SEPARATION AND PAY CONTINUATION AGREEMENT
Exhibit 10.13
THIS
SEPARATION AND PAY CONTINUATION AGREEMENT (this “
Agreement”) is made and
entered into as of the date indicated on the signature page hereof
(the “Execution
Date”), by and between XXXXX XXXXX
(“Executive”),
and DYNATRONICS CORPORATION, a Utah corporation (the
“Company”). Executive and
the Company are referred to collectively as the “Parties” and each is
sometimes referred to as a “Party” in this
Agreement.
RECITALS
A. Executive has
resigned as the Company’s CEO effective July 8,
2020.
B. Executive’s
last day of employment with the Company is October 7, 2020 (the
“Separation
Date”). After the Separation Date, the Executive shall
no longer be an employee of the Company but will continue to be a
member of the Board of Directors and a consultant with the Company
under that certain Consulting Agreement dated October 8, 2020
between the parties. Except as otherwise set forth in this
Agreement, the Separation Date is the employment termination date
for the Executive for all purposes, meaning the Executive is not
entitled to any further compensation, monies, or other benefits
from the Company, including coverage under any benefit plans or
programs sponsored by the Company, as of the Separation
Date.
C. The Company has
offered to provide Executive with pay continuation through the
Termination Date, in addition to other benefits that Executive
otherwise would not is entitled to receive, in consideration for
Executive entering into this Agreement, and agreeing to, and
complying with, the promises, covenants, agreements, obligations,
releases and waivers contained herein.
D. Executive is
willing to enter into this Agreement, as well as an attestation of
this Agreement after his Separation Date and be bound by the
promises, covenants, agreements, conditions, waivers and releases
set forth herein in exchange for the benefits being offered by the
Company in this Agreement.
AGREEMENT
NOW,
THEREFORE, in consideration of the promises, covenants, agreements,
releases and waivers contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties hereto agree as follows:
1. Return of Property. The
Executive warrants and represents that as of the Separation Date,
he has returned all Company property, including identification
cards or badges, access codes or devices, keys, laptops, computers,
telephones, mobile phones, hand-held electronic devices, credit
cards, electronically stored documents or files, physical files,
and any other Company property in the Executive’s possession;
provided, however, that Executive may retain
certain Company property, approved by the Company CEO, for the
performance of his ongoing duties as a director of the Company, as
set forth in Section 3 or his ongoing duties under that certain
Consulting Agreement dated October 8, 2020 entered into between the
parties.
2. Resignation from All Officer
Positions. Effective on the Execution Date, the Executive
shall be deemed to have resigned from all positions that the
Executive holds as an officer of the Company or any of its
affiliates.
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3. Board of Directors. The
Executive shall continue to serve on the Board of Directors of the
Company until the next annual meeting of the shareholders of the
Company or until his earlier resignation or removal.
4. Employment Agreement. Executive
and the Company are parties to that certain Employment Agreement,
including addenda and ancillary agreements attached to and
incorporated in or forming a part thereof, dated effective August
22, 2019, pursuant to which the Company employed Executive (the
“Employment
Agreement”). Capitalized terms used but not defined
herein shall have the meanings given them in the Employment
Agreement.
5. Executive Representations.
Executive’s specifically represents, warrants, and confirms
that the Executive:
(a) has not filed any
claims, complaints, or actions of any kind against the Company with
any court of law, or local, state, or federal government or
agency;
(b) has been properly
paid for all hours worked for the Company through the Separation
Date;
(c) has received all
salary, wages, commissions, bonuses, and other compensation due to
the Executive through the Separation Date, with the exception of
the Executive’s final payroll check for salary and bonus
through and including the Separation Date, which will be paid on
the Company’s next regularly scheduled payroll date for the
pay period in which the Separation Date falls; and
(d) has not engaged in
and is not aware of any unlawful conduct relating to the business
of the Company.
If any
of these statements is not true, the Executive cannot sign this
Agreement and must notify the Company immediately in writing of the
statements that are not true. This notice will not automatically
disqualify the Executive from receiving these benefits, but will
require the Company’s further review and
consideration.
6. Separation Benefits. As
consideration for the Executive’s execution of,
non-revocation of, and compliance with this Agreement, including
the Executive’s waiver and release of claims in Section 8 and other
post-termination obligations, and Executive’s subsequent
execution of an attestation within then (10) days after his
Separation Date, the Company agrees to provide the following
separation benefits (“Separation Benefits”) to
which the Executive is not otherwise entitled:
(a) Pay continuation
from the Execution Date to the Separation Date, at
Executive’s current base salary rate, less all relevant
deductions for benefits, taxes and other withholdings, which shall
be payable in accordance with the Company’s normal payroll
practices.
Notwithstanding
the foregoing, the Company shall have no obligation to provide any
of the Separation Benefits prior to the Effective Date of this
Agreement as defined in Section 13. The Executive understands,
acknowledges, and agrees that these benefits exceed what the
Executive is otherwise entitled to receive on separation from
employment, and that these benefits are being given as
consideration in exchange for executing this Agreement and the
general release and restrictive covenants contained in it. Except
for Executive’s ability to continue vesting in restricted
stock units and/or stock options granted to him as an employee
provided he meets the definition of “continuous
service” as defined in the Company’s 2018 Equity
Incentive Plan, the Executive further acknowledges that the
Executive is not entitled to any additional payment or
consideration not specifically referenced in this Agreement.
Nothing in this Agreement shall be deemed or construed as an
express or implied policy or practice of the Company to provide
these or other benefits to any individuals other than the
Executive.
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7. Cooperation; Continuing
Covenants. The Parties agree that certain matters in which
the Executive has been involved during the Executive’s
employment may need the Executive’s cooperation with the
Company in the future. Accordingly, to the extent reasonably
requested by the Company, the Executive shall cooperate with the
Company regarding matters arising out of or related to the
Executive’s service to the Company. Executive hereby agrees
to comply with Executive’s duties and obligations under that
certain Agreement Regarding Confidential Information, Ownership of
Inventions, Non-Competition, Customer Non-Solicitation, and
Employee Non-Solicitation Covenants and Acknowledgment of At-Will
Employment dated effective August 22, 2019 (the “Restrictive Covenants”),
including, without limitation, the obligation of confidentiality
and the non-competition, non-solicitation and non-disparagement
covenants thereof. Executive also agrees that he continues to be
bound by to return any and all Company property and/or Confidential
Information in Executive’s possession or control in
accordance with the Restrictive Covenants, provided, however, that Executive may
retain certain Company property approved by the Company’s CEO
as set forth in Section 1,
above.
8. General Release.
(a) Executive, on
behalf of himself and his heirs, executors, administrators,
successors and assigns, and all other persons claiming by, through,
or under him, hereby knowingly and voluntarily waives, releases and
forever discharges the Company and all of its parents,
subsidiaries, and affiliate companies, predecessors, successors,
and assigns, and each of their respective current and former
shareholders, directors, officers, employees, representatives,
insurers, attorneys and assigns, and all persons acting by,
through, under or in concert with them, or any of them (all of
whom, with the Company, are collectively referred to throughout the
remainder of this Agreement as the “Releasees”), of and from
any and all claims, demands, charges, grievances, damages, debts,
liabilities, accounts, costs, attorneys’ fees, expenses,
liens, future rights, and causes of action of every kind and
nature, known or unknown, asserted or unasserted, which Executive
has, may have, or claims to have against Releasees, or one or more
of them, arising prior to the Effective Date of this Agreement
(hereinafter collectively referred to as “Released
Claims”).
(b) The Released Claims
include, without limitation, (i) any claims based either in whole
or in part upon any facts, circumstances, acts, or omissions in any
way arising out of, based upon, or related to Executive’s
employment with the Company or the termination thereof;
(ii) any claims or regulation, local ordinance, or the common
law, regarding employment or prohibiting employment discrimination,
harassment, or retaliation, including, without limitation, arising
under any federal or state statute or regulation, local ordinance,
or the common law, regarding employment or prohibiting employment
discrimination, harassment, or retaliation, including, without
limitation, the Utah Antidiscrimination Act, the Utah Payment of
Wages Act, the Age Discrimination in Employment Act (the
“ADEA,”
as amended by the Older Workers Benefit Protection Act (the
“OWBPA”)), the Genetic
Information Nondiscrimination Act, Title VII of the Civil Rights
Act of 1964, the Fair Labor Standards Act, the Americans With
Disabilities Act, the
National Labor Relations Act (“NLRA”), the Family
Medical Leave Act, the Executive Retirement Income Security Act of
1974, the Worker Adjustment and Retraining Notification Act, the
Health Insurance Portability and Accountability Act of 1996, the
Immigration Reform and Control Act, and the Occupational Safety and
Health Act, all including any amendments and their respective
implementing regulations, and any other federal, state, local, or
foreign law (statutory, regulatory, or otherwise) that may be
legally waived and released; however, the identification of
specific statutes is for purposes of example only, and the omission
of any specific statute or law shall not limit the scope of this
general release in any manner; (iii) any claim for wrongful
discharge, wrongful termination in violation of public policy,
breach of contract, breach of the covenant of good faith and fair
dealing, personal injury, harm, or other damages (whether
intentional or unintentional), negligence, negligent employment,
defamation, misrepresentation, fraud, intentional or negligent
infliction of emotional distress, interference with contract or
other economic opportunity, assault, battery, or invasion of
privacy; (iv) claims growing out of any legal restrictions on the
Company’s right to terminate its employees; (v) claims for wages, other
compensation or benefits; (vi) any claim for general, special, or
other compensatory damages, consequential damages, punitive
damages, back or front pay, fringe benefits, attorney fees, costs,
or other damages or expenses; (vii) any claim for injunctive relief
or other equitable relief; (viii) any claim arising under any
federal or state statute or local ordinance regulating the health
and/or safety of the workplace; or (ix) any other tort, contract or
statutory claim.
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(c) Notwithstanding the
foregoing paragraphs, Executive does not release the Company from
any obligations the Company may have to him with respect to the
following: (i) rights under the Company’s 401(k) Plan, if
any; (ii) rights to the continuation of insurance coverage under
COBRA; (iii) right to apply for unemployment compensation or
worker’s compensation; (iv) claims or rights which cannot be
waived pursuant to applicable law; (v) Executive’s rights or
claims under the ADEA that arise after the execution of this
Agreement; and (vi) any rights or remedies which Executive may have
against the Company under the terms of this Agreement.
(d) Nothing contained
herein is intended to constitute or shall be construed as a waiver
or release of Executive’s right to file a charge or complaint
with, or participate in an investigation by, the EEOC or any other
federal or state agency. Executive is, however, waiving his right
to recover any monetary award, damages or any other form of
recovery in connection with such a charge or complaint, whether
such charge or complaint is filed by Executive or someone else, or
such an investigation.
(e) Executive
represents and warrants that he has not previously signed or
transferred, or attempted to sign or transfer, to any third party,
any of the claims waived and released herein.
9. No Admission of Liability or
Wrongdoing. Neither this Agreement nor the payment or
providing of the Separation Benefits pursuant to this Agreement
shall be construed as or constitute an admission by the Company of
any fault, liability or wrongdoing by any Releasee, nor an
admission that Executive has any valid or enforceable claims or
rights whatsoever against the Company or any other Releasee. The
Company specifically denies any liability to, or wrongful act
against, Executive by itself or any of the other
Releasees.
10. Executive’s Acknowledgment of
Notices Pertaining to the Release of Age Discrimination in Employment Act
(ADEA) Rights and Claims. By execution of this Agreement,
Executive specifically agrees and acknowledges that:
(a) this Agreement
includes a release of all rights and claims under the ADEA arising
prior to the execution of this Agreement, Executive is not waiving
rights or claims that may arise after the execution of this
Agreement, and Executive has been advised to fully consider this
release before executing this Agreement;
(b) Executive has been
given the opportunity to read this Agreement in its entirety, has
had all questions regarding its meaning and content answered to
Executive’s satisfaction, and fully understands all of its
terms;
(c) Executive has been
advised of his right to consult with an attorney before executing
this Agreement and Executive has done so to the extent he desired
to do so before executing this Agreement;
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(d) Executive has been
advised that he has twenty-one (21) days to consider this Agreement
before signing it, and that Executive may revoke the Agreement
within seven (7) calendar days after the date he signs
it;
(e) Executive is
entering into this Agreement knowingly, freely, and voluntarily in
exchange for the promises made in this Agreement and that no other
representations or promises have been made to Executive to induce
or influence his execution of this Agreement;
(f) the waiver and
release of rights and claims set forth herein is given in exchange
for good and valuable consideration in addition to anything of
value to which Executive is otherwise entitled;
(g) Executive is not
waiving or releasing rights or claims that may arise after
Executive signs this Agreement.
11. Time to Consider and Sign
Agreement. In accordance with the OWBPA, Executive may take
up to twenty-one (21) calendar days from the date of receipt of
this Agreement to review and consider the terms of this Agreement
and consult with an attorney of the Executive’s choice about
it, and sign the Agreement and deliver it to the Company. Executive
may sign the Agreement sooner if desired and changes to this
Agreement, whether material or immaterial, do not restart the
21-day period.
12. Time to Revoke Agreement. After
signing this Agreement, Executive shall have seven (7) calendar
days within which to revoke this Agreement in its entirety. If
Executive revokes this Agreement, he will not be entitled to the
Separation Benefits described above, and this Agreement will be
ineffective and void. Executive may revoke his acceptance of this
Agreement by delivering notice of revocation to Xxxxxxxx Xxxxxx,
General Counsel of the Company, by email before the end of the
seven-day period. In the event of a revocation by the Executive,
the Company shall have the option of treating this Agreement as
null and void in its entirety. In such event, Executive will not
receive the Separation Benefits or any other consideration
Executive would not be entitled to in the absence of this
Agreement. After the seven-day period has elapsed, Executive shall
not have the right to revoke or rescind this Agreement or the
release contained herein.
13. Effective Date. This Agreement shall become effective
and enforceable eight (8) days following the execution of this
Agreement by Executive, provided the Agreement has not been revoked
by Executive within the revocation period referenced in Section
12 above (the
“Effective
Date”).
14. Attestation. After the
Separation Date, Executive shall sign the attestation attached
hereto as Exhibit A
confirming that Executive waives, releases and forever discharges
the Company from all Released Claims through the Separation
Date.
15. General
Provisions.
(a) Severability. If any provision
of this Agreement shall be held by a court to be invalid,
unenforceable, or void, such provision shall be enforced to the
fullest extent permitted by law, and the remainder of this
Agreement shall remain in full force and effect. In the event that
the time period or scope of any provision is declared by a court of
competent jurisdiction to exceed the maximum time period or scope
that such court deems enforceable, then such court shall reduce the
time period or scope to the maximum time period or scope permitted
by law.
(b) Taxes. All amounts paid under
this Agreement shall be paid less all applicable state and federal
tax withholdings and any other withholdings required by any
applicable jurisdiction.
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(c) Governing Law. This Agreement
shall be governed by the laws of the State of Utah without regard
to conflict of law principles. Any action or proceeding by either
of the Parties to enforce this Agreement shall be brought only in
any state or federal court located in the state of Utah, County of
Salt Lake. The Parties hereby irrevocably submit to the exclusive
jurisdiction of these courts and waive the defense of inconvenient
forum to the maintenance of any action or proceeding in such
venue.
(d) Dispute Resolution. All
disputes and controversies arising out of or in connection with
this Agreement shall be resolved exclusively by the state and
federal courts located in Salt Lake County in the State of Utah,
and each Party hereto agrees to submit to the jurisdiction of said
courts and agrees that venue shall lie exclusively with such
courts. Each Party hereby irrevocably waives, to the fullest extent
permitted by applicable law, any objection which such Party may
raise now, or hereafter have, to the laying of the venue of any
such suit, action or proceeding brought in such a court and any
claim that any such suit, action or proceeding brought in such a
court has been brought in an inconvenient forum. Each Party agrees
that, to the fullest extent permitted by applicable law, a final
judgment in any such suit, action, or proceeding brought in such a
court shall be conclusive and binding upon such Party, and may be
enforced in any court of the jurisdiction in which such Party is or
may be subject by a suit upon such judgment.
(e) WAIVER OF RIGHT TO JURY TRIAL.
TO THE EXTENT PERMITTED BY LAW, EACH PARTY HEREBY WAIVES ITS RIGHTS
TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF OR RELATED TO THIS AGREEMENT OR IN ANY ACTION,
PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE
PARTIES AGAINST ANY OTHER PARTY OR PARTIES, WHETHER WITH RESPECT TO
CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. EACH PARTY HEREBY
AGREES THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A
COURT WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES
FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS
WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM
OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE
THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT, OR ANY PROVISION
HEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS
AGREEMENT.
(f) Fees and Costs. The prevailing
party in any arbitration, court action or other adjudicative
proceeding arising out of or relating to this Agreement shall be
reimbursed by the party who does not prevail for their reasonable
attorneys’, accountants’, and experts’ fees and
for the costs of such proceeding. The provisions set forth in this
Section shall survive the merger of these provisions into any
judgment. For purposes of this Section 15(f),
“prevailing party” includes, without limitation, a
party who agrees to dismiss an action or proceeding upon the
other’s payment of the sums allegedly due or performance of
the covenants allegedly breached, or who obtains substantially the
relief sought.
(g) Amendments; Waivers. This
Agreement may not be modified, amended, or changed except by an
instrument in writing, signed by Executive and by a duly authorized
representative of the Company other than Executive. No waiver or
consent shall be binding except in a writing signed by the Party
making the waiver or giving the consent. No waiver of any provision
or consent to any action shall constitute a waiver of any other
provision or consent to any other action, whether or not similar.
No waiver or consent shall constitute a continuing waiver or
consent except to the extent specifically set forth in
writing.
(h) Section 409A. This Agreement is
intended to comply with Section 409A of the Internal Revenue Code
of 1986, as amended (“Section 409A”), including
the exceptions thereto, and shall be construed and administered in
accordance with such intent. Notwithstanding any other provision of
this Agreement, payments provided under this Agreement may only be
made upon an event and in a manner that complies with Section 409A
or an applicable exemption. Any payments under this Agreement that
may be excluded from Section 409A either as separation pay due to
an involuntary separation from service, as a short-term deferral,
or as a settlement payment pursuant to a bona fide legal dispute
shall be excluded from Section 409A to the maximum extent possible.
For purposes of Section 409A, any installment payments provided
under this Agreement shall each be treated as a separate payment.
To the extent required under Section 409A, any payments to be made
under this Agreement in connection with a termination of employment
shall only be made if such termination constitutes a
“separation from service” under Section 409A.
Notwithstanding the foregoing, Company makes no representations
that the payments and benefits provided under this Agreement comply
with Section 409A and in no event shall Company be liable for all
or any portion of any taxes, penalties, interest, or other expenses
that may be incurred by Executive on account of non-compliance with
Section 409A.
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(i) Assignment. Executive agrees
that Executive shall have no right to assign and shall not assign
or purport to assign any rights or obligations under this
Agreement. This Agreement may be assigned or transferred by the
Company; and nothing in this Agreement shall prevent the
consolidation, merger or sale of the Company or a sale of any or
all or substantially all of its assets. Subject to the foregoing,
this Agreement shall be binding upon and shall inure to the benefit
of the Parties and their respective heirs, legal representatives,
successors, and permitted assigns, and shall not benefit any person
or entity other than those specifically enumerated in this
Agreement.
(j) Parties in Interest. Nothing in
this Agreement shall confer any rights or remedies under or by
reason of this Agreement on any persons other than the Parties
hereto and their respective successors and permitted assigns nor
shall anything in this Agreement relieve or discharge the
obligation or liability of any third person to any Party to this
Agreement, nor shall any provision give any third person any right
of subrogation or action over or against any Party to this
Agreement.
(k) Construction. The terms of this
Agreement have been negotiated by the Parties hereto, and no
provision of this Agreement shall be construed against either Party
as the drafter thereof.
(l) Interpretation. This Agreement
shall be construed as a whole, according to its fair meaning.
Sections and section headings contained in this Agreement are for
reference purposes only, and shall not affect in any manner the
meaning or interpretation of this Agreement. Unless the context of
this Agreement otherwise requires, (i) words of any gender
shall be deemed to include each other gender; (ii) words using
the singular or plural number shall also include the plural or
singular number, respectively; and (iii) the terms
“hereof,” “herein,” “hereby,”
“hereto,” and derivative or similar words shall refer
to this entire Agreement.
(m) Notice. Any notices, consents,
agreements, elections, amendments, approvals and other
communications provided for or permitted by this Agreement or
otherwise relating to this Agreement shall be in writing and shall
be deemed effectively given upon the earliest to occur of the
following: (i) upon personal delivery to such Party;
(ii) when sent by confirmed telex or facsimile if sent during
normal business hours of the recipient, if not, then on the next
business day; (iii) five (5) days after having been sent by
registered or certified mail, return receipt requested, postage
prepaid; (iv) one (1) day after deposit with a nationally
recognized overnight courier, specifying next day delivery, with
written verification of receipt; or (v) upon actual receipt by
the Party to be notified via any other means (including public or
private mail, electronic mail or telegram); provided, however, that notice sent via
electronic mail shall be deemed duly given only when actually
received and opened by the Party to whom it is addressed. All
communications shall be sent to the Party’s address set forth
on the signature page below, or at such other address as such Party
may designate by ten (10) days advance written notice to the other
Parties in accordance with this Section 14(m).
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(n) Counterparts. This Agreement
may be executed in one or more counterparts, any one of which need
not contain the signatures of more than one Party, but all such
counterparts taken together will constitute one and the same
instrument. Counterparts may be delivered via facsimile, electronic
mail (including .pdf or any electronic signature complying with the
U.S. federal ESIGN Act of 2000, e.g., xxx.xxxxxxxx.xxx) or other
transmission method and any counterpart so delivered shall be
deemed to have been duly and validly delivered and be valid and
effective for all purposes.
(o) Authority. Each Party
represents and warrants that such Party has the right, power and
authority to enter into and execute this Agreement and to perform
and discharge all of the obligations hereunder; and that this
Agreement constitutes the valid and legally binding agreement and
obligation of such Party and is enforceable in accordance with its
terms.
(p) Entire Agreement. This
Agreement contains the entire agreement between Executive and the
Company and there have been no promises, inducements or agreements
not expressed in this Agreement.
(q) EXECUTIVE ACKNOWLEDGEMENT.
EXECUTIVE HAS HAD THE OPPORTUNITY TO CONSULT LEGAL COUNSEL
CONCERNING THIS AGREEMENT AND HAS OBTAINED AND CONSIDERED THE
ADVICE OF SUCH LEGAL COUNSEL TO THE EXTENT EXECUTIVE DEEMS
NECESSARY OR APPROPRIATE, THAT EXECUTIVE HAS READ AND UNDERSTANDS
THE AGREEMENT, THAT EXECUTIVE IS FULLY AWARE OF ITS LEGAL EFFECT,
AND THAT EXECUTIVE HAS ENTERED INTO IT FREELY BASED ON
EXECUTIVE’S OWN JUDGMENT AND NOT ON ANY REPRESENTATIONS OR
PROMISES OTHER THAN THOSE CONTAINED IN THIS AGREEMENT.
[SIGNATURES TO FOLLOW]
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IN
WITNESS WHEREOF, the Parties have executed this Separation and Pay
Continuation Agreement as of the Execution Date.
“EXECUTIVE”
/s/ Xxxxx
X. Xxxxx
XXXXX
XXXXX
Date of
Execution of Agreement:
July 8,
2020
“COMPANY”
DYNATRONICS
CORPORATION,
a Utah
corporation
By: /s/ Xxxxxxxx Xxxxxx
Name:
Xxxxxxxx Xxxxxx
Title: General Counsel
Date of
Execution of Agreement:
July 8,
2020
EXHIBIT A
Attestation
THIS
ATTESTATION OF THE SEPARATION AND PAY CONTINUATION AGREEMENT (this
“Attestation”) is made and
entered into by and between XXXXX XXXXX (“Executive”), and
DYNATRONICS CORPORATION, a Utah corporation (the
“Company”).
Executive and the Company are referred to collectively as the
“Parties” and each is
sometimes referred to as a “Party” in this
Agreement.
WHEREAS,
the Parties entered into a Separation and Pay Continuation
Agreement (“Agreement”) with an
Execution Date of July 8, 2020.
WHEREAS,
the Company desires the Executive to affirm the release of Release
Claims as set forth in Section 8 of the Agreement through and
including the Separation Date.
NOW,
THEREFORE, in consideration of the mutual promises set forth below,
and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties agree as
follows:
1. Definitions. All capitalized
words shall have the same meaning as provided in the
Agreement.
2. Consideration. Executive
acknowledges and agrees that he has received adequate consideration
in exchange for the release of Attestation Released Claims made in
this Attestation.
3. Release. As and through the
Separation Date, Executive, on behalf of himself and his heirs,
executors, administrators, successors and assigns, and all other
persons claiming by, through, or under him, hereby knowingly and
voluntarily waives, releases and forever discharges the Company and
all of its parents, subsidiaries, and affiliate companies,
predecessors, successors, and assigns, and each of their respective
current and former shareholders, directors, officers, employees,
representatives, insurers, attorneys and assigns, and all persons
acting by, through, under or in concert with them, or any of them
(all of whom, with the Company, are collectively referred to
throughout the remainder of this Agreement as the
“Releasees”), of and from
any and all claims, demands, charges, grievances, damages, debts,
liabilities, accounts, costs, attorneys’ fees, expenses,
liens, future rights, and causes of action of every kind and
nature, known or unknown, asserted or unasserted, which Executive
has, may have, or claims to have against Releasees, or one or more
of them, arising prior to the Separation Date (hereinafter
collectively referred to as “Attestation Released
Claims”).
(a) The Attestation
Released Claims include, without limitation, (i) any claims based
either in whole or in part upon any facts, circumstances, acts, or
omissions in any way arising out of, based upon, or related to
Executive’s employment with the Company or the termination
thereof; (ii) any claims or regulation, local ordinance, or
the common law, regarding employment or prohibiting employment
discrimination, harassment, or retaliation, including, without
limitation, arising under any federal or state statute or
regulation, local ordinance, or the common law, regarding
employment or prohibiting employment discrimination, harassment, or
retaliation, including, without limitation, the Utah
Antidiscrimination Act, the Utah Payment of Wages Act, the Age
Discrimination in Employment Act (the “ADEA,” as amended by the
Older Workers Benefit Protection Act (the “OWBPA”)), the Genetic
Information Nondiscrimination Act, Title VII of the Civil Rights
Act of 1964, the Fair Labor Standards Act, the Americans With
Disabilities Act, the
National Labor Relations Act (“NLRA”), the Family
Medical Leave Act, the Executive Retirement Income Security Act of
1974, the Worker Adjustment and Retraining Notification Act, the
Health Insurance Portability and Accountability Act of 1996, the
Immigration Reform and Control Act, and the Occupational Safety and
Health Act, all including any amendments and their respective
implementing regulations, and any other federal, state, local, or
foreign law (statutory, regulatory, or otherwise) that may be
legally waived and released; however, the identification of
specific statutes is for purposes of example only, and the omission
of any specific statute or law shall not limit the scope of this
general release in any manner; (iii) any claim for wrongful
discharge, wrongful termination in violation of public policy,
breach of contract, breach of the covenant of good faith and fair
dealing, personal injury, harm, or other damages (whether
intentional or unintentional), negligence, negligent employment,
defamation, misrepresentation, fraud, intentional or negligent
infliction of emotional distress, interference with contract or
other economic opportunity, assault, battery, or invasion of
privacy; (iv) claims growing out of any legal restrictions on the
Company’s right to terminate its employees; (v) claims for wages, other
compensation or benefits; (vi) any claim for general, special, or
other compensatory damages, consequential damages, punitive
damages, back or front pay, fringe benefits, attorney fees, costs,
or other damages or expenses; (vii) any claim for injunctive relief
or other equitable relief; (viii) any claim arising under any
federal or state statute or local ordinance regulating the health
and/or safety of the workplace; or (ix) any other tort, contract or
statutory claim.
(b) Notwithstanding the
foregoing paragraphs, Executive does not release the Company from
any obligations the Company may have to him with respect to the
following: (i) rights under the Company’s 401(k) Plan, if
any; (ii) rights to the continuation of insurance coverage under
COBRA; (iii) right to apply for unemployment compensation or
worker’s compensation; (iv) claims or rights which cannot be
waived pursuant to applicable law; (v) Executive’s rights or
claims under the ADEA that arise after the execution of this
Agreement; and (vi) any rights or remedies which Executive may have
against the Company under the terms of this Agreement.
(c) Nothing contained
herein is intended to constitute or shall be construed as a waiver
or release of Executive’s right to file a charge or complaint
with, or participate in an investigation by, the EEOC or any other
federal or state agency. Executive is, however, waiving his right
to recover any monetary award, damages or any other form of
recovery in connection with such a charge or complaint, whether
such charge or complaint is filed by Executive or someone else, or
such an investigation.
(d) Executive
represents and warrants that he has not previously signed or
transferred, or attempted to sign or transfer, to any third party,
any of the claims waived and released herein.
4. General Provisions. All General
Provisions in Section 15 shall apply to this Attestation. All
ongoing obligations of the Parties set forth in the Agreement shall
continue and shall not be modified by this
Attestation.
IN
WITNESS WHEREOF, the Parties have executed this Attestation
Separation and Pay Continuation Agreement as of the ___ day of
_________________, 2020.
“EXECUTIVE”
“COMPANY”
