CRAWFORD & COMPANY EXECUTIVE EMPLOYMENT AGREEMENT
Exhibit 10.11
▇▇▇▇▇▇▇▇ & COMPANY
EXECUTIVE EMPLOYMENT AGREEMENT
This Agreement is made between ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (“Employee”) and ▇▇▇▇▇▇▇▇ & Company (“▇▇▇▇▇▇▇▇”), and executed on the date set forth below (“Agreement”). In consideration of the mutual promises and covenants contained in this Agreement and for other good and valuable consideration including, but not limited to, the employment of Employee by ▇▇▇▇▇▇▇▇, the wages offered and to be paid to Employee by ▇▇▇▇▇▇▇▇ during Employee’s employment, the training Employee will receive from ▇▇▇▇▇▇▇▇ regarding policies and compliance and the methods and operations of ▇▇▇▇▇▇▇▇ at considerable expense to ▇▇▇▇▇▇▇▇, and access to and knowledge of ▇▇▇▇▇▇▇▇’▇ confidential information and trade secrets Employee will receive, the parties hereto agree as follows:
Article 1 Title and Duties.
1.1
Employee will be employed as the President, TPA – US & Canada. In this capacity Employee will be primarily based in Berkeley Heights, New Jersey but shall travel to and attend meetings at the ▇▇▇▇▇▇▇▇'▇ offices in Atlanta, GA, as reasonably required, and perform such duties at such place or places in the United States and/or elsewhere (including internationally) as the ▇▇▇▇▇▇▇▇ shall require. Employee will report to ▇▇▇▇▇▇▇▇’▇ Chief Executive Officer.
1.2
Employee’s Grade Level will be E18, and Employee will be expected to perform such duties and responsibilities customary to this position and as are reasonably necessary to the operations of ▇▇▇▇▇▇▇▇.
1.3
Employee’s title, Grade Level, duties and reporting relationship can be changed from time to time at the discretion of Crawford.
Article 2 Definitions.
1.1
“Business of Crawford” means claims management, adjusting, administrative services and other services provided by Crawford, as identified and described in ▇▇▇▇▇▇▇▇ & Company’s most recent Annual Report filed with the U.S. Securities and Exchange Commission on Form 10-K at the time Employee’s employment with ▇▇▇▇▇▇▇▇ terminates, modified as necessary to reflect any changes to ▇▇▇▇▇▇▇▇’▇ business activities since such filing.
1.2
“Cause” means:
(a)
Employee’s refusal or willful failure to substantially perform Employee’s duties (other than any such failure resulting from incapacity due to physical or mental illness or disability), after a written demand for substantial performance is delivered to Employee by ▇▇▇▇▇▇▇▇ that identifies the manner in which ▇▇▇▇▇▇▇▇ believes Employee has not substantially performed Employee’s duties and Employee fails to cure substantially the specified failure within thirty
(30) days of the date Employee receives the demand;
(b)
Employee’s dishonesty or misappropriation with regard to ▇▇▇▇▇▇▇▇ which has a significant adverse effect on the business or reputation of ▇▇▇▇▇▇▇▇, or fraud with regard to ▇▇▇▇▇▇▇▇ or its assets or business;
(c)
Employee’s conviction of or the pleading of nolo contendere with regard to a felony;
(d)
Employee’s material breach of fiduciary duty owed to ▇▇▇▇▇▇▇▇;
(e)
Employee’s gross negligence or material and willful misconduct with regard to ▇▇▇▇▇▇▇▇ or its assets, business or employees;
(f)
The refusal of Employee to follow the lawful directions of ▇▇▇▇▇▇▇▇ which are consistent with the duties and authorities of Employee set forth in this Agreement and not inconsistent with other directions of ▇▇▇▇▇▇▇▇, after a written demand is delivered to Employee by ▇▇▇▇▇▇▇▇ that identifies the manner in which ▇▇▇▇▇▇▇▇ believes Employee has refused to follow its lawful direction and Employee fails to cure substantially the specified refusal within thirty (30) days of the date Employee receives the demand; or
(g)
Any other breach by Employee of a material provision of this Agreement, after a written demand is delivered to Employee by ▇▇▇▇▇▇▇▇ that identifies the breach and Employee fails to cure substantially the specified breach within sixty (60) days of the date Employee receives the demand.
For purposes of this definition, no act or failure to act on the part of Employee shall be considered “willful” unless it is done, or omitted to be done, by Employee in bad faith or without reasonable belief (based upon an objective reasonable person standard) that Employee’s action or omission was in the best interest of ▇▇▇▇▇▇▇▇. Any act or failure to act based upon authority given pursuant to a resolution duly adopted by ▇▇▇▇▇▇▇▇ or based upon the advice of counsel for ▇▇▇▇▇▇▇▇ shall be conclusively presumed to be done, or omitted to be done, by Employee in good faith and in the best interests of ▇▇▇▇▇▇▇▇.
1.3
“Code Section 409A” means Section 409A of the Internal Revenue Code of 1986, as amended, and regulations thereunder.
1.4
“Confidential Information” means information about ▇▇▇▇▇▇▇▇ and its employees and/or customers which is not generally known outside of ▇▇▇▇▇▇▇▇, which Employee learns of in connection with Employee’s employment with ▇▇▇▇▇▇▇▇, and which has value to ▇▇▇▇▇▇▇▇. Confidential Information includes, but is not limited to: (1) business and employment policies, personnel information, employee compensation and benefits, marketing methods and the targets of those methods, financial records, business plans, strategies and ideas, promotional materials, education and training materials, research and development, technology and software systems, software codes, computer models, data
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processing programs, machines, equipment, price lists, and recruiting strategies, strategies and plans for future business, new business, product or other development, and potential acquisitions or divestitures; (2) product and technical information about ▇▇▇▇▇▇▇▇’▇ products and services, including but not limited to the nature, origin, composition and development of ▇▇▇▇▇▇▇▇’▇ products and services, new product and service concepts, research and development projects, and expansion strategies; (3) proprietary information and processes, and intellectual property, including but not limited to inventions and copyrightable works; (4) customer information and the manner in which ▇▇▇▇▇▇▇▇ provides products and services to its customers, including but not limited to the names of representatives of ▇▇▇▇▇▇▇▇’▇ customers responsible for entering into contracts with ▇▇▇▇▇▇▇▇, the amounts paid by such customers to ▇▇▇▇▇▇▇▇ and other details of customer agreements, specific customer needs and requirements, specific customer characteristics related to the provision of products or services by ▇▇▇▇▇▇▇▇, and leads and referrals to prospective customers; and (5) confidential information of third parties given to ▇▇▇▇▇▇▇▇ pursuant to an obligation or agreement to keep such information confidential. Confidential Information shall not include information (1) that has been voluntarily disclosed to the public by ▇▇▇▇▇▇▇▇, except where such public disclosure has been made by Employee without authorization from ▇▇▇▇▇▇▇▇; (2) independently developed and disclosed by others; or (3) that has otherwise entered the public domain through lawful means.
1.5
“▇▇▇▇▇▇▇▇” as used above and throughout this Agreement, means ▇▇▇▇▇▇▇▇ & Company, a Georgia corporation, along with its subsidiaries, parents, affiliated entities, and includes the successors and assigns of ▇▇▇▇▇▇▇▇ or any such related entities.
1.6
“Material Contact” means contact between Employee and each customer or actively sought prospective customer of ▇▇▇▇▇▇▇▇ (i) with whom Employee dealt on behalf of ▇▇▇▇▇▇▇▇; (ii) whose dealings with ▇▇▇▇▇▇▇▇ were coordinated or supervised by Employee; (iii) about whom Employee obtained Confidential Information in the ordinary course of business as a result of Employee’s association with ▇▇▇▇▇▇▇▇, or (iv) who receives products or services authorized by ▇▇▇▇▇▇▇▇, the sale or provision of which results or resulted in compensation, commissions, or earnings for Employee within the twenty-four (24) month period prior to Employee’s termination of employment with ▇▇▇▇▇▇▇▇.
1.7
“Restricted Territory” means the United States, Canada and the United Kingdom.
1.8
“Trade Secrets” means Confidential Information which meets the additional requirements of the federal Defend Trade Secrets Act of 2016 or the Georgia Trade Secrets Act, as applicable.
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Article 3 Compensation.
1.1
Base Salary. Employee’s annual base salary will be $330,000.00 less all applicable deductions and withholdings (“Base Salary”), payable bi-weekly in accordance with ▇▇▇▇▇▇▇▇’▇ standard payroll practices. Employee’s Base Salary will be reviewed annually, and may be adjusted by ▇▇▇▇▇▇▇▇ from time to time, and any increases or decreases will be effective as of the date determined by ▇▇▇▇▇▇▇▇. Because Employee’s position is exempt from overtime pay, Employee’s Base Salary will compensate Employee for all hours worked.
1.2
Annual Bonus. Employee is eligible to participate in ▇▇▇▇▇▇▇▇’▇ short-term incentive plan (“STIP”). Employee’s current STIP target bonus is 50% of Employee’s Base Salary. Any STIP bonus will be payable in accordance with the applicable STIP terms for a year, and will be subject to all applicable withholdings. ▇▇▇▇▇▇▇▇ may amend, modify or discontinue the STIP at any time.
1.3
Long-Term Incentive Plan. Subject to approval by ▇▇▇▇▇▇▇▇’▇ Board of Directors (“Board”), Employee is eligible to participate in ▇▇▇▇▇▇▇▇’▇ long-term incentive plan (“LTIP”), i.e., currently the ▇▇▇▇▇▇▇▇ & Company 2016 Omnibus Stock and Incentive Plan. LTIP awards will be granted pursuant to the terms of the LTIP, as in effect from time to time, by the Board. LTIP awards may be paid to the extent earned after the Board certifies the previous year’s results. ▇▇▇▇▇▇▇▇ may amend, modify or discontinue the LTIP at any time.
1.4
Reimbursed Expenses. ▇▇▇▇▇▇▇▇ will reimburse Employee for all reasonable out of pocket expenses (including hotel and travel expenses), wholly, necessarily and exclusively incurred by Employee in the discharge of Employee’s duties, subject to the production of appropriate receipts or such other evidence as ▇▇▇▇▇▇▇▇ may reasonably require as proof of such expenses and in accordance with ▇▇▇▇▇▇▇▇’▇ rules and policies relating to expenses as may be in force from time to time.
Article 4 Employee Benefits.
1.1
Group Benefit Plans. Employee will be eligible to participate in employee benefit plans and programs maintained by ▇▇▇▇▇▇▇▇ and offered to executive level employees from time to time, to the extent Employee otherwise qualifies under the provisions of any such plans which are incorporated herein by reference. ▇▇▇▇▇▇▇▇ reserves the right to amend, modify or discontinue its benefit offerings at any time, as it deems appropriate. ▇▇▇▇▇▇▇▇’▇ current vacation policy provides Employee with four (4) weeks paid vacation per calendar year.
1.2
Auto. During the term of employment, ▇▇▇▇▇▇▇▇ shall provide an automobile for Employee’s use in accordance with and subject to the terms of ▇▇▇▇▇▇▇▇’▇ automobile program. ▇▇▇▇▇▇▇▇ may amend, modify or discontinue its automobile program at any time.
Article 5 Employee Rights and Obligations.
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1.1
At-Will Employment. Employee’s employment with ▇▇▇▇▇▇▇▇ is for no specified period of time. Employee’s employment relationship will remain at-will and either Employee or ▇▇▇▇▇▇▇▇ may terminate the relationship at any time, for any reason.
1.2
Severance. If Employee’s employment with ▇▇▇▇▇▇▇▇ is terminated by ▇▇▇▇▇▇▇▇ for reasons other than Cause, Employee will be paid severance compensation, in equal amounts over a period of twelve (12) months in accordance with ▇▇▇▇▇▇▇▇’▇ normal payroll practices, an amount equal to twelve (12) months of Employee’s then current monthly base salary. In addition, if Employee elects to continue Employee’s health insurance pursuant to the Consolidated Omnibus Budget Reconciliation Act (COBRA), ▇▇▇▇▇▇▇▇ shall pay (or reimburse to Employee) the “employer share” of the COBRA premiums at the same level as was being contributed by ▇▇▇▇▇▇▇▇ immediately before termination of Employee’s employment for a period a twelve (12) months following Employee’s termination. Employee’s receipt of any such severance payment or COBRA premium is subject to execution by Employee and ▇▇▇▇▇▇▇▇ of a ▇▇▇▇▇▇▇▇▇ agreement achieving mutually acceptable terms on matters such as:
(a)
return of all ▇▇▇▇▇▇▇▇ property, documents, or instruments;
(b)
no admission of liability on the part of ▇▇▇▇▇▇▇▇;
(c)
general release of any and all claims;
(d)
non-disclosure;
(e)
non-solicitation of employees and customers;
(f)
non-competition;
(g)
cooperation, and
(h)
non-disparagement.
1.3
Cessation of Severance Payments. If, at any point during the period over which severance pay is being paid Employee violates the terms of a severance agreement (as described in Section 5.2 above) or this Agreement, ▇▇▇▇▇▇▇▇ shall have the right to cease making severance payments and COBRA premium payments.
1.4
Application of Employment Policies. Except as specifically provided to the contrary in this Agreement, Employee will be subject to and required to comply with all provisions of ▇▇▇▇▇▇▇▇’▇ Employee Handbook and any other ▇▇▇▇▇▇▇▇ policies that may be in effect from time to time during Employee’s employment. ▇▇▇▇▇▇▇▇ reserves the right to change any and all of its policies, including its benefit and compensation plans.
1.5
Electronic Devices. All technology provided by ▇▇▇▇▇▇▇▇, including computer and/or communications equipment, systems, networks, company-related work records and other electronically stored information, is the property of ▇▇▇▇▇▇▇▇ and not of
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Employee. In general, use of ▇▇▇▇▇▇▇▇’▇ technology systems and electronic communications should be job-related and not for personal convenience.
1.6
Electronic Communications. E-mail and other electronic communications transmitted by ▇▇▇▇▇▇▇▇’▇ equipment, systems and networks are the property of ▇▇▇▇▇▇▇▇ should not be considered by Employee to be private or confidential, even if the communication is password protected or encrypted. ▇▇▇▇▇▇▇▇ reserves the right to examine, monitor and regulate e-mail and other electronic communications, directories, files and all other content, including Internet use, transmitted by or stored in its technology systems, whether onsite or offsite.
1.7
Confidentiality. Employee agrees that during employment with ▇▇▇▇▇▇▇▇ and following the cessation of that employment for any reason, Employee shall not, except in furtherance of the interests of ▇▇▇▇▇▇▇▇, directly or indirectly divulge or make use of any Confidential Information without prior written consent of ▇▇▇▇▇▇▇▇, until such Confidential Information ceases to be confidential by reason of the authorized actions of others or through an authorized disclosure by Employee. This paragraph does not limit the remedies available under common or statutory law, which may impose additional duties of non- disclosure. This Agreement shall not be deemed to prohibit (a) conduct expressly protected by the Defend Trade Secrets Act of 2016, as discussed in Section 5.8 below, (b) Employee’s ability to communicate with the Securities and Exchange Commission, the Equal Employment Opportunity Commission, or other governmental agency, or (c) other conduct expressly protected by applicable law.
1.8
Non-Disclosure of Trade Secrets. Employee agrees that during employment with ▇▇▇▇▇▇▇▇ and indefinitely following the cessation of that employment for any reason, except in furtherance of the interests of ▇▇▇▇▇▇▇▇, Employee shall not directly or indirectly divulge or make use of any Trade Secrets (so long as the information remains a Trade Secret under applicable law) without prior written consent of ▇▇▇▇▇▇▇▇. Employee is hereby advised of the following protections provided by the Defend Trade Secrets Act of 2016, 18 U.S. Code § 1833(b), and nothing in this Agreement shall be deemed to prohibit the conduct expressly protected by 18 U.S. Code § 1833(b):
(1)
An individual, including Employee, shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that (A) is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
(2)
An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual (A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except pursuant to court order.
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1.9
Non-Disclosure of Personal Information. Employee acknowledges that, during the course of employment, Employee may obtain information regarding individuals as a result of services provided to ▇▇▇▇▇▇▇▇ customers such as (i) claim and personal health information; (ii) social security number; (iii) date of birth; and (iv) salary information (“Personal Information”). Employee agrees to safeguard such Personal Information as prescribed by applicable laws and regulations, such as the privacy regulations under the Health Insurance Portability and Accountability Act of 1996, and similar laws applicable to other jurisdictions in which ▇▇▇▇▇▇▇▇ operates. Without limiting the foregoing, Employee agrees:
(a)
Not to acquire, use nor distribute such Personal Information without the express consent of the subject of such Personal Information, or if state or federal law will allow such acquisition and disclosure of Personal Information without consent.
(b)
To acquire, use and/or distribute Personal Information solely for the purposes of carrying out the daily functions of Employee’s job.
(c)
To disclose Personal Information only to authorized third parties. These agencies may include, but are not necessarily limited to, independent review agents, claims adjusters, benefits administrators, attorneys and employers.
(d)
To limit access to computerized Personal Information solely to staff, authorized users and administrative personnel and will abide by all security measures designed to assure that unauthorized personnel are not afforded access to Personal Information.
1.10
Duty of Loyalty. Employee shall render to the very best of Employee’s ability services to and on behalf of ▇▇▇▇▇▇▇▇, and shall undertake diligently all duties assigned by ▇▇▇▇▇▇▇▇. Employee shall devote his full time, energy and skill to the performance of the services in which ▇▇▇▇▇▇▇▇ is engaged, at such time and place as ▇▇▇▇▇▇▇▇ may direct.
1.11
Restricted Business Practices. It is the policy of ▇▇▇▇▇▇▇▇ not to receive or use any information or materials from any employee that are proprietary to said employee’s former employer. Employee is expressly prohibited from having any such materials, or materials containing such information, on ▇▇▇▇▇▇▇▇’▇ property. Employee expressly warrants that Employee has no materials or information which can be construed as the property of a former employer, and further, that Employee will make no use of any such materials or information in the performance of Employee’s duties on behalf of ▇▇▇▇▇▇▇▇.
1.12
Disclosure of Existing Agreements. Employee further warrants and represents that, prior to accepting this Employment Agreement, Employee has disclosed, or will disclose to ▇▇▇▇▇▇▇▇ prior to entering into this Agreement, the full terms of any contract or agreement with any other employer that might restrict in any way Employee’s performance of his/her duties for ▇▇▇▇▇▇▇▇, including, but not limited to any non-solicitation, non- recruitment, non-compete and similar post-employment restrictions imposed upon Employee by an agreement between Employee and any other employer.
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1.13
Subsequent Employment. Employee agrees that, following the termination of Employee’s employment with ▇▇▇▇▇▇▇▇ for any reason, Employee will notify any subsequent employer of the restrictive covenants contained in this Agreement. In addition, Employee authorizes ▇▇▇▇▇▇▇▇ to provide a copy of the restrictive covenants contained in this Agreement to third parties, including but not limited to, Employee’s subsequent, anticipated or possible future employer.
1.14
Return of Property and Information. Employee agrees to return all ▇▇▇▇▇▇▇▇’▇ property as soon as is practicable following the cessation of Employee’s employment for any reason. Such property includes, but is not limited to, the original and any copy (regardless of the manner in which it is recorded) of all information provided by ▇▇▇▇▇▇▇▇ to employee or which employee has developed or collected in the scope of Employee’s employment, as well as all ▇▇▇▇▇▇▇▇-issued equipment, supplies, accessories, vehicles, keys, badges, passes, access cards, instruments, tools, devices, computers, cellphones, pagers, materials, documents, plans, records, notebooks, drawings, or papers.
1.15
Non-Competition Covenant. Employee acknowledges that if Employee were to compete with ▇▇▇▇▇▇▇▇ in the Business of ▇▇▇▇▇▇▇▇, Employee could cause serious harm to ▇▇▇▇▇▇▇▇. Employee further acknowledges that during Employee’s employment, Employee will be provided access to Trade Secrets and to other valuable Confidential Information that may not qualify as Trade Secrets. In addition, Employee acknowledges that, during the course of employment, Employee will build and maintain substantial relationships with specific existing and prospective customers or clients of ▇▇▇▇▇▇▇▇ and will be responsible to maintain and build customer or client goodwill associated with the Business of ▇▇▇▇▇▇▇▇ throughout the United States and other countries in which ▇▇▇▇▇▇▇▇ operates. Further, Employee acknowledges that Employee will derive significant value from ▇▇▇▇▇▇▇▇ and from the Confidential Information and Trade Secrets of ▇▇▇▇▇▇▇▇ provided during employment with ▇▇▇▇▇▇▇▇, which will enable Employee to optimize ▇▇▇▇▇▇▇▇’▇ performance and Employee’s own personal, professional, and financial performance. Therefore, during Employee’s employment with ▇▇▇▇▇▇▇▇ and for a period of twelve (12) months following the cessation of Employee’s employment with ▇▇▇▇▇▇▇▇ for any reason, Employee agrees not to, directly or indirectly, on his own behalf or on behalf of any other person or entity, provide services as an executive, manager, consultant, adviser, or in any other role similar to the role Employee held with ▇▇▇▇▇▇▇▇ during the twenty-four (24) month period prior to Employee’s termination of employment with ▇▇▇▇▇▇▇▇, to any business entity engaged in the Business of ▇▇▇▇▇▇▇▇ within the Restricted Territory in circumstances in which Employee’s responsibilities and duties are substantially similar to those performed by Employee during the twenty-four (24) month period ending on the date Employee’s employment with ▇▇▇▇▇▇▇▇ terminates. Employee agrees that the restrictions in this section are reasonable in scope and do not constitute a restraint of trade with respect to Employee’s ability to obtain alternative employment in the event Employee’s employment with ▇▇▇▇▇▇▇▇ ends for any reason; provided, however, nothing in this section shall be deemed to restrict Employee’s ability to practice law or to represent clients as a lawyer, as discussed in Rule 5.6 of the American Bar Association’s Model Rules of Professional Conduct.
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1.16
Non-Solicitation Covenant. Employee agrees that during employment with ▇▇▇▇▇▇▇▇ and for a period of twelve (12) months following the cessation of Employee’s employment with ▇▇▇▇▇▇▇▇ for any reason, Employee will not directly or indirectly, on his own behalf or on behalf of any other person or entity, solicit or attempt to solicit any business in competition with the Business of ▇▇▇▇▇▇▇▇ from any of the customers or actively sought prospective customers of ▇▇▇▇▇▇▇▇ with whom Employee had Material Contact during the last twenty-four (24) months of Employee’s employment with ▇▇▇▇▇▇▇▇. This provision does not extend to the customers who became customers of ▇▇▇▇▇▇▇▇ at the time of and as a direct consequence of Employee’s commencement of employment with ▇▇▇▇▇▇▇▇.
1.17
Non-Recruitment of Employees. While employed by ▇▇▇▇▇▇▇▇, and for a period of eighteen (18) months following the cessation of Employee’s employment with ▇▇▇▇▇▇▇▇ for any reason, Employee will not directly or indirectly, on his own behalf or on behalf of any other person or entity, solicit or attempt to solicit any employee of ▇▇▇▇▇▇▇▇ for the purpose of encouraging, enticing, or causing said employee to terminate employment with ▇▇▇▇▇▇▇▇.
1.18
Non-Disparagement. Employee shall not, at any time during the term of employment and thereafter, make statements or representations, or otherwise communicate, directly or indirectly, in writing, orally, or otherwise, or take any action which may directly or indirectly disparage or be damaging to ▇▇▇▇▇▇▇▇ or its respective officers, directors, employees, advisors, businesses or reputations. Nothing herein shall prohibit or restrict Employee from communicating with, or responding to any inquiry from, cooperating with, or providing testimony before, the SEC, or any other federal or state regulatory authority.
1.19
Post-Termination Cooperation. Employee agrees that, following termination of Employee’s employment with ▇▇▇▇▇▇▇▇, Employee will cooperate with ▇▇▇▇▇▇▇▇ in connection with any dispute, claim or investigation made by, against or involving ▇▇▇▇▇▇▇▇ that relates to Employee’s period of employment and work performed by and other ▇▇▇▇▇▇▇▇ matters in which Employee was involved during the period of employment. ▇▇▇▇▇▇▇▇ agrees to reimburse Employee for any reasonable expenses incurred in providing the cooperation. ▇▇▇▇▇▇▇▇ further agrees that, if Employee is required to devote one (1) hour or more to fulfill the obligations set forth in this Section 5.19 at a time when Employee is no longer being compensated by ▇▇▇▇▇▇▇▇ in any way, it will compensate Employee at an hourly rate based on Employee’s Base Salary during the last pay period of Employee’s active employment by ▇▇▇▇▇▇▇▇.
1.20
Exit Obligations. Upon (a) voluntary or involuntary termination of Employee’s employment or (b) ▇▇▇▇▇▇▇▇’▇ request at any time during Employee’s employment, Employee shall (i) provide or return to ▇▇▇▇▇▇▇▇ any and all ▇▇▇▇▇▇▇▇ property and all ▇▇▇▇▇▇▇▇ documents and materials belonging to ▇▇▇▇▇▇▇▇ and stored in any fashion, including but not limited to those that constitute or contain any Confidential Information or Trade Secrets, that are in the possession or control of Employee, whether they were provided to Employee by ▇▇▇▇▇▇▇▇ or any of its business associates or created by
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Employee in connection with his/her employment by ▇▇▇▇▇▇▇▇; and (ii) delete or destroy all copies of any such documents and materials not returned to ▇▇▇▇▇▇▇▇ that remain in Employee’s possession or control, including those stored on any non-▇▇▇▇▇▇▇▇ devices, networks, storage locations and media in Employee’s possession or control.
1.21
Remedies. The parties agree that this Agreement is reasonable and necessary for the protection of the business and goodwill of ▇▇▇▇▇▇▇▇ and that any breach of this Agreement by Employee will cause ▇▇▇▇▇▇▇▇ substantial and irreparable harm entitling ▇▇▇▇▇▇▇▇ to injunctive relief and other equitable and legal remedies. Except as provided in the Arbitration of Disputes provisions of this Agreement, the prevailing party shall be entitled to recover its costs and attorney’s fees in any proceeding brought under this Agreement. The existence of any claim or cause of action by Employee against ▇▇▇▇▇▇▇▇, including any dispute relating to the termination of this Agreement, shall not constitute a defense to enforcement of said covenants by injunction.
Article 6 Arbitration of Disputes.
1.1
Scope, Governing Rules. Except for claims for injunctive relief, which may be filed in any court of competent jurisdiction pursuant to Section 7.3 of this Agreement, any controversy or claim arising out of or relating to Employee’s employment, or the termination thereof, or to this Agreement, or the breach thereof, specifically including the validity of this arbitration clause, shall be determined by final and binding arbitration administered by the American Arbitration Association (“AAA”) under its Employment Arbitration Rules and Mediation Procedures. There shall be one arbitrator agreed to by the parties within twenty (20) days of receipt by the respondent of a request for arbitration or in default thereof appointed by the AAA in accordance with applicable rules. ▇▇▇▇▇▇▇▇ shall be responsible for the cost of the arbitration, including the arbitrator’s fees and all administrative costs. Employee and ▇▇▇▇▇▇▇▇ will each be responsible for their own legal fees.
1.2
Authority of Arbitrator; Judicial Review. The arbitrators will have no authority to award punitive, consequential, liquidated or compensatory damages, and the award rendered by the arbitrator shall be final, non-reviewable, non-appealable and binding on the parties and may be entered and enforced in any court having jurisdiction.
1.3
Location of Arbitration. The seat or place of arbitration shall be Metropolitan Atlanta, Georgia.
1.4
Confidentiality. Except as may be required by law, neither a party nor the arbitrator may disclose the existence, content or results of any arbitration without the prior written consent of both parties, unless to protect or pursue a legal right.
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Article 7 Miscellaneous.
1.1
Construction of Agreement; Severability. The covenants contained herein shall be presumed to be enforceable, and any reading causing unenforceability shall yield to a construction permitting enforcement. In the event a court or arbitrator should determine not to enforce a covenant as written due to overbreadth, the parties specifically agree that the court or arbitrator may modify such covenant to narrow its scope to the extent necessary to render it enforceable and that said covenant shall be enforced to the extent reasonable, whether said revisions are in time, territory, or scope of prohibited activities. If any single covenant or clause shall be found unenforceable (after application of the immediately preceding sentence), it shall be severed and the remaining covenants and clauses enforced in accordance with the tenor of the Agreement. The waiver by ▇▇▇▇▇▇▇▇ of a breach of any provision of this Agreement by any employee shall not be construed as a waiver of rights with respect to any subsequent breach by Employee.
1.2
Code Section 409A. This Agreement is intended to comply with Code Section 409A, or to qualify for an exemption thereunder, and shall be construed and administered in a manner which does not result in additional tax or interest to Employee under Code Section 409A. Notwithstanding any other provision of this Agreement, payments provided under this Agreement may only be made upon an event and in a manner that complies with Code Section 409A or an applicable exemption. Any payments under this Agreement that may be excluded from Code Section 409A either as separation pay due to an involuntary separation from service or as a short-term deferral shall be excluded from Code Section 409A to the maximum extent possible. For purposes of Code Section 409A, each installment payment provided under this Agreement shall be treated as a separate payment. Any payments to be made under this Agreement upon a termination of employment shall only be made upon a “separation from service” as defined under Code Section 409A. If Employee is a “specified employee” (within the meaning of Code Section 409A(a)(2)(B) or any successor provision thereto), then with regard to any payment or provision of benefit that is subject to Code Section 409A as deferred compensation and is due upon or as a result of Employee’s “separation from service,” notwithstanding any contrary provision under this Agreement, such payment or benefit shall not be made or provided, to the extent making or providing such payment or benefit would result in additional taxes or interest under Code Section 409A, until the date which is the earlier of (A) expiration of the six (6)‐month period measured from such “separation from service,” and (B) the date of Employee’s death (the “Delay Period”). Upon the expiration of the Delay Period, all payments and benefits delayed pursuant to this section (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be paid or reimbursed to Employee in a lump‐sum, and any remaining payments and benefit due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them in this Agreement. To the extent that payments and benefits under this Agreement are deferred compensation subject to Code Section 409A and are contingent upon Employee’s taking any employment‐related action, including without limitation execution (and non‐revocation) of another agreement, such as a release agreement, and the period within which such action(s) may be taken by Employee would begin in one calendar year and expire in the
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following calendar year, then such amounts or benefits shall be paid in such following calendar year. With respect to any taxable reimbursements or in-kind benefits provided for under this Agreement or otherwise payable to Employee, ▇▇▇▇▇▇▇▇ (a) shall make all such reimbursements no later than Employee’s taxable year following the taxable year in which the expense was incurred, (b) the amount of expenses eligible for reimbursement, or in-kind benefits provided, during any calendar year shall not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other calendar year, and (c) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for other benefits. Notwithstanding the foregoing, ▇▇▇▇▇▇▇▇ makes no representations that the payments and benefits provided under this Agreement comply with Code Section 409A and in no event shall ▇▇▇▇▇▇▇▇ be liable for all or any portion of any taxes, penalties, interest or other expenses that may be incurred by Employee on account of non-compliance with Code Section 409A.
1.3
Enforceability; Governing Law and Jurisdiction. This Agreement, and all claims arising out of or related to this Agreement, will be governed by, enforced under and construed in accordance with the laws of the State of Georgia without regard to any conflicts or conflict of laws principles. Subject to the terms of Article 6, Employee hereby agrees that the state courts of Georgia and federal courts sitting in Georgia shall have exclusive jurisdiction over any dispute arising under this Agreement. Employee hereby consents to personal jurisdiction in Georgia. The failure of either party at any time to require performance by another party of any provision of this Agreement will not constitute a waiver of that party’s right to require future performance.
1.4
Entire Agreement. The provisions contained herein, and all provisions in documents attached hereto and/or incorporated herein by reference, constitute the entire agreement between the parties with respect to Employee’s employment and supersede any and all prior agreements, understandings and communications between the parties, oral or written, with respect to Employee’s employment.
1.5
Modification. No modification of this Agreement shall be valid unless in writing and signed by Employee and ▇▇▇▇▇▇▇▇’▇ Chief Executive Officer, General Counsel or Chief People Officer.
1.6
Effectiveness. The terms of this Agreement shall be effective as of February 6, 2021.
Article 8 Acknowledgement. By signing this Agreement, Employee acknowledges that (a) Employee is not guaranteed employment for any definite duration and either Employee or ▇▇▇▇▇▇▇▇ may terminate Employee’s employment relationship with ▇▇▇▇▇▇▇▇ at any time, for any reason, (b) Employee has carefully read and understands the provisions of this Agreement and Employee was given the opportunity to consult with an attorney of Employee’s choosing prior to executing this Agreement, and (c) except as set forth herein, no promises or inducements for this Agreement have been made, and Employee is entering into the Agreement without reliance upon any statement or representation by ▇▇▇▇▇▇▇▇ or its agents concerning any material fact.
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Executed, this 11th day of November, 2020.
EMPLOYEE ▇▇▇▇▇▇▇▇ & COMPANY
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its: Chief People Officer
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