FORM OF SEPARATION AND RELEASE AGREEMENT
Exhibit
10.1
THIS
SEPARATION AND RELEASE AGREEMENT (this “Agreement”) is made and
entered into as of the day of _, 20 , by and
between XXXXXX X. XXXXXXXXX, XX. (“Executive”), and
DYNATRONICS CORPORATION, a Utah corporation (the
“Company”).
RECITALS
Executive and the
Company have jointly determined that it is in the best interest of
the Company and Executive to terminate Executive’s employment
with the Company.
The
Company and Executive desire to resolve any and all differences
regarding Executive’s employment and the termination of
Executive’s employment.
AGREEMENT
NOW,
THEREFORE, the parties hereto agree as follows:
1. Employment
Agreement. Executive and the Company are parties to that certain
Amended and Restated Employment Agreement dated May 1, 2015,
pursuant to which the Company employed Executive (the
“Employment Agreement”). Capitalized terms used but not
defined herein shall have the meanings given them in the Employment
Agreement.
2. Salary
and PTO. On Executive’s last day of employment, Executive
received all salary and paid time-off (PTO) payable through that
date.
3. Separation
Payments. In consideration of Executive signing this Agreement, and
the covenants and releases given herein, the Company will pay to
Executive the payments set forth in and pursuant to Section 6(a) or
Section 6(b), as applicable (collectively, the “Separation
Payments”). Executive’s right to the Separation
Payments and the Company’s obligations to pay the Separation
Payments are subject to the terms and conditions of Section 6 of
the Employment Agreement.
4. Continuing
Covenants. Executive hereby agrees to comply with Executive’s
duties and obligations under the Employment Agreement hereinafter,
including, without limitation, the obligation of confidentiality
and the non-competition, non-solicitation and non- disparagement
covenants. Executive also agrees to return any and all Company
property and/or Confidential Information (as such term is defined
in the Employment Agreement) in Executive’s possession or
control in accordance with Section 8(a) of the Employment
Agreement.
5. Effective
Date. The effective date of this Agreement shall be the eighth day
after it has been signed by Executive. Executive acknowledges that
he would not be entitled to receive any Separation Payments
provided in Section 6 of the Employment Agreement absent his
execution of this Agreement. Notwithstanding anything to the
contrary, the first payment of Separation Payments pursuant to this
Agreement, if any, shall be made on the Company’s first
regularly scheduled payday to occur after the Severance Delay
Period.
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6. General
Release.
(a) Executive,
on behalf of himself and his heirs, executors, administrators,
successors and assigns, and all other persons claiming by, through,
or under him, hereby knowingly and voluntarily waives, releases and
forever discharges the Company and all of its parents,
subsidiaries, and affiliate companies, predecessors, successors,
and assigns, and each of their respective current and former
shareholders, directors, officers, employees, representatives,
insurers, attorneys and assigns, and all persons acting by,
through, under or in concert with them, or any of them (all of
whom, with the Company, are collectively referred to throughout the
remainder of this Agreement as the “Releasees”), of and
from any and all claims, demands, charges, grievances, damages,
debts, liabilities, accounts, costs, attorneys’ fees,
expenses, liens, future rights, and causes of action of every kind
and nature, known or unknown, asserted or unasserted, which
Executive has, may have, or claims to have against Releasees, or
one or more of them, arising prior to the Effective Date of this
Agreement (hereinafter collectively referred to as “Released
Claims”).
(b) The
Released Claims include, without limitation, (i) any claims based
either in whole or in part upon any facts, circumstances, acts, or
omissions in any way arising out of, based upon, or related to
Executive’s employment with the Company or the termination
thereof; (i) any claims or
regulation, local ordinance, or the common law, regarding
employment or prohibiting employment discrimination, harassment, or
retaliation, including, without limitation, arising under any
federal or state statute or regulation, local ordinance, or the
common law, regarding employment or prohibiting employment
discrimination, harassment, or retaliation, including, without
limitation,, the Utah Antidiscrimination Act, the Utah Payment of
Wages Act, the Age Discrimination in Employment Act (as amended by
the Older Workers Benefit Protection Act), Title VII of the Civil
Rights Act of 1964, the Fair Labor Standards Act, the Americans
With Disabilities Act, the Family Medical Leave Act, the Employee
Retirement Income Security Act of 1974, the Worker Adjustment and
Retraining Notification Act, the Health Insurance Portability and
Accountability Act of 1996, the Occupational Safety and Health Act;
(iii) any claim for wrongful discharge, wrongful termination in
violation of public policy, breach of contract, breach of the
covenant of good faith and fair dealing, personal injury, harm, or
other damages (whether intentional or unintentional), negligence,
negligent employment, defamation, misrepresentation, fraud,
intentional or negligent infliction of emotional distress,
interference with contract or other economic opportunity, assault,
battery, or invasion of privacy; (iv) claims growing
out of any legal restrictions on the Company’s right to
terminate its employees; (v) claims for wages, other compensation
or benefits; (vi) any claim for general, special, or other
compensatory damages, consequential damages, punitive damages, back
or front pay, fringe benefits, attorney fees, costs, or other
damages or expenses; (vii) any claim for injunctive relief or other
equitable relief; (viii) any claim arising under any federal or
state statute or local ordinance regulating the health and/or
safety of the workplace; or (ix) any other tort, contract or
statutory claim.
(c) Notwithstanding
the foregoing paragraphs, Executive does not release the Company
from any obligations the Company may have to him with respect to
the following: (i) rights under the Company’s 401(k) Plan, if
any; (ii) rights to the continuation of insurance coverage under
COBRA; (iii) right to apply for unemployment compensation or
worker’s compensation; (iv) claims or rights which cannot be
waived pursuant to applicable law; and (v) any rights or
remedies which Executive may have against the Company under the
terms of this Agreement.
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(d) Nothing
contained herein is intended to constitute or shall be construed as
a waiver or release of Executive’s right to file a charge or
complaint with, or participate in an investigation by, the EEOC or
any other federal or state agency. Executive is, however, waiving
his right to recover any monetary award, damages or any other form
of recovery in connection with such a charge or complaint, whether
such charge or complaint is filed by Executive or someone else, or
such an investigation. Executive further represents and warrants
that he has not assigned or conveyed to any other person or entity
any part of or interest in any of the claims released by him
pursuant to this Agreement.
(e) Executive
represents and warrants that he has not previously signed or
transferred, or attempted to sign or transfer, to any third party,
any of the claims waived and released herein.
(f) Neither
this Agreement nor the payment of the Separation Payments pursuant
to this Agreement shall be constructed as or constitute an
admission by the Company of any fault, liability or wrongdoing by
any Releasee, nor an admission that Executive has any valid or
enforceable claims or rights whatsoever against the Company or any
other Releasee. The Company specifically denies any liability to,
or wrongful act against, Executive by itself or any of the other
Releasees.
7. Time
for Consideration of this Agreement/Revocation. Executive further
acknowledges that he is hereby given twenty-one (21) calendar days
from receipt of this Agreement to consider signing this Agreement,
that Executive is advised to consult with an attorney before
signing this Agreement, and that Executive has the right to revoke
this Agreement for a period of seven (7) days after it is executed
by Executive. In the event that Executive chooses not to timely
sign this Agreement, or chooses to revoke this Agreement once
signed, Executive will not receive the Separation Payments or any
other consideration Executive would not be entitled to in the
absence of this Agreement.
8. General
Provisions.
(a) Severability.
If any provision of this Agreement shall be held by a court to be
invalid, unenforceable, or void, such provision shall be enforced
to the fullest extent permitted by law, and the remainder of this
Agreement shall remain in full force and effect. In the event that
the time period or scope of any provision is declared by a court of
competent jurisdiction to exceed the maximum time period or scope
that such court deems enforceable, then such court shall reduce the
time period or scope to the maximum time period or scope permitted
by law.
(b) Taxes.
All amounts paid under this Agreement shall be paid less all
applicable state and federal tax withholdings and any other
withholdings required by any applicable jurisdiction.
(c) Governing
Law. This Agreement shall be governed by the laws of the State of
Utah without regard to conflict of law principles.
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(d) Dispute
Resolution. All disputes and controversies arising out of or in
connection with this Agreement shall be resolved exclusively by the
state and federal courts located in Salt Lake County in the State
of Utah, and each party hereto agrees to submit to the jurisdiction
of said courts and agrees that venue shall lie exclusively with
such courts. Each party hereby irrevocably waives, to the fullest
extent permitted by applicable law, any objection which such party
may raise now, or hereafter have, to the laying of the venue of any
such suit, action or proceeding brought in such a court and any
claim that any such suit, action or proceeding brought in such a
court has been brought in an inconvenient forum. Each party agrees
that, to the fullest extent permitted by applicable law, a final
judgment in any such suit, action, or proceeding brought in such a
court shall be conclusive and binding upon such party, and may be
enforced in any court of the jurisdiction in which such party is or
may be subject by a suit upon such judgment.
(e) WAIVER
OF RIGHT TO JURY TRIAL. TO THE EXTENT PERMITTED BY LAW, EACH PARTY
HEREBY WAIVES ITS RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE
OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT
OR IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE
BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR PARTIES,
WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE.
EACH PARTY HEREBY AGREES THAT ANY SUCH CLAIM OR CAUSE OF ACTION
SHALL BE TRIED BY A COURT WITHOUT A JURY. WITHOUT LIMITING THE
FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO
A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY
ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR
IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS
AGREEMENT, OR ANY PROVISION HEREOF. THIS WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO
THIS AGREEMENT.
(f) Fees
and Costs. The prevailing party in any arbitration, court action or
other adjudicative proceeding arising out of or relating to this
Agreement shall be reimbursed by the party who does not prevail for
their reasonable attorneys’, accountants’, and
experts’ fees and for the costs of such proceeding. The
provisions set forth in this Section shall survive the merger of
these provisions into any judgment. For purposes of this Section
8(f), “prevailing party”
includes, without limitation, a party who agrees to dismiss an
action or proceeding upon the other’s payment of the sums
allegedly due or performance of the covenants allegedly breached,
or who obtains substantially the relief sought.
(g) Amendments;
Waivers. This Agreement may not be modified, amended, or changed
except by an instrument in writing, signed by Executive and by a
duly authorized representative of the Company other than Executive.
No waiver or consent shall be binding except in a writing signed by
the party making the waiver or giving the consent. No waiver of any
provision or consent to any action shall constitute a waiver of any
other provision or consent to any other action, whether or not
similar. No waiver or consent shall constitute a continuing waiver
or consent except to the extent specifically set forth in
writing.
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(h) Section
409A.
(i) Notwithstanding
anything to the contrary in this Agreement, if at the time of
Executive’s “separation from service” (as such
term is defined in Treasury Regulation 1.409A-1(h)) with the
Company, Executive is a “specified employee,” as
determined by the Company in accordance with Section 409A of the
Code, and the deferral of the commencement of any payments or
benefits otherwise payable hereunder as a result of such
termination of employment is necessary in order to prevent any
accelerated or additional tax under Section 409A of the Code, then
the Company will defer the commencement of the payment of any such
payments or benefits hereunder (without any reduction in the
payments or benefits ultimately paid or provided to Executive)
until the date that is at least six (6) months following
Executive’s “separation from service” with the
Company (or the earliest date permitted under Section 409A of the
Code), whereupon the Company will pay Executive on the first day of
the seventh month following Executive’s “separation
from service” a lump-sum amount equal to the cumulative
amounts that would have otherwise been previously paid to Executive
under this Agreement during the period in which such payments or
benefits were deferred.
(ii) This
Agreement is intended to be written, administered, interpreted and
construed in a manner such that no payment or benefits provided
under the Agreement become subject to (A) the gross income
inclusion set forth within Section 409A(a)(1)(A) of the Code or (B)
the interest and additional tax set forth within Section
409A(a)(1)(B) of the Code (together, referred to herein as the
“Section 409A Penalties”), including, where
appropriate, the construction of defined terms to have meanings
that would not cause the imposition of Section 409A Penalties. In
accordance with Section 26(e) of the Employment Agreement, in no
event shall the Company be required to provide a tax gross-up
payment to Executive with respect to any Section 409A
Penalties.
(iii) Notwithstanding
anything to the contrary in this Agreement, in- kind benefits and
reimbursements provided under this Agreement during any calendar
year shall not affect in-kind benefits or reimbursements to be
provided in any other calendar year, other than an arrangement
providing for the reimbursement of medical expenses referred to in
Section 105(b) of the Code, and are not subject to liquidation or
exchange for another benefit. Notwithstanding anything to the
contrary in this Agreement, reimbursement requests must be timely
submitted by Executive in accordance with the Employment Agreement
and, if timely submitted, reimbursement payments shall be promptly
made to Executive following such submission, but in no event later
than December 31st of the calendar
year following the calendar year in which the expense was incurred.
In no event shall Executive be entitled to any reimbursement
payments after December 31st of the calendar
year following the calendar year in which the expense was incurred.
This Section 8(h)(iii) shall only apply
to in-kind benefits and reimbursements that would result in taxable
compensation income to Executive.
(iv) Additionally,
in the event that following the date hereof the Company or
Executive reasonably determines that any compensation or benefits
payable under this Agreement may be subject to Section 409A of the
Code, the Company and Executive shall work together to adopt such
amendments to this Agreement or adopt other policies or procedures
(including amendments, policies and procedures with retroactive
effect), or take any other commercially
reasonable actions necessary or appropriate to (A) exempt the
compensation and benefits payable under this Agreement from Section
409A of the Code and/or preserve the intended tax treatment of the
compensation and benefits provided with respect to this Agreement
or (B) comply with the requirements of Section 409A of the Code and
related Department of Treasury guidance.
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(i) Assignment.
Executive agrees that Executive shall have no right to assign and
shall not assign or purport to assign any rights or obligations
under this Agreement. This Agreement may be assigned or transferred
by the Company; and nothing in this Agreement shall prevent the
consolidation, merger or sale of the Company or a sale of any or
all or substantially all of its assets. Subject to the foregoing,
this Agreement shall be binding upon and shall inure to the benefit
of the parties and their respective heirs, legal representatives,
successors, and permitted assigns, and shall not benefit any person
or entity other than those specifically enumerated in this
Agreement.
(j) Parties
in Interest. Nothing in this Agreement shall confer any rights or
remedies under or by reason of this Agreement on any persons other
than the parties hereto and their respective successors and
permitted assigns nor shall anything in this Agreement relieve or
discharge the obligation or liability of any third person to any
party to this Agreement, nor shall any provision give any third
person any right of subrogation or action over or against any party
to this Agreement.
(k) Construction.
The terms of this Agreement have been negotiated by the parties
hereto, and no provision of this Agreement shall be construed
against either party as the drafter thereof.
(l) Interpretation.
This Agreement shall be construed as a whole, according to its fair
meaning. Sections and section headings contained in this Agreement
are for reference purposes only, and shall not affect in any manner
the meaning or interpretation of this Agreement. Unless the context
of this Agreement otherwise requires, (i) words of any gender shall
be deemed to include each other gender; (ii) words using the
singular or plural number shall also include the plural or singular
number, respectively; and (iii) the terms “hereof,”
“herein,” “hereby,” “hereto,”
and derivative or similar words shall refer to this entire
Agreement.
(m) Notice.
Any notices, consents, agreements, elections, amendments, approvals
and other communications provided for or permitted by this
Agreement or otherwise relating to this Agreement shall be in
writing and shall be deemed effectively given upon the earliest to
occur of the following: (i) upon personal delivery to such party;
(ii) when sent by confirmed telex or facsimile if sent during
normal business hours of the recipient, if not, then on the next
business day; (iii) five (5) days after having been sent by
registered or certified mail, return receipt requested, postage
prepaid; (iv) one (1) day after deposit with a nationally
recognized overnight courier, specifying next day delivery, with
written verification of receipt; or (v) upon actual receipt by the
party to be notified via any other means (including public or
private mail, electronic mail or telegram); provided, however, that
notice sent via electronic mail shall be deemed duly given only
when actually received and opened by the party to whom it is
addressed. All communications shall be sent to the party’s
address set forth on the signature page below, or at
such other address as such party may designate by ten (10) days
advance written notice to the other parties in accordance with this
Section 8(m).
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(n) Counterparts.
This Agreement may be executed in any number of counterparts, each
of which shall be deemed an original of this Agreement, but all of
which together shall constitute one and the same instrument. This
Agreement may be executed and delivered by facsimile, or by email
in portable document format (.pdf) and delivery of the executed
signature page by such method will be deemed to have the same
effect as if the original signature had been delivered to other the
parties.
(o) Authority.
Each party represents and warrants that such party has the right,
power and authority to enter into and execute this Agreement and to
perform and discharge all of the obligations hereunder; and that
this Agreement constitutes the valid and legally binding agreement
and obligation of such party and is enforceable in accordance with
its terms.
(p) Entire
Agreement. This Agreement contains the entire agreement between
Executive and the Company and there have been no promises,
inducements or agreements not expressed in this
Agreement.
(q) No
Admission of Liability. Nothing in this Agreement shall be
construed as an admission of liability or wrongdoing by any party
to this Agreement.
(r) EXECUTIVE
ACKNOWLEDGEMENT. EXECUTIVE HAS HAD THE OPPORTUNITY TO CONSULT LEGAL
COUNSEL CONCERNING THIS AGREEMENT AND HAS OBTAINED AND CONSIDERED
THE ADVICE OF SUCH LEGAL COUNSEL TO THE EXTENT EXECUTIVE DEEMS
NECESSARY OR APPROPRIATE, THAT EXECUTIVE HAS READ AND UNDERSTANDS
THE AGREEMENT, THAT EXECUTIVE IS FULLY AWARE OF ITS LEGAL EFFECT,
AND THAT EXECUTIVE HAS ENTERED INTO IT FREELY BASED ON
EXECUTIVE’S OWN JUDGMENT AND NOT ON ANY REPRESENTATIONS OR
PROMISES OTHER THAN THOSE CONTAINED IN THIS AGREEMENT.
[SIGNATURES TO
FOLLOW]
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IN
WITNESS WHEREOF, the parties have executed this Separation and
Release Agreement as of the date first written above.
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XXXXXX X. XXXXXXXXX, XX. |
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