CONFIDENTIAL SEPARATION AND RELEASE AGREEMENT
Exhibit 10.5
It is
hereby agreed by and between you, Xxxxxxxx Xxxxx (for yourself,
your spouse, family, agents and attorneys) (jointly,
“You” or
“Employee”), and AutoWeb,
Inc. “Company”), as
follows:
1. Separation of
Employment. You acknowledge that your employment with the
Company ended effective April 12, 2018 (“Employment Termination Date”) by
reason of your voluntary resignation and that You will perform no
further duties, functions or services for the Company subsequent to
the Employment Termination Date (other such transition consulting
services to be provided by you pursuant to the Consulting Services
Agreement referred to below), and that your last day of employment
with the Company was the Employment Termination Date.
2. Release
Consideration. In exchange for and in consideration of your
promises and obligations in this Confidential Separation and
Release Agreement (“Release”), including the release
of claims set forth below, if You sign and do not revoke this
Release and this Release becomes effective, and subject to your
compliance with the terms of this Release, the Company will enter
into the Consulting Services Agreement attached hereto as Exhibit A
(“Consulting
Agreement”), which provides for the Consulting
Consideration set forth on the Consulting Services Schedule to the
Consulting Agreement.
3. Acknowledgement of
Receipt of Amounts Due. You acknowledge and agree that You
have received all, and that the Company does not owe You any
additional, payments, benefits or other compensation as a result of
your employment with the Company or your separation from employment
with the Company, including, but not limited to, wages,
commissions, bonuses, vacation pay, severance pay, expenses, fees,
or other compensation or payments of any kind or
nature.
4. Return of Company
Property. You represent and warrant that You have returned
to the Company any and all documents, software, equipment
(including, but not limited to, computers and computer-related
items), and all other materials or other things in your possession,
custody, or control which are the property of the Company,
including, but not limited to, Company identification, keys,
computers, cell phones, and the like, wherever such items may have
been located; as well as all copies (in whatever form thereof) of
all materials relating to your employment, or obtained or created
in the course of your employment with the Company. You hereby
represent that, other than those materials You have returned to the
Company pursuant to this Section 4, You have not copied or caused
to be copied, and have not transferred or printed-out or caused to
be transferred or printed-out, any software, computer disks,
e-mails or other documents other than those documents generally
available to the public, or retained any other materials
originating with or belonging to the Company. You further represent
that You have not retained in your possession, custody or control,
any software, documents or other materials in machine or other
readable form, which are the property of the Company, originated
with the Company, or were obtained or created in the course of or
relate to your employment with the Company. The parties acknowledge
that You have in your possession a Company laptop computer as
provided for in, and subject to the terms and conditions of, the
Consulting Agreement.
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5. Confidentiality and
Non-Solicitation/Interference.
(a) You shall keep
confidential, and shall not hereafter use or disclose to any
person, firm, corporation, or other entity, in whole or in part, at
any time in the future, any trade secret, proprietary information,
or confidential information of the Company, including, but not
limited to, information relating to trade secrets, processes,
methods, pricing strategies, customer lists, marketing plans,
product introductions, advertising or promotional programs, sales,
financial results, financial records and reports, regulatory
matters and compliance, and other confidential matters, except as
required by applicable law, rule, regulation, legal process or
order and as necessary for compliance purposes. These obligations
are in addition to the obligations set forth in any confidentiality
or non-disclosure agreement between You and the Company, including,
without limitation, that certain Employee Confidentiality Agreement
dated as of April 26, 2010, which shall survive and remain binding
on You after the Employment Termination Date. The parties
understand that You may have trade secret, proprietary information
or confidential information of the Company related to certain
proposed acquisitions or other transactions on your personal
electronic devices. You acknowledge that any trade secrets,
proprietary information or confidential information remains subject
to your confidentiality obligations to the Company and that you
remain responsible for maintaining the confidentiality of the
Company’s trade secrets, proprietary information or
confidential information. You will use all reasonable efforts to
delete all Company trade secrets, proprietary information or
confidential information from your personal electronic
devices.
(b) Unless required by
applicable law, rule, regulation, legal process or order or to
enforce this Release, Employee shall not disclose the existence of
the Release or this Release or the underlying terms to any third
party, including without limitation, any former, present or future
employee of the Company, other than to Employee’s immediate
family who have a need to know such matters or to Employee’s
tax or legal advisors who have a need to know such matters. If
Employee does disclose this Release, or any of its terms to any of
Employee’s immediate family or tax or legal advisors, then
Employee will inform them that they also must keep the existence of
this Release and it terms confidential. The Company may disclose
the existence or terms of this Release and its terms and may file
this Release as exhibits to its public filings if it is required to
do so under applicable law, rule, regulation or order.
6. Unconditional
General Release of Claims.
(a) In consideration
for the entering into the Consulting Agreement as provided for in
Section 2, and notwithstanding the provisions of Section 1542 of
the Civil Code of California, You unconditionally release and
forever discharge the Company, and the Company’s current,
former, and future controlling shareholders, subsidiaries,
affiliates, related companies, predecessor companies, divisions,
directors, trustees, officers, employees, agents, attorneys,
successors, and assigns (and the current, former, and future
controlling shareholders, directors, trustees, officers, employees,
agents, and attorneys of any such subsidiaries, affiliates, related
companies, predecessor companies, and divisions) (all of the
foregoing released persons or entities being referred to herein
collectively as “Releasees”), from any and all
known and unknown claims, complaints, demands, actions, suits,
causes of action, obligations, damages and liabilities of whatever
kind or nature, whether known or unknown and regardless of whether
the knowledge thereof would have materially affected your agreement
to release the Company hereunder, based on any act, omission,
event, occurrence, or nonoccurrence from the beginning of time
to the date of execution of this Release, including, but not
limited to, claims that arise out of or in any way relate to your
employment or your separation from employment with the
Company.
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(b) You acknowledge and
agree that the foregoing unconditional and general release
includes, but is not limited to, (i) any claims for salary,
bonuses, commissions, equity, compensation (except as specified in
this Release), wages, penalties, premiums, severance pay, vacation
pay or any benefits under the Employee Retirement Income Security
Act of 1974, as amended; (ii) any claims of harassment, retaliation
or discrimination; (iii) any claims based on any federal, state or
governmental constitution, statute, regulation or ordinance,
including, without limitation, Title VII of the Civil Rights Act of
1964, the Civil Rights Act of 1991, the Age Discrimination in
Employment Act (“ADEA”), the Americans With
Disabilities Act, Section 1981 of the Civil Rights Act of 1866, the
California Fair Employment and Housing Act, the California Family
Rights Act, the Family and Medical Leave Act, the California
Constitution, the California Labor Code, the California Industrial
Welfare Commission Wage Orders, the California Government Code, and
the Worker Adjustment and Retraining Notification Act; (iv)
whistleblower claims, claims of breach of implied or express
contract, breach of promise, misrepresentation, negligence, fraud,
estoppel, defamation, infliction of emotional distress, violation
of public policy, wrongful or constructive discharge, or any other
employment-related tort, and any claims for costs, fees, or other
expenses, including attorneys’ fees; and (v) any other aspect
of your employment or the termination of your
employment.
(c) For the purpose of
implementing a full and complete release, You expressly acknowledge
and agree that this Release resolves all claims You may have
against the Company and the Releasees as of the date of this
Release, including but limited to claims that You did not know or
suspect to exist in your favor at the time of the execution of this
Release. You expressly waive any and all rights which You may have
under the provisions of Section 1542 of the California Civil Code
or any similar state or federal statute. Section 1542 provides as
follows:
“A general
release does not extend to claims which the creditor 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.”
(d) You hereby certify
that You have not experienced a job-related illness or injury for
which You have not already filed a claim.
(e) This general
release does not waive or release rights or claims arising after
You sign this Release, including claims to enforce this
Release.
7. Covenant Not to
Xxx. A
“covenant not to xxx” is a promise not to xxx in court.
This covenant differs from a general release of claims in that,
besides waiving and releasing the claims covered by this Release,
You represent and warrant that You have not filed, and agree that
You will not file, or cause to be filed or maintained, any judicial
complaint, lawsuit or demand for arbitration involving any claims
You have released in this Release, and You agree to withdraw any
judicial complaints, lawsuits or demands for arbitration You have
filed, or were filed on your behalf, prior to the effective date of
this Release. Still, You may xxx to enforce this Release. You agree
if You breach this covenant, then You must pay the legal expenses
incurred by any Releasee in defending against your suit, including
reasonable attorneys’ fees, or, at the Company’s
option, return everything paid to You under this
Release.
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In that
event, the Company shall be excused from making any further
payments owed to You under paragraph 2 of this Release.
Furthermore, You give up all rights to individual damages in
connection with any administrative or court proceeding with respect
to your employment with or termination of employment from, the
Company. You also agree that if You are awarded money damages, You
will assign your right and interest to such money damages (i) in
connection with an administrative charge, to the relevant
administrative agency; and (ii) in connection with a lawsuit or
demand for arbitration, to the Company.
8. Cooperation With
Company. You agree to assist and cooperate (including, but
not limited to, providing information to the Company and/or
testifying truthfully in a proceeding) in the investigation and
handling of any internal investigation, governmental matter, or
actual or threatened court action, arbitration, administrative
proceeding, or other claim involving any matter that arose during
the period of your employment. You shall be reimbursed for
reasonable expenses actually incurred in the course of rendering
such assistance and cooperation. Your agreement to assist and
cooperate shall not affect in any way the content of information or
testimony provided by You.
9. No
Reemployment. You
agree not to seek employment in the future with any Releasee. You
acknowledge and agree that the Company has no obligation to employ
You or offer You employment in the future and You shall have no
recourse against the Company if it refuses to employ You or offer
You employment. If You do seek re-employment, then this Release
shall constitute sufficient cause for the Company to refuse to
re-employ You.
10. No Admission of
Liability. This Release does not constitute an admission
that the Company or any other Releasee has violated any law, rule,
regulation, contractual right or any other duty or
obligation.
11. Severability.
Should any provision of this Release be declared or be determined
by any court or arbitrator to be illegal or invalid, the validity
of the remaining parts, terms, or provisions shall not be affected,
and said illegal or invalid part, term, or provision shall be
deemed not to be part of this Release.
12. Governing
Law. This Release is made and entered into in the State of
California and shall in all respects be interpreted, enforced, and
governed under the law of that state, without reference to conflict
of law provisions thereof.
13. Interpretation.
The language of all parts in this Release shall be construed as a
whole, according to fair meaning, and not strictly for or against
any party. The captions and headings contained in this Release are
for convenience only and shall not control the meaning, effect, or
construction of this Release.
14. Knowing and
Voluntary Agreement. You have carefully reviewed this
Release and understand the terms and conditions it contains. By
entering into this Release, You are giving up potentially valuable
legal rights. You specifically acknowledge that You are waiving and
releasing any rights You may have under the ADEA. You acknowledge
that the consideration given for this waiver and release is in
addition to anything of value to which You were already entitled.
You acknowledge that You are signing this Release knowingly and
voluntarily and intend to be bound legally by its
terms.
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15. Protected
Rights.
(a) An individual may
not be held criminally or civilly liable under any federal or state
trade secret law for the disclosure of a trade secret that: (a) is
made (i) in confidence to a federal, state, or local government
official, either directly or indirectly, or to an attorney; and
(ii) solely for the purpose of reporting or investigating a
suspected violation of law; or (b) is made in a complaint or other
document that is filed under seal in a lawsuit or other proceeding.
Further, an individual who files a lawsuit for retaliation by an
employer for reporting a suspected violation of law may disclose
the employer’s trade secrets to the attorney and use the
trade secret information in the court proceeding if the individual:
(a) files any document containing the trade secret under seal; and
(b) does not disclose the trade secret, except pursuant to court
order
(b) You understand that
nothing contained in this Agreement or in the Confidentiality
Agreement limits your ability to file a charge or complaint with
the U.S. Equal Employment Opportunity Commission, the National
Labor Relations Board, the Occupational Safety and Health
Administration, the Securities and Exchange Commission or any other
federal, state or local governmental agency or commission
("Government Agencies"). You
further understand that this Agreement does not limit your ability
to communicate with any Government Agencies or otherwise
participate in any investigation or proceeding that may be
conducted by any Government Agency, including providing documents
or other information, without notice to the Company. This Agreement
does not limit your right to receive an award for information
provided to any Government Agencies.
16. Entire
Agreement. You hereby acknowledge that no promise or
inducement has been offered to You, except as expressly stated in
this Release and You are relying upon none. This represents the
entire agreement between You and the Company with respect to the
subject matter hereof, and supersedes any other written or oral
understandings between the parties pertaining to the subject matter
hereof and may only be amended or modified with the prior written
consent of You and the Company.
17. Arbitration. Any
controversy or claim arising out of, or related to, this Release,
or the breach thereof, shall be governed by the terms of the
Arbitration Agreement (as defined in the Severance Benefits
Agreement).
18. Period for Review
and Consideration/Revocation Rights. You understand that You have
twenty-one (21) days after this Release has been delivered to You
by the Company to decide whether to sign this Release, although You
may sign this Release at any time within the twenty-one (21) day
period. If You do sign it, You also understand that You will have
an additional seven (7) days after the date You sign this Release
to change your mind and revoke this Release, in which case a
written notice of revocation must be delivered to the
Company’s Chief Legal Officer, AutoWeb, Inc., 00000 XxxXxxxxx
Xxxx. Xxxxx 000, Xxxxxx, Xxxxxxxxxx 00000-0000, on or before the
seventh (7th) day after you sign this Release (or on the next
business day if the seventh calendar day is not a business day).
You understand that this Release will not become effective or
enforceable until after that seven (7) day period has passed. If
You revoke this Release, this Release shall not be effective or
enforceable as to any rights You may have under this Release. In
the event that You revoke this Release, You will not be entitled to
the payments specified in Paragraph 2.
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19. Advice of Attorney
and Tax Advisor. Employee acknowledges that: (i) the Company
has advised Employee to consult with an attorney and/or tax advisor
of Employee’s choosing (and at Employee’s own cost and
expense) before executing this Release, and (ii) Employee is not
relying upon the Company for, and the Company has not provided,
legal or tax advice to Employee in connection with this Release. It
is the responsibility of Employee to seek independent tax and legal
advice with regard to the tax treatment of this Release and the
payments and benefits that may be made or provided under this
Release and any other related matters. Employee acknowledges that
Employee has had a reasonable opportunity to seek and consider
advice from Employee’s attorney and tax
advisors.
PLEASE
READ CAREFULLY. THIS RELEASE INCLUDES A GENERAL RELEASE OF ALL
CLAIMS, KNOWN AND UNKNOWN. YOU MAY NOT MAKE ANY CHANGES TO THE
TERMS OF THIS RELEASE THAT ARE NOT AGREED UPON BY THE COMPANY IN
WRITING. ANY CHANGES SHALL CONSTITUTE A REJECTION OF THIS RELEASE
BY EMPLOYEE.
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Dated June 1,
2018
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/s/
Xxxxxxxx
Xxxxx
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Xxxxxxxx
Xxxxx
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AUTOWEB,
INC.
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Dated June
11, 2018
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By:
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/s/
Xxxxx
X. Xxxxxx
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Xxxxx X.
Xxxxxx
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EVP, Chief Legal
and Administrative Officer and Secretary
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Exhibit
A
Form
of Consulting Services Agreement
CONSULTING
SERVICES AGREEMENT
This
Consulting Services Agreement (“Agreement”) is entered into
effective as of the effective date set forth on the signature page
to this Agreement (“Effective
Date”) by and between AutoWeb, Inc., a Delaware
corporation (“Company”), and the individual
identified as the consultant on the signature page to this
Agreement (“Consultant”).
Background
The
Company is engaged in the business of providing internet marketing
services for the automotive industry. Consultant was formerly
employed by the Company as its EVP, Chief Financial Officer and
voluntarily resigned her positions at, and employment with, the
Company and its affiliated entities effective as of April 12, 2018
(“Employment Termination
Date”) in order to take a position with another
company. The Company wishes to engage Consultant to provide the
transition services described herein on a consulting basis, and
Consultant wishes to be engaged to provide such transition
services.
In
consideration of the covenants and agreements set forth herein, the
parties hereto agree as follows.
ARTICLE
I
CONSULTING
SERVICES
1.1 Consulting
Services. The Company hereby engages Consultant to perform
the transition services (“Consulting Services”) set forth on
the Consulting Services Schedule attached hereto as Exhibit A
(“Consulting Services
Schedule”), and Consultant hereby accepts the
engagement, upon the terms and conditions hereinafter set forth.
The parties acknowledge that in deciding to engage Consultant, the
Company has relied solely on the experience, expertise and
reputation of Consultant. All Consulting Services are to be
provided solely by the Consultant and no other employees of or
contractors for Consultant.
1.2 Term. The
engagement of Consultant hereunder shall commence effective as of
the Effective Date and shall continue until the first anniversary
of the Effective Date (“Agreement Expiration Date”). This
Agreement may be terminated prior to the Agreement Expiration Date
(i) by Consultant for any reason, with or without cause, upon
thirty (30) days prior written notice to Company; or (ii) by either
party by reason of a material breach of this Agreement by the other
party upon thirty (30) days prior written notice detailing the
breach by the breaching party and breaching party fails to cure
such breach within thirty (30) days following such written notice.
The period commencing with the Effective Date and ending on the
earlier of (i) the Agreement Expiration Date and (ii) the effective
date of any termination of this Agreement by a party prior to the
Agreement Expiration Date in accordance with the provisions of this
Section 1.2 is referred to herein as the “Consulting Term.” The provisions
of Sections 1.5, Articles III and IV shall survive any termination
of this Agreement.
1.3 Standards of Care
and Conduct. In the performance of the Consulting Services
under this Agreement, Consultant shall adhere to those fiduciary
standards, ethical practices and standards of care and competence
which are customary for professionals rendering consulting and
advisory services of the type provided for in this Agreement. In
performing the Consulting Services, Consultant shall comply with
(i) all applicable laws, rules, regulations and order; (ii)
reasonable instructions and directions from the Company; and (iii)
the Company’s Code of Conduct and other similar policies.
Consultant shall avoid engaging in any consulting, employment or
other business arrangements with third parties that may constitute
or give rise to a conflict of interest with respect to the
Company’s engagement of Consultant or in the provision of the
Consulting Services. Consultant represents and warrants to the
Company that Consultant currently does not have any such
arrangements that constitute or may give rise to a conflict of
interest, and Consultant shall disclose to Company any proposed
arrangements that constitute or may give rise to a conflict of
interest conflicts of interest prior to entering into any such
arrangement. The Company may at its discretion (i) request
Consultant to terminate any arrangement that the Company believes
does or may constitute a conflict of interest for Consultant in
connection with Consultant’s engagement by the Company or in
the
A1
performance of the
Consulting Services; or (ii) if Consultant does not terminate such
arrangement, terminate this Agreement. Consultant represents and
warrants that Consultant’s entering into this Agreement and
performing the Consulting Services will not conflict with or
constitute a breach of any other agreements or obligations
Consultant has with or to any third party.
1.4 Independent
Contractor.
(a) Consultant will
perform all Consulting Services as an independent contractor and
not as an employee of the Company. Consultant acknowledges and
agrees that Consultant is a self-employed independent contractor
and that nothing in this Agreement shall be considered to create an
employer-employee relationship between the Company and Consultant.
Consultant is not eligible to receive and will not receive or
participate in any compensation or employee benefit plans or
arrangements of any type in which employees of the Company may
participate, including but not limited to, any (i) retirement,
pension, savings, profit-sharing or other similar plans or
arrangements; (ii) any stock option, stock purchase or other equity
participation plans or arrangements; (iii) any long- term or
short-term bonus or other compensation plans or arrangements; (iv)
sick pay, paid non-working holidays, or paid vacations or leave
days; (v) overtime; (vi) any life, accident, disability, health or
dental insurance or reimbursement plans or arrangements; and (vii)
workers’ compensation. If Consultant is found, by a court of
competent jurisdiction to be an “employee” of the
Company, notwithstanding the foregoing, and to the extent permitted
by applicable law, rule, regulation or order, Consultant
voluntarily waives any and all rights, if any, to all such
compensation or benefits.
(b )
As an
independent contractor, Consultant is solely responsible for the
payment of any and all self-employment taxes and/or assessments
imposed on account of the payment of compensation to, or the
performance of the Consulting Services by, Consultant pursuant to
this Agreement, including, without limitation, any state, federal
or foreign unemployment insurance tax, income tax, Social Security
(FICA) payments, and disability insurance taxes. The Company shall
not, by reason of Consultant's status as an independent contractor
and the representations contained herein, make any withholdings or
payments of said taxes or assessments with respect to compensation
paid Consultant hereunder; provided, however, that if required by
law or any governmental agency, the Company shall withhold any such
taxes or assessments from the compensation due Consultant, and any
such withholding shall be for Consultant's account and shall not be
reimbursed by the Company to Consultant. Consultant expressly
agrees to treat any compensation earned under this Agreement as
self-employment income for federal and state tax purposes, and to
make all payments of federal and state income taxes, unemployment
insurance taxes, and disability insurance taxes as, when, and to
the extent the same may become due and payable with respect to such
self- employment compensation earned under this
Agreement.
(c )
Consultant is not
an agent of the Company. Unless otherwise directed by the Company
in writing, Consultant is not authorized to (i) waive any right or
to incur, assume, or create any debt, obligation, contract, or
release of any kind whatsoever in the name or on behalf of the
Company or any affiliated entity nor (ii) to hold Consultant out as
an employee or agent of the Company or any affiliated entity or to
make any statement or representation that Consultant has any such
authority.
(d )
Consultant shall
maintain adequate general liability, errors and omissions and other
insurance covering Consultant as required by applicable law, rule
or regulation (e.g., workers’ compensation).
(e )
Consultant
represents and warrants to the Company that Consultant is
authorized to provide the Consulting Services under applicable
laws, rules and regulations.
(f )
Consultant shall
comply with all applicable laws, rules and regulations in the
performance of the Consulting Services, and on request, Consultant
shall furnish the Company with appropriate assurances or
certificates of compliance.
(e
) Consultant
shall retain the right to determine the method, details and means
of performing the Consulting Services.
1.5 Indemnification.
(a )
Each
party to this Agreement will defend, indemnify and hold harmless
the other party and each of its parent
com
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(b )
If a
party entitled to indemnification under this Section 1.5 (an
“Indemnified
Party”) makes an indemnification request to the other
party, the Indemnified Party shall permit the other party (the
“Indemnifying
Party”) to control the defense and disposition or
settlement of the matter at its own expense; provided, however,
that the Indemnifying Party may not enter into any settlement
thereof with the Indemnified Party’s prior written consent
(not to be unreasonably withheld or delayed) unless the Indemnified
Party is fully and unconditionally released from such claims
without any admission of liability and the Indemnified Party is not
subject to any injunctive or other equitable relief or other
obligations. The Indemnified Party shall be permitted to
participate in such defense and represent itself at its own expense
with counsel of its own choosing. The Indemnified Party shall
notify the Indemnifying Party promptly of any claim for which
Indemnifying Party is responsible and shall cooperate with the
Indemnifying Party in every commercially reasonable way to
facilitate defense of any such claim; provided that the Indemnified
Party’s failure to notify Indemnifying Party shall not
diminish Indemnifying Party’s obligations under this Section
1.5 except to the extent that Indemnifying Party is materially
prejudiced as a result of such failure.
ARTICLE
II
CONSULTING
CONSIDERATION AND EXPENSES
2.1 Consulting
Consideration. In consideration for the performance of the
Consulting Services, Consultant shall receive the consideration set
forth on the Consulting Services Schedule (“Consulting
Consideration”).
2.2 Expenses.
Except as may otherwise be set forth on the Consulting Services
Schedule, (i) the Consulting Consideration includes any and all
costs, fees and expenses which may be incurred by Consultant in its
performance of the Consulting Services; and (ii) Consultant shall
not be reimbursed for any costs or expenses unless authorized by
the Company in writing in advance of Consultant incurring the
costs, fees or expenses. As to expenses for which the Company will
reimburse Consultant as set forth on the Consulting Services
Schedule, the Company shall pay or reimburse Consultant for all
reasonable and authorized business expenses incurred by Consultant
while engaged under this Agreement so long as said expenses have
been incurred for and promote the business of the Company and are
normally and customarily incurred by consultants performing similar
consulting services in the same or similar market. As a condition
to reimbursement under this Section 2.2, Consultant shall furnish
to the Company adequate records and other documentary evidence
required by federal and state statutes and regulations for the
substantiation of each expenditure. Consultant must submit proper
documentation for each such expense within thirty (30) days after
the date that Consultant incurs such expense, and the Company will
reimburse Consultant for all eligible expenses within thirty (30)
days thereafter. Consultant acknowledges and agrees that failure to
furnish the required documentation may result in the Company
denying all or part of the expense for which reimbursement is
sought.
2.3 Payments.
Payment of approved costs and expenses shall be made on a monthly
basis in accordance with the Company’s customary accounts
payable practice.
2.4 Reporting.
Concurrently with the execution and delivery of this Agreement, the
Consultant has provided Company with a completed IRS Form W-9 for
Consultant. The Company will provide Consultant with an IRS Form
1099 each year reflecting the payments made to Consultant under
this Agreement.
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ARTICLE
III
CONFIDENTIALITY
AND PROPRIETARY RIGHTS
3.1 Confidential
Information.
(a )
Consultant
acknowledges and agrees that the Company has developed and uses and
will develop and use Confidential Information and that Consultant
will have access to and will participate in the creation or
development of Confidential Information in the performance of the
Consulting Services. All Confidential Information shall be and
remain the sole property of the Company notwithstanding that
Consultant may participate in the creation or development of the
Confidential Information. For purposes of this Agreement, the term
“Confidential
Information” shall mean all Company business methods,
techniques, plans, and know-how; budgets, financing and accounting
techniques and projections; advertising, proposals, applications,
marketing materials and concepts; customer files and other
non-public information regarding customers; methods for developing
and maintaining business relationships with customers, suppliers,
vendors, and partners; customer and prospect lists; procedure
manuals; employees and personnel information.
(b ) Consultant
shall maintain the confidentiality of the Confidential Information
and shall not
(i )
disclose to any
other person or entity Confidential Information in any manner or
for any purpose; or (ii) use Confidential Information in any manner
or for any purpose which is directly or indirectly in competition
with or injurious or adverse to the Company.
(c )
Upon
termination of this Agreement for any reason, Consultant will
promptly surrender to the Company all copies of Confidential
Information in Consultant's possession or under Consultant's
control, whether any such Confidential Information was prepared by
Consultant or by others.
(d )
The
obligations of Consultant under this Section 3.1 shall continue
during the term of this Agreement and for a period of three (3)
years after termination of this Agreement; provided that in the
case of Confidential Information constituting trades secrets, the
obligations shall continue for as long as such Confidential
Information remains trade secrets.
3.2 Ownership of
Intellectual Property.
(a)
)
(i) All
Intellectual Property, whether or not patentable or copyrightable,
made, conceived, written, developed or first reduced to practice by
Consultant, whether solely or jointly with others, during the
period of Consultant's engagement by the Company under this
Agreement or prior to the Effective Date and which result from the
performance of the Consulting Services or similar services
performed for the Company or any predecessor company or business,
shall be the sole and exclusive property of the Company. To the
extent Consultant may retain any interest in any such Intellectual
Property by operation of law or otherwise, Consultant hereby
irrevocably assigns and transfers to the Company all of
Consultant's entire right, title and interest in and to all such
Intellectual Property. All copyrights and copyrightable material
shall be deemed works for hire, and the Company shall have all
right, title and interest in such material, including all moral
rights, and shall be the author thereof for all purposes under
applicable copyright laws. For purposes of this Agreement, the term
“Intellectual
Property” shall mean all inventions, improvements,
discoveries, ideas, designs, software, trademarks, trade names,
copyrights and copyrightable subject matter, patents, know-how,
mask works, programs, documents, data, trade secrets and
Confidential Information.
(ii )
Without
limiting the generality of the forgoing provisions of this Section
3.2(a), all articles, documents, reports, manuals, programs,
software or computer programs and components thereof, and any other
deliverables or work products arising from or related to the
Consulting Services or similar services or similar services
performed for the Company or any predecessor company or business
prior to the Effective Date (“Materials”) developed or authored
by Consultant for the Company under this Agreement or under the
provision of similar services performed for the Company or any
predecessor company or business prior to the Effective Date, are to
be considered Works Made for Hire as that term is defined in
Section 101 of the Copyright Act (17 U.S.C. §101) and are and
shall be the sole and exclusive property of the Company. Consultant
agrees that any and all proprietary rights to the Materials
developed hereunder or prior to the Effective Date, including, but
not limited to, patent, copyright, trademark and trade secret
rights, to the extent they are available, are the sole and
exclusive property of the Company, free from any claim or retention
of rights thereto on the part of Consultant or any employee or
agent of Consultant, as of the Effective Date of this
Agreement.
A4
(b )
To the
extent that any Materials or Intellectual Property developed,
authored, created or produced under this Agreement or under the
provision of similar services performed for the Company or any
predecessor company or business prior to the Effective Date may not
be considered Works Made for Hire, or to the extent that Section
3.2(a)(i) or Section 3.2(a)(ii), is declared invalid either in
substance or purpose, in whole or in part, Consultant hereby
assigns and agrees to irrevocably assign, transfer, grant, convey
and relinquish exclusively to the Company, any and all of
Consultant’s right, title and interest, including ownership
of copyright and/or patent rights to any material developed by
Consultant under this Agreement or under the provision of similar
services performed for the Company or any predecessor company or
business prior to the Effective Date without consideration beyond
the mutual promises set forth in this Agreement and the payment of
fees as provided for by this Agreement. All right, title and
interest of every kind and nature, whether now known or unknown, in
and to the copyrights, patents, ideas and creations created,
written and developed by either Consultant or the Company in the
course of providing the Consulting Services under and pursuant to
this Agreement or under the provision of similar services performed
for the Company or any predecessor company or business prior to the
Effective Date, shall be the exclusive property of the Company for
any and all purposes and uses, and Consultant shall have no right,
title or interest of any kind or nature in or to such material. As
part of this Agreement, Consultant agrees to do all things
necessary to protect this assignment, including but not limited to,
executing an assignment of Consultant’s copyright and/or
patent interests in the Material and Intellectual Property created,
authored and/or developed pursuant to this Agreement or under the
provision of similar services performed for the Company or any
predecessor company or business prior to the Effective
Date.
(c )
Consultant
represents and warrants that all Materials and Intellectual
Property produced under this Agreement or under the provision of
similar services performed for the Company or any predecessor
company or business prior to the Effective Date were and shall be
of original authorship by Consultant or that Consultant has the
legal right to convey the entire right, title and interest in such
Materials and Intellectual Property as is contemplated by this
Agreement. Consultant further represents and warrants no other
person, firm, corporation or entity has any rights or interest in
the Materials and Intellectual Property Consultant submits or has
submitted to the Company or under the provision of similar services
performed for the Company or any predecessor company or business
prior to the Effective Date. Consultant further warrants that its
execution and performance of this Agreement, including, but not
limited to, the tangible or intangible products produced as a
result of it, shall not infringe upon or violate any patent,
copyright, trade secret or other proprietary right of any third
party and shall not constitute a defamation or invasion of the
right of privacy or publicity.
(d )
Consultant hereby
appoints the Company, for the period of Consultant's engagement by
the Company, and for five years thereafter, as Consultant's
attorney-in-fact for the purpose of executing, in Consultant's name
and on Consultant's behalf, such instruments or other documents as
may be necessary to transfer, confirm and perfect in the Company
the rights Consultant has granted to the Company pursuant to this
Section 3.2.
(e )
Consultant will
assist the Company to obtain for its own benefit patents,
copyrights and/or trademarks thereon in any and all jurisdictions
as may be designated by the Company, and Consultant will execute
when requested, patent, trademark and/or copyright applications and
assignments thereof to the Company or persons designated by the
Company, and any other lawful documents deemed necessary by the
Company to carry out the purposes of this Agreement. Consultant
will further assist the Company in every way to enforce any
patents, copyrights, trade secrets, and other intellectual property
rights of the Company, including, without limitation, testifying in
any suit or proceeding involving any of the Intellectual Property
or executing any documents deemed necessary by the Company, all
without further consideration, but at the expense of the
Company.
(f )
The
obligations and undertakings stated in this Section 3.2 shall
continue beyond the termination of Consultant's engagement by the
Company, but if Consultant is called upon to render such assistance
after the termination of Consultant's engagement, then Consultant
shall be entitled to a reasonable per diem fee in addition to
reimbursement of any out-of-pocket expenses incurred at the request
of the Company.
3.3 Prohibition on
Interference with Relationships. During the term of this
Agreement and for a period of one (1) year thereafter, Consultant
shall not, directly or indirectly, without the Company's prior
written consent, solicit any person or entity having contractual or
other business relationships with the Company, including without
limitation, any customer or client, lessee, supplier, business
partner or independent contractor, for the purpose of having such
person or entity terminate or modify such person's or entity's
contractual and/or business relationship with the Company, nor
shall Consultant interfere with any of such contractual or business
relationships.
A5
3.4 Prohibition on
Solicitation of Company Employees. During the term of this
Agreement and for a one (1)-year period following termination or
expiration of this Agreement, Consultant will not directly or
indirectly, without the Company's prior written consent, (i)
solicit or recruit any of the Company's employees to leave the
employ of the Company; or (ii) hire as an employee or engage as an
independent contractor, any employee of the Company.
3.5 Covenants
Reasonable. The parties hereto agree that the nature and
duration of the covenants set forth in this Article III are
reasonable under the circumstances. In the event any court or
arbitrator determines that the nature of any covenant or the
duration of any covenant, or both, are unreasonable and to that
extent is unenforceable, the parties agree that such covenant shall
remain in full force and effect to the greatest extent and duration
as would not render the covenant unenforceable.
3.6 Cooperation and
Assistance. Consultant agrees to reasonably assist and
cooperate (including, but not limited to, providing information to
the Company and/or testifying in a proceeding) in the investigation
and handling of any internal investigation, legislative matter, or
actual or threatened court action, arbitration, administrative
proceeding, or other claim involving any matter that arose during
Consultant’s period of employment by the Company or during
the Term of this Agreement. Consultant’s agreement to assist
and cooperate shall not affect in any way the content of
information or testimony provided by Consultant.
3.7 Right to Injunctive
and Equitable Relief. Consultant's obligations under this
Article III are of a special and unique character which gives them
a special value to the Company. The Company cannot be reasonably or
adequately compensated in damages in an action at law in the event
Consultant breaches such obligations. Therefore, Consultant
expressly agrees that the Company shall be entitled to injunctive
and other equitable relief in the event of such breach in addition
to any other rights or remedies which the Company may possess at
law or in equity. The obligations of Consultant and the rights and
remedies of the Company under this Article III are cumulative and
in addition to, and not in lieu of, any obligations, rights or
remedies created by applicable law, including without limitation,
applicable copyright and patent laws and laws relating to
misappropriation or theft of trade secrets or confidential
information.
ARTICLE
IV
GENERAL
PROVISIONS
4.1 Notices. Any
notice required or permitted under this Agreement will be
considered to be effective in the case of (i) certified mail, when
sent postage prepaid and addressed to the party for whom it is
intended at its address of record, three (3) days after deposit in
the mail; (ii) by courier or messenger service, upon receipt by
recipient as indicated on the courier's receipt; or (iii) upon
receipt of an Electronic Transmission by the party that is the
intended recipient of the Electronic Transmission. The record
addresses, facsimile numbers of record, and electronic mail
addresses of record for the parties are set forth below, for the
Company, or on the Consulting Services Schedule, for Consultant and
may be changed from time to time by notice from the changing party
to the other party pursuant to the provisions of this Section
4.1.
If to
the Company:
00000
XxxXxxxxx Xxxx., Xxxxx 000
Xxxxxx,
Xxxxxxxxxx 00000-0000
Attention: Legal
Department
Facsimile No.:
949.862.1323
If to
Consultant: As set forth on the Consulting Services
Schedule
For
purposes of this Section 4.1, "Electronic Transmission” means a
communication (i) delivered by facsimile, telecommunication or
electronic mail when directed to the facsimile number of record or
electronic mail address of record, respectively, which the intended
recipient has provided to the other party for sending notices
pursuant to this Agreement and (ii) that creates a record of
delivery and receipt that is capable of retention, retrieval, and
review, and that may thereafter be rendered into clearly legible
tangible form.
A6
4.2 Entire
Agreement. This Agreement constitutes the entire agreement
of the parties and supersedes all prior written or oral and all
contemporaneous oral agreements, understandings, and negotiations
between the parties with respect to the subject matter hereof.
Notwithstanding the foregoing, this Agreement is not intended by
the parties to supersede, and does not supersede, any prior or
contemporaneous agreements or understandings entered into by the
parties in connection Consultant’s prior employment with the
Company or the termination of such employment, including without
limitation that certain Employee Confidentiality Agreement dated as
of April 26, 2010 between Company and Consultant, that certain
Mutual Agreement To Arbitrate dated April 26, 2010 between Company
and Consultant and that certain Confidential Separation and Release
Agreement dated as of the Effective Date between Company and
Consultant, all of which agreements remain in full force and effect
in accordance with their terms.
4.3 Modifications,
Amendments, Waivers and Extensions. This Agreement may not
be modified, changed or supplemented, nor may any obligations
hereunder be waived or extensions of time for performance granted,
except by written instrument signed by the party to be charged or
by its agent duly authorized in writing or as otherwise expressly
permitted herein. No waiver of any default or breach of any
agreement or provision herein contained shall be deemed a waiver of
any preceding or succeeding default or breach thereof or of any
other agreement or provision herein contained. No extension of time
for performance of any obligations or acts shall be deemed an
extension of the time for performance of any other obligations or
acts.
4.4 Governing
Law. This Agreement shall be governed by, interpreted under,
and construed and enforced in accordance with the internal laws,
and not the laws pertaining to conflicts or choice of laws, of the
State of California applicable to agreements made and to be
performed wholly within the State of California.
4.5 Partial
Invalidity. Any provision of this Agreement which is found
to be invalid or unenforceable by any court in any jurisdiction
shall, as to that jurisdiction, be ineffective to the extent of
such invalidity or unenforceability, and the invalidity or
unenforceability of such provision shall not affect the validity or
enforceability of the remaining provisions hereof.
4.6 Dispute Resolution,
Forum.
(a) The parties consent
to and agree that any dispute or claim arising hereunder shall be
submitted to binding arbitration in Orange County, California, and
conducted in accordance with the Judicial Arbitration and Mediation
Service (“JAMS”)
rules of practice then in effect or such other procedures as the
parties may agree in writing, and the parties expressly waive any
right they may otherwise have to cause any such action or
proceeding to be brought or tried elsewhere. The parties hereunder
further agree that (i) any request for arbitration shall be made in
writing and must be made within a reasonable time after the claim,
dispute or other matter in question has arisen; provided however,
that in no event shall the demand for arbitration be made after the
date that institution of legal or equitable proceedings based on
such claim, dispute or other matter would be barred by the
applicable statue(s) of limitations; (ii) the appointed arbitrator
must be a former or retired judge or attorney at law with at least
ten (10) years experience in commercial matters; (iii) costs and
fees of the arbitrator shall be borne by both parties equally,
unless the arbitrator or arbitrators determine otherwise;
(iv)
depositions may be taken and other discovery may be obtained during
such arbitration proceedings to the same extent as authorized in
civil judicial proceedings; and (v) the award or decision of the
arbitrator, which may include equitable relief, shall be final and
judgment may be entered on such award in accordance with applicable
law in any court having jurisdiction over the matter.
(b) TO THE EXTENT
PERMITTED BY APPLICABLE LAW, EACH PARTY HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, THE RIGHT TO TRIAL BY JURY IN ANY
LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR
THE TRANSACTIONS CONTEMPLATED HEREBY.
(c) The parties
acknowledge and agree that money damages may not be a sufficient
remedy for a breach of certain provisions of this Agreement,
including but not limited to, Article III, and accordingly, a non-
breaching party may be entitled to specific performance and
injunctive relief as remedies for such violation. Accordingly,
notwithstanding the other provisions of this Section 4.6, the
parties agree that a non-breaching party may seek relief in a court
of competent jurisdiction for the purposes of seeking equitable
relief hereunder, and that such remedies shall not be deemed to be
exclusive remedies for a violation of the terms of this Agreement
but shall be in addition to all other remedies available to the
non-breaching party at law or in equity.
A7
(d) In any action,
arbitration or other proceeding by which one party either seeks to
enforce its rights under this Agreement or seeks a declaration of
any rights or obligations under this Agreement, the prevailing
party will be entitled to reasonable attorneys’ fees, and
subject to Section 4.6(a), reasonable costs and expenses incurred
to resolve such dispute and to enforce any final
judgment.
(e) No remedy conferred
on either party by any of the specific provisions of this Agreement
is intended to be exclusive of any other remedy, and each and every
remedy will be cumulative and will be in addition to every other
remedy given hereunder or now or hereafter existing at law or in
equity or by statute or otherwise. The election of one or more
remedies by a party will not constitute a waiver of the right to
pursue other available remedies.
4.7 Interpretation.
Titles and headings of sections of this Agreement are for
convenience of reference only and shall not affect the construction
of any provision of this Agreement. No provision of this Agreement
shall be construed in favor of or against any party by reason of
the extent to which the party or the party’s counsel
participated in the drafting hereof.
4.8 Assignment.
This Agreement and the rights, duties, and obligations hereunder
may not be assigned or delegated by any party without the prior
written consent of the other party. Any assignment or delegation of
rights, duties, or obligations hereunder made without the prior
written consent of the other party shall be void and be of no
effect. Notwithstanding the foregoing provisions of this Section
4.8, the Company may assign or delegate its rights, duties and
obligations hereunder to any person or entity controlling,
controlled by, or under common control with the Company or any
person or entity which acquires substantially all of the business
or assets of the Company.
4.9 Successors and
Assigns. This Agreement and the provisions hereof shall be
binding upon and shall inure to the benefit of each of the parties
and their respective permitted successors and assigns.
4.10 Counterparts.
This Agreement may be executed in counterparts, each of which shall
be deemed an original, but all of which taken together shall
constitute but one and the same instrument. Signatures on this
Agreement may be communicated by facsimile or PDF transmission and
shall be binding upon the parties transmitting the
same.
A8
IN
WITNESS WHEREOF, the parties have executed this Agreement effective
as of the day and year first written above.
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Effective
Date:
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Company
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By:
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Xxxxx X.
Xxxxxx
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EVP, Chief Legal
and Administrative Officer and Secretary
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“Consultant”
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Xxxxxxxx
Xxxxx
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A9
Exhibit
A
Consulting
Services Schedule
Consultant Name: Xxxxxxxx
Xxxxx
Consultant
Contact Information
for Notice Purposes: Xxxxxxxx
Xxxxx
[Personal Residence Information Redacted]
Consulting Services: Consultant will
make herself available on an as-needed basis (subject to reasonable
notice and at reasonable times not interfering with
Consultant’s employment with her new employer), to provide,
and will provide, transition support services for the
Company’s accounting, banking, financial, governmental
reporting, finance, strategic transactions modeling and investor
relation functions.
Consulting Time: The Company and
Consultant shall agree in advance upon the number of hours to be
spent by Consultant in the performance of the Consulting Services,
which agreement may be in the form of a “not to exceed”
number of hours during weekly or monthly periods or hours specified
for individual projects. In no event shall Consultant exceed the
agreed upon hours without Company’s prior written
approval.
The
Company and Consultant shall agree in advance upon the number of
hours to be spent by Consultant in the performance of the
Consulting Services, which agreement may be in the form of a
“not to exceed” number of hours during weekly or
monthly periods or hours specified for individual projects. In no
event shall Consultant be required or permitted to perform services
under this Agreement at a level during any monthly period that is
greater than twenty percent (20%) of the average level of service
that Consultant performed for the Company during the 36- month
period immediately preceding the Termination Date. The parties
acknowledge that during the 36-month period immediately preceding
the Termination Date, Consultant worked an average of approximately
50 hours per week for the Company.
Consulting Consideration: As
consideration for the performance of the commitments and
obligations made by Consultant in this Agreement, the Company and
Consultant agree as follows:
1. Stock
Options.
(a) Vesting Any
of the stock options to purchase common stock of the Company listed
below that were awarded to Consultant during Consultant’s
employment by the Company (“Employment Stock Options”) will
continue to vest in accordance with their normal vesting schedules
set forth in the applicable stock option award agreements during
the Consulting Term. Any Employment Stock Options that remain
unvested at the end of the Consulting Term shall terminate and be
cancelled at that time, and in no event shall any Employment Stock
Options vest if such Employment Stock Options would have vested
after the end of the Consulting Term. Notwithstanding any
provisions in the applicable stock option award agreements for the
Employment Stock Options to the contrary, the vesting of Employment
Stock Options shall not be accelerated if any acceleration event
provided for in the applicable stock option award agreements occurs
during the Consulting Term;
provided, however, that if the acceleration event is a
change in control (as defined for purposes of the stock option
award agreements) of the Company, then the vesting of any unvested
Employment Stock Options shall be accelerated to the extent and as
provided in the applicable stock option award agreements. In no
event shall any Employee Stock Options vest (whether in accordance
with their normal vesting schedule or by reason of the limited
acceleration of vesting set forth above) after the original
expiration dates of the Employee Stock Options set forth in the
applicable stock option award agreements for the Employment Stock
Options.
(b) Post-Termination
of Employment Exerise Periods. Any post-employment
termination exercise periods for Employment Stock Options that are
vested as of the end of the Consulting Term shall be tolled during
the Consulting Term and shall not commence running until the end of
the Consulting Term;
provided, however, that in no event will the
post-termination exercise periods extend beyond the original expiration
dates of the Employee Stock Options set forth in the applicable
stock option award agreements for such Employee Stock
Options.
A10
(c) Amendments
to Award Agreements. The applicable provisions of the stock
option award agreements for the Employee Stock Options are hereby
amended to implement the vesting continuation and limited vesting
acceleration set forth in clause (a) of this paragraph 1 and the
tolling of the post-termination exercise periods set forth in
clause (b) of this paragraph 1.
|
Plan
Name
|
Grant
Date
|
Xxxxx
Xxxxx
|
Original
Options
Granted
|
Options
Vested
as
of
Employment
Termination
Date
|
Options
Unvested
as
of
Employment
Termination
Date
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Original
Post-
Termination
of
Employment
Exercise
Window
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Original
Expiration
Date
|
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12/7/11 NQ $0.76
10IP
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12/7/2011
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$3.80
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10,000
|
10,000
Covered
under
Rule 10b5-1 Plan
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0
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May exercise vested
options for a period of 90 days
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12/7/2018
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04/26/2010 NQ $0.79
06IP
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4/26/2010
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$3.95
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5,000
|
5,000
|
0
|
May exercise vested
options for a period of 90
days
|
4/23/2020
|
|
1/10/12 NQ $0.78
10IP Performance
|
1/10/2012
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$3.90
|
12,340
|
12,340
|
0
|
May exercise vested
options for a period of 90
days
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1/10/2019
|
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1/24/13 NQ $4.00
10IP Performance
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1/24/2013
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$4.00
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6,875
|
6,875
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0
|
May exercise vested
options for a period of 90
days
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1/24/2020
|
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3/17/14 NQ $14.32
10IP
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3/17/2014
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$14.32
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7,400
|
7,400
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0
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May exercise vested
options for a period of 90
days
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3/17/2021
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1/21/15 NQ $9.10
2014IP
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1/21/2015
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$9.10
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20,000
|
20,000
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0
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May exercise vested
options for a period of 90
days
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1/21/2022
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1/23/15 NQ $10.20
2014IP
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1/23/2015
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$10.20
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15,000
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15,000
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0
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May exercise vested
options for a period of 90
days
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1/23/2022
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5/18/15 NQ $13.22
2014IP
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5/18/2015
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$13.22
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6,000
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5,668
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332
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May exercise vested
options for a period of 90
days
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5/18/2022
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7/15/16 NQ $14.41
2014 AR IP
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7/15/2016
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$14.41
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30,000
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16,672
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13,328
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May exercise vested
options for a period of 90
days
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7/15/2023
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01/26/17 NQ $13.81
2014 AR IP
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1/26/2017
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$13.81
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20,000
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7,790
|
12,210
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May exercise vested
options for a period of 90
days
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1/26/2024
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2. Restricted
Shares.
(a) Lapsing
of Forfeiture Restrictions. Consultant was awarded 40,000
shares of restricted stock on September 27, 2017
(“Restricted
Shares”). The forfeiture restrictions set forth in the
award agreement for the Restricted Shares lapse as to one-third
(1/3rd) of the Restricted
Shares each anniversary of the award date over three years. The
forfeiture restrictions will continue to lapse in accordance with
their normal lapse
schedule set forth in the restricted stock award agreement for the
Restricted Shares during the Consulting Term, such that, provided
this Agreement has not been terminated by either party in
accordance with Section 1.2 prior to September 27, 2018, the
forfeiture restrictions on the first one-third (1/3rd) of the Restricted Shares (13,333
shares) shall lapse as of September 27, 2018, and all other
Restricted Shares shall terminate and be cancelled as of the end of
the Consulting Term, absent any acceleration of the lapsing of the
forfeiture restrictions as provided in clause (b) below prior to
the end of the Consulting Term. In no event shall the forfeiture
restrictions for any Restricted Shares lapse after the end of the
Consulting Term, and all Restricted Shares that remain subject to
forfeiture restrictions as of the end of the Consulting Term shall
be terminated and cancelled as of the end of the Consulting
Term.
A11
(b) Acceleration
of Lapsing. Notwithstanding any provisions in the Restricted
Shares award agreement to the contrary, the lapsing of the
forfeiture restrictions for the Restricted Shares shall not be
accelerated if any acceleration event provided for in the
Restricted Shares award agreement occurs during the Consulting
Term;
provided, however, that if the acceleration event is a
change in control (as defined for purposes of the Restricted Shares
award agreement) of the Company, then the lapsing of the forfeiture
restrictions shall be accelerated for any Restricted Shares that
are at the time still subject to forfeiture restrictions to the
extent and as provided in the Restricted Shares award
agreement.
(c) Amendment
to Restricted Shares Award Agreement. The applicable
provisions of the Restricted Shares award agreement are hereby
amended to implement the forfeiture restrictions lapsing
continuation set forth in clause (a) of this paragraph 2 and the
limited acceleration of the forfeiture lapsing provisions set forth
in clause (b) of this paragraph 2.
Consultant
acknowledges that Consultant shall continue to be governed by and
subject to the Company’s Securities Trading Policy during the
Consulting Term.
Company
Equipment and Use and Access to Company Systems
During
the Term, the Company, in its discretion, may make available to
Consultant a Company-standard laptop computer for use in providing
the Consulting Services, and the availability and use of the
Company laptop computer is not a condition or requirement for
Consultant’s performance of the Consulting Services. All such
Company equipment shall be returned to the Company at the end of
the Consulting Term or at any time prior to the end of the
Consulting Terms upon request by the Company. Consultant agrees
that Consultant will comply with all Company policies and
procedures regarding the use of Company equipment and systems as if
Consultant were employed by the Company.
A12
