CHANGE IN CONTROL AGREEMENT
This
Change in Control Agreement (this “Agreement”) is made and
entered into as of November [ ● ], 2018, by and between [
● ] (“Employee”) and Fusion
Connect, Inc., a Delaware corporation (“Parent”). As used in this
Agreement, any reference to the “Company” means Parent
and all existing and future Subsidiaries of the Company and any
division of any of them, as well as any of their respective
successors and permitted assigns.
Section
1. Recitals.
A. It
is expected that the Company will, from time to time, consider the
possibility of being acquired by another entity, or that a Change
in Control (as defined) may otherwise occur with the approval of
Parent’s Board of Directors (the “Board”). Parent
recognizes that such consideration can be a distraction to Employee
and can cause Employee to consider alternative employment
opportunities. Parent has determined that it is in the best
interests of the Company to assure that the Company will have the
continued dedication and objectivity of Employee, notwithstanding
the possibility, threat or occurrence of a Change in Control of the
Company.
B. Parent
believes that it is in the best interests of the Company to provide
Employee with an incentive to continue his or her employment with
the Company and to motivate Employee to maximize the value of the
Company upon a Change in Control.
C. Parent
believes that it is imperative to provide Employee with certain
benefits under certain circumstances in connection with a Change in
Control, which benefits are intended to provide Employee with
financial security and sufficient encouragement to remain with the
Company notwithstanding the possibility of a Change in
Control.
Section
2. Agreement. In consideration of the
mutual covenants contained in this Agreement, and in consideration
of the continuing employment of Employee by the Company, the
parties agree as follows:
A. Term
of Agreement. This Agreement shall be effective as of the
date specified above and shall terminate upon the earlier of:
(a) the termination of Employee’s employment for any
reason or no reason prior to, and not in connection with, a Change
in Control; or (b) the date that all obligations of the
parties with respect to this Agreement have been satisfied.
Notwithstanding the foregoing, in the event a Change in Control
occurs during the term of this Agreement, this Agreement will
remain in effect for the longer of: (i) seven (7) months beyond the
month in which such Change in Control occurred; and (ii) until all
obligations of the Company hereunder have been fulfilled, and until
all benefits required hereunder have been paid to
Employee.
B. At-Will
Employment. The Company and Employee acknowledge that
Employee’s employment is and shall continue to be at-will, as
defined under applicable law. If Employee’s employment
terminates for any reason or no reason, including, without
limitation, any termination prior to, and not in connection with, a
Change in Control, 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 applicable law and the
terms of the Company’s established employee plans and written
policies at the time of termination.
C. Separation
Benefits Upon Certain Events Following Change in Control. If
Employee’s employment is terminated (an “Involuntary Termination”)
without Cause (as defined below) within sixty (60) days prior to a
Change in Control or during the six (6) month period following a
Change in Control (the “Protected Period”),
Employee shall be entitled to the following separation
benefits:
1. Stock
Options and Restricted Stock. The terms of Parent’s
2016 Equity Incentive Plan and 2008 Stock Incentive Plan, and the
terms of any agreement with respect to stock options, restricted
stock or other equity compensation held by Employee shall govern
such equity compensation and are incorporated herein by
reference.
2. Severance
Payments.
(A) Employee
shall be entitled to receive an amount (the “Release Amount”) equal to
ten percent (10%) of the Aggregate Separation Payment (as defined
in Section 3(A) below). Subject to Section 2(E), the Release
Amount will be paid on the next business day following the Release
Deadline (as defined in Section 2(E) below) in a lump
sum.
(B) Employee
shall be entitled to receive
an amount (the “Severance Amount”) equal
to ninety percent (90%) of the Aggregate Separation Payment, such
amount to be paid in six (6) equal monthly installments. Subject to
Section 2(D), the first installment will be paid on the next
business day following the Release Deadline and the remaining
payments will begin on the first business day of the month
following the month in which the Release Deadline
occurs.
(C) All
payments shall be subject to applicable taxes, and shall be capped
at an amount such that the aggregate present value of all
“parachute payments” (computed as of the date of the
Change in Control) does not exceed 2.99 times
Employee's ”base amount” determined for purposes
of Internal Revenue Service Code Section 280G.
(D) Notwithstanding
anything to the contrary contained herein, the Company's
obligations to make any payments to Employee pursuant to Section
2(C)(2)(B) above shall immediately cease without any required
notice or further action on the Company's part if at any time
Employee engages in a Conflicting Activity (as defined in Section
3(F) below) following his or her termination of employment with the
Company.
3. COBRA
Continuation Coverage. Employee’s existing coverage
under the Company’s group health plan (and, if applicable,
the existing group health coverage for his or her eligible
dependents) will end on the last day of the month in which his or
her employment terminates. Employee and his or her eligible
dependents may then be eligible to elect temporary continuation
coverage under the Company’s group health plan in accordance
with the Consolidated Omnibus Budget Reconciliation Act of 1985, as
amended (“COBRA”). Employee and his
or her eligible dependents will be provided with a COBRA election
form and notice which describe his or her rights to continuation
coverage under COBRA. If Employee is eligible for severance
benefits under this Agreement at the time of the termination of
employment, then the Company will cover the cost of
Employee’s COBRA coverage for a period of six (6) months.
After the end of such six (6) month period, Employee (and, if
applicable, his or her eligible dependents) may continue COBRA
coverage at his or her, or their, own expense in accordance with
COBRA [Include for
California employees only -- (or CalCOBRA)]. No provision of
this Agreement will affect the continuation coverage rules under
COBRA. Therefore, the period during which Employee must elect to
continue the Company's group health plan coverage under COBRA, the
length of time during which COBRA coverage will be made available
to him or her, and all his or her other rights and obligations
under COBRA will be applied in the same manner that such rules
would apply in the absence of this Agreement. Any such election is
Employee’s responsibility, not the
Company’s.
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D. Other
Terminations. Employee shall not be entitled to receive any
benefits under this Agreement in the event Employee’s
employment terminates: (1) for any reason other than those
described in Section 2(C); (2) more than sixty (60) days prior to,
and not in connection with, the occurrence of a Change in Control;
(3) for Cause; or (4) after the Protected Period.
E. Execution
of Release of Claims. As a condition precedent to any
Company obligation to Employee pursuant to this Agreement,
including but not limited to Section 2(C), Employee shall, prior to
the sixtieth (60th) day following his or her last day of employment
with the Company (the “Release Deadline”),
provide the Company with a valid, executed general release
agreement in the form attached hereto as Exhibit A, and such release
agreement shall have not been revoked by Employee pursuant to any
revocation rights afforded by applicable law. The Company shall
have no obligation to make any payment to Employee unless the
general release agreement contemplated by this section becomes
irrevocable in accordance with all applicable laws, rules and
regulations prior to the Release Deadline.
F. Section
409A. This section is intended to help ensure that
compensation paid or delivered to Employee pursuant to this
Agreement is exempt from Section 409A of the Code
(“Section 409A”). It
includes provisions intended to exempt some amounts which may be
paid or provided under this Agreement. However, the Company does
not warrant to Employee that all compensation paid or delivered to
Employee for services will be exempt from, or paid in compliance
with, Section 409A. Employee understands and agrees that he or she
bears the entire risk of any adverse federal, state or local tax
consequences and penalty taxes which may result from payment of
compensation for services on a basis contrary to the provisions of
Section 409A or comparable provisions of applicable state or local
income tax laws. Notwithstanding any other provision of this
Agreement, any payment hereunder that is subject to Section
409A(a)(2)(B)(i) of the Code shall not be made before the date
that is six (6) months after the date of Employee's separation from
service. To the extent that this Agreement or any plan, program or
award of the Company in which Employee participates or which has
been or is granted by the Company to Employee, as applicable, is
subject to Section 409A, the Company and Employee agree that
the terms and conditions of this Agreement and such other plan,
program or award shall be construed and interpreted to the maximum
extent reasonably possible, without altering the fundamental intent
of the agreement, to avoid the imputation of any tax, penalty or
interest under Section 409A. In applying Section 409A to
compensation paid pursuant to this Agreement, any right to a series
of installment payments under this Agreement shall be treated as a
right to a series of separate payments.
Section
3. Definitions. The following capitalized
terms used in this Agreement shall have the following
meanings:
A. “Aggregate
Separation Payment”: means an amount equal to fifty
percent (50%) of Employee’s annualized rate of Base
Salary.
B. “Base
Salary”: means
the highest base salary paid to Employee by the Company as annual
salary within twenty four (24) months prior to the Effective Date
of the Change in Control.
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C. “Cause”:
means any of the following: (i) the conviction of Employee of, or
the entering of a plea of nolo contendere by Employee with respect
to, a felony or a crime involving fraud, dishonesty or moral
turpitude which is materially injurious to the Company, monetarily
or otherwise; (ii) any serious misconduct in the course of
employment or material violation of the Company’s Code of
Conduct or Employee Manual; (iii) habitual neglect of
Employee’s duties (other than on account of
“disability” as defined below) which materially
adversely affects the performance of Employee’s duties and
continues for thirty (30) days following Employee’s receipt
of written notice from the Company, which specifically identifies
the nature of the habitual neglect and the duties that are
materially adversely affected and states that, if not cured, such
habitual neglect constitutes grounds for the termination of
employment; except that Cause shall not mean: (1) bad judgment or
negligence unless it materially adversely affects the performance
of Employee’s duties and continues for thirty (30) days
following Employee’s receipt of the notice described in
Section 3(D)(iii); (2) any act or omission believed by Employee in
good faith to have been in or not opposed to the interest of the
Company (without intent to gain, directly or indirectly, a profit
to which Employee was not legally entitled); (3) any act or
omission with respect to which a determination could properly have
been made by the Company that Employee met the applicable standard
of conduct for indemnification or reimbursement under such
employer’s by-laws, any applicable indemnification agreement,
or applicable law, in each case in effect at the time of such act
or omission; or (4) any act or omission with respect to which
notice of termination is given more than twelve (12) months after
the earliest date on which any officer of the Company, not a party
to the act or omission, knew of such act or omission.
“Cause” for purposes of this Agreement shall also mean
Employee’s death or “disability,” which is
defined as any medically determinable physical or mental impairment
that has lasted for a period of either (x) one hundred eighty (180)
consecutive days, or (y) two hundred seventy (270) days (whether or
not consecutive) during any period of eighteen (18) consecutive
months, and that renders Employee unable to perform the essential
functions of his or her job even with reasonable accommodation (in
the Board’s commercially reasonable
determination).
D. “Change
in Control”:
means the occurrence of any of the following events:
1. the
closing of a sale or conveyance of all or substantially all of the
assets or business of the Company, directly or indirectly, whether
through the sale of stock of, or other equity interests in,
Subsidiaries, sale of assets, merger, consolidation, other business
combination, or any combination thereof; or
2. the
closing of a sale or conveyance of assets of the Company (directly
or indirectly, whether through the sale of stock of, or other
equity interests in, Subsidiaries, sale of assets, merger,
consolidation, other business combination or any combination
thereof) representing fifty percent (50%) of more of (x) the total
book value of the consolidated total assets of the Company,
exclusive of cash and marketable securities as of the last
month-end prior to the execution of the written contract providing
for the Change in Control (the "Contract"), or (y) to which
fifty percent (50%) or more of the consolidated total revenues of
the Company from operations during the twelve (12)-month period
ending on the last month-end prior to the execution of the Contract
are attributable; or
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3. any
merger, liquidation, business combination or consolidation
transaction in which shares of the Company's common stock are
converted into the right to receive cash and/or securities of an
acquiring person or any other entity or issuer; or
4. the
effective time of any merger, share exchange, consolidation or
other reorganization or business combination of the Company if
immediately after such transaction persons who hold a majority of
the outstanding Voting Securities entitled to vote generally in the
election of directors of the surviving entity are not persons who
held voting capital stock of the Company immediately prior to such
transaction; or
5. any
other transaction or series of related transactions having an
economic effect substantially equivalent to any of the foregoing;
provided, however, that any transaction entered into solely among
the Company and other Affiliates of Xxxxxxxx Green, Jr. shall not
be deemed a Change in Control hereunder. For purposes of this
definition, the term "Affiliate" shall mean any person or entity,
directly or indirectly, controlling, controlled by, or under common
control with, Xxxxxxxx Green, Jr.; provided, however, that, for
purposes of this Agreement, any acquisition by any employee benefit
plan (or related trust) sponsored or maintained by the Company or
any corporation controlled by the Company shall not be considered a
Change in Control.
Notwithstanding
the foregoing, the term Change in Control will not include a sale
of assets, merger or other transaction effected exclusively for the
purpose of changing the domicile of any Company. To the extent
required for compliance with Section 409A, in no event will a
Change in Control be deemed to have occurred if such transaction is
not also a “change in the ownership or effective control
of” the Company or “a change in the ownership of a
substantial portion of the assets of” the Company as
determined under Treasury Regulations Section 1.409A-3(i)(5)
(without regard to any alternative definition
thereunder).
E. “Code”:
means the Internal Revenue Code of 1986, as amended, and the
regulations thereunder.
F. “Conflicting
Activity”:
means the following: serving as an officer, director, employee,
consultant, advisor, agent or representative of, or investing in,
any person or entity engaged in any primary line of business
engaged in by the Company during the one-year period prior to
Employee’s termination of employment; provided, that the foregoing
shall not include a passive investment in not more than two percent
(2%) of the publicly traded equity of any exchange-listed
company.
G. “Effective
Date”: means
the first date on which a Change in Control occurs during the term
of this Agreement. Despite anything in this Agreement to the
contrary, if the Company terminates Employee’s employment
within sixty (60) days prior to the date of a Change in Control,
and if Employee reasonably demonstrates that such termination of
employment (a) was at the request of a third party who had
taken steps reasonably calculated to effect the Change in Control,
or (b) otherwise arose in anticipation of the Change in
Control, then “Effective Date” shall mean the date
immediately before the date of such termination of
employment.
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H. “Subsidiary”
or “Subsidiaries”:
means any corporation as defined in Section 424(f) of the Code
with the Parent being treated as the employer corporation for
purposes of this definition, and any partnership or limited
liability company in which Parent or any Subsidiary has a direct or
indirect interest (whether in the form of voting power or
participation in profits or capital contribution) of fifty percent
(50%) or more. The determination of Subsidiary status shall be
made, in the case of a Change in Control, at the time of the
occurrence of the event constituting a Change in Control; and in
the case of an event relating to employment status or benefits, at
the time such event occurs.
I. “Voting
Securities”:
means securities of a corporation that are entitled to vote
generally in the election of directors of such
corporation.
Section
4. Notice
and Arbitration
A. 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.
Notices mailed to Employee shall be addressed to Employee at the
home address that 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 the General
Counsel.
B. Arbitration
and Dispute Resolution.
1. In
the event disputes arise between them (other than claims that
Employee may have for workers’ compensation or unemployment
insurance benefits, or claims based on any state or federal law
that have been determined by the controlling judicial authority of
appropriate jurisdiction not to be arbitrable pursuant to
pre-dispute arbitration agreements such as this arbitration
provision), both parties will be bound by this arbitration clause
which provides for final and binding arbitration for disputes
arising out of or relating to Employee’s employment with the
Company, the termination of Employee’s employment, and/or any
agreements previously or hereafter entered into between Employee
and the Company. The parties shall arbitrate such disputes under
the most recently issued National Rules for the Resolution of
Employment Disputes of the American Arbitration Association. All
disputes shall be resolved by a single arbitrator agreed to by the
Company and Employee.
2. Once
the arbitration has commenced, both the Company and Employee shall
have the right to conduct normal civil discovery, the extent and
quantity of such shall be subject to the discretion of the selected
arbitrator. The arbitrator shall have the exclusive authority to
resolve any issues relating to the arbitrability of the dispute or
the validity or interpretation of this arbitration provision, to
rule on motions to dismiss and/or motions for summary judgment, and
shall be empowered to award either party any remedy at law or in
equity that the prevailing party would otherwise have been entitled
to had the matter been litigated in court. The arbitrator shall
issue a decision or award in writing, stating the essential
findings of fact and conclusions of law. Judgment on the award
rendered by the arbitrator may be entered in any court having
jurisdiction. Costs shall be allocated such that Employee will not
incur any costs other than that which would be incurred to file a
civil action in any court with proper jurisdiction over the
dispute.
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3. BOTH
THE COMPANY AND EMPLOYEE EXPRESSLY WAIVE ANY RIGHT THAT THEY HAVE
OR MAY HAVE TO A CIVIL JURY TRIAL. ONLY AN ARBITRATOR, NOT A JUDGE
OR JURY, WILL DECIDE ANY SUCH DISPUTE. BOTH PARTIES AGREE THAT NO
ACTION MAY BE BROUGHT IN COURT EXCEPT ACTIONS TO COMPEL
ARBITRATION, TO OBTAIN THE DISMISSAL OF ACTIONS FILED IN COURT IN
CONTRAVENTION OF THIS ARBITRATION CLAUSE, OR TO SEEK PROVISIONAL
RELIEF AS MAY BE ALLOWED BY STATE OR FEDERAL LAW.
4. Although
all claims arising between the parties are subject to arbitration,
unless otherwise prohibited by applicable law, each party retains
the right to file, in a court of competent jurisdiction, an
application for provisional injunctive and/or equitable relief in
connection with a claim relating to this Agreement, including any
claims relevant to the application for provisional relief, and
shall not be obligated to post a bond or other security in seeking
such relief unless specifically required by law. Although a court
may grant provisional injunctive and/or equitable relief, the
arbitrator shall at all times retain the power to grant permanent
injunctive relief, or any other final remedy.
Section
5. Miscellaneous Provisions.
A. 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 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.
B. No
Duty to Mitigate. Employee shall not be required to mitigate
the amount of any payment contemplated by this Agreement (whether
by seeking new employment or in any other manner), nor, except as
otherwise provided in this Agreement, shall any such payment be
reduced by any earnings that Employee may receive from any other
source.
C. 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 the Chief Executive
Officer or the Vice President of Human Resources and Administration
of Parent. 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.
D. Whole
Agreement. No agreements, representations or understandings
(whether oral or written and whether express or implied) which are
not expressly set forth in this Agreement have been made or entered
into by either party with respect to the subject matter hereof.
This Agreement supersedes any agreement of the same title and/or
concerning similar subject matter dated prior to the date of this
Agreement, and by execution of this Agreement both parties agree
that any such predecessor agreement shall be deemed null and
void.
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E. Choice
of Law. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the
State of Delaware without reference to conflict of law
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; provided,
that the Company and Employee acknowledge and agree that the
provisions of Section 2(C)(2)(D) were a material inducement to the
Company to offer the payments and benefits under this Agreement,
will continue to be fundamental to the Company's willingness to
perform its obligations under this Agreement, and if the provisions
of Section 2(C)(2)(D) are at any time determined to be invalid or
unenforceable in any arbitration pursuant to the terms of this
Agreement (or by a court of competent jurisdiction), the Company
and Employee agree that this entire Agreement, including all terms
and provisions of this Agreement (other than this proviso) shall be
invalid and unenforceable, and this Agreement shall be rendered
void and of no further force and effect.
G. Legal
Fees and Expenses. The parties shall each bear their own
expenses, legal fees and other fees incurred in connection with
this Agreement.
H. 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 Section 5(H) shall be
void.
I. Employment
Taxes. Unless otherwise expressly noted, all payments made
pursuant to this Agreement will be subject to withholding of
applicable income and employment taxes.
J. Assignment
by the Company. Parent may assign its rights under this
Agreement to an affiliate (including a Subsidiary) without
Employee’s consent.
K. Counterparts.
This Agreement may be executed in counterparts, each of which shall
be deemed an original, but both of which together will constitute
one and the same instrument.
IN WITNESS WHEREOF, each of the parties
has executed this Agreement as of the day and year first above
written.
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(Employee
Name)
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By:
Name:
Title:
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Exhibit
A
GENERAL RELEASE OF ALL CLAIMS
I,
[insert name of employee], hereby make on behalf of myself, my
heirs, executors, administrators, successors, and assigns, the
following agreements and acknowledgements pursuant to this General
Release of All Claims (“General Release”) in consideration
of: (1) the Severance Amount as defined in the Change in Control
Agreement dated ____________________, 20[ ], by and between [insert
name of employee] and Fusion Connect, Inc., a Delaware corporation
(the “Change in Control Agreement”), and (2) the
healthcare benefits as set forth in COBRA Continuation Coverage section of
the Change in Control Agreement.
I.
Release
and Waiver of All Claims
A. I
hereby agree that I fully and forever discharge, waive and release
any and all claims and causes of action of any kind that I may have
had or now have against: Fusion Connect, Inc. and each of its
Subsidiaries (“Entities”) any and all affiliates,
predecessors, successors and assigns of the Entities
(“Covered
Entities”); and any and all owners, shareholders,
members, officers, directors, agents, attorneys, employees,
representatives and employee benefit plans of the Entities and
Covered Entities (“Covered
Persons”) (the Entities, Covered Entities and Covered
Persons being hereinafter collectively referred to as the
“Company”)
arising out of or relating in any way to my employment with the
Company and the termination thereof, including but not limited to:
(1) claims of wrongful discharge, constructive discharge, breach of
contract, breach of the covenant of good faith and fair dealing,
violation of public policy, defamation, personal injury, infliction
of emotional distress, negligence, fraud and invasion of privacy;
(2) claims of harassment, retaliation and discrimination; (3)
claims under Title VII of the 1964 Civil Rights Act, as amended,
the Equal Pay Act of 1963, 42 U.S.C. § 1981, the Americans
with Disabilities Act, the Civil Rights Act of 1866, the Employee
Retirement Income Security Act of 1974, as amended, Workers
Adjustment and Retraining Notification Act 9 [include only for
employees over the age of 40 – the federal Age Discrimination
in Employment Act, as amended (the “ADEA”)] and any other federal laws
and regulations relating to employment; (4) if I am or was employed
by the Company in California, any laws and regulations of
California and its local governments relating to employment
including but not limited to the California Fair Employment and
Housing Act, the California Labor Code including Section 1197.5
thereof, and the California Family Rights Act; and (5) if I am or
was employed by the Company in a state other than California, any
analogous laws and regulations of that state and the local
governments of each such state; and excluding any claims that
cannot be waived or released as a matter of law, including those
relating to unemployment or workers’
compensation insurance benefits. Nothing in this General Release
waives or releases any claims that cannot be released by private
agreement between the parties.
B. If
I am a California employee, I hereby agree that I fully and forever
waive any and all rights and benefits conferred upon me by: (i) the
provisions of Section 1542 of the Civil Code of the State of
California, which states as follows: “[a] general release
does not extend to claims which the creditor [i.e., employee] does
not know or suspect to exist in his or her favor at the time of
executing the release, which if known by him or her must have
materially affected his or her settlement with the debtor [i.e.,
the Company]”. If I am not a California employee, I hereby
waive any analogous law of any state other than California that may
apply to the General Release, including the state in which I am or
was employed by the Company.
A-1
I agree
and understand that if, hereafter, I discover facts different from
or in addition to those which I now know or believe to be true,
that the waivers of this General Release shall be and remain
effective in all respects notwithstanding such different or
additional facts or the discovery thereof.
II.
Confidential
Information & Company Employees
I
hereby agree and understand that:
A. I am required to
return to the Company immediately upon my termination of employment
all Company Information, including but not limited to notebooks,
customer lists, notes, manuals, memoranda, records, diagrams,
blueprints, bulletins, formulas, reports, computer programs, or
other data or memorialization’s of any kind, as well as any
Company property or equipment, that I have in my possession or
under my control. I further agree and understand that I am not
entitled or authorized to keep any portions, summaries or copies of
Company Information, and that I am under a continuing obligation to
keep all Company Information confidential and not to disclose it to
any third party in the future. I understand that the term
“Company
Information” includes, but is not limited to, the
following:
●
Trade secret,
information, matter or thing of a confidential, private or secret
nature, connected with the actual or anticipated products,
research, development or business of the Company, its partners or
its customers, including information received from third parties
under confidential conditions; and
●
Other technical,
scientific, marketing, business, product development or financial
information, the use or disclosure of which might reasonably be
determined to be contrary to the interests of the
Company.
B. I am prohibited for
a period of one (1) year after the termination of my employment,
from soliciting for employment, whether as an employee, independent
contractor, or agent, any Company employee, either on behalf of
myself or a third party; and for that same time period I am
prohibited from encouraging or otherwise enticing any Company
employee to terminate his or her employment with the Company,
unless such restrictions are prohibited under applicable law.
Nothing in this General Release shall be construed: (i) to restrain
me from seeking to engage in any profession, trade or business;
(ii) to restrain any business which I may be employed by or
otherwise affiliate with from hiring or seeking to hire a Company
employee without my solicitation, encouragement or enticement; or
(iii) to diminish or waive any rights that Company may have in
protecting its confidential information, ensuring employee loyalty
and an undisrupted workplace and otherwise preventing unfair
competition.
C. The promises and
agreements of this Section II. are a material inducement to the
Company to provide me with the payments and benefits under the
General Release and that, for the breach thereof, the Company will
be entitled to pursue its legal and equitable remedies against me,
including, without limitation, the right to immediately cease
payments made pursuant to the General Release and/or seek
injunctive relief; provided,
however, this General Release will remain in full force and
effect.
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III. No
Admission
I agree
and understand that neither the fact nor any aspect of this General
Release is intended, should be deemed, or should be construed at
any time to be any admission of liability or wrongdoing by either
myself or the Company.
IV. Severability
I agree
and understand that if any provision, or portion of a provision, of
this General Release is, for any reason, held to be unenforceable,
that such unenforceability will not affect any other provision, or
portion of a provision, of this General Release and this General
Release shall be construed as if such unenforceable provision or
portion had never been contained herein.
V. Time
to Consider and Sign General Release
[For employees under 40 -- I
understand that I may have five (5) days after receipt of this
General Release within which I may review and consider, discuss
with an attorney of my own choosing and at my own expense, and
decide whether or not to sign this General Release. I understand
that, if I do not sign the General Release within this five-day
period, this General Release will not become effective and no
payments and benefits under the General Release will be provided to
me. I understand that this General Release becomes effective
immediately upon signing it.
[For employees 40 and over -- I
acknowledge that I am knowingly and voluntarily waiving and
releasing any rights I may have under the ADEA, and that the
consideration given under the Change in Control Agreement for the
waiver and release of any ADEA claims is in addition to anything of
value to which I was already entitled. I further acknowledge that I
have been advised, as required by the ADEA, that: (a) my
waiver and release does not apply to any rights or claims that may
arise after the date I sign this General Release; (b) I should
consult with an attorney prior to signing this General Release
(although I may choose voluntarily not do so); (c) I have
twenty one (21) days to consider this General Release (although I
may choose voluntarily to sign this General Release earlier);
(d) I have seven (7) days following the date I sign this
General Release to revoke it by providing written notice to the
Vice President of Human Resources and Administration of the
Company; and (e) this General Release will not be effective
until the date upon which the revocation period has expired, which
will be the eighth day after I sign this Release.]
VI.
Miscellaneous
Acknowledgements and Agreements
A. I
hereby acknowledge that I understand that, but for my signing of
this General Release, I would not be entitled to nor would I be
provided with any of the payments and benefits under the General
Release. I understand that no payments and benefits will be
provided to me until this General Release becomes effective. I
understand further that, even if I did not sign this General
Release, I would still be entitled to:
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1. all
wages, including final pay, commissions (if applicable) and any
paid time off or vacation, less applicable deductions, earned by me
through my termination date; and
2. the
opportunity, if I am eligible, to elect, at my sole expense, to
continue to participate in (and, if applicable, my dependents are
eligible to elect to continue their participation in) the group
health insurance plans provided by the Company pursuant to the
terms and conditions of the Consolidated Omnibus Budget
Reconciliation Act of 1985, as amended (“COBRA”).
A. I
hereby acknowledge that any agreement that I signed in connection
with my employment with the Company regarding employee inventions,
authorship, proprietary and confidential information, and
non-solicitation shall remain in full force and effect following
the termination of my employment.
B. I
hereby acknowledge that I have no known workplace injuries or
occupational diseases, that I have been provided and/or have not
been denied any leave requested under the Family and Medical Leave,
California Family Rights Act (if I am a California employee only)
or any similar law of any state other than California and that I
have not been retaliated against for exercising any rights that I
may have under those laws.
C. I
hereby acknowledge that I have received all wages earned by me and
owed to me by the Company through my last day of employment with
the Company, including, but not limited to all earned bonuses,
commissions, overtime, expenses or other earnings or payments owed,
less appropriate withholdings.
D. I
hereby acknowledge that I performed no work for and provided no
services to the Company after the completion of my work day on the
last day of employment with the Company.
E. I
agree to keep the fact of all the terms of this General Release
strictly confidential, except that I may disclose its contents to
my spouse, attorney, accountant, or as compelled by force of law. I
understand that this confidentiality provision does not prevent me
from telling anyone that my employment with the Company was
terminated.
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EMPLOYEE'S ACCEPTANCE OF GENERAL RELEASE
BEFORE
SIGNING MY NAME TO THIS GENERAL RELEASE, I STATE THAT: I HAVE READ
IT; I UNDERSTAND IT AND KNOW THAT I AM GIVING UP IMPORTANT RIGHTS;
I AM AWARE OF MY RIGHT TO CONSULT WITH AN ATTORNEY BEFORE SIGNING
IT; AND I HAVE SIGNED IT KNOWINGLY AND VOLUNTARILY.
The period of time to consider and sign this General Release starts
on Date.
Date
signed: _____________________________
___________________________________
Employee’s
Signature
___________________________________
Employee’s
Name (Printed)
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