EMPLOYMENT AGREEMENT BETWEEN MAM SOFTWARE GROUP, INC. And MICHAEL JAMIESON (Executive)
BETWEEN
And
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
(Executive)
THIS EMPLOYMENT AGREEMENT
(this “Agreement”), dated as of July 1, 2010 (the “Effective Date”) is entered
into by and between MAM Software Group, Inc., a Delaware corporation (the
“Company”), and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, an individual with a physical address at ▇▇▇▇▇
▇, ▇, & ▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ Court, Tankersley, Barnsley, S75 3DP, UK (the
“Executive”) (collectively, the “Parties,” individually, a
“Party”).
WITNESSETH:
WHEREAS,
the Board of Directors of the Company (the “Board”) has requested and the
Executive has agreed to provide services to the Company as President and Chief
Executive Officer in order to continue his efforts on behalf of the Company;
and
WHEREAS,
the Board has determined that it is in the best interest of the Company, its
affiliates, and its stockholders to assure that the Company will have the
continued dedication of the Executive, notwithstanding the possibility, threat,
or occurrence of a Change of Control (as defined Article Six herein);
and
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
WHEREAS,
as an inducement to serve and in consideration for such services, the Company
has agreed 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 a separate agreement, which
indemnification agreement is attached as an exhibit hereto and is incorporated
herein by reference; and
WHEREAS,
in order to accomplish these objectives and establish the rights, duties and
obligations of the Parties, which shall be generally stated herein and which may
be more fully stated in other agreements between the Parties, including
equity-based agreements, indemnity agreements, and other employment or incentive
related agreements as the Company or the Board may adopt from time to time, the
Board has caused the Company to enter into this Agreement;
NOW,
THEREFORE, in consideration of the premises and the mutual covenants and
agreements set forth herein, the Parties, intending to be legally bound, hereby
agree as follows:
ARTICLE
ONE
DEFINITIONS
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
POSITION
& DUTIES
2.
Employment.
2.1 Title. The
Executive shall serve as the President and Chief Executive Officer of the
Company and agrees to perform services for the Company and such other affiliates
of the Company, as described in Section 2.3 herein.
2.2 Term. The
Executive’s employment shall be for an initial term of three (3) year (“Initial
Term”), commencing on the Effective Date. The Executive’s employment shall be
automatically extended on the day after the third year anniversary of the
Effective Date (“Automatic Extension”), and on each anniversary date thereof,
for additional one (1) year periods unless, with respect to any such Automatic
Extension, Executive’s employment is terminated by either party.
2.3 Duties and
Responsibilities. The Executive shall report to the Board and in his
capacity as an officer of the Company shall perform such duties and services as
may be appropriate and as are assigned to him by the Board. During the
term of this Agreement Executive shall, subject to the direction of the Board of
the Company, oversee and direct the operations of the Company, and shall perform
such duties as are customarily performed by the President and Chief Executive
Officer of a company such as the Company or as are otherwise delegated to him
from time to time by the Board.
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.
2.5 Representations and
Warranties of the Executive with Respect to Conflicts, Past Companys and
Corporate Opportunities. The Executive represents and warrants
that:
(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.
2.7 Other Business
Opportunities. Nothing in this Agreement shall be deemed to
preclude the Executive from participating in other business opportunities if and
to the extent that: (a) such business opportunities are not directly competitive
with, similar to the business of the Company, or would otherwise be deemed to
constitute an opportunity appropriate for the Company; (b) the Executive’s
activities with respect to such opportunities do not have a material adverse
effect on the performance of the Executive’s duties hereunder, and (c) the
Executive’s activities with respect to such opportunity have been fully
disclosed in writing to the Board.
2.8 Reporting
Location. For purposes of this Agreement, the Executive’s reporting
location shall be Barnsley, England, which shall include the metropolitan or
suburban area within a 50-mile radius from the Company’s current office;
provided, however, that it is understood and agreed that Executive’s
responsibilities include frequent travel to the United States to oversee the
Company’s US operations.
ARTICLE
THREE
COMPENSATION
3.
Compensation.
3.1 Base Salary.
Executive shall receive an initial annual base salary of one hundred and fifty
thousand British Pounds Sterling (150,000.00 GBP), payable bi-monthly in arrears
(the “Base Salary”) and subject to all applicable withholding
requirements. The Base Salary shall be reviewed by the Board annually for
adequacy.
3.2 Annual
Incentive. Executive will be eligible to receive annual cash
incentives payable for the achievement of performance goals established by the
Compensation Committee; provided, however, that no
covenants in any then-existing debt facility or any then-outstanding debt
issuance are or would be violated by payment of such Annual Incentive, if paid
in cash. An Annual Incentive payment may be made in cash if such existing
covenants have been specifically and explicitly waived in writing by any
then-lender or investor; provided, however, that no
Annual Incentive can be paid if the Company would be required to pay for such a
waiver. Any unpaid Annual Incentive payment will be accrued or paid in Company
common stock.
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.
3.4 Long Term
Incentives.
(i) Long-Term Ongoing
Performance Equity Incentive. Executive will be eligible to receive
long-term performance equity incentives at a level and on conditions as the
Compensation Committee shall establish. Any long-term incentive will be subject
to terms and conditions of the Company’s 2007 Stock Incentive Plan (the “LTIP”),
or any successor thereto, or any other equity-based compensation plan that may
be established by the Committee and approved by the shareholders. In
addition, any long-term incentive will be subject to the Committee’s standard
terms and conditions for the applicable type of award, including vesting
criteria such as continued service or performance objectives.
(ii) Stock Grant.
Executive will be granted five hundred thousand (500,000) restricted common
shares (the “Stock Grant”) as part of his equity compensation component. The
stock will vest ratably over a three-year period. Twenty percent (20%) will vest
on the first anniversary of the Stock Grant, thirty percent (30%) will vest on
the second anniversary of the Stock Grant, and fifty percent (50%) will vest
after the third anniversary of the Stock Grant.
3.5 Participation In Benefit
Plans.
(a) Retirement
Plans. Executive shall be entitled to participate, without any
waiting or eligibility periods, in all qualified retirement plans provided to
other executive officers and other key employees.
(b) Life Insurance.
The Company will purchase life insurance on the life of Executive in an amount
not less than one million five hundred thousand British Pounds Sterling
(1,500,000.00 GBP), the benefits of which will be payable one-half to the
Executive’s beneficiary and one-half to the Company. The Executive’s
“beneficiary” is the person or persons (who may be designated concurrently,
successively or contingently) designated by the Executive in his last effective
writing filed with the Company prior to his death, or if the Executive shall
have failed to make an effective designation, the Executive’s beneficiary is his
spouse, if the Executive is married and his spouse is living at the time of each
payment, and otherwise his surviving children. The Executive shall assist
the Company in procuring such insurance by submitting to such examinations and
by signing such applications and other instruments as may be reasonable and as
may be required by the insurance carriers to which application is made for any
such insurance. The Executive represents that, to the best of his
knowledge, he is currently insurable at standard premium rates for life
insurance policies.
(c) Employee Benefit Plans and
Insurance. The Executive shall have the right to participate in
employee benefit plans and insurance programs of the Company that the Company
may sponsor from time to time and to receive customary Company benefits, if
those benefits are so offered. Nothing herein shall obligate Executive to
accept such benefits if and when they are offered.
(d) Vacation.
(i) The
Executive shall be entitled to six (6) 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.
(e) Paid Holidays.
The Executive shall be entitled to such paid holidays as are generally
available to all employees.
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:
(a) Housing and Temporary
Lodging. The Company will pay the costs, for the Executive and his
family, of house-hunting trips and the cost of transporting the Executive, his
spouse, furniture, household effects, and vehicles, to the area in which the
Company will be headquartered. In addition, the Company will pay the cost
of the Executive’s travel, temporary living expenses, including housing, whether
hotel or apartment, and meals, during the period prior to the Executive’s move
to the city in which the Company will be headquartered.
(b) Reimbursement.
Executive shall be entitled to reimbursement within a reasonable time for all
properly documented and approved expenses for travel. The Company shall
reimburse business expenses of Executive directly related to Company business,
including, but not limited to, airfare, lodging, meals, travel expenses, medical
expenses while traveling not covered by insurance, business entertainment,
expenses associated with entertaining business persons, local expenses to
governments or governmental officials, tariffs, applicable taxes outside of the
United States or United Kingdom, special expenses associated with travel to
certain countries, supplemental life insurance or supplemental insurance of any
kind or special insurance rates or charges for travel outside the Executive’s
country of residence (unless such insurance is being provided by the Company),
rental cars and insurance for rental cars, and any other expenses of travel that
are reasonable in nature or that have been otherwise pre-approved.
Executive shall be governed by the travel and entertainment policy in effect at
the Company.
(c) Transportation
Allowance. The Executive shall be entitled to a transportation
allowance of Seven Hundred Fifty British Pounds Sterling (750.00 GBP) per
month.
3.7 Severance Benefit.
In the event that Executive’s employment is terminated, other than for
Cause, Executive shall receive severance pursuant to Section 4.6(b)(i)
herein.
3.8 Payroll Procedures and
Policies. All payments required to be made by the Company to the
Executive pursuant to this Article Three shall be paid on a regular basis in
accordance with the Company’s normal payroll procedures and
policies.
ARTICLE
FOUR
TERMINATION
OF EMPLOYMENT
4.1 Events of
Termination. Executive’s employment, the Employment Period, the Base
Salary, and any and all other rights of Executive under this Agreement or
otherwise as an employee of the Company will terminate (except as otherwise
provided in this Section 4):
(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.
4.2 Definition and Determination
of Disability. If the Company determines in good faith that the
Disability (as defined below) of the Executive has occurred during the
Employment Term, the Company may give the Executive notice of its intention to
terminate the Executive’s employment. In such event, the Executive’s employment
hereunder shall terminate effective on the 30th day
after receipt of such notice by the Executive (the “Disability Effective Date”);
provided, that, within the 30-day
period after such receipt, the Executive shall not have returned to full-time
performance of the Executive’s duties. For purposes of this Agreement,
“Disability” shall mean the absence of the Executive from the Executive’s duties
hereunder on a full-time basis for an aggregate of 180 days within any
given period of 270 consecutive days (in addition to any statutorily required
leave of absence and any leave of absence approved by the Company) as a result
of incapacity of the Executive, despite any reasonable accommodation required by
law, due to bodily injury or disease or any other mental or physical illness,
which will, in the opinion of a physician selected by the Company or its
insurers and acceptable to the Executive or the Executive’s legal
representative, be permanent and continuous during the remainder of the
Executive’s life.
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.”
4.4 Notice of
Termination. Any termination of the Executive’s employment hereunder by
the Company or by the Executive (other than a termination pursuant to Section
4.1(a)) shall be communicated by a Notice of Termination (as defined below) to
the other party hereto. For purposes of this Agreement, a “Notice of
Termination” shall mean a notice which (a) indicates the specific
termination provision in this Agreement relied upon, (b) in the case of a
termination for Disability, Cause, or Good Reason, sets forth in reasonable
detail the facts and circumstances claimed to provide a basis for termination of
the Executive’s employment under the provision so indicated, and
(c) specifies the Date of Termination (as defined in Section 4.5 below);
provided, however, that notwithstanding any provision in this Agreement to the
contrary, a Notice of Termination given in connection with a termination for
Good Reason shall be given by the Executive within a reasonable period of time,
not to exceed 60 days, following the occurrence of the event giving rise to
such right of termination. The failure by the Company or the Executive to set
forth in the Notice of Termination any fact or circumstance which contributes to
a showing of Disability, Cause or Good Reason shall not waive any right of the
Company or the Executive hereunder or preclude the Company or the Executive from
asserting such fact or circumstance in enforcing the Company’s or the
Executive’s rights hereunder.
4.5 Date of Termination.
For purposes of this Agreement, the “Date of Termination” shall mean the
effective date of termination of the Executive’s employment hereunder, which
date shall be (a) if the Executive’s employment is terminated by the
Executive’s death, the date of the Executive’s death, (b) if the
Executive’s employment is terminated because of the Executive’s Disability, the
Disability Effective Date, (c) if the Executive’s employment is terminated
by the Company (or applicable affiliated company) for Cause or by the Executive
for Good Reason, the date on which the Notice of Termination is given, and
(d) if the Executive’s employment is terminated for any other reason, the
date specified in the Notice of Termination, which date shall in no event be
earlier than the date such notice is given; provided, however, that if
within 30 days after any Notice of Termination is given, the party
receiving such Notice of Termination notifies the other party that a dispute
exists concerning the termination, the Date of Termination shall be the date on
which the dispute is finally determined, either by mutual written agreement of
the parties or by a final judgment, order or decree of a court of competent
jurisdiction (the time for appeal therefrom having expired and no appeal having
been perfected).
4.6 Obligations of the Company
upon Termination.
(a) General. Should
Executive’s employment with the Company be terminated by the Company Without
Cause or should Executive resign his employment with the Company 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 time period provided immediately herein, after Executive’s
termination of employment, the Company will provide to Executive the
following:
(b) Good Reason; Other Than for
Cause, Death or Disability. If, during the Employment Term, the Company
(or applicable affiliated company) shall terminate the Executive’s employment
hereunder other than for Cause or Disability or the Executive shall terminate
the Executive’s employment for Good Reason:
(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”).
(c) Death. If the
Executive’s employment is terminated by reason of the Executive’s death during
the Employment Term, this Agreement shall terminate without further compensation
obligations to the Executive’s legal representatives under this Agreement, other
than for (i) payment of Accrued Obligations (which shall be paid to the
Executive’s estate or beneficiary, as applicable, in a lump sum in cash within
90 days of the Date of Termination) and the timely payment or settlement of
any other amount pursuant the Other Benefits and (ii) treatment of all
other compensation under existing plans as provided by the terms and rules of
those plans.
(d) Disability. If the
Executive’s employment is terminated by reason of the Executive’s Disability
during the Employment Term, this Agreement shall terminate without further
compensation obligations to the Executive, other than for (i) payment of
Accrued Obligations (which shall be paid to the Executive in a lump sum in cash
within 90 days of the Date of Termination) and the timely payment or
settlement of any other amount pursuant to the Other Benefits and
(ii) treatment of all other compensation under existing plans as provided
by the terms and rules of those plans.
(e) Cause; Other than for Good
Reason. If the Executive’s employment is terminated for Cause during the
Employment Term, this Agreement shall terminate without further compensation
obligations to the Executive other than the obligation to pay to the Executive
Base Salary through the Date of Termination plus the amount of any compensation
previously deferred by the Executive, in each case to the extent theretofore
unpaid. If the Executive voluntarily terminates the Executive’s employment
during the Employment Term, and such termination is Without Good Reason, this
Agreement shall terminate without further compensation obligations to the
Executive, other than for the that portion Executive’s Base Salary that was not
previously paid to the Executive from the last payment date through the
effective date of the Executive’s voluntary termination and the timely payment
or provision of the Other Benefits, as provided in any applicable plan, and the
Executive shall have no further obligations nor liability to the Company. In
such case, any amounts owed to the Executive shall be paid to the Executive in a
lump sum in cash within 90 days of the Date of Termination subject to
applicable laws and regulations.
4.7 Change of
Control.
(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.
4.8 Code Section
409A.
(a) General.
Notwithstanding any provision to the contrary in this Agreement, if the
Executive is deemed at the time of his Separation from Service from the Company
to be a “specified employee” for purposes of Section 409A(a)(2)(B)(i) of
the Code and if any amounts otherwise payable pursuant to this Agreement within
the first six (6) months following the Executive’s Separation from Service
would be subject to the excise tax imposed by Section 409A of the Code,
then payment of such portion of the benefits subject to the excise tax shall be
suspended and shall be paid in a lump sum to the Executive on the first business
day following the expiration of six (6) months from the date of the
Executive’s Separation from Service.
(b) 409A
Compliance. It is intended that any amounts payable under this Agreement
and the Company’s and Executive’s exercise of authority or discretion hereunder
shall comply with Internal Revenue Code Section 409A (including the Treasury
regulations and other published guidance relating thereto) so as not to subject
Executive to the payment of any interest or additional tax imposed under
Internal Revenue Code Section 409A. To the extent any amount payable to
Executive from Company, per this Agreement or otherwise, would trigger the
additional tax imposed by Internal Revenue Code Section 409A, the parties agree
to adopt any necessary amendments to this Agreement in order to avoid such
additional tax.
ARTICLE
FIVE
INDEMNIFICATION
5.
Indemnification.
The Executive shall be indemnified and held harmless pursuant to the terms and
conditions set forth in the Indemnity Agreement substantially in the form
attached as Exhibit
B hereto.
ARTICLE
SIX
CONFIDENTIALITY
6.
Confidentially;
Non-Competition; and Non-Solicitation.
6.1 Confidentiality.
In consideration of employment by the Company and Executive’s receipt of the
salary and other benefits associated with Executive’s employment, and in
acknowledgment that (a) the Company is engaged in the automotive software
business, (b) maintains secret and confidential information, (c) during the
course of Executive’s employment by the Company such secret or confidential
information may become known to Executive, and (d) full protection of the
Company’s business makes it essential that no employee appropriate for his or
her own use, or disclose such secret or confidential information, Executive
agrees that during the time of Executive’s employment and for a period
of two (2) years following the termination of Executive’s employment with
the Company, Executive agrees to hold in strict confidence and shall not,
directly or indirectly, disclose or reveal to any person, or use for his own
personal benefit or for the benefit of anyone else, any trade secrets,
confidential dealings, or other confidential or proprietary information of any
kind, nature, or description (whether or not acquired, learned, obtained, or
developed by Executive alone or in conjunction with others) belonging to or
concerning the Company or any of its subsidiaries, except (i) with the prior
written consent of the Company duly authorized by its Board, (ii) in the course
of the proper performance of Executive’s duties hereunder, (iii) for information
(x) that becomes generally available to the public other than as a result of
unauthorized disclosure by Executive or his affiliates or (y) that becomes
available to Executive on a non-confidential basis from a source other than the
Company or its subsidiaries who is not bound by a duty of confidentiality, or
other contractual, legal, or fiduciary obligation, to the Company, or (iv) as
required by applicable law or legal process.
6.2 Non-Competition.
During Executive’s employment with the Company and for so long as Executive
receives any Severance Benefit or is receiving any Severance Amount provided
under this agreement in respect of the termination of his employment, Executive
shall not be engaged as an officer or executive of, or in any way be associated
in a management or ownership capacity with any corporation, company, partnership
or other enterprise or venture which conducts a business which is in direct
competition with the business of the Company; provided, however, that
Executive may own not more than two percent (2%) of the outstanding securities,
or equivalent equity interests, of any class of any corporation, company,
partnership, or either enterprise that is in direct competition with the
business of the Company, which securities are listed on a national securities
exchange or traded in the over-the-counter market. For purposes of this
Agreement, a lump sum payment equivalent made to Executive shall be judged in
relation to his most recent annual base salary to determine whether Executive is
continuing to receive a Severance Benefit or Severance Amount and shall be
measured from the date such payment is received. It is expressly agreed
that the remedy at law for breach of this covenant is inadequate and that
injunctive relief shall be available to prevent the breach thereof.
6.3 Non-Solicitation.
Executive also agrees that he will not, directly or indirectly, during
the term of his employment or within one (1) year after termination of his
employment for any reason, in any manner, encourage, persuade, or induce any
other employee of the Company to terminate his employment, or any person or
entity engaged by the Company to represent it to terminate that relationship
without the express written approval of the Company; provided, however, that in
the event an employee with whom the Executive had a preexisting relationship
prior to his employment with the Company individually elects to resign as a
consequence of the Executive’s having left the Company’s employ, this
non-solicitation provision in this Section 6.3 shall not prohibit their
subsequent association. It is expressly agreed that the remedy at law for
breach of this covenant is inadequate and that injunctive relief shall be
available to prevent the breach thereof.
ARTICLE
SEVEN
MISCELLANEOUS
7.
Miscellaneous.
7.1 Benefit. This
Agreement shall inure to the benefit of and be binding upon each of the Parties,
and their respective successors. This Agreement shall not be assignable by
any Party without the prior written consent of the other Party. The
Company shall require any successor, whether direct or indirect, to all or
substantially all the business and/or assets of the Company expressly to assume
and agree to perform, by instrument in a form reasonably satisfactory to
Executive, this Agreement and any other agreements between Executive and the
Company or any of its subsidiaries, in the same manner and to the same extent as
the Company.
7.2 Covenants of Article VI Are
Essential Independent Covenants. The covenants by Executive in
Article VI are essential elements of this Agreement, and without Executive’s
agreement to comply with such covenants, the Company would not have entered into
this Agreement or employed Executive. The Company and the Executive have
independently consulted with their respective counsel and have been advised in
all respects concerning the reasonableness and propriety of such covenants, with
specific regard to the nature of the business conducted by the
Company.
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.
7.4 Counterparts.
This Agreement may be executed in counterparts and via facsimile, each of which
shall be deemed to constitute an original, but all of which together shall
constitute one and the same Agreement. Each such counterpart shall become
effective when one counterpart has been signed by each Party
thereto.
7.5 Headings. The
headings of the various articles and sections of this Agreement are for
convenience of reference only and shall not be deemed a part of this Agreement
or considered in construing the provisions thereof.
7.6 Severability.
Any term or provision of this Agreement that shall be prohibited or declared
invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective only to the extent of such prohibition or declaration, without
invalidating the remaining terms and provisions hereof or affecting the validity
or enforceability of such provision in any other jurisdiction, and if any term
or provision of this Agreement is held by any court of competent jurisdiction to
be void, voidable, invalid or unenforceable in any given circumstance or
situation, then all other terms and provisions hereof, being severable, shall
remain in full force and effect in such circumstance or situation, and such term
or provision shall remain valid and in effect in any other circumstances or
situation.
7.7 Construction.
Use of the masculine pronoun herein shall be deemed to refer to the feminine and
neuter genders and the use of singular references shall be deemed to include the
plural and vice versa, as appropriate. No inference in favor of or against
any Party shall be drawn from the fact that such Party or such Party’s counsel
has drafted any portion of this Agreement.
7.8 Equitable
Remedies. The Parties hereto agree that, in the event of a breach
of this Agreement by either Party, the other Party, if not then in breach of
this Agreement, may be without an adequate remedy at law owing to the unique
nature of the contemplated relationship. In recognition thereof, in
addition to (and not in lieu of) any remedies at law that may be available to
the non-breaching Party, the non-breaching Party shall be entitled to obtain
equitable relief, including the remedies of specific performance and injunction,
in the event of a breach of this Agreement, by the Party in breach, and no
attempt on the part of the non-breaching Party to obtain such equitable relief
shall be deemed to constitute an election of remedies by the non-breaching Party
that would preclude the non-breaching Party from obtaining any remedies at law
to which it would otherwise be entitled.
7.9 No Waiver. No
failure, delay or omission of or by any Party in exercising any right, power or
remedy upon any breach or default of any other Party, or otherwise, shall impair
any such rights, powers or remedies of the Party not in breach or default, nor
shall it be construed to be a waiver of any such right, power or remedy, or an
acquiescence in any similar breach or default; nor shall any waiver of any
single breach or default be deemed a waiver of any other breach or default
theretofore or thereafter occurring. Any waiver, permit, consent or
approval of any kind or character on the part of any Party of any provisions of
this Agreement must be in writing and be executed by the Parties and shall be
effective only to the extent specifically set forth in such
writing.
7.10 Remedies
Cumulative. All remedies provided in this Agreement, by law or
otherwise, shall be cumulative and not alternative.
7.11 Amendment. This
Agreement may be amended only by a writing signed by all of the Parties
hereto.
7.12 Entire
Contract. This Agreement and the documents and instruments referred
to herein constitute the entire contract between the parties to this Agreement
and supersede all other understandings, written or oral, with respect to the
subject matter of this Agreement.
7.13 Survival. This
Agreement shall constitute a binding obligation of the Company and any successor
thereto. Notwithstanding any other provision in this Agreement, the
obligations under Articles 5 and 6 shall survive termination of this
Agreement.
7.14 Savings Clause.
Notwithstanding any other provision of this Agreement, if the indemnification
provisions in Exhibit
B hereto or any portion thereof shall be invalidated on any ground by any
court of competent jurisdiction, then the Company shall nevertheless indemnify
Executive as to Expenses, judgments, fines, penalties and amounts paid in
settlement with respect to any Proceeding to the full extent permitted by any
applicable portion of this Agreement that shall not have been invalidated and to
the fullest extent permitted by applicable law.
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.
7.16 Notices. All
notices, requests, demands and other communications hereunder shall be in
writing and shall be deemed to have been given (i) when delivered by hand or
(ii) if mailed by certified or registered mail with postage prepaid, on the
third day after the date on which it is so mailed:
(a) if to
Executive:
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇,
▇, & ▇,
▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇ Court,
Tankersley,
Barnsley,
S75 3DP, UK
(b) if to the
Company:
▇/▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇,
▇▇ ▇▇▇▇▇
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
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IN WITNESS WHEREOF, the
parties have set their hands and seals hereunto on the date first above
written.
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EXECUTIVE
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By:
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By:
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Name:
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▇▇▇▇▇▇
Mamanteo
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Name:
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▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
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Title:
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Chairman,
Compensation Committee
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Schedule
A
Outside
Activities/Investments
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
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Company or
Project Name
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Nature of
Business
|
Date Hired or
Commenced
Involvement
|
Position
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Compensation
|
Annual Time
Commitment, (time away
from office)
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Dated: July 1,
2010
Initials: Executive: _____ Company: ______
Exhibit
A
SEVERANCE
AGREEMENT AND GENERAL RELEASE
This
Severance Agreement and General Release (“Agreement”) is entered into by and
between ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (“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:
RECITALS
WHEREAS,
Executive was hired by the Company in 200_ and has held the position of the
Company’s Chief Executive Officer since July 1, 2010, and
WHEREAS,
Executive’s employment with the Company has been terminated effective
(the “Termination Date”); and
WHEREAS,
the Company and Executive desire to resolve, fully and finally, any and all
claims or disputes that exist or may exist between them through the date of this
Agreement.
AGREEMENT
NOW
THEREFORE, in consideration of the covenants and premises contained herein, the
Parties hereto agree as follows:
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
,
2010. 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, 2010, 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