EMPLOYMENT AGREEMENT BETWEEN MAM SOFTWARE GROUP, INC. And LEE BROAD (Executive)
Exhibit 10.4
BETWEEN
And
XXX BROAD
(Executive)
THIS EMPLOYMENT AGREEMENT (this “Agreement”), dated as of July 1, 2013 (the “Effective Date”) is entered into by and between MAM Software Group, Inc., a Delaware corporation (the “Company”), and Xxx Broad, an individual with a physical address at [_______] (the “Executive”) (collectively, the “Parties,” individually, a “Party”).
WHEREAS, the Board has determined that it is in the best interests of the Company and its stockholders to indemnify the Executive for claims for damages arising out of or relating to the performance of such services to the Company in accordance with the terms and conditions set forth in this Agreement and pursuant to Delaware law; and
ARTICLE ONE
1. Definitions. As used in this Agreement:
1.1 The term “Accrued Obligations,” when used in the case of the Executive’s death or disability shall mean the sum of (1) that portion of the Executive’s Base Salary that was not previously paid to the Executive from the last payment date through the Date of Termination and (2) any Severance Benefit due.
1.2 The term “Automatic Extension” shall have the meaning set forth in Section 2.2 herein.
1.3 The term “Base Salary” shall have the meaning set forth in Section 3.1 herein.
1.4 The term “Board” shall have the meaning set forth in the recitals.
1.5 The term “Cause” shall have the meaning set forth in Section 4.3 herein.
1.6 The term “Change of Control” means the acquisition by any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act) (a “Person”) of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 50% or more of either (A) the then outstanding Common Shares the Company (the “Outstanding Shares”) or (B) the combined voting power of the then outstanding voting securities of the Company entitled to vote generally in the election of directors (the “Outstanding Voting Securities”); provided, however, that for purposes of this Agreement, the following acquisitions shall not constitute a Change of Control: (x) a Company-sponsored recapitalization that is approved by the individuals who, as of the date of this Agreement, constitute the Company’s Board (the “Incumbent Board”); (y) a capital raise initiated by the Company where a majority of the Incumbent Board remains until the next annual shareholders’ meeting after the closing date of the raise; and (z) an acquisition of another company or asset(s) initiated by the Company and where the Company’s shareholders immediately after the transaction own at least 51% of the equity of the combined concern.
1.7 The term “Common Stock” shall mean the Common Stock, par value $0.0001, of the Company.
1.8 The term “Compensation Committee” shall mean the Compensation Committee of the Company.
1.9 The term “Company Group” shall mean the Company and any other corporation or trade or business required to be aggregated with the Company which constitutes a single Company under Code Section 414(b) or Code Section 414(c) with the Company, except that in applying Code Section 1563(a)(1), (2), and (3), the language “at least 50 percent” is used instead of “at least 80 percent.”
1.10 The term “Corporate Documents” shall mean the Company’s Certificate of Incorporation, as amended and/or its Bylaws, as amended.
1.11 The term “Effective Date” shall have the meaning set forth in the preamble.
1.12 The term “Good Reason” shall have the meaning set forth in Section 4.3(c) herein.
1.13 The term “Initial Term” shall have the meaning set forth in Section 2.2 herein.
1.14 The term “Separation from Service” shall mean the Executive’s termination of employment with the Company Group for any reason which constitutes a “separation from service” under Code Section 409A. Notwithstanding the foregoing, the Executive’s employment relationship with the Company Group is considered to remain intact while the individual is on military leave, sick leave or other bona fide leave of absence if there is a reasonable expectation that the Executive will return to perform services for the Company Group and the period of such leave does not exceed six months, or if longer, so long as the Executive retains a right to reemployment with the Company under applicable law or contract. Solely for purposes of determining whether a Separation from Service has occurred, the Company will determine whether the Executive has terminated employment with the Company Group based on whether it is reasonably anticipated by the Company and the Executive that the Executive will permanently cease providing services to the Company Group, whether as an employee or independent contractor, or that the services to be performed by the Executive, whether as an employee or independent contractor, will permanently decrease to no more than 20% of the average level of bona fide services performed, whether as an employee or independent contractor, over the immediately preceding 36-month period or such shorter period during which the Executive was performing services for the Company Group. If a leave of absence occurs during such 36-month or shorter period which is not considered a Separation from Service, unpaid leaves of absence shall be disregarded and the level of services provided during any paid leave of absence shall be presumed to be the level of services required to receive the compensation paid with respect to such leave of absence.
1.15 The term “Severance Benefit” shall have the meaning set forth in Section 4.6(b)(i) herein. The term may also be referred to as a “Severance Amount.”
1.16 The term “Without Cause” shall have the meaning set forth in Section 4.3(b) herein.
1.17 The term “Without Good Reason” shall have the meaning set forth in Section 4.3 herein.
ARTICLE TWO
2.4 Performance of Duties. During the term of the Agreement, except as otherwise approved by the Board or as provided below, the Executive agrees to devote his full business time, effort, skill and attention to the affairs of the Company and its subsidiaries, will use his best efforts to promote the interests of the Company, and will discharge his responsibilities in a diligent and faithful manner, consistent with sound business practices. The foregoing shall not, however, preclude Executive from devoting reasonable time, attention and energy in connection with the following activities, provided that such activities do not materially interfere with the performance of his duties and services hereunder:
(a) serving as a director or a member of a committee of any company or organization, if serving in such capacity does not involve any conflict with the business of the Company or any subsidiary and such other company or organization is not in competition, in any manner whatsoever, with the business of the Company or any of its subsidiaries;
(b) fulfilling speaking engagements;
(c) engaging in charitable and community activities;
(d) managing his personal business and investments; and
(e) any other activity approved of by the Board. For purposes of this Agreement, any activity specifically listed on Schedule A shall be considered as having been approved by the Board.
(a) his employment by the Company will not conflict with any obligations which he has to any other person, firm or entity; and
(b) he will not, without disclosure to and approval of the Board, directly or indirectly, assist or have an active interest in (whether as a principal, stockholder, lender, employee, officer, director, partner, venturer, consultant or otherwise) in any person, firm, partnership, association, corporation or business organization, entity or enterprise that competes with or is engaged in a business which is substantially similar to the business of the Company; provided, however, that ownership of not more than two percent (2%) of the outstanding securities of any class of any publicly held corporation shall not be deemed a violation of this Section 2.5; provided, further, that any investment specifically listed on Schedule A shall not be deemed a violation of this Section 2.5.
2.6 Activities and Interests with Companies Doing Business with the Company. In addition to those activities and interests of Executive disclosed on Schedule A attached hereto, Executive shall promptly disclose to the Board, in accordance with the Company’s policies, full information concerning any interests, direct or indirect, he holds (whether as a principal, stockholder, lender, executive, director, officer, partner, venturer, consultant or otherwise) in any business which, as reasonably known to Executive, purchases or provides services or products to, the Company or any of its subsidiaries, provided that the Executive need not disclose any such interest resulting from ownership of not more than two (2%) of the outstanding securities of any class of any publicly held corporation.
ARTICLE THREE
3.3 The actual earned Annual Incentive, if any, payable to Executive for any performance period will depend upon the extent to which the applicable performance goal(s) specified by the Compensation Committee are achieved and will be decreased or increased for under- or over- performance. Except as specifically provided herein, Executive’s Annual Incentive will be subject to the terms and conditions of a formal bonus plan that may be adopted by the Compensation Committee from time to time; provided, that if there is no formal bonus plan that has been established by the Company, the Executive’s Annual Incentives shall be established each year by the Compensation Committee.
(ii) Stock Grant. Executive will be granted 250,892 restricted common shares of MAM Software Group, Inc. (the “Stock Grant”) as part of his equity compensation component. The stock will vest as follows:
a. 20% of the Stock Grant will vest when the price of the Common Stock of the Parent has reached $6 per share.
b. 30% of the Stock Grant will vest when the price of the Common Stock of the Parent has reached $7 per share.
c. 30% of the Stock Grant will vest when the price of the Common Stock of the Parent has reached $8 per share.
d. 20% of the Stock Grant will vest when the price of the Common Stock of the Parent has reached $9 per share.
3.5 Participation In Benefit Plans.
(i) The Executive shall be entitled to five (5) weeks of vacation, with pay. No more than 1.5 times (1.5x) Executive’s authorized annual vacation allocation may be accrued, at any given time. In the event that Executive has reached his maximum authorized vacation allocation, accrual will not re-commence until Executive uses some of his paid vacation credit and thereby brings the balance below his maximum. Accrued paid vacation credit forfeited because of an excess balance cannot be retroactively reapplied.
(ii) Pay will only be provided for any unused, accrued paid vacation credit at the time of Executive’s separation from the business by the Company due to a reduction in force, by Executive upon retirement, by his resignation for Good Reason (as defined herein), or upon his death or disability, provided that Executive has been a regular full-time employee for three calendar months prior to such event. Termination of employment for Cause by the Company, or Executive’s resignation (including any resignation that is without Good Reason), will result in the forfeiture of any unused paid vacation credit.
3.6 Relocation and Business-related Expenses. In the event that Executive is required to move from his primary residence and consents to such move, then Executive shall be provided with relocation assistance as provided below:
ARTICLE FOUR
(a) upon the death of the Executive;
(b) upon termination of employment due to the Disability of the Executive;
(c) upon termination by the Company for Cause;
(d) upon resignation of employment by the Executive without Good Reason;
(e) upon termination by the Company without Cause;
(f) upon the resignation of employment by Executive for Good Reason.
Upon termination of Executive’s employment, as provided above or otherwise, Executive’s rights respecting benefits, stock options, restricted stock, and other equity awards will be determined under the applicable plan or program providing the same.
4.3 Definition of “Cause,” “Without Cause,” and “Good Reason.”
(a) Termination for Cause.
The Executive’s employment hereunder may be terminated for Cause. For purposes of this Agreement, “Cause” shall mean:
(i) the willful and continued failure of the Executive to perform substantially the Executive’s duties hereunder (other than any such failure resulting from bodily injury or disease or any other incapacity due to mental or physical illness) after a written demand for substantial performance is delivered to the Executive by the Board or the Chairman of the Company, which specifically identifies the manner in which the Board or the Chairman of the Company believes the Executive has not substantially performed the Executive’s duties; or
(ii) the willful engaging by the Executive in illegal conduct or gross misconduct that is materially and demonstrably detrimental to the Company and/or its affiliated companies, monetarily or otherwise.
For purposes of this provision, no act, or failure to act, on the part of the Executive shall be considered “willful” unless done, or omitted to be done, by the Executive in bad faith or without reasonable belief that the Executive’s action or omission was in the best interests of the Company. Any act, or failure to act, based upon authority given pursuant to a resolution duly adopted by the Board, upon the instructions of the Chairman or another Board Member of Company, or based upon the advice of counsel for the Company shall be conclusively presumed to be done, or omitted to be done, by the Executive in good faith and in the best interests of the Company and its affiliated companies. The cessation of employment of the Executive shall not be deemed to be for Cause unless and until there shall have been delivered to the Executive a copy of a resolution duly adopted by the affirmative vote of not less than two-thirds of the entire membership of the Board then in office, excluding the Executive, at a meeting of the Board called and held for such purpose (after reasonable notice is provided to the Executive and the Executive is given an opportunity, together with counsel, to be heard before the Board) finding that, in the good faith opinion of the Board, the Executive is guilty of the conduct described in subparagraph (i) or (ii) above, and specifying the particulars thereof in detail.
(iii) Executive’s material violation of any Company policy or code of ethics or conduct that may be in force from time to time;
(iv) the appropriation (or attempted appropriation) of a material business opportunity of the Company without first presenting it to the Company in writing and giving it a reasonable opportunity to accept or reject such opportunity, including attempting to secure or securing any personal profit in connection with any transaction entered into on behalf of the Company;
(v) the Executive’s conviction of, or plea of nolo contendere to, any felony of theft, fraud, embezzlement or violent crime, or the entering of a guilty plea or a plea of non contendere for any other crime for which imprisonment is a punishment.
(vi) the misappropriation (or attempted misappropriation) of any of the Company’s funds or property.
(b) Termination without Cause.
The determination of whether the Executive’s employment is terminable for Cause shall be made solely by the Company’s Board of Directors, which shall act in good faith in making such determination. All terminations by the Company that are not for Cause, or on the occasion of the Executive’s death or disability shall be considered Without Cause.
(c) Termination for Good Reason.
The Executive’s employment hereunder may be terminated for Good Reason. For all purposes under this Agreement, “Good Reason” shall mean the occurrence of one or more of the following events arising without the express written consent of the Executive, but only if the Executive notifies the Company in writing of the event within sixty (60) days following the occurrence of the event, the event remains uncured after the expiration of thirty (30) days from receipt of such notice, and the Executive resigns effective no later than thirty (30) days following the Company’s failure to cure the event:
(i) a material diminution in the Executive’s Base Salary;
(ii) a material diminution in the Executive’s authority, duties, or responsibilities (including status, offices, titles and reporting requirements), duties, functions, responsibilities or authority as contemplated by Section 2.3 of this Agreement, or any other action by the Company that results in a diminution in such position, duties, functions, responsibilities or authority, excluding for this purpose an isolated, insubstantial and inadvertent action not taken in bad faith and which is remedied by the Company promptly after receipt of notice thereof given by the Executive as provided for herein;
(iii) a material diminution in the authority, duties, or responsibilities of the supervisor to whom the Executive is required to report, including a requirement that the Executive report to any corporate officer or employee instead of reporting directly to the Chief Executive Officer or the Board of Directors of the Company;
(iv) a material diminution in the budget over which the Executive retains authority;
(v) the Company or a subsidiary thereof requiring the Executive to be permanently based anywhere other than within fifty (50) miles from the location other than as provided in Section 2.8 of this Agreement;
(vi) any other action that constitutes a material breach by the Company of the Agreement;
(vii) the Executive’s ceasing to be the highest ranking executive officer of the Company; or
(viii) Any failure by the Company to comply with and satisfy Section 7.1 of this Agreement.
A resignation of employment by Executive for any other reason or under any other circumstances will be a resignation “Without Good Reason.”
4.6 Obligations of the Company upon Termination.
(i) the Company shall pay to the Executive (either in a lump sum or on in equal monthly installments over a twelve (12) month period after the Date of Termination, at the Company’s option) an amount equal to 12 months salary at the level of the Executive’s Base Salary then in effect, (such 12 months amount is hereinafter referred to as the “Severance Amount”);
(ii) all stock appreciation rights and restricted stock shall immediately vest;
(iii) all vested stock options and stock appreciation rights shall be payable in Common Stock;
(iv) all performance share units that would vest in the course of any fiscal year shall vest on a pro rata basis; and
(v) to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive under any annual bonus plan, program, policy, practice or arrangement or contract or agreement of the Company and its affiliated companies (such other amounts and benefits hereinafter referred to as the “Other Benefits”).
(a) If, within 12 months after a Change of Control, Executive’s position is terminated by the Company without Cause or Executive resigns his employment for Good Reason, then, subject to Executive executing, and failing to revoke during any applicable revocation period, the Severance Agreement and General Release attached as Exhibit A to this Agreement within forty-five (45) days after Executive’s termination of employment, the Executive shall be entitled to such benefits as if he were terminated Without Cause or For Good Reason.
(b) Subject to Section 4.8 or any other agreement between the Company and the Executive that may be entered between them from time to time, such lump sum payments under this Section 4.7 will be made no later than sixty (60) days following the Executive’s Separation from Service on or after the date the Executive’s employment is terminated. Upon Executive’s execution and delivery of Exhibit A, a Company representative will execute and deliver to Executive Exhibit A. assuming the requirements of this Agreement have been met. Severance payments do not result in extending employment beyond the termination date.
ARTICLE FIVE
ARTICLE SIX
6. Confidentially; Non-Competition; and Non-Solicitation.
ARTICLE SEVEN
If Executive’s employment hereunder expires or is terminated, this Agreement will continue in full force and effect as is necessary or appropriate to enforce the covenants and agreements of Executive in Article VI.
7.3 Governing Law. This Agreement shall be governed by, and construed in accordance with the laws of the State of Delaware without resort to any principle of conflict of laws that would require application of the laws of any other jurisdiction except as may apply to the Executive pursuant to applicable employment or related laws of the United Kingdom; provided, however, that Delaware law shall govern with respect to the Executive’s rights under a Change of Control.
7.11 Amendment. This Agreement may be amended only by a writing signed by all of the Parties hereto.
7.15 Modifications and Waivers. Notwithstanding any other provision of this Agreement, the indemnification provisions in Exhibit B hereto and the Change of Control provisions in Article Seven herein, may be amended from time to time to reflect changes in Delaware law or for other reasons.
(a) | if to Executive: |
Xxx Broad Xxxxx 0, 0, & 0, | |
Xxxxx Xxxx, Xxxxx Court, | |
Tankersley, | |
Barnsley, S75 3DP, UK | |
(b) | if to the Company: |
MAM Software Group, Inc. | |
c/o Robinson Xxxx | |
000 0xx Xxxxxx – 0xx Xxxxx | |
Xxx Xxxx, XX 00000 | |
Attn: Chairman, Compensation Committee |
or to such other address as may have been furnished to Executive by the Company or to the Company by Executive, as the case may be.
7.17 No Limitation. Notwithstanding any other provision of this Agreement, for avoidance of doubt, the parties confirm that the foregoing does not apply to or limit Executive’s rights under Delaware law or the Company’s Corporate Documents.
[Signatures Follow On Next Page]
IN WITNESS WHEREOF, the parties have set their hands and seals hereunto on the date first above written.
MAM SOFTWARE GROUP, INC. | EXECUTIVE | |||
By: | By: | |||
Name: | Xxxxxx Mamanteo | Name: | Xxx Broad | |
Title: | Chairman, Compensation Committee |
Schedule A
Outside Activities/Investments
Xxx Broad
Company or Project Name |
Nature of Business |
Date Hired or Commenced Involvement |
Position | Compensation | Annual Time Commitment, (time away from office) |
Dated: July 1, 2013
Initials: Executive: ______ Company: _______
Exhibit A
SEVERANCE AGREEMENT AND GENERAL RELEASE
This Severance Agreement and General Release (“Agreement”) is entered into by and between Xxx Broad (“Executive”) and MAM Software Group, Inc. (hereinafter the “Company”) (Executive and the Company are each a “party” to this Agreement and, when collectively referenced herein, Executive and the Company shall be referred to as the “Parties”), and is made and entered into with reference to the following facts:
1. Agreement by the Company. Prior to the execution of this Agreement, Company will pay Executive all Base Salary and for the value of all unused vacation earned through the date of termination. Company will also pay Executive for any Target Bonus awarded by the Board of Directors but not yet paid. In exchange for Executive’s agreement to the releases and other terms and conditions of this Agreement, the Company agrees to provide Executive, after the Effective Date (as defined below) of this Agreement, a total gross lump sum payment of $___, which is equal to (a) 1 year of his Base Salary based upon his current Base Salary of $___; (b) plus $___, which is equal [_________]. [Insert other benefits if applicable.]
2. Agreement by the Executive. By signing this Agreement and accepting the payment set forth in Section 1 above, Executive agrees to be bound by the terms of this entire Agreement. Executive further agrees to be bound by the surviving terms of the agreements he entered into as an employee of the Company.
3. Release of Claims. In exchange for the consideration provided in Section 1 above, Executive hereby expressly waives, releases, acquits and forever discharges the Company and its parents, successors, assigns, divisions, subsidiaries, affiliates, partners, officers, directors, executives, investors, shareholders, managers, supervisors, employees, agents, attorneys and representatives (hereinafter the “Released Parties” or “Releasees”), from any and all claims, demands, and causes of action which Executive has or claims to have, whether known or unknown, of whatever nature, which exist or may exist as of the date of Executive’s execution of this Agreement. As used in this paragraph, “claims,” “demands,” and “causes of action” include, but are not limited to, contract claims, equitable claims, fraud claims, tort claims, discrimination claims, harassment claims, retaliation claims, personal injury claims, constructive discharge claims, emotional distress claims, public policy claims, wage claims, claims for debts, accounts, attorneys’ fees, compensatory damages, punitive damages, and/or liquidated damages, claims for the Company’s stock or options to purchase the Company’s stock, claims for vesting or accelerated vesting of options to purchase the Company’s Common Stock, claims for defamation, and any and all claims arising under the Americans with Disabilities Act, the Family and Medical Leave Act, or any other federal or state statute governing employment, including but not limited to Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., or their equivalent in the United Kingdom and any other federal, state or local statute governing any aspect of the employer/employee relationship.
4. Release of Claims for Age Discrimination. Without in any way limiting the generality or scope of Section 3 of this Agreement, Executive hereby understands and agrees to release any and all claims, rights or benefits Executive has or may have for age discrimination arising out of or under the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621, et seq., (or its equivalent in the United Kingdom) as the ADEA may have been or may be amended, or any equivalent or comparable provision of state or local law, without limitation.
5. Release of Unknown Claims. Executive understands and agrees, in compliance with any statute or ordinance which requires a specific release of unknown claims or benefits, that this Agreement includes a release of unknown claims, and Executive hereby expressly waives and relinquishes any and all claims, rights or benefits that Executive may have which are unknown to Executive at the time of the execution of this Agreement.
6. Indemnification Agreement. Executive’s and Company’s rights and responsibilities under the Indemnification Agreement dated [______] between Executive and Company will continue in effect and will not be affected by this Agreement.
7. Sufficiency of Consideration. Executive acknowledges and agrees that absent this Agreement, Executive has no legal entitlement to the consideration provided in this Agreement and that the consideration represents good and sufficient value for the releases and other agreements of Executive set forth in this Agreement.
8. Non-Admission of Liability. Executive understands that the Company denies that it has engaged in any wrongdoing whatsoever in connection with its dealings with Executive and that nothing in this Agreement shall constitute or be treated as an admission of any wrongdoing or liability on the part of the Company and/or the Released Parties.
9. Consultation with an Attorney. Executive is advised to consult with an attorney of his choosing prior to entering into this Agreement.
10. Acceptance of Agreement. Executive has up to twenty-one (21) days after the Termination Date to consider this Agreement and Executive may revoke this Agreement at any time during the first seven (7) days following Executive’s execution of this Agreement by delivering written notice of revocation to the Secretary of the Company’s Board of Directors, no later than five (5:00) p.m. on the seventh (7th) day after execution. Executive received this Agreement on ___, 2013. The settlement offer contained in this Agreement will automatically expire if this Agreement, fully executed by Executive, is not received by the Secretary of the Company’s Board of Directors, on or before ___, 201___.
11. Effective Date of Agreement. This Agreement will become effective, irrevocable and fully enforceable upon the expiration of seven (7) days following the date of Executive’s execution of this Agreement (the “Effective Date”), provided that Executive has executed and submitted to the Company the executed original of this Agreement in a timely manner as set forth in Section 10 and Executive has not exercised Executive’s right to revoke this Agreement as set forth in Section 10.
12. No Filing of Claims. Executive represents and warrants that Executive does not presently have on file, and further represents and warrants that Executive will not hereafter file, any claims, charges, grievances or complaints against the Company and/or the Released Parties in or with any administrative, state, federal or governmental entity, agency, board or court, or before any other tribunal or panel or arbitrators, public or private, based upon any actions or omissions by the Company and/or the Released Parties occurring prior to the date of Executive’s execution of this Agreement.
13. Ownership of Claims. Executive represents and warrants that Executive is the sole and lawful owner of all rights, title and interest in and to all released matters, claims and demands arising out of or in any way related to Executive’s employment with the Company and/or the resignation thereof.
14. Successors and Assigns. Executive understands and agrees that this Agreement and all of its terms shall be binding upon Executive’s representatives, heirs, executors, administrators, successors, and assigns.
15. Tax Liability. Executive acknowledges and agrees that he has obtained no advice from Releasees (defined above) and that neither Releasees, nor their attorneys, have made any representation regarding the tax consequences, if any, of Executive’s receipt of the settlement amounts and other consideration provided for in this Agreement. Executive further acknowledges and agrees that he is personally responsible for the payment of all federal, state and local taxes that are due, or may be due, for any payments and other consideration received by Executive under this Agreement. Executive agrees to indemnify the Company and hold the Company harmless for any and all taxes, penalties and/or other assessments that the Company is, or may become, obligated to pay on account of any payments and other consideration made to Executive under this Agreement.
16. Attorneys’ Fees. Executive understands and agrees that in any dispute between Executive and the Company regarding the terms of this Agreement and/or any alleged breach thereof, that the prevailing party will be entitled to recover its costs and reasonable attorneys’ fees arising out of such dispute.
17. Confidentiality. Executive understands and agrees that the terms and existence of this Agreement and any other terms or information relating to the resignation of Executive’s employment with the Company are strictly confidential and may not be disclosed to any other person or entity, with the exception of Executive’s immediate family members and legal and financial advisors.
18. Continuing Obligations. Executive and Company understand and agree that certain obligations set forth in the Executive Employment Agreement between the Parties of July 1, 2013, as it may have been amended from time to time, a copy of which is attached hereto (at the time of execution) as Exhibit A and incorporated herein by this reference, continue beyond termination of his employment with the Company. Those obligations include those set forth in Sections [______] of that Agreement. Executive further understands and agrees that a breach of any continuing obligation contained in the Company’s Executive Employment Agreement shall also constitute a breach of this Agreement.
19. Non-Disparagement. Executive agrees that he will not disparage or in any way criticize the Company and/or its officers, managers, supervisors, employees, investors, products, services, or technology at any time in the future. Nothing contained in this Section is intended to prevent Executive from testifying truthfully in any legal proceeding.
20. Headings. The headings in each section herein are for convenience of reference only and shall be of no legal effect in the interpretation of the terms hereof.
21. Integration. This Agreement, and the surviving provisions of the accompanying Exhibit A, constitute an integrated; written contract, expressing the entire agreement between the Parties with respect to the subject matter hereof. In this regard, Executive represents and warrants that he is not relying on any promises or representations which do not appear written herein. Executive further understands and agrees that this Agreement can be amended or modified only by a written agreement, signed by all of the Parties hereto.
22. Delaware Law Applies. This Agreement shall, in all respects, be interpreted, enforced and governed under the laws of the State of Delaware applicable to contracts executed and performed in Delaware without giving effect to conflicts of law principles, except where the Executive has rights under the laws of the United Kingdom.
23. Severability. Executive agrees that if any provision, or portion thereof, of this Agreement is held to be invalid or unenforceable or to be contrary to public policy or any law, for any reason, the remainder of the Agreement shall not be affected thereby.
24. Execution by Counterparts/Facsimile. This Agreement may be executed in separate counterparts and by facsimile, and each such counterpart shall be deemed an original with the same effect as if all parties signed the same document.
EXECUTIVE UNDERSTANDS AND AGREES THAT EXECUTIVE MAY BE WAIVING SIGNIFICANT LEGAL RIGHTS BY SIGNING THIS AGREEMENT, AND REPRESENTS THAT EXECUTIVE HAS ENTERED INTO THIS AGREEMENT VOLUNTARILY, AFTER HAVING THE OPPORTUNITY TO CONSULT WITH AN ATTORNEY OF EXECUTIVE’S OWN CHOOSING, WITH A FULL UNDERSTANDING OF AND IN AGREEMENT WITH ALL OF ITS TERMS.
IN WITNESS WHEREOF, the Parties have executed this Agreement on the date provided below.
Exhibit B
Indemnification Agreement