SEPARATION AGREEMENT
Exhibit 10.1
THIS SEPARATION AGREEMENT (this
“Agreement”) is made and entered into by and between
Xxxxxxx Xxxxxxx
(“Employee”) and LightPath Technologies, Inc., a Delaware
corporation (“Employer” or “LightPath”),
who agree as follows:
1. Termination of Employment.
Employee’s employment by Employer and Insperity PEO Services,
L.P. (“Insperity”) is terminated effective July 12,
2019 (the “Termination Date”).
2. Severance Payment. If Employee
executes this Agreement within the Consideration Period and does
not revoke it, Employer agrees to pay to Employee the amount of
$100,000.03 as severance (“Severance Payment”). Payment
of such amount shall be made to Employee in thirteen (13) bi-weekly
installments of $7,692.31, in accordance with Employer’s
customary payroll cycle. The first installment will be paid on
Employer’s first bi-weekly payroll date following the
“Effective Date” of this Agreement (as defined in
Section 9 below), in accordance with Employer’s customary
payroll schedule. Severance is deemed supplemental income and is
taxed at a rate of 22% income tax withholding. There will be no
other deductions from severance for benefits since any company
provided benefits will have ceased; the only deductions made will
be those required by law to be withheld. The Severance Payment
amount is in addition to amounts due to Employee as of the date of
termination consisting of pay, any outstanding reimbursement
expenses and accrued vacation hours. Employee confirms that all
reimbursement expenses have been submitted for payment and no other
compensation other than that mentioned in the preceding sentence
may be due to employee.
3. COBRA Benefit. If Employee
executes, but does not revoke, this Agreement within the
Consideration Period,
Employer agrees to reimburse Employee for three
(3) months of the cost of COBRA not to exceed $1,802.40
(“COBRA Benefit”). Employer will reimburse Employee for
the cost of COBRA on a monthly basis by a company Accounts Payable
check paid by the 15th of the month
following each of the three (3) months of coverage. If Employee
declines COBRA or discontinues COBRA during the three (3) month
period immediately following separation of employment, Employee
will no longer be entitled to reimbursement for the cost of COBRA.
Employee will be entitled to elect COBRA at her own expense and
without reimbursement even if she fails to execute this Agreement
within the Consideration Period or revokes her execution of this
Agreement.
4. Accelerated Vesting of Restricted
Units. If Employee executes this Agreement within the
Consideration Period and does not revoke it, Employer agrees to
accelerate the vesting of 5,735 Restricted Units (as defined in
that certain Restricted Unit Agreement dated October 26, 2017, by
and between Employee and Employer (the “RU
Agreement”)), which will result in the lapse of the
Forfeiture Restrictions (as defined in the RU Agreement) with
respect to the remaining unvested 5,735 Restricted Units
(“Accelerated Vesting”). Employer shall cause 5,735
shares of LightPath common stock, representing the 5,735 Restricted
Units, to be issued to Employee as soon as reasonably practicable
following the Effective Date. The parties agree such issuance shall
be in accordance with the terms of the RU Agreement.
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5. No Consideration Absent Execution of
this Agreement. Employee understands and agrees that
Employee would not receive the Severance Payment, COBRA Benefit, or
Accelerated Vesting specified in Sections 2, 3, and 4 above, except
for Employee’s execution and non-revocation of this Agreement
and the fulfillment of the promises contained herein. The Severance
Payment, COBRA Benefit, and Accelerated Vesting set forth in
Sections 2, 3, and 4 shall constitute the only sums, or other
consideration, to be paid to Employee.
6. Acknowledgement of Full
Payment. Employee acknowledges that she would not be
entitled to the payments or other consideration mentioned in
Sections 2, 3, and 4 above, in the absence of her executing this
Agreement, and that such payments are in excess of anything to
which she is entitled. Employee further acknowledges that other
than what she already has received from Employer prior to the date
she executes this Agreement, and anything to which she may be
entitled by virtue of her signing this Agreement, she is not
entitled to any other wages, benefits, compensation or payments
from Employer. Employee agrees that the additional compensation to
be paid under this Agreement is due solely from LightPath and that
Insperity has no obligation to pay the additional compensation,
even though its payment may be processed through Insperity.
Employee further acknowledges that Employer is not accelerating the
vesting of any outstanding incentive stock options previously
granted to Employee and that, as of the Termination Date,
Employee’s vested and outstanding incentive stock options are
as set forth on Exhibit “A” attached hereto. All vested
and outstanding incentive stock options remain exercisable by
Employee until the close of business on October 10, 2019, which is
90 days following the Termination Date).
7. Employee’s
Release of All Claims and Covenant Not To Xxx
(“Release”). Employee hereby releases,
discharges, satisfies and cancels all claims, actions, causes of
action and liabilities of any kind whatsoever which she now has,
may have or has ever had against Employer and Insperity; all of
Employer’s and Insperity’s respective current and
former subsidiaries, parent companies, related companies,
affiliates, predecessors, successors and assigns; and all past and
present representatives, agents, officers, directors, trustees,
shareholders, insurers and employees of Employer and the other
entities referenced in this Section (collectively, the
“Released Parties”) – either individually or
collectively – arising out of her employment by Employer (and
the termination of that employment), or otherwise, up to and
including the date she executes this Agreement – including,
but not limited to, any claims under the Civil Rights Acts of 1866
and 1871; Title VII of the Civil Rights Act of 1964; the Civil
Rights Act of 1991; the Equal Pay Act; the National Labor Relations
Act; the Employee Retirement Income Security Act (ERISA); the
Americans with Disabilities Act of 1990; the Rehabilitation Act of
1973; the Family and Medical Leave Act of 1993; the Age
Discrimination in Employment Act, the
Florida Civil Rights Act, any and all other Florida
Statutes; and any and all other laws, statutes, ordinances,
treaties, rules or regulations, as amended, or under common law
(collectively, “Claims”). Employee represents and
agrees that she has not filed any complaints, charges or lawsuits
of any kind whatsoever against Employer or any of the other
Released Parties described above, nor is she aware of any basis to
file any such complaints, charges or lawsuits with any other
governmental agency or any court, directly or on behalf of any
other person or private or governmental entity. By executing this Agreement, Employee waives (to
the maximum extent permissible by law) any right to commence, join,
encourage, aid or participate in any action or proceeding arising
from or related to any act or omission by Employer and/or the other
above-mentioned Released Parties that occurred on or prior to the
date she executes this Agreement, including, but not limited to,
any right to participate in the settlement or remedy of any action
brought by any other individual, the U.S. Equal Employment
Opportunity Commission or any other federal, state or local civil
rights agency. The provisions of this Section shall not bar
Employee from filing an action to enforce this Agreement or to
challenge the validity of her release of claims under the Age
Discrimination in Employment Act, or from participating in any
action or proceeding in which she is compelled lawfully to do so
pursuant to a court order or subpoena. This Release is given
in exchange for consideration in excess of any consideration that
Employee was entitled to at the time of Employee’s separation
of employment and does not apply to claims arising after the
execution of this Agreement. Nothing
in this Agreement is intended to prevent Employee from cooperating
in a federal, state or local investigation.
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8. Release of ADEA Claims.
Employee acknowledges that Employee is waiving any and all claims
Employee may have pursuant to the Age Discrimination in Employment
Act (“ADEA”) relating to Employee’s employment
with Employer or Insperity. Employee further acknowledges and
agrees that Employee has twenty-one (21) days to consider whether
Employee should agree to release claims, if any, under the ADEA
(“Consideration Period”). Employee further understands
that Employee may revoke Employee’s waiver of ADEA claims
within seven (7) days following Employee’s execution of this
Agreement. Employee understands that if Employee chooses to accept
this Agreement before the Consideration Period has expired,
Employee will be voluntarily waiving any remaining portion of the
Consideration Period. Employee agrees that any modifications,
material or otherwise, made to this Agreement, do not restart or
affect in any manner the original up to twenty-one (21) calendar
day Consideration Period. Employee also acknowledges that Employee
has hereby been advised in writing to consult with counsel related
to the waiver of claims pursuant to the ADEA and that Employee has
consulted with counsel or has waived the right to do
so.
9. Revocation. Should Employee
execute this Agreement, and decide to revoke Employee’s
waiver of ADEA claims, revocation shall be in writing, delivered to
Xxxxx Xxxxxxxx, Director of Corporate
Human Resources, LightPath Technologies, Inc., 0000 Xxxxxxxxxx Xxxx
Xxxxx, Xxxxx 000, Xxxxxxx, XX 00000. To be effective,
revocation must be physically delivered on or before the end of the
eighth calendar day from the date of Employee’s execution of
this Agreement. The Agreement and release contained herein are not
effective or enforceable until the time for revocation has expired.
If not revoked as provided herein, the “Effective Date”
of this Agreement shall be the eighth calendar day after the date
of Employee’s execution of this Agreement.
10. Confidentiality of Information.
Employee agrees that any and all information which Employee has
made, developed, originated or acquired either individually or
jointly with any other person or persons at any time during the
period of employment by Employer prior to the Termination Date,
which relates in any way to the business or type of business
engaged in by Employer is to be kept confidential. Such information
includes, but is not limited to all concepts, techniques,
processes, systems, devices, charts, manuals, price lists, payroll,
administrative methods and information and improvements thereto;
and all other information or materials which may give a competitive
advantage to a competitor (“Confidential Information”).
Employee agrees not to reveal, divulge or make known to any person,
firm or corporation such Confidential Information and understands
that if she discloses to others, uses for her own benefit or for
the benefit of any person or entity other than Employer, copies or
makes notes of any such Confidential Information, such conduct will
constitute a breach of this Agreement. Employee represents that she
is in full compliance with the terms of this Proprietary Rights and
Confidentiality Agreement dated August 7, 2017, a copy of which is
attached hereto as Exhibit “B” (the “Proprietary
Rights Agreement”), and that she has not been in breach of
any of the obligations under the Proprietary Rights Agreement at
any time. Employee reaffirms the Proprietary Rights Agreement and
acknowledges that it is and shall remain in full force and
effect.
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11. Return of Property. Employee
acknowledges that she has returned to Employer all originals and
all hand and electronic copies or other reproductions of all
records, data, notes, reports, proposals, lists, correspondence,
specifications and other documents or property relating to
Employer, its parents, subsidiaries, affiliates, successors or
assigns that were given to her by Employer or were compiled or
prepared by her in connection with her employment by
Employer.
12. Cooperation. Employee agrees to
cooperate with Employer and its attorneys and/or other
representatives on all issues in which she was involved or about
which she gained knowledge while an employee of
Employer.
13. Non-Disparagement. Employee
agrees that at no time shall she disparage or otherwise speak
negatively of Employer or any of the other Released
Parties.
14. Confidentiality of Agreement.
Employee agrees to keep the terms of this Agreement confidential,
and that she will not disclose said terms to anyone other than: (a)
members of her immediate family, (b) her attorney, (c) her tax
consultant or (d) as required by law. Employee shall cause her
immediate family, attorney and tax consultant to honor this
covenant of confidentiality. Notwithstanding this Section, this
Agreement may be admitted into evidence in any action to enforce
its terms.
15. No Admission of Liability. This
Agreement shall not in any way be construed as an admission by
Employer that it has acted wrongfully with respect to Employee or
any person, or that Employee has any rights whatsoever against
Employer, and Employer specifically disclaims any liability to or
wrongful acts against Employee or any other person, on the part of
itself, its employees, or its or their agents.
16. No
Right to Reemployment. Employee shall have no right to
reinstatement or further employment with Employer, and she will not
make application for further employment with Employer or any of the
other Released Parties. This Agreement
shall constitute a legitimate, nondiscriminatory reason and
non-retaliatory reason for refusal to employ
Employee.
17. Non-Assignment
of Claims. Employee represents and warrants to Employer that
there has been no assignment or other transfer of any interest in
any Claim which Employee may have against any Released Party and
agrees to indemnify and hold the Released Parties harmless from any
liability, claims, demands, damages, costs, expenses, and
attorney’s fees incurred as a result of any person asserting
any such assignment or transfer of any Claims.
18. Representation
of Proper Conduct in Employer’s Best Interests.
Employee represents and covenants that all actions Employee has
taken through the date of the execution of this Agreement relating
to Employer have been in the best interests of
Employer.
19. Representation.
Employee warrants that while in the employ of Employer, Employee
did not misrepresent Employer or deal with any third party in bad
faith. Employee further warrants that Employee has not incurred any
expenses or obligations or liabilities on behalf of Employer which
have not been disclosed to Employer at the signing of this
Agreement.
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20. Indemnification.
Employee agrees to indemnify and hold each and all of the Released
Parties harmless from and against any and all damages, claims,
liabilities, judgments, causes of action, losses, costs, damages,
and expenses including without limitation, attorneys’ fees
and costs incurred by Released Parties, or any of them, arising out
of any willful act, omission or gross negligence on the part of
Employee in the performance of her employment, including but not
limited to, misrepresentations to third parties concerning
Employer, its products or services.
21. Non-Solicitation.
Employee represents and agrees that she has not done, and, for a
period of six months following the termination of her employment,
will not do, any of the following: (a) call upon any person or
entity which is, at that time, or which has been within one year
prior to that time, an actual or prospective customer of - Employer
or any of their successors or assigns for the purpose of soliciting
or selling products or services in direct competition with -
Employer; (b) cause a customer of - Employer or any of their
successors or assigns to terminate their relationship or reduce the
business conducted with any such entity; and (c) call upon or
entice any person who is, at that time, an employee of - Employer
or any of their successors or assigns to terminate his or his
employment with - Employer or any of their successors or
assigns.
22. Cooperation.
At Employer’s request, Employee shall take reasonable actions
to assist, consult with, advise and cooperate with Employer with
respect to matters and issues in which she was involved or about
which she gained knowledge while an employee of
Employer.
23. Non-Reliance.
Employee represents and acknowledges that in executing this
Agreement, Employee does not rely and has not relied upon any
representation or statement not set forth herein, made by any of
the Released Parties or by any of the Released Parties’
agents, representatives, or attorneys with regard to the subject
matter, basis or effect of this Agreement or
otherwise.
26. Governing Law/Venue. This
Agreement and the performance hereunder and all suits and special
proceedings hereunder shall be governed by, and construed in
accordance with, the laws of the State of Florida. All actions
under this Agreement shall be taken in a court of competent
jurisdiction exclusively within Orange County, Florida. Employee
acknowledges that jurisdiction and venue are appropriate in said
county, consents to personal jurisdiction therein and waives any
defense that personal jurisdiction or venue therein is
inappropriate.
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27. Counterparts.
This Agreement may be executed in multiple
counterparts, each of which is an original, but which shall
together constitute one and the same
instrument.
28. Complete Agreement. This
Agreement, the Proprietary Rights Agreement, and any and all
exhibits or schedules attached hereto and thereto contain the
entire agreement of the parties. All prior representations,
promises, and other communications are hereby superseded by this
Agreement.
EMPLOYEE:
/s/ Xxxxxxx X.
Xxxxxxx
Xxxxxxx
Xxxxxxx
Date:
July 19, 2019
STATE
OF FLORIDA
COUNTY
OF OSCEOLA
Sworn
to and subscribed before me this 19th day of July, 2019, by Xxxxxxx
Xxxxxxx, who has produced Florida Driver License
(type of identification) as
identification.
/s/ Xxxx Xxxxxx
Xxxx
NOTARY
PUBLIC
Xxxx Xxxxxx
Xxxx
(Print,
Type or Stamp Commissioned Name
of
Notary Public)
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EMPLOYER:
LIGHTPATH
TECHNOLOGIES, INC.
By:
/s/ J. Xxxxx
Xxxxxx
Name:
J. Xxxxx
Xxxxxx
Title:
President &
CEO
Date:
July 24, 2019
STATE OF FLORIDA
COUNTY OF ORANGE
Sworn to and subscribed before me this 24th
day of July, 2019, by J. Xxxxx Xxxxxx
as President & CEO of LightPath Technologies, Inc., a Delaware
corporation, on behalf of the corporation. He/she is
personally known to me.
/s/ Xxxxxxxx X. Xxxxxxx
NOTARY
PUBLIC
Xxxxxxxx X.
Xxxxxxx
(Print, Type or Stamp Commissioned Name of Notary
Public)
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EXHIBIT A
Vested Options
|
Grant Date
|
|
Number of Shares of Common Stock Vested
|
|
Exercise Price
|
|
November
15, 2018
|
|
2,437
|
|
$2.10
|
|
October
26, 2017
|
|
3,256
|
|
$4.24
|
|
October
27, 2016
|
|
10,326
|
|
$1.78
|
|
October
27, 2016
|
|
39,733
|
|
$1.56
|
|
October
29, 2015
|
|
5,250
|
|
$1.48
|
|
October
29, 2015
|
|
28,274
|
|
$1.48
|
|
October
30, 2014
|
|
15,000
|
|
$1.37
|
|
October
31, 2013
|
|
15,000
|
|
$1.41
|
|
January
31, 2013
|
|
4,000
|
|
$0.87
|
|
October
25, 2012
|
|
12,500
|
|
$0.98
|
|
October
27, 2011
|
|
12,500
|
|
$1.39
|
|
November
3, 2010
|
|
9,000
|
|
$2.69
|
|
February
4, 2010
|
|
10,000
|
|
$2.66
|
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EXHIBIT B
Proprietary Rights and Confidentiality Agreement
See
attached.
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