SEVERANCE PROTECTION AGREEMENT
EXHIBIT 10.16
This Severance Protection Agreement (the “Agreement”) is made and entered into by and between Xxxx
Xxxxxxx (the “Employee”) and DigitalGlobe, Inc., a Delaware corporation (the “Company”), effective
as of April 15, 2010.
RECITALS
| A. | Employee is being hired as a member of the Company’s executive and management team. |
|
| B. | The Company’s Board of Directors (the “Board”) believes that it is in the best interests of
the Company and its stockholders to provide Employee with a severance benefit in the event
Employee’s employment is terminated without Cause (as defined below) or Employee resigns his
or her employment for Good Reason (as defined below) in order to avoid distraction of Employee
due to uncertainty about his or her future role with the Company. |
|
| C. | The Company wishes to provide Employee with certain protections with respect to Employee’s
stock option awards in the event the event Employee’s employment is terminated without Cause
(as defined below) or Employee resigns his or her employment for Good Reason (as defined
below) |
|
| D. | To accomplish the foregoing objectives, the Board has directed the Company, upon execution of
this Agreement by Employee, to agree to the terms provided in this Agreement. |
|
| E. | Certain capitalized terms used in the Agreement are defined in Section 5 below. |
|
In consideration of the mutual covenants herein contained, and in consideration of the
continuing employment of Employee by the Company, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: |
||
| 1. | At-Will Employment; Term of Agreement. The Company and Employee acknowledge that
Employee’s employment is and shall continue to be at-will, as defined under applicable law.
Nothing in this Agreement shall confer upon Employee any right to continued employment with
the Company or any successor to the Company. If Employee’s employment terminates for any
reason, Employee shall not be entitled to any payments or benefits other than as provided by
this Agreement, or as may otherwise be available in accordance with the terms of Employee’s
other written employment-related agreements with the Company (if any) and/or the Company’s
established employee plans and written policies at the time of termination (collectively, the
''Other Severance-Related Agreements”). The terms of this Agreement shall terminate upon the
earliest of (i) the date on which Employee ceases to be employed by the Company other than
because of an involuntary termination without Cause or resignation for Good Reason, (ii) the
date that all obligations of the parties hereunder have been satisfied, (iii) two (2) years
following the closing of any Change in Control if a Change in Control has closed on or prior
to June 1, 2011, or (iv) June 1, 2011 if no Change in Control has closed as of such date. A
termination of the terms of this Agreement pursuant to the preceding sentence shall be
effective for all purposes, except that such termination shall not affect the payment or
provision of compensation or benefits on account of a termination of employment occurring
prior to the termination of the term of this Agreement. |
|
| 2. | Severance. |
| a) | Involuntary Termination Benefit — Termination Prior to a Change in Control.
Upon Employee’s involuntary termination of employment by the Company (other than a
termination for Cause or due to death or Disability) or Employee’s termination of
employment with the Company for Good Reason prior to a Change in Control, Employee shall be
entitled to a lump sum payment in an amount equal to one (1) times the sum of (i)
Employee’s annual Base Salary as of the date of such termination, plus (ii) Employee’s
Bonus Amount. |
| b) | Involuntary Termination Benefit — Termination Upon or Following a Change in
Control. Upon Employee’s involuntary termination of employment by the Company (other
than a termination for Cause or due to death or Disability) or Employee’s termination of
employment with the Company for Good Reason upon or following a Change in Control, Employee
shall be entitled to a lump sum payment in an amount equal to one and one-half (1.5) times
the sum of (i) Employee’s annual Base Salary as of the date of such termination, plus (ii)
Employee’s Bonus Amount. |
| c) | Welfare Benefits. In the event Employee is entitled to benefits pursuant to
Section 2.1 or 2.2 above, the Company shall continue to provide all welfare benefits
provided to Employee immediately before such termination (including, without limitation,
health and life insurance, but excluding disability insurance) for a period following
Employee’s termination of employment equal to the period with respect to which Employee’s
Base Salary is paid as severance, at the Company’s sole cost; provided, however, that to
the extent Employee becomes re-employed and eligible for benefits with another employer
prior to the expiration of such period, Employee will elect such benefits and promptly
notify the Company so that the Company will have no further obligation to provide benefits
under this Section 2.3 unless, and then only to the extent that, the benefits that are
being provided by the Company are more favorable than such benefits provided by the other
company. |
| d) | Treatment of Equity Awards Upon a Change in Control. Upon the occurrence of a
Change in Control, all of Employee’s equity awards in the Company (including without
limitation, any stock options, restricted stock units, and restricted stock awards) shall
vest and, to the extent applicable, shall (i) become exercisable and (ii) remain
outstanding for the period specified in the applicable award agreement. |
| e) | Accrued Obligations. In all events, promptly following Employee’s termination
of employment for any reason, the Company shall pay to Employee (or, as applicable,
Employee’s estate): (a) any unpaid portion of Employee’s accrued Base Salary and accrued
Paid Time Off; (b) any amounts payable to Employee pursuant to the terms of any pension or
welfare benefit plan, and (c) any expense reimbursements payable pursuant to the Company’s
reimbursement policy. |
| 3. | Release of Claims. The payment and provision of any and all severance benefits
pursuant to this Agreement shall be conditioned upon and subject to execution of a Release of
Claims by Employee in the form attached to this Agreement as Exhibit A (the “Release of
Claims”) within the time period after the effective date of Employee’s termination of
employment specified in the Release of Claims. All lump-sum payments due pursuant to this
Agreement shall be paid sixty (60) days after the effective date of Employee’s termination of
employment, provided that Employee signs and returns the Release of Claims to the Company
within the time period specified in the Release of Claims and does not revoke such Release of
Claims to the extent a revocation option is provided in such Release of Claims. The payments
described in Section 2.5 are not subject to Employee’s execution of a Release of Claims. |
| 4. | Termination for Cause; Voluntary Resignation Other Than for Good Reason; Death or
Disability. Upon Employee’s termination for Cause or Employee’s voluntary resignation
other than for Good Reason, or Employee’s termination of employment due to death or
Disability, Employee shall not be entitled to any severance payments or to any other benefit
under the terms of this Agreement. |
| 5. | Definition of Terms. The following terms referred to in this Agreement shall have the
following meanings: |
| a) | Base Salary. “Base Salary” shall mean Employee’s gross annualized base salary
at the time of termination of employment, excluding any relocation allowance, bonuses or
incentive compensation, or similar benefits provided for under that certain offer letter
dated March 22, 2010 between Employee and the Company (“Offer Letter”). |
| b) | Bonus Amount. “Bonus Amount” shall mean the average of actual annual cash
bonuses payable to Employee under any Company “Success Sharing Plan” or similar program
with respect to the two fiscal years immediately preceding the year which the Employee’s
employment terminates (or, if Employee was an employee for less than two full fiscal years
preceding such termination, Employee’s actual annual cash bonus for the fiscal year
preceding the year of termination); provided, however, in the event Section 2.2
applies, the Bonus Amount shall be the Employee’s target cash bonus for the year in which
the Change in Control occurs. In no event shall the Initial Option Grant provided for under
the Offer Letter, any other equity-based compensation provided to Employee at any time
(including without limitation any stock options or restricted stock (if any) granted to
Employee at any time as a long-term incentive award under any Success Sharing Plan or
otherwise), any other cash incentive awards granted outside of an approved Success Sharing
Plan or similar program (if any), or any other amounts, be considered as part of the “Bonus
Amount”. |
| c) | Change in Control. “Change in Control” shall mean the occurrence of any of the
following events: |
| i) | Any person (other than persons who are employees of the Company at any time
more than one year before a transaction) becomes the beneficial owner, directly or
indirectly, of securities of the Company representing 50% or more of the combined
voting power of the Company’s then outstanding securities. In applying the preceding
sentence, (A) securities acquired directly from the Company or its affiliates by or for
the person shall not be taken into account, and (B) an agreement to vote securities
shall be disregarded unless its ultimate purpose is to cause what would otherwise be
Change in Control, as reasonably determined by the Board; |
| ii) | The Company consummates a merger, or consolidation of the Company with any
other corporation unless: (a) the voting securities of the Company outstanding
immediately before the merger or consolidation would continue to represent (either by
remaining outstanding or by being converted into voting securities of the surviving
entity) at least 50% of the combined voting power of the voting securities of the
Company or such surviving entity outstanding immediately after such merger or
consolidation; and (b) no person (other than persons who are employees at any time more
than one year before a transaction) becomes the beneficial owner, directly or
indirectly, of securities of the Company representing 50% or more of the combined
voting power of the Company’s then outstanding securities; |
| iii) | The stockholders of the Company approve an agreement for the sale or
disposition by the Company of all, or substantially all, of the Company’s assets; or |
| iv) | The stockholders of the Company approve a plan or proposal for liquidation or
dissolution of the Company. |
Notwithstanding the foregoing, a Change in Control shall not be deemed to have occurred by virtue
of the consummation of any transaction or series of integrated transactions immediately following
which the record holders of the common stock of the Company immediately prior to such transaction
or series of transactions continue to have substantially the same proportionate ownership in an
entity which owns all or substantially all of the assets of the Company immediately following such
transaction or series of transactions.
| d) | Cause. “Cause” shall mean: |
| i) | conviction of a felony or a crime involving fraud or moral turpitude; or |
||
| ii) | theft, material act of dishonesty or fraud, intentional falsification of any
employment or Company records, or commission of any criminal act which impairs
Employee’s ability to perform appropriate employment duties for the Company; or |
||
| iii) | intentional or reckless conduct or gross negligence materially harmful to the
Company or the successor to the Company after a Change in Control, including violation
of a non-competition or confidentiality agreement; or |
||
| iv) | willful failure to follow lawful instructions of the person or body to which
Employee reports; or |
| v) | gross negligence or willful misconduct in the performance of Employee’s
assigned duties. Cause shall
not include mere unsatisfactory performance in the achievement of Employee’s job
objectives; or |
||
| vi) | Employee’s failure to relocate to the Company’s headquarters office in
Longmont, Colorado within 120 days, or such other time as may be agreed by the Company
and Employee, following the Company’s request. |
| e) | Disability. “Disability” means a physical or mental illness, injury, or
condition that prevents Employee from performing substantially all of Employee’s duties
associated with Employee’s position or title with the Company for at least 90 days in a
12-month period. |
| f) | Resignation for Good Reason. Resignation for “Good Reason” shall mean
Employee’s voluntary termination, upon 30 days prior written notice to the Company promptly
following: |
| i) | a material reduction in Employee’s job duties, responsibilities and
requirements inconsistent with Employee’s position with the Company and Employee’s
prior duties, responsibilities and requirements; |
||
| ii) | any reduction of Employee’s base compensation; or |
| iii) | once Employee has relocated to the Longmont, Colorado office, the Employee’s
refusal to relocate to another Company facility or location more than thirty (30) miles
from such Company’s headquarters location; |
| 6. | Golden Parachute Provisions. If Employee becomes entitled to the payments, benefits
and equity acceleration described in Sections 2.1 through 2.4 and such payments and benefits,
together with any other payments or transfers of property (collectively the “Severance
Payments”), constitute “parachute” payments under Section 280G of the Internal Revenue Code of
1986, as amended (the “Code”), then the Company shall pay an additional amount (the “Gross-Up
Payment”) to Employee. The Gross-Up Payment shall be equal to the amount necessary so that the
net amount retained by Employee, after subtracting the parachute excise tax imposed by Section
4999 of the Code, as amended, or any successor statute then in effect (the “Excise Tax”), and
after also subtracting all federal, state or local income tax, FICA tax and Excise Tax on the
Gross-Up Payment, shall be equal to the net amount Employee would have retained if no Excise
Tax has been imposed and no Gross-Up Payment had been paid. The amount of the Gross-Up Payment
shall be determined in good faith by nationally recognized registered public accountants or
tax counsel selected by the Company, who shall apply the following assumptions: (i) Employee
shall be treated as paying federal income taxes at the highest marginal rate in the calendar
year in which the Gross-Up Payment is made, and (ii) Employee shall be treated as paying state
and local income taxes at the highest marginal rate(s) in the calendar year in which the
Gross-Up Payment is made in the locality of Employee’s residence as of the effective date of
Employee’s termination or resignation, net of the maximum reduction in federal income taxes
that could be obtained from deducting those state and local taxes. The Gross-Up Payment shall
be made within five business days after the effective date of Employee’s termination or
resignation, provided that if the Gross-Up Payment cannot be determined within that time, the
Company shall pay Employee within that time an estimate, determined in good faith by the
Company, of the minimum amount of the Gross-Up Payment and shall pay the remainder (plus
interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount can
be determined but in no event later than the 30th day after the effective date of
Employee’s termination or resignation. If the estimated payment is more than the amount later
determined to have been due, the excess (plus interest at the rate provided in Section
1274(b)(2)(B) of the Code) shall be repaid by Employee within five business days after written
demand. In all events, any Gross-Up Payment made pursuant to this Section 6 shall be paid to
Employee no later than the end of the calendar year following the year in which the related
taxes are remitted to the applicable taxing authority. If the actual Excise Tax imposed is
less than the amount that was taken into account in determining the amount of the Gross-Up
Payment, Employee shall repay at the time that the amount of the reduced Excise Tax is finally
determined the portion of the Gross-Up Payment attributable to that reduction (plus the
portion of the Gross-Up Payment attributable to the Excise Tax, FICA tax and federal, state
and local income tax imposed on the portion of the Gross-Up Payment being repaid by Employee,
to the extent the repayment results in a reduction in or refund of Excise Tax, FICA tax or
federal, state or local income tax), plus interest on the amount of the repayment at the rate
provided in Section 1274(b)(2)(B) of the Code. If the actual Excise Tax imposed is more than
the amount that was taken into account in determining the amount of the Gross-Up Payment, the
Company shall
make an additional Gross-Up Payment in respect of such excess (plus interest at the rate
provided in Section 1274(b)(2)(B) of the Code) at the time that the amount of the excess is
finally determined. |
| 7. | Successors. Any successor to the Company (whether direct or indirect and whether by
purchase, lease, merger, consolidation, liquidation or otherwise) to all or substantially all
of the Company’s business and/or assets shall assume the obligations under this Agreement and
agree expressly to perform the obligations under this Agreement in the same manner and to the
same extent as the Company would be required to perform such obligations in the absence of a
succession. The terms of this Agreement and all of Employee’s rights hereunder shall inure to
the benefit of, and be enforceable by, Employee’s personal or legal representatives,
executors, administrators, successors, heirs, distributees, devisees and legatees. |
| 8. | Notice. Notices and all other communications contemplated by this Agreement shall be
in writing and shall be deemed to have been duly given when personally delivered or when
mailed by U.S. registered or certified mail, return receipt requested and postage prepaid.
Mailed notices to Employee shall be addressed to Employee at the home address which Employee
most recently communicated to the Company in writing. In the case of the Company, mailed
notices shall be addressed to its corporate headquarters, and all notices shall be directed to
the attention of its General Counsel. |
| 9. | Proprietary Information. Invention and Non-Competition Agreement. Employee
acknowledges and agrees that the provision of benefits hereunder by the Company is subject to
Employee’s compliance with the Company’s Proprietary information, Invention and
Non-Competition Agreement attached hereto as Exhibit B, and that no benefits shall be provided
hereunder in the event Employee violates such Agreement. |
|
| 10. | Miscellaneous Provisions. |
| a) | No Duty to Mitigate. Employee shall not be required to mitigate the amount of
any benefit contemplated by this Agreement (whether by seeking new employment or in any
other manner), nor, except as otherwise provided in this Agreement (including without
limitation, Section 2.3 and Section 10(d)), shall any such benefit be reduced by any
earnings or benefits that Employee may receive from any other source. |
| b) | Waiver. No provision of this Agreement shall be modified, waived or discharged
unless the modification, waiver or discharge is agreed to in writing and signed by Employee
and by an authorized officer of the Company (other than Employee). No waiver by either
party of any breach of, or of compliance with, any condition or provision of this Agreement
by the other party shall be considered a waiver of any other condition or provision or of
the same condition or provision at another time. |
| c) | Entire Agreement. This Agreement constitutes the entire understanding between
the parties with respect to Employee’s severance pay, benefits and privileges in the event
of a termination of Employee’s employment with the Company, superseding all negotiations,
prior discussions and agreements, written or oral, concerning said severance arrangements,
other than the Other Severance-Related Arrangements. |
| d) | Non-Duplication of Benefits. Any compensation or benefits payable under the
terms of this Agreement will be offset and not augmented by other compensation or benefits
of the same or similar type payable under any Other Severance- Related Arrangement or under
applicable law. It is intended that this Agreement not duplicate benefits Employee is
entitled to under the Company’s regular severance policy, any related polities, any other
contracts, agreements or arrangements between Employee and the Company, or applicable law. |
| e) | Choice of Law. The validity, interpretation, construction and performance of
this Agreement shall be governed by the laws of the State of Colorado without reference to
conflict of laws provisions. |
| f) | Severability. If any term or provision of this Agreement or the application
thereof to any circumstance shall, in any jurisdiction and to any extent, be invalid or
unenforceable, such term or provision shall be ineffective as to such jurisdiction to the
extent of such invalidity or unenforceability without invalidating or rendering
unenforceable the remaining terms and provisions of this Agreement or the application of
such terms and provisions to circumstances other than those as to which it is held invalid
or unenforceable, and a suitable and equitable term or provision shall be substituted
therefore to carry out, insofar as may be valid and enforceable, the intent and purpose of
the invalid or unenforceable term or provision. |
| g) | Jurisdiction. Venue and Waiver of Jury Trial. EMPLOYEE AND THE COMPANY AGREE
THAT ANY ACTION, SUIT OR PROCEEDING IN RESPECT OF OR ARISING OUT OF THIS AGREEMENT, ITS
VAUDITY OR PERFORMANCE, AT THE SOLE OPTION OF EMPLOYEE AND THE COMPANY, ‘THEIR SUCCESSORS
AND ASSIGNS, SHALL BE INITIATED AND PROSECUTED AS TO ALL PARTIES AND THEIR HEIRS,
SUCCESSORS AND ASSIGNS IN DENVER, COLORADO. EMPLOYEE AND THE COMPANY EACH CONSENTS TO AND
SUBMITS TO THE EXERCISE OF JURISDICTION OVER HIS/HER OR ITS PERSON BY ANY COURT SITUATED IN
DENVER, COLORADO, HAVING JURISDICTION OVER THE SUBJECT MATTER, WAIVES PERSONAL SERVICE OF
ANY AND ALL PROCESS UPON IT AND CONSENTS THAT ALL SUCH SERVICE OF PROCESS MAY BE MADE BY
REGISTERED MAIL DIRECTED TO EMPLOYEE AND THE COMPANY AT THEIR ADDRESSES SET FORTH ABOVE AND
SERVICE SO MADE SHALL BE DEEMED TO BE COMPLETED FIVE (5) BUSINESS DAYS AFTER SUCH PROCESS
SHALL HAVE BEEN DEPOSITED IN THE U.S. MAIL, POSTAGE PREPAID. EACH PARTY WAIVES TRIAL BY
JURY, ANY OBJECTION BASED ON FORUM NON CONVENIENS, AND ANY OBJECTION TO VENUE OF
ANY ACTION INSTITUTED HEREUNDER, AND CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE
RELIEF AS IS DEEMED APPROPRIATE BY THE COURT. |
| h) | Legal Fees and Expenses. The parties shall bear their own expenses, legal fees
and other fees incurred in connection with this Agreement. |
| i) | No Assignment of Benefits. The rights of any person to payments or benefits
under this Agreement shall not be made subject to option or assignment, either by voluntary
or involuntary assignment or by operation of law, including (without limitation)
bankruptcy, garnishment, attachment or other creditor’s process, and any action in
violation of this subsection (I) shall be void. |
| j) | Employment Taxes. Any payments made pursuant to this Agreement will be subject
to withholding of applicable income and employment taxes. |
| k) | Assignment by Company. The Company may assign its rights under this Agreement
to an affiliate, and an affiliate may assign its rights under this Agreement to another
affiliate of the Company or to the Company; provided, however, that no assignment shall be
made if the net worth of the assignee is less than the net worth of the Company at the time
of assignment. In the case of any such assignment, the term “Company” when used in a
section of this Agreement shall mean the corporation that actually employs Employee. |
| l) | Counterparts. This Agreement may be executed in counterparts, each of which
shall be deemed an original, but all of which together will constitute one and the same
instrument. |
| m) | Section 409A. This Agreement is intended to comply with the requirements of
Section 409A of the Code and shall be interpreted and construed consistently with such
intent. The payments to Employee pursuant to this Agreement are also intended to be exempt
from Section 409A of the Code to the maximum extent possible, under either the separation
pay exemption pursuant to Treasury regulation §1.409A-1(b)(9)(iii) or as short-term
deferrals pursuant to Treasury regulation §1.409A- 1(b)(4), and for this purpose each
payment shall be considered a separate payment. In the event the terms of this Agreement
would subject Employee to taxes or penalties under Section 409A of the Code (“409A
Penalties”), the Company and Employee shall cooperate diligently to amend the terms of the
Agreement to avoid such 409A Penalties, to the extent possible; provided that in no event
shall the Company be responsible for any 409A Penalties that arise in connection with any
amounts payable under this Agreement. To the extent any amounts under this Agreement are
payable by reference to Employee’s “termination of employment,” such term shall be deemed
to refer to Executive’s “separation from service,” within the meaning of Section 409A of
the Code. Notwithstanding any other provision in this Agreement, if Employee is a
“specified employee,” as defined in Section 409A of the Code, as of the date of Executive’s
separation from service, then to the extent any amount payable under this Agreement (i)
constitutes the payment of
nonqualified deferred compensation, within the meaning of Section 409A of the Code, (ii) is
payable upon Employee’s separation from service and (iii) under the terms of this Agreement
would be payable prior to the six-month anniversary of Executive’s separation from service,
such payment shall be delayed until the earlier to occur of (a) the six-month anniversary of
the separation from service or (b) the date of Employee’s death. |
IN WITNESS WHEREOF, each of the parties has executed this Agreement, in the case of the Company by
its duly authorized officer, as of the day and year first above written.
DIGITALGLOBE, INC.
|
XXXX XXXXXXX | |
/s/ Xxxxx Xxxxxxx
|
/s/ Xxxx Xxxxxxx | |
By: Xxxxx Xxxxxxx
|
Employee Signature | |
Title: VP, Human Resources |
Exhibit A
RELEASE OF CLAIMS
This Release of Claims is entered into by and between DigitalGlobe, Inc., a Colorado
corporation (the “Company”), and Xxxx Xxxxxxx (“Employee”). It is entered into pursuant to the
terms of a Severance Protection Agreement (the “Agreement”) between Employee and Company dated
April 15, 2010 and in order to resolve amicably all matters between Employee and the
Company concerning the Agreement and Employee’s termination of employment with the Company and
benefits payable to Employee under the terms of the Agreement.
| 1. | Termination of Employment. Employee’s employment with the Company has been terminated
as a result of a Change in Control, an involuntary termination without Cause or a voluntary
resignation for Good Reason, as defined in the Agreement, by which Employee became eligible
for benefits upon termination of employment. |
|
| 2. | Severance Pay. Provided that Employee executes this Agreement within 21 days after
the termination of Employee’s employment with the Company and Employee does not revoke this
Agreement in accordance with Paragraph 10 of this Agreement, the Company agrees to pay to
Employee all monetary amounts due to Employee under the terms of the Agreement, at the time
specified therein. Employee is also eligible for certain other continuation of benefits under
the terms of the Agreement. Employee acknowledges that Employee has no entitlement to said
benefits except according to the terms of the Agreement, which includes a requirement that
Employee execute this Release of Claims. |
|
| 3. | Sole Entitlement. Employee acknowledges and agrees that no other monies or benefits
are owing to Employee except as set forth in the Agreement. |
|
| 4. | Return of Property and Documents. Employee states that Employee has returned to the
Company all property and documents of the Company which were in Employee’s possession or
control, including without limitation access cards, Company-provided credit cards, computer
equipment and software. |
|
| 5. | Confidentiality, Nondisparagement, Noncompetition, and Nonsolicitation Agreement.
Employee agrees to able by the terms of any confidentiality, nondisparagement,
nonsolicitation, and non-competition agreement(s) that Employee previously executed in
connection with his or her employment with the Company. Employee agrees not to make any
communications or engage in any conduct that is or can reasonably be construed to be
disparaging of the Company, its officers, directors, employees, agents, stockholders, products
or services. The Company agrees not to make any communications or engage in any conduct that
is or can reasonably be construed to be disparaging to Employee. For a period of two (2) years
following Employee’s termination of employment with the Company, Employee agrees not to
solicit, directly or indirectly, any employees of the Company, for employment with any other
employer. |
|
| 6. | Release. Employee (for him/herself, his/her agents, heirs, successors, assigns,
executors and/or administrators) does hereby and forever release and discharge the Company and
its past and present parent, subsidiary and affiliated corporations, divisions or other
related entities, as well as the successors, shareholders, officers, directors, heirs,
predecessors, assigns, agents, employees, attorneys and representatives of each of them, past
or present (hereinafter the “Releasees”) from any and all causes of action, actions,
judgments, liens, debts, contracts, indebtedness, damages, losses, claims, liabilities,
rights, interests and demands of whatsoever kind or character, known or unknown, suspected to
exist or not suspected to exist, anticipated or not anticipated, whether or not heretofore
brought before any state or federal court or before any state or federal agency or other
governmental entity, which Employee has or may have against any released person or entity by
reason of any and all acts, missions, events or facts occurring or existing prior to the date
hereof, including, without limitation, all claims attributable to the employment of
Employee, all claims attributable to the termination of that employment, and all claims arising
under any federal, state or other governmental statute, regulation or ordinance or common law,
such as, for example and without limitation, Title VII of the Civil Rights Act of 1964, as
amended, the Civil Rights Act of 1991, the Age Discrimination in Employment Act which prohibits
discrimination on the basis of age over 40, and wrongful termination claims, excepting only
those obligations expressly recited to be performed hereunder. |
In light of the Intention of Employee (for him/herself, his/her agents, heirs, successors,
assigns, executors and/or administrators) that this release extend to any and all claims of
whatsoever kind or character, known or unknown, Employee expressly waives any and all rights
granted by California Civil Code Section 1542 or any other analogous federal or state law or
regulation. Section 1542 reads as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO
EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE
MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
Notwithstanding the foregoing, nothing in this Agreement shall be construed to prevent
Employee from filing a charge with, or participating in any proceeding or investigation by, the
Equal Employment Opportunity Commission or affiliated state agency. However, Employee acknowledges
that, in accordance with this Release, he or she has no right to recover any monies on behalf of
him/herself, his/her agents, heirs, successors, assigns, executors and/or administrators in
connection with, or as a result of, such charge, investigation, or proceeding.
| 7. | No Actions Pending. Employee agrees that he/she has not filed, nor will he/she file
in the future, any claims, actions or lawsuits against any of the Releasees relating to Employee’s
employment with the Company, or the termination thereof. |
|
| 8. | No Admissions. Nothing contained herein shall be construed as an admission of
wrongdoing or liability by any party hereto. |
|
| 9. | Entire Agreement; Miscellaneous. This Agreement constitutes a single integrated
contract expressing the entire agreement of the parties with respect to the subject matter
specifically addressed herein and supersedes all prior and contemporaneous oral and written
agreements and discussions with respect to the subject matter hereof. There are no other
agreements, written or oral, express or implied, between the parties hereto, concerning the subject
matter hereof, except as set forth herein. This Agreement may be amended or modified only by an
agreement in writing, and it shall be interpreted and enforced according to the laws of the State
of Colorado. Should any of the provisions of the Agreement be determined to be invalid by a court
of competent jurisdiction, it is agreed that this shall not affect the enforceability of the other
provisions herein. |
|
| 10. | Waiting Period and Right of Revocation. EMPLOYEE ACKNOWLEDGES THAT EMPLOYEE IS
AWARE AND IS HEREBY ADVISED THAT EMPLOYEE HAS THE RIGHT TO CONSIDER THIS AGREEMENT FOR TWENTY-ONE
DAYS BEFORE SIGNING IT, ALTHOUGH EMPLOYEE IS NOT REQUIRED TO WAIT THE ENTIRE TWENTY-ONE DAY PERIOD;
AND THAT IF EMPLOYEE SIGNS THIS AGREEMENT PRIOR TO THE EXPIRATION OF TWENTY-ONE DAYS, EMPLOYEE IS
WAIVING THIS RIGHT FREELY AND VOLUNTARILY. EMPLOYEE ALSO ACKNOWLEDGES THAT EMPLOYEE IS AWARE AND IS
HEREBY ADVISED OF EMPLOYEE’S RIGHT TO REVOKE THIS AGREEMENT FOR A PERIOD OF SEVEN DAYS FOLLOWING
THE SIGNING OF THIS AGREEMENT AND THAT IT SHALL NOT BECOME EFFECTIVE OR ENFORCEABLE UNTIL THE
REVOCATION PERIOD HAS EXPIRED. TO REVOKE THIS AGREEMENT, EMPLOYEE MUST NOTIFY THE COMPANY IN
WRITING WITHIN SEVEN DAYS OF SIGNING IT. |
|
| 11. | Attorney Advice. EMPLOYEE ACKNOWLEDGES THAT EMPLOYEE IS AWARE OF EMPLOYEE’S RIGHT
TO CONSULT AN ATTORNEY, THAT EMPLOYEE HAS BEEN ADVISED TO CONSULT WITH AN ATTORNEY, AND THAT
EMPLOYEE HAS HAD THE OPPORTUNITY TO CONSULT WITH AN ATTORNEY, IF DESIRED, PRIOR TO
SIGNING THIS AGREEMENT. |
| 12. | Understanding of Agreement. Employee states that Employee has carefully read this
Agreement, that Employee fully understands its final and binding effect, that the only
promises made to Employee to sign this Agreement are those stated above, and that Employee is
signing this Agreement voluntarily. |
Dated:
|
||||
| Xxxx Xxxxxxx |
Dated: |
||||
DIGITALGLOBE, INC.
|
||||
| By: Xxxxx Xxxxxxx Title: Vice President, Human Resources |
||||
