. Employee
agrees that he will not file, without the express written consent of the CEO
or
General Counsel of DSS, any patent, copyright or trademark applications relating
to any DSS Invention (as hereafter defined), except under the direction of
DSS.
As referred to in this Agreement, “DSS
Invention”
shall
mean all ideas, inventions, discoveries, improvements, trade secrets, formulae,
techniques, data, software, programs, systems, specifications, developments,
system architectures, documentation, algorithms, flow charts, logic diagrams,
source code, methods, processes, marketing and business data, including
works-in-progress, whether or not subject to statutory protection, whether
or
not reduced to practice, which were conceived, created, authored, developed,
or
reduced to practice by Employee, either alone or jointly with others, whether
on
the premises of DSS or not, during his employment by DSS. Employee agrees to
assist DSS in perfecting, registering, maintaining, and enforcing, in any
jurisdiction, DSS’s rights (including such rights as may be assigned by DSS from
time to time) in the DSS Inventions by performing promptly all acts and
executing all documents deemed necessary or convenient by DSS and does hereby
irrevocably designate and appoint DSS and its duly authorized officers and
agents as his agent and attorney-in-fact to do all lawfully permitted acts
(including, but not limited to, the execution, verification and filing of
applicable documents) with the same legal force and effect as if performed
by
him.
11.2. Employee
agrees that he will not, without the express written consent of the CEO or
General Counsel of DSS, use the Confidential Information (as hereafter defined)
except as permitted by the Consulting Agreement. As referred to in this
Agreement, “Confidential
Information”
shall
mean technical and business information about DSS, and its clients and customers
that was learned by Employee in the course of his employment by DSS and that
was
not already in the public domain through no fault of Employee including, without
limitation, any and all proprietary DSS Inventions, any trade secrets, customer
and potential customer names, product plans and designs, licenses and other
agreements, marketing and business plans, and other financial and business
information of DSS. Employee will not duplicate or replicate (or cause or permit
others to duplicate or replicate) any document or other material in any medium
embodying any Confidential Information. Employee will not disclose or permit
the
disclosure of any Confidential Information to any person or entity under any
circumstances, unless Employee is required to disclose such information by
law
or pursuant to a judicial order, and in such case, prior written notice to
DSS
is required where possible. All of the Confidential Information shall remain
the
sole and exclusive property of DSS. DSS owns all right, title and interest
in
and to the Confidential Information and other intellectual property owned by
DSS, including, without limitation, the DSS Inventions. Employee agrees that
he
acquired no right, title or interest in any Confidential Information or the
DSS
Inventions; and the Confidential Information is specialized, unique in nature,
and of great value to DSS and that such Confidential Information gives DSS
a
competitive advantage. Employee hereby agrees to promptly return to DSS all
tangible materials and all copies thereof, in whatever media, in his possession
or control, containing or employing any Confidential Information or the DSS
Inventions, together with a written certification with the
foregoing.
6
Employee
acknowledges and agrees that all copyrights, trademarks, patents and DSS
Inventions conceived, created, authored, developed or reduced to practice by
Employee during his employment with DSS are the sole and exclusive property
of
DSS; all copyrightable works included in the DSS Inventions shall be “works made
for hire” within the meaning of the Copyright Act of 1976, as amended (17 U.S.C.
§101), and DSS is the “author” within the meaning of such Act; and in the event
that title to any or all of the DSS Inventions does not or may not, by operation
of law, vest in DSS, Employee hereby assigns to DSS all his right, title and
interest in all DSS Inventions, and all copies of them, in whatever medium
fixed
or embodied, and in all writings relating thereto in his possession or control
and expressly waives any moral rights or similar rights in any DSS Invention
or
any such work made for hire.
11.3. Employee
acknowledges and agrees that:
(a) (i)
DSS
owns all right, title and interest in and to the Confidential Information and
DSS Inventions, and (ii) Employee acquired no right, title or interest in any
Confidential Information or the DSS Inventions; and
(b) The
Confidential Information is specialized, unique in nature, and of great value
to
DSS and that such Confidential Information gives DSS a competitive advantage;
and
(c) Employee
hereby agrees to promptly return to DSS all tangible materials and all copies
thereof, in whatever media, in his possession or control, containing or
employing any Confidential Information, together with a written certification
with the foregoing.
12. Non-Competition
and Non-Solicitation.
12.1. Employee
acknowledges and agrees that, except as provided otherwise in the Consulting
Agreement,:
(a) Employee
shall not during the one-year period following the Termination Date, either
as
an employee, employer, consultant, agent, principal, partner, stockholder,
corporate officer, director or in any other individual or representative
capacity, engage or participate, invest in (except for investments of less
than
5% of a business entity’s capitalization) or become employed by any business
that is in direct competition with the business of DSS as of the Termination
Date. For purposes hereof, businesses that are in direct competition shall
include, without limitation, those that sell optical deterrent
technologies;
(b) Employee
shall not, directly or indirectly, influence or attempt to influence, or assist
or advise any person attempting to influence, customers, distributors, partners
or suppliers of DSS (i) to divert any part of their business away from DSS,
(ii)
to cause damage to the business of DSS, or (iii) to do any material business
with any competitor of DSS; and
(c) Employee
shall not, directly or indirectly, solicit or recruit any employee, officer,
partner or consultant of DSS to leave the employment of DSS or terminate his/her
relationship with DSS and Employee shall not advise or otherwise assist any
other person to solicit or recruit any employee, officer, partner or consultant
of DSS; provided, however, DSS shall not unreasonably withhold its consent
for
Employee to engage a consultant of DSS.
7
The
Parties agree that the provisions of this Section
12
replace
all prior non-competition and non-solicitation provisions in any agreements
between Employee and DSS notwithstanding any survival clauses contained therein.
The Parties further agree that the provisions of this Section
12
shall be
interpreted as broadly as possible in favor of DSS.
13. Non-Disparagement.
Employee agrees that he will not at any time, in any way, disparage DSS or
any
individuals associated with DSS, including without limitation its present or
former licensees (including without limitation The Ergonomic Group and its
officers and principals), customers, officers, directors, agents and employees,
by making or soliciting any comments, statements or the like to the media or
to
others, either orally or in writing, that may be considered to be derogatory
or
detrimental, in any way, to the good name or business reputation of DSS or
such
other persons or entities. Employee further agrees that he will not engage
in
any conduct that is in any way injurious, or may be perceived to be injurious,
to DSS’s reputation or interest (other than normal competitive process not in
violation of this Agreement), including, but not limited to, encouraging or
assisting others to bring any form of suit, claim or cause of action against
DSS. DSS will not at any time, in any way, disparage Employee.
14. Breach.
Employee agrees and acknowledges that if he breaches any representation,
covenant, promise or undertaking made pursuant to this Agreement, DSS is
authorized to pursue all rights and remedies available in law or in equity.
DSS
agrees and acknowledges that if it breaches any representation, covenant,
promise or undertaking made pursuant to this Agreement, Employee is authorized
to pursue all rights and remedies available in law or in equity.
15. Agreement
Not Admissible.
The
Parties agree that this Agreement may be used and admitted as evidence only
in a
subsequent proceeding in which DSS or Employee seeks to enforce its/his rights
hereunder.
16. Representations
and Warranties.
Employee represents and warrants that he has been given a reasonable and
sufficient period of time to consider the terms and conditions of this
Agreement; that
he
has been advised in writing to consult with an attorney before signing this
Agreement; that he has had an opportunity to be represented by independent
legal
counsel of his own choice throughout all of the negotiations preceding the
execution of this Agreement; that he has executed this Agreement after the
opportunity for consultation with above-described independent legal counsel;
that he is of sound mind and body, competent to enter into this Agreement,
and
is fully capable of understanding the terms and conditions of this Agreement;
that he has carefully read this Agreement in its entirety; that he has had
the
opportunity to have the provisions of this Agreement explained to his by his
own
counsel, who has answered to his satisfaction any questions he has asked with
regard to the meaning of any of the provisions of this Agreement, and that
he
fully understands their terms and significance; and that he voluntarily assents
to all the terms and conditions contained therein, and that he is signing this
Agreement of his own force and will, without any coercion or duress. Employee
acknowledges and agrees that DSS has advised his that all payments to his must
comply with the requirements of Section 409A of the Internal Revenue Code
(“409A”),
and
Employee agrees to indemnify and hold harmless DSS from and against any and
all
taxes, costs, and expenses, as a result of 409A.
17. Consideration
and Revocation Periods.
Pursuant to the Older Workers Benefit Protection Act, Employee is advised that
he shall have at least 21 calendar days to consider this Agreement before
signing it, but may sign this Agreement at any earlier time if he so desires.
If
Employee signs this Agreement, he shall have 7 calendar days thereafter (the
“Revocation
Period”)
to
revoke this Agreement by indicating his desire to do so, in writing, addressed
to DSS, 00 Xxxx Xxxx Xxxxxx, 00 Xxxxx, Xxxxxxxxx, Xxx Xxxx 00000 (attention:
General Counsel). In order for such revocation to be effective, it must be
received before 5:00 p.m. on the seventh day following the date this Agreement
was executed by Employee. The effective date of this Agreement shall be the
8th
day following the execution of this Agreement by Employee (the “Effective
Date”).
In
the event Employee does not accept this Agreement, or in the event Employee
revokes this Agreement during the Revocation Period, this Agreement, including,
but not limited to, the obligation of DSS to make the payments set forth in
Section 1, shall automatically be deemed null and void, and Employee shall
promptly return to DSS any amounts paid by DSS to Employee under this
Agreement.
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18. Severability.
If, at
any time after the date Employee executes this Agreement, any provision of
this
Agreement shall be held to be illegal, void or unenforceable, such provision
shall be of no force and effect, provided that, in the event that any provision
of Section
12
is held
invalid or unenforceable or is deemed to exceed the time, geographic or scope
limitations permitted by applicable law, then such provisions shall be reformed
to the maximum time, geographic or scope limitations, as the case may be,
permitted by applicable laws, and such other changes shall be made to give
effect to the original intent of the Parties. The illegality or unenforceability
of any provision shall have no effect upon, and shall not impair the
enforceability of, any other provision of this Agreement, provided
that,
upon a finding by a court or agency of competent jurisdiction that the release
of claims contained in Section
8
is
illegal, void or unenforceable, Employee agrees that, at the request of DSS,
he
will execute a release covering all the same claims as are released under
Section
8
that are
legal and enforceable, or, if the basis on which the release was found illegal,
void or unenforceable cannot be so cured, to return promptly to DSS, upon its
request, all amounts paid to his under this Agreement.
19. Resignation
from Board of Directors.
Concurrent with the execution of this Agreement, Employee shall submit his
resignation as President of the Company and from the Board of Directors of
the
Company in form of the letter attached hereto as Exhibit
A.
All
applicable insurance coverage of Employee under the Company’s director and
officer insurance policies for acts and omissions of Employee during his tenure
as an officer and director of the Company shall continue to remain in effect
throughout the Term.
20. Prior
Agreements Superseded; No Oral Modification.
This
Agreement constitutes the complete understanding between the Parties and
supersedes any and all prior agreements (oral or written) between the Parties
(including, but not limited to, all agreements related to commissions and any
other payments). Employee acknowledges that neither DSS nor any representative
of DSS has made any representation or promises to Employee other than as set
forth herein or therein. This Agreement may not be modified except in a writing
signed by both Employee and the CEO of DSS.
21. No
Assignment of Claims.
Each of
the Parties represents and warrants that he has not assigned or transferred
any
of the claims released under this Agreement, or any portion of or interest
in
any such claims, to any other individual, firm, or other entity.
22. Dispute
Resolution.
Any
dispute arising out of or relating to this Agreement shall be finally determined
by arbitration in the State of New York in accordance with the employment
arbitration rules of the American Arbitration Association by a neutral
arbitrator with no direct or indirect relationship to either party. In such
arbitration, (a) the arbitrator shall agree to treat all evidence as
confidential; (ii) the arbitrator shall have no authority to amend or modify
any
of the terms of this Agreement; (iii) the arbitrator shall have 10 business
days
from the closing statements or submission of post-hearing briefs by the parties
to render his or his decision. The results of any such arbitration shall be
final and binding upon the parties hereto, and any party may enforce any
arbitration award in any court of competent jurisdiction. Each party shall
bear
its/his own costs of participating in the arbitration proceedings.
9
23. Choice
of Law.
This
Agreement will be construed and enforced in accordance with the laws of the
State of New York, without regard to its conflict of law rules.
24. Counterparts.
This
Agreement may be executed in counterparts, each of which shall be deemed an
original. Facsimile signatures shall be deemed effective if subsequently
followed by handwritten signatures.
25. Construction
of Agreement.
This
Agreement shall be interpreted without regard to the identity of the drafter,
and shall not be construed for or against either party. The subheadings in
this
Agreement are for convenience only and shall not affect the interpretation
of
the substantive terms of this Agreement.
26. Binding
Agreement.
This
Agreement shall be binding upon the Parties and upon their respective heirs,
administrators, representatives, executors, successors and assigns.
27. Notices.
All
notices, requests, demands, and other communications hereunder shall be in
writing and shall be deemed to have been duly given to the Party to be notified
one (1) business day after deposit with an internationally recognized overnight
courier, specifying overnight delivery, with written verification of receipt.
Notices shall be sent to the Parties at the following addresses or such other
addresses as the parties subsequently may provide in accordance with this
section.
|
If
to DSS:
Document
Security Systems, Inc.
00
Xxxx Xxxxxx Xxxx, Xxxxx 0000
Xxxxxxxxx,
Xxx Xxxx 00000
Attention:
Chief Executive Officer
|
With
a copy to:
Document
Security Systems, Inc.
00
Xxxx Xxxxxx Xxxx, Xxxxx 0000
Xxxxxxxxx,
Xxx Xxxx 00000
Attn:
General Counsel
|
|
If
to Employee:
0000
Xxxx Xxxxxx Xxxx
Xxxxxx
Xxxxxxx, XX 00000
|
With
a copy to:
|
[Signature
Page Follows]
10
WHEREFORE,
the Parties, by their signatures below, evidence their agreement to the
provisions stated above.
| DOCUMENT SECURITY SYSTEMS, INC. | ||
| |
|
|
| By: | /s/ Xxxxxxx Xxxxx | |
| Name: Xxxxxxx Xxxxx | ||
| Title: Chief Executive Officer | ||
| Dated: |
May
10, 2008
|
|
I
HAVE
READ AND UNDERSTOOD THIS AGREEMENT, INCLUDING THE GENERAL RELEASE OF ALL CLAIMS
CONTAINED IN SECTION
9,
AND AM
IN AGREEMENT WITH ITS TERMS.
| /s/ Xxxxx Xxxxxxxx | ||
| Xxxxx Xxxxxxxx | ||
| Dated: |
May
10, 2008
|
|
| Sworn to before me this | |||
| 10th day of May , 2008 | |||
|
/s/
Xxxxxx X. Xxxxxx
|
|||
| Notary Public |
11
EXHIBIT
A
May
9,
2008
The
Board
of Directors
Document
Security Systems, Inc.
00
Xxxx
Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx,
XX 00000
Re: Resignation
Dear
Sirs:
I
hereby
resign my position as President of Document Security Systems, Inc., effective
May 9, 2008. I also hereby resign from the Board of Directors of Document
Security Systems, Inc., effective May 9, 2008.
I
confirm
that I have no claim against Document Security Systems, Inc. for compensation
for loss of office or directorship.
Very
truly yours,
Xxxxx
Xxxxxxxx
12
