Attached files
| file | filename |
|---|---|
| 8-K - RAND WORLDWIDE INC | v194406_8k.htm |
| EX-4.1 - RAND WORLDWIDE INC | v194406_ex4-1.htm |
| EX-2.1 - RAND WORLDWIDE INC | v194406_ex2-1.htm |
| EX-9.1 - RAND WORLDWIDE INC | v194406_ex9-1.htm |
| EX-10.2 - RAND WORLDWIDE INC | v194406_ex10-2.htm |
| EX-16.1 - RAND WORLDWIDE INC | v194406_ex16-1.htm |
| EX-99.1 - RAND WORLDWIDE INC | v194406_ex99-1.htm |
| EX-10.6 - RAND WORLDWIDE INC | v194406_ex10-6.htm |
| EX-10.4 - RAND WORLDWIDE INC | v194406_ex10-4.htm |
| EX-10.3 - RAND WORLDWIDE INC | v194406_ex10-3.htm |
| EX-10.1 - RAND WORLDWIDE INC | v194406_ex10-1.htm |
Exhibit
10.5
EMPLOYMENT
AGREEMENT
This
Employment Agreement (this “Agreement”) is entered into as of April 1, 2009 (the
“Effective
Date”) between Rand Technologies of Michigan, Inc., a Michigan
corporation with its principal executive offices at One Lahser Center, Suite
225, 26400 Lahser Road, Southfield, MI 48033 (the “Company”), and Marc
L. Dulude of 4 Rowan Field Road, Wayland, MA 01778 (“Executive”).
WHEREAS,
the Company desires to employ and retain Executive in a senior executive
capacity and to enter into an agreement embodying the terms of such
employment;
WHEREAS,
Executive desires to accept such employment and enter into such an agreement;
and
WHEREAS,
Rand Worldwide, Inc. (“RWW”), the parent of
the Company’s parent, plans to combine with Avatech Solutions, Inc. (“Avatech”) through a
reverse merger to be consummated as of August 17, 2010 (the “Transaction Date”),
resulting in Avatech as the top tier parent of RWW, the Company and their
various subsidiaries (the “Avatech
Entities”);
NOW,
THEREFORE, in consideration of the mutual covenants and promises contained
herein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged by the Company and Executive (the “Parties”), the
Parties hereby agree as follows:
1. Term of
Employment. The Company hereby agrees to employ Executive, and
Executive hereby accepts such employment with the Company, on an at-will basis
and upon the terms and subject to the conditions set forth in this Agreement,
for a period commencing on the Effective Date and continuing until the earlier
of (a) when and if terminated in accordance with the provisions of Section 5 and
(b) December 31, 2010 (the “Employment
Term”).
2. Title;
Duties. During the Employment Term until the Transaction Date,
Executive shall serve as President, Chief Executive Officer and Chairman of the
Board of Directors of RWW, reporting to that Board. During the
Employment Term and commencing on the Transaction Date, Executive shall serve as
Chief Executive Officer and member of the Board of Directors of Avatech,
reporting to that Board. References to “Board” herein are
either to the RWW Board or Avatech Board, as the case may be depending on the
relevant date, pursuant to the immediately preceding
sentence. Executive hereby agrees to undertake the duties and
responsibilities inherent in such position and such other duties and
responsibilities consistent with such position as the Board shall from time to
time reasonably assign to Executive, including but not limited to prior to the
Transaction Date those for or on behalf of RWW, the Company and/or any of either
of their subsidiaries or affiliates (each such entity, a “Rand Entity”), and
subsequent thereto those for or on behalf of any Avatech
Entity. Executive further agrees to devote Executive’s working time
and attention on a substantially full time basis to such duties during the
Employment Term; provided, however, that the Executive will remain as a venture
partner of Ampersand Ventures Management Trust or its affiliates or successors
(“Ampersand”);
remain as a General Partner of certain of the Ampersand investment funds; and
continue to represent Ampersand as a member of the board of directors of three
Ampersand portfolio companies other than RWW or Avatech, as the case may be, on
which Executive currently serves as a Director. Executive
acknowledges that the Board is concerned about the allocation of Executive’s
time to the performance of duties unrelated to Rand Entities or Avatech
Entities, as the case may be, during the Employment Term. In the
event Executive desires to serve on the board of any other entity, Executive
will discuss these alternatives with the Board in
advance. Executive’s primary work location will be in the greater
Boston, MA area, with travel as required by the position.
3. No Conflicting
Commitments. During the Employment Term, Executive shall
devote substantially all of Executive’s business time and efforts to the
performance of Executive’s duties hereunder, except as set forth in Section
2. Executive will not enter into any consulting or other agreement
which, in the opinion of the Board, conflicts with the interests of any Rand
Entity or Avatech Entity, as the case may be, or which might impair the
performance of Executive’s duties consistent with the terms herein.
4. Compensation and
Benefits.
4.1
Base
Salary and Bonus. During the Employment Term, the Company
shall pay Executive for Executive’s services hereunder a base salary at the
initial annual rate of $275,000, payable in regular installments in accordance
with the Company’s usual payment practices and subject to annual review and
adjustment by the Board. Such amount (as it may be adjusted from time
to time in accordance with this Section 4.1) shall be referred to herein as the
“Base
Salary.” Executive shall also be eligible to receive a
discretionary annual cash bonus based on a target amount (either as a percentage
or a fixed dollar amount) established and evaluated by the Board and based on
RWW or Avatech (as the case may be) and individual
performance. Executive’s bonus target for his first year of service
ending on October 31, 2009 is $125,000, which amount shall be paid, if approved
by the Board, on a pro rata basis for the year ended October 31, 2009 based on
actual months of employment by Rand. Executive shall also be eligible
to participate in any and all other bonus plans and packages that are made
available to the Company’s executives, on a basis consistent with Executive’s
position and then-current Base Salary and in accordance with the policies and
practices of the Company and the Board.
4.2. Executive
Benefits. During the Employment Term and subject to any
contributions therefor generally required of senior executives of the Company,
Executive shall be entitled to receive such employee benefits (including fringe
benefits, retirement plan participation, and life, health, dental, accident and
short and long term disability insurance) which the Company may, in its sole and
absolute discretion, make available generally to its senior executives or
personnel similarly situated; provided, however, that it is hereby acknowledged
and agreed that any such employee benefit plans may be altered, modified or
terminated by the Company at any time in its sole discretion without recourse by
Executive.
4.3. Paid Time
Off. Executive shall be entitled to four weeks (20 working
days) of paid time off (“PTO”) per annum
during the Employment Term, to be taken at such time or times as shall be
mutually convenient for the Company and Executive and in accordance with Company
policies and practices. Unused PTO shall be allocated pursuant to the
Company’s existing policies and practices, including but not limited to the
policy that no more than one week of unused PTO may be carried forward from one
year to the next.
4.4. Business Expenses and
Perquisites. Upon delivery of adequate documentation of
expenses incurred in accordance with the policies and practices of the Company,
Executive shall be entitled to reimbursement by the Company during the
Employment Term for reasonable travel, entertainment and other business expenses
incurred by Executive in the performance of Executive’s duties hereunder in
accordance with such policies as the Company may from time to time have in
effect.
4.5. Stock Option
Grant. As further compensation for Executive’s services
hereunder and as consideration for this Agreement, the Company shall grant to
Executive, on the Effective Date, a stock option (the “Execution Stock
Option”) to purchase 528,500 shares of RWW’s Common Stock, $0.01 par
value per share (the “Common Stock”),
pursuant to the RWW’s Amended and Restated 2007 Equity Incentive Plan (the
“Plan”) and in
accordance with the terms, and subject to a vesting schedule pursuant to which
twenty-five percent of the shares shall vest annually commencing on the first
anniversary of the Effective Date, and other conditions, set forth in the form
of Option Certificate (attached hereto as Exhibit A). Subject
to the discretion of the Board, the Company may grant to Executive from time to
time other stock options to purchase additional shares of Common Stock, also
pursuant to the Plan and such other terms and conditions set forth at the time
of such grant (the Execution Stock Option and such other stock options,
collectively, the “Stock Options”). The
exercise price of each of the Stock Options is the fair market value of the RWW
Common Stock as of the date of the grant of each such Option, as determined by
the Board.
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4.6. Taxes. All
of Executive’s compensation, including, but not limited to the Base Salary,
shall be subject to withholding for all federal, state, provincial and local
employment-related taxes, including income, social security, and similar
taxes.
5. Termination.
5.1. Without Cause by the
Company. The Company may terminate Executive’s employment
hereunder at any time without Cause (as defined in Section 5.4) to be effective
immediately upon delivery of notice thereof. The effective date of
Executive’s termination shall be referred to herein as the “Termination
Date.” If Executive’s employment is terminated by the Company
pursuant to this Section 5.1 on or before December 31, 2010, the Company shall
pay Executive all amounts owed to Executive for work performed prior to the
Termination Date (including any bonus granted but not yet paid), the cash value
of any accrued but unused PTO as of the Termination Date, plus the following
amounts and consideration, subject to standard payroll scheduling, deductions
and withholdings (the “Severance Package”),
provided Executive satisfies the conditions set forth at the end of this
paragraph (the “Severance
Conditions”): the Company costs associated with continuing the
benefits which Executive is entitled to receive pursuant to Section 4.2 of this
Agreement at the level in effect as of the Termination Date (subject to any
employee contribution requirements applicable to Executive on the Termination
Date) through the 12 month period following the Termination Date. The
payment to Executive of any benefits or consideration other than the foregoing
following the termination of Executive’s employment pursuant to this
Section 5.1 shall be determined by the Board in its sole discretion in
accordance with the policies and practices of the Company and applicable
laws. The parties agree that the Executive shall not be
eligible for the Severance Package unless and until 28 days (including a 7 day
revocation period) after Executive has first satisfied and continues to satisfy
the Severance Conditions, as follows: (a) full compliance with the Employee
Confidentiality, Assignment of Inventions, Non-Competition and Non-Solicitation
Agreement attached hereto as Exhibit B (the “NDA”); (b) compliance
with Executive’s obligations under this Agreement; and (c) execution of a waiver
and release of claims in favor of RWW and the Company prior to the Transaction
Date, and subsequent thereto in favor of Avatech and the Avatech Entities,
related to Executive’s employment with the Company substantially in the form set
forth in Exhibit
C attached hereto.
5.2. Deemed
Termination. For purposes of Section 5.1, a “termination
without Cause” shall be deemed to occur, and Executive shall be entitled to the
Severance Package, in the event any of the following occurs within 12 months
(but on or before December 31, 2010) following a Change of Control (as defined
in Section 5.3), Executive provides to the Company Notice of Termination (as
defined in Section 5.7) within thirty (30) days thereafter and the Company has
not taken action to remedy the event within thirty (30) days of receipt of such
notice: (a) the Company substantially reduces or diminishes
Executive’s duties and responsibilities without Cause; (b) the Company reduces
Executive’s Base Salary (other than in connection with a proportional reduction
of the base salaries of a majority of the executive employees of the Company);
or (c) the Company permanently relocates Executive without Executive’s written
consent to another primary office, unless Executive’s primary office following
such relocation is within fifty (50) miles of Executive’s primary office
immediately before the relocation or Executive’s permanent residence immediately
before the date of the relocation.
5.3 Accelerated
Vesting. In the event that the Company terminates or is deemed
to terminate Executive’s employment pursuant to Section 5.1 or Section 5.2
within twelve months (but on or before December 31, 2010) following a Change of
Control, in addition to the Severance Package, 100% of any Stock Options held as
of the Termination Date that are unvested shall become immediately vested and
exercisable as to all option shares without regard to the vesting schedule set
forth on the applicable Option Certificate. In the event that the
Company terminates or is deemed to terminate Executive’s employment pursuant to
Section 5.1 or Section 5.2, or pursuant to Section 5.5, not within one year (but
on or before December 31, 2010) following a Change of Control, in addition to
the Severance Package, 25% of any Stock Options granted pursuant to Section 4.5
and held as of the Termination Date shall become immediately vested and
exercisable as to all option shares without regard to the vesting schedule set
forth on the applicable Option Certificate. For purposes
of this Agreement, any one of the following events shall be considered a “Change of Control” of
the Company:
3
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(a)
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the
acquisition by any “person” (as such term is defined in Section 3(a)(9) of
the Securities Exchange Act of 1934) of any amount of the Company’s Common
Stock and other equity securities so that such person holds or controls
fifty percent (50%) or more of the Company’s Common Stock and other equity
securities;
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(b)
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the
merger or consolidation of the Company with or into any other entity in
which the holders of the Company’s outstanding shares of capital stock
immediately before such merger or consolidation do not, immediately after
such merger or consolidation, retain capital stock representing a majority
of the voting power of the surviving entity of such merger or
consolidation; or
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(c)
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a
sale of all or substantially all of the assets of the Company to a third
party.
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5.4. For Cause by the
Company. Notwithstanding any other provision of this
Agreement, Executive’s employment hereunder may be terminated by the Company at
any time for Cause. For purposes of this Agreement, “Cause” shall
mean: (i) Executive’s arbitrary, unreasonable, or willful failure to
follow the reasonable instructions of the Board or otherwise perform Executive’s
duties hereunder (other than as a result of a Disability (as defined in Section
5.5)) for five (5) days after a written demand for performance is delivered to
Executive on behalf of the Company which demand specifically identifies the
manner in which the Company alleges that Executive has not substantially
followed such instructions or otherwise performed Executive’s duties; (ii)
Executive’s gross negligence or willful misconduct in the performance of
Executive’s duties under this Agreement; (iii) other behavior that is materially
injurious to any Rand Entity or Avatech Entity, as the case may be (whether from
a monetary perspective or otherwise), including without limitation, substance
abuse; (iv) Executive’s willful commission of an act constituting fraud,
embezzlement, breach of any fiduciary duty owed to any Rand Entity or Avatech
Entity, as the case may be, or its stockholders or other material dishonesty
with respect to any Rand Entity or Avatech Entity, as the case may be; (v)
Executive’s conviction of, or the filing of a plea of nolo contendere or its
equivalent with respect to, a felony or any other crime involving dishonesty or
moral turpitude; or (vi) Executive’s material breach of Executive’s obligations
under this Agreement or under the NDA. If Executive’s employment is
terminated by the Company for Cause, the Company shall pay Executive all amounts
owed to Executive for work performed prior to the Termination Date, plus the
cash value of any accrued but unused PTO, as of the Termination
Date. The payment to Executive of any other benefits following the
termination of Executive’s employment pursuant to this Section 5.4 shall be
determined by the Board in its sole discretion in accordance with the policies
and practices of the Company and applicable laws.
5.5. Disability and
Death. Subject to the requirements of the Americans with
Disabilities Act and any other applicable laws, Executive’s employment hereunder
may be terminated by the Company at any time in the event of the Disability of
Executive. For purposes of this Agreement, “Disability” shall
mean the inability of Executive to perform substantially Executive’s duties
hereunder due to physical or mental disablement which continues for a period of
four (4) consecutive months during the Employment Term, as determined by an
independent qualified physician mutually acceptable to the Company and Executive
(or Executive’s personal representative). If Executive’s employment
is terminated by the Company for Disability or death, the Company shall pay
Executive (or Executive’s estate or legal representative) all amounts owed to
Executive for work performed prior to the Termination Date, the cash value of
any accrued but unused PTO, as of the Termination Date, plus the Severance
Package, except that the Severance Package shall be reduced by the amount of
Base Salary, salary continuation (short-term disability), and cash disability
benefits (long-term disability) paid to Executive for the corresponding period
under the Company's employee benefit plans as then in effect. The
payment to Executive of any benefits other than as described in the immediately
preceding sentence following the termination of Executive's employment pursuant
to this Section 5.5 shall be determined by the Board in its sole discretion in
accordance with the policies and practices of the Company and applicable
laws.
4
5.6. Termination by
Executive. Executive’s employment
hereunder may be terminated by Executive at any time upon not less than ninety
(90) days prior written notice from Executive to the
Company. Executive agrees that such notice period is reasonable and
necessary in light of the duties assumed by Executive pursuant to this Agreement
and fair in light of the consideration Executive is receiving pursuant to this
Agreement. If Executive terminates Executive’s employment with the
Company pursuant to this Section 5.6, the Company shall pay Executive only all
amounts owed to Executive for work performed prior to the Termination Date, plus
the cash value of any accrued but unused PTO as of the Termination
Date.
5.7. Notice of
Termination. Any termination of employment by the Company or
by Executive shall be communicated by written Notice of Termination to the other
Party in accordance with Section 9 hereof. For purposes of this
Agreement, a “Notice
of Termination” shall mean a notice which shall indicate the specific
termination provision in this Agreement relied upon and shall set forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of employment under the provision so indicated.
5.8. Survival. The
provisions of Section 5 shall survive the termination of this
Agreement.
6. Confidentiality
Agreement. In connection with this Agreement, Executive has
executed the NDA which is incorporated herein by reference and made a part of
this Agreement.
7. Return of
Property. Executive agrees that upon termination of
Executive’s employment hereunder, Executive shall return immediately to the
Company any proprietary materials, any materials containing Confidential
Information (as defined in the NDA) and any other Rand Entity or Avatech Entity,
as the case may be, property then in Executive’s possession or under Executive’s
control, including, without limitation all notes, drawings, lists, memoranda,
magnetic disks or tapes, or other recording media containing such Confidential
Information, whether alone or together with non-confidential information, all
documents, reports, files, memoranda, records, software, credit cards, door and
file keys, telephones, PDAs, computers, computer access codes, disks and
instructional manuals, or any other physical property that Executive received,
prepared, or helped prepare in connection with Executive’s employment under this
Agreement. Upon termination, Executive shall not retain any copies, duplicates,
reproductions, or excerpts of Confidential Information, nor shall Executive show
or give any of the above to any third party. Executive further
agrees that Executive shall not retain or use for Executive’s account at any
time any trade name, trademark, service mark, logo or other proprietary business
designation used or owned in connection with the business of any Rand Entity or
Avatech Entity, as the case may be.
8. Specific
Performance. Executive acknowledges and agrees that the
Company’s remedies at law for a breach or threatened breach of any of the
provisions of Section 6 or the NDA would be inadequate and, in recognition
of this fact, Executive agrees that, in the event of such a breach or threatened
breach, in addition to any remedies at law, the Company, without posting any
bond, shall be entitled to seek, equitable relief in the form of specific
performance, temporary restraining orders, temporary or permanent injunctions or
any other equitable remedy which may then be available.
9. Notices. Any
notice hereunder by either Party to the other shall be given in writing by
personal delivery, facsimile, overnight courier or certified mail, return
receipt requested, addressed, if to the Company, to the attention of the Board
with a copy to the General Counsel of Ampersand Ventures at 55 William Street,
Suite 240, Wellesley, MA 02481 or to such other address as the Company may
designate in writing at any time or from time to time to Executive, and if to
Executive, to Executive’s most recent address on file with the
Company. Notice shall be deemed given, if by personal delivery or by
overnight courier, on the date of such delivery or, if by facsimile, on the
business day following receipt of delivery confirmation or, if by certified
mail, on the date shown on the applicable return receipt.
5
10. Assignment. This
Agreement may not be assigned by either Party without the prior written consent
of the other Party, provided however that the Company may assign this Agreement
without Executive’s consent in the event of a Change of Control.
11. Entire
Agreement. The NDA and this Agreement constitute the entire
agreement between the Parties with respect to the subject matter hereof and
there have been no oral or other agreements of any kind whatsoever as a
condition precedent or inducement to the signing of this Agreement or otherwise
concerning this Agreement or the subject matter hereof. To the extent
there is any conflict between this Agreement and the NDA, this Agreement shall
prevail.
12. Expenses. The
Parties shall each pay their own respective expenses incident to the enforcement
or interpretation of, or dispute resolution with respect to, this Agreement,
including all fees and expenses of their counsel for all activities of such
counsel undertaken pursuant to this Agreement.
13. Governing
Law. In light
of the domicile of RWW and the issuance of the Stock Options for RWW Common
Stock, this Agreement (including any claim or controversy arising out of or
relating to this Agreement) shall be governed by and construed in accordance
with the laws of the State of Delaware, without regard to conflict of law
principles that would result in the application of any law other than the laws
of the State of Delaware.
14. Submission to Jurisdiction;
Waiver. Each party irrevocably agrees that any legal action or
proceeding arising out of or relating to this Agreement or for recognition and
enforcement of any judgment in respect hereof or thereof brought by another
party hereto or its successors or assigns may be brought and determined in the
courts of the Commonwealth of Massachusetts, in Boston, Massachusetts (or, if
appropriate, a federal court located within Boston, Massachusetts), and each
party hereby irrevocably submits with regard to any action or proceeding for
itself and in respect to its property, generally and unconditionally, to the
exclusive jurisdiction of the aforesaid courts. Each party hereto
hereby irrevocably waives, and agrees not to assert, by way of motion, as a
defense, counterclaim or otherwise, in any action or proceeding with respect to
this Agreement, (a) any claim that it is not personally subject to the
jurisdiction of the above-named courts for any reason other than the failure to
lawfully serve process, (b) that it or its property is exempt or immune
from jurisdiction of any such court or from any legal process commenced in such
courts (whether through service of notice, attachment prior to judgment,
attachment in aid of execution of judgment, execution of judgment or otherwise),
and (c) to the fullest extent permitted by applicable law, that
(i) the suit, action or proceeding in any such court is brought in an
inconvenient forum, (ii) the venue of such suit, action or proceeding is
improper and (iii) this Agreement, or the subject matter hereof or thereof,
may not be enforced in or by such courts.
15. Waiver Of Jury
Trial. EACH PARTY HEREBY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN
ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT,
TORT OR ANY OTHER THEORY). EACH PARTY HEREBY (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS,
THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
6
16. Waivers and Further
Agreements. Any waiver of any terms or conditions of this
Agreement shall not operate as a waiver of any other breach of such terms or
conditions or any other term or condition, nor shall any failure to enforce any
provision hereof operate as a waiver of such provision or of any other provision
hereof; provided, however, that no such written waiver, unless it, by its own
terms, explicitly provides to the contrary, shall be construed to effect a
continuing waiver of the provision being waived and no such waiver in any
instance shall constitute a waiver in any other instance or for any other
purpose or impair the right of the Party against whom such waiver is claimed in
all other instances or for all other purposes to require full compliance with
such provision. Each of the Parties agrees to execute all such
further instruments and documents and to take all such further action as the
other Party may reasonably require in order to effectuate the terms and purposes
of this Agreement.
17. Amendments. This
Agreement may not be amended, nor shall any waiver, change, modification,
consent or discharge be effected except by an instrument in writing executed by
both Parties.
18. Severability. If
any provision of this Agreement shall be held or deemed to be, or shall in fact
be, invalid, inoperative or unenforceable as applied to any particular case in
any jurisdiction or jurisdictions, or in all jurisdictions or in all cases,
because of the conflict of any provision with any constitution or statute or
rule of public policy or for any other reason, such circumstance shall not have
the effect of rendering the provision or provisions in question invalid,
inoperative or unenforceable in any other jurisdiction or in any other case or
circumstance or of rendering any other provision or provisions herein contained
invalid, inoperative or unenforceable to the extent that such other provisions
are not themselves actually in conflict with such constitution, statute or rule
of public policy, but this Agreement shall be reformed and construed in any such
jurisdiction or case as if such invalid, inoperative or unenforceable provision
had never been contained herein and such provision reformed so that it would be
valid, operative and enforceable to the maximum extent permitted in such
jurisdiction or in such case.
19. Counterparts. This
Agreement may be executed in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
20. Section
Headings. The headings contained in this Agreement are for
reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
21. Legal
Advice. In executing this Agreement, Executive acknowledges
that the Company has notified Executive of Executive’s right to review this
Agreement with counsel, and Executive has received, if Executive so chose, legal
advice concerning this Agreement.
22. 409A. This
Agreement is intended to be exempt from Section 409A of the Internal Revenue
Code, as amended (the "Code"), and any
regulations and Treasury guidance promulgated thereunder. If,
however, the Company determines in good faith that any provision of this
Agreement would cause this Agreement to be subject to Section 409A such that
Executive will incur an additional tax, penalty, or interest under Section 409A
of the Code, then the Company and the Executive shall use reasonable best
efforts to reform such provision, if possible, in a mutually agreeable fashion
to maintain to the maximum extent practicable the original intent of the
applicable provision without violating the provisions of Section 409A of the
Code or causing the imposition of such additional tax, penalty, or interest
under Section 409A of the Code.
IN WITNESS WHEREOF, the Parties have
executed or caused to be executed this Agreement as of the Effective
Date.
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MARC
L. DULUDE
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RAND
TECHNOLOGIES OF MICHIGAN, INC.
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||
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By:/s/ Marc L. Dulude
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By:
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/s/ Gregory W. Magoon
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| Name: | Gregory W. Magoon | ||
| Title: | Director | ||
7
Exhibit
A
OPTION
CERTIFICATE
Incentive
Stock Option
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_________
Shares
|
Rand
Worldwide Inc.
Amended
and Restated 2007 Equity Incentive Plan
Incentive
Stock Option Certificate
Rand
Worldwide, Inc., a Delaware corporation (the “Company”),
hereby grants to the person named below (the “Optionee”)
an option to purchase shares of common stock, at a FMV of $_____, of the Company
(the “Option”)
under and subject to the Company’s Amended and Restated 2007 Equity Incentive
Plan (the “Plan”)
exercisable on the following terms and conditions and those set forth on the
reverse side of this certificate:
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Name
of Optionee:
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_____________
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||
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Address:
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___________________
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||
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____________________
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|||
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Social
Security No.:
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____________________________
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||
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Number
of Shares:
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_______
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||
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Option
Price:
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$_______
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||
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Date
of Grant:
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April 1, 2009
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||
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Initial
Vesting Date:
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April 1, 2009
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||
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Exercisability
Schedule:
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to
vest and become exercisable as to 25% of the original grant amount upon
each of the next four (4) anniversaries of the Initial Vesting Date,
provided that the Optionee remains employed with the Company as of each
such vesting date Notwithstanding the foregoing, the vesting and
exercisability of this Option may accelerate in certain circumstances as
set forth in that certain Employment Agreement between the Optionee and
Rand Technologies of Michigan, Inc. with an effective date of April 1,
2009, the terms and conditions of which relating to the acceleration or
exercisability of stock options shall be deemed to be incorporated into
and a part of this Option Certificate.
|
||
|
Expiration
Date:
|
April 1,
2019
|
This
Option is intended to be treated as an Incentive Stock Option under section 422
of the Internal Revenue Code of 1986, as amended (the “Code”).
By
acceptance of this Option, the Optionee agrees to the terms and conditions set
forth in this Agreement and in the Plan.
|
OPTIONEE
|
RAND
WORLDWIDE, INC.
|
||
|
By:
|
|||
|
Title:
Director
|
|||
8
Incentive
Stock Option Terms and Conditions
1. Plan Incorporated by
Reference. This Option is issued pursuant to the terms of the
Plan and may be amended as provided in the Plan. Capitalized terms
used and not otherwise defined in this certificate have the meanings given to
them in the Plan. This certificate does not set forth all of the
terms and conditions of the Plan, which are incorporated herein by
reference. The Board of Directors or a Committee thereof (the “Administrator”)
administers the Plan and its determinations regarding the interpretation and
operation of the Plan are final and binding. Copies of the Plan may
be obtained upon request without charge from the Company.
2. Option
Price. The price to be paid for each share of Stock issued
upon exercise of the whole or any part of this Option is the Option Price set
forth on the face of this certificate.
3. Exercisability
Schedule. This Option may be exercised at any time and from
time to time for the number of shares and in accordance with the exercisability
schedule set forth on the face of this certificate, but only for the purchase of
whole shares. This Option may not be exercised as to any shares after
the Expiration Date.
4. Method of
Exercise. To exercise this Option, the Optionee shall deliver
(a) written notice of exercise in the form attached as Exhibit A hereto, to
the Company specifying the number of shares with respect to which the Option is
being exercised, (b) payment of the Option Price for such shares in cash, by
certified check, delivery of a promissory note in a form satisfactory to the
Administrator or in such other form, including shares of Common Stock of the
Company valued at their Fair Market Value on the date of delivery, as the
Administrator may approve, (c) a signed copy of the Adoption Agreement to
the Amended and Restated Voting Agreement dated as of October 31, 2007 by and
among the Company and the stockholders named therein, as amended from time to
time, and (d) a signed copy of the Adoption Agreement to the Right of First
Refusal and Co-Sale Agreement dated as of October 31, 2007 by and among the
Company and the stockholders named therein, as amended from time to
time. Promptly following the delivery of such notice of exercise,
payment and Instruments of Accession, the Company will deliver to the Optionee a
certificate representing the number of shares with respect to which the Option
is being exercised.
5. Rights as a Stockholder or
Employee. The Optionee shall not earn the right to exercise or
obtain the value of any portion of this Option except as provided in the
exercisability schedule and until such time as all the conditions set forth
herein and in the Plan that are required to be met in order to exercise this
Option have been fully satisfied. No portion of this Option shall be
deemed compensation for past services before it has become exercisable in
accordance with the exercisability schedule. The Optionee shall not
have any rights in respect of shares as to which the Option shall not have been
exercised and payment made as provided above. The Optionee shall not
have any rights to continued employment by the Company or its affiliates by
virtue of the grant of this Option.
6. Recapitalization, Mergers,
Etc. As provided in and subject to the Plan, in the event of a
merger, recapitalization or other corporate transaction involving the Company,
the Administrator may in its discretion take certain actions affecting the
Option and the Optionee’s rights hereunder, including without limitation
adjusting the number and kind of securities subject to the Option and the
exercise price hereunder, providing for another entity to assume the Option,
making provision for a cash payment, and terminating the Option.
7. Option Not
Transferable. This Option is not transferable by the Optionee
otherwise than by will or the laws of descent and distribution, and is
exercisable, during the Optionee’s lifetime, only by the Optionee.
8. Exercise of Option After
Termination of Employment. If the Optionee’s employment with
(a) the Company, (b) an Affiliate, or (c) a corporation (or parent or subsidiary
corporation of such corporation) issuing or assuming a stock option in a
transaction to which section 424(a) of the Code applies, is terminated for any
reason other than by disability (within the meaning of section 22(e)(3) of the
Code) or death, the Optionee may exercise only the rights that were available to
the Optionee at the time of such termination and only within three months from
the date of termination. If the Optionee’s employment is terminated
as a result of disability, such rights may be exercised only within twelve
months from the date of termination. Upon the death of the Optionee,
his or her designated beneficiary or legal representative shall have the right,
at any time within twelve months after the date of death, to exercise in whole
or in part any rights that were available to the Optionee at the time of
death. Notwithstanding the foregoing, no rights under this Option may
be exercised after the Expiration Date.
9. Compliance with Securities
Laws. It shall be a condition to the Optionee’s right to
purchase shares of Stock hereunder that the Company may, in its discretion,
require (a) that the shares of Stock reserved for issue upon the exercise
of this Option shall have been duly listed, upon official notice of issuance,
upon any national securities exchange or automated quotation system on which the
Company’s Stock may then be listed or quoted, (b) that either (i) a registration
statement under the Securities Act of 1933 with respect to the shares shall be
in effect, or (ii) in the opinion of counsel for the Company, the proposed
purchase shall be exempt from registration under that Act and the Optionee shall
have made such undertakings and agreements with the Company as the Company may
reasonably require, and (c) that such other steps, if any, as counsel for the
Company shall consider necessary to comply with any law applicable to the issue
of such shares by the Company shall have been taken by the Company or the
Optionee, or both. The certificates representing the shares purchased
under this Option may contain such legends as counsel for the Company shall
consider necessary to comply with any applicable law.
10. Optionee’s Tax
Treatment. This Option is intended to be treated as an
incentive stock option under section 422 of the Code. However,
incentive stock option treatment requires compliance with a variety of factors,
and the Company can give no assurance that the Option will, in fact, be treated
as an incentive stock option.
11. Payment of
Taxes. The Optionee shall pay to the Company, or make
provision satisfactory to the Company or affiliates, as applicable, for payment
of, any taxes or other amounts required by law to be withheld with respect to
the grant, exercise or disposition of this Option. The Administrator
may, in its discretion, require any other Federal, state or
provincial taxes imposed on the sale of the shares to be paid by the
Optionee. In the Administrator’s discretion, such tax obligations may
be paid in whole or in part in shares of Stock, including shares retained from
the exercise of this Option, valued at their Fair Market Value on the date of
delivery. The Company and its affiliates may, to the extent permitted
by law, deduct any such tax obligations from any payment of any kind otherwise
due to the Optionee.
12. Notice of Sale of Shares
Required. The Optionee agrees to notify the Company in writing
within 30 days of the disposition of any shares purchased upon exercise of this
Option if such disposition occurs within two years of the date of the grant of
this Option or within one year after such purchase.
Approved
October 31, 2007
9
Exhibit
B
EMPLOYEE
CONFIDENTIALITY, ASSIGNMENT OF INVENTIONS, NON-
COMPETITION
AND NON-SOLICITATION AGREEMENT
In
consideration of my employment by Rand Technologies of Michigan, Inc., a
Michigan corporation, or any of its predecessors, successors, subsidiaries or
affiliates, including without limitation Rand Worldwide Inc. (“RWW”), Avatech
Solutions, Inc. (“Avatech”), RWW’s and Avatech’s subsidiaries and affiliates
(collectively, the “Company”), and for
other valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, I agree as follows:
Confidentiality
I
understand that the Company continually obtains and develops valuable
proprietary and confidential information concerning its business, business
relationships and financial affairs (the “Confidential
Information”) which may become known to me in connection with my
employment.
I
acknowledge that all Confidential Information, whether or not in writing and
whether or not labeled or identified as confidential or proprietary, is and
shall remain the exclusive property of the Company or the third party providing
such Confidential Information to myself or the Company. By way of
illustration, but not limitation, Confidential Information may include
Inventions (as defined below), trade secrets, technical information, know-how,
research and development activities of the Company, product, service and
marketing plans, business plans, budgets and unpublished financial statements,
licenses, prices and costs, customer and supplier information and information
disclosed to the Company or to me by third parties of a proprietary or
confidential nature or under an obligation of
confidence. Confidential Information is contained in various media,
including without limitation, patent applications, computer programs in object
and/or source code, flow charts and other program documentation, manuals, plans,
drawings, designs, technical specifications, laboratory notebooks, supplier and
customer lists, internal financial data and other documents and records of the
Company.
I agree
that I shall not, during the term of my employment and thereafter, publish,
disclose or otherwise make available to any third party, other than employees of
the Company, any Confidential Information except as expressly authorized in
writing by the Company. I agree that I shall use such Confidential Information
only in the performance of my duties for the Company and in accordance with any
Company policies with respect to the protection of Confidential
Information.
I agree
to exercise all reasonable precautions to protect the integrity and
confidentiality of Confidential Information in my possession and not to remove
any materials containing Confidential Information from the Company’s premises
except to the extent necessary to my employment. Upon the termination
of my employment, or at any time upon the Company’s request, I shall return
immediately to the Company any and all materials containing any Confidential
Information then in my possession or under my control.
10
Confidential
Information shall not include information which (a) is or becomes generally
known within the Company’s industry through no fault of mine; (b) was known to
me at the time it was disclosed as evidenced by my written records at the time
of disclosure; (c) is lawfully and in good faith made available to me by a third
party who did not derive it from the Company and who imposes no obligation of
confidence on me; or (d) is required to be disclosed by a governmental authority
or by order of a court of competent jurisdiction, provided that such disclosure
is subject to all applicable governmental or judicial protection available for
like material and reasonable advance notice is given to the
Company.
Assignment of
Inventions
I agree
promptly to disclose to the Company any and all ideas, concepts, discoveries,
inventions, developments, original works of authorship, software programs,
software and systems documentation, trade secrets, technical data, know-how that
are conceived, devised, invented, developed or reduced to practice or tangible
medium by me, under my direction or jointly with others during any period that I
am employed or engaged by the Company, whether or not during normal working
hours or on the premises of the Company, which relate, directly or indirectly to
the Business of the Company and arise out of my employment with the Company
(hereinafter “Inventions”). "Business" shall mean the business
(including activities planned and budgeted but not yet implemented) of the
Company at any time during my employment; the Business of the Company shall
initially be the sale of design software and related services, as such business
may evolve from time to time following the date hereof.
I hereby
irrevocably assign to the Company all of my right, title and interest to the
Inventions and any and all related patent rights, copyrights and applications
and registrations therefor. During and after my employment, I shall
cooperate with the Company, at the Company’s expense, in obtaining proprietary
protection for the Inventions and I shall execute all documents which the
Company shall reasonably request in order to perfect the Company’s rights in the
Inventions. I hereby appoint the Company my attorney to execute and
deliver any such documents on my behalf in the event I should fail or refuse to
do so within a reasonable period following the Company’s request. I
understand that, to the extent this Agreement shall be construed in accordance
with the laws of any state which limits the assignability to the Company of
certain employee inventions, this Agreement shall be interpreted not to apply to
any such invention which a court rules or the Company agrees is subject to such
state limitation.
I
acknowledge that all original works of authorship made by me within the scope of
my employment which are protectible by copyright are intended to be “works made
for hire”, as that term is defined in Section 101 of the United States Copyright
Act of 1976 (the “Act”), and shall be
the property of the Company and the Company shall be the sole author within the
meaning of the Act. If the copyright to any such copyrightable work
shall not be the property of the Company by operation of law, I will, without
further consideration, irrevocably assign to the Company all of my right, title
and interest in such copyrightable work and will cooperate with the Company and
its designees, at the Company’s expense, to secure, maintain and defend for the
Company’s benefit copyrights and any extensions and renewals thereof on any and
all such work. I hereby waive all claims to moral rights in any such
copyrightable works.
I further
represent that the attached Schedule A contains a
complete list of all inventions made, conceived or first reduced to practice by
me, under my direction or jointly with others prior to my employment with the
Company (“Prior
Inventions”) and which are not assigned to the Company hereunder. If
there is no such Schedule A attached
hereto or no inventions listed therein, I represent that there are no such Prior
Inventions.
11
I
acknowledge and agree that the assignments above and other rights granted to the
Company herein are irrevocable and that my sole remedy in the event of any claim
for breach of this or any other Agreement by the Company shall be an action for
money damages. In no event shall I have any right to revoke or
rescind the assignments set forth above and I hereby covenant and agree not to
challenge, directly or indirectly, the Company’s sole and exclusive ownership of
the Inventions and copyrightable works assigned to Company
hereunder.
Non-Competition
I hereby
agree to undertake certain non-competition obligations in consideration for my
employment by the Company going forward. I agree that while I am
employed by the Company and for a period ending 12 months after any termination
or cessation of such employment (the “Non-Interference
Period”), I shall not, without the Company’s prior written consent,
directly or indirectly, as a principal, employee, consultant, partner, or
stockholder of, or in any other capacity with, any business enterprise (other
than in my capacity as a holder of not more than 1% of the combined voting power
of the outstanding stock of a publicly held company or as a holder of not more
than 5% of the combined voting power of the outstanding stock or equity
interests of a privately held entity and its affiliates) anywhere in the world
where the Company conducts its Business (a) engage in any activity that
competes, directly or indirectly with the Business of the Company, (b) conduct a
business of the type or character engaged in or, to my knowledge, planned and
budgeted to be engaged in by the Company at the time of termination or cessation
of my employment or (c) develop products or services competitive with those
offered or, to my knowledge, planned and budgeted to be offered by the
Company.
General
non-solicitation
I agree
that while I am employed by the Company and during the Non-Interference Period,
I shall not solicit, divert or take away, or attempt to divert or take away, the
business or patronage of any of the clients, customers or accounts, of the
Company which were contacted, solicited or served by me or others at the Company
while I was employed by the Company.
Non-solicitation of
Employees
I agree
that while I am employed by the Company and during the Non-Interference Period,
I shall not directly or indirectly recruit, solicit or hire any employee of the
Company, or induce or attempt to induce any employee of the Company to
discontinue his or her employment relationship with the
Company.
12
Notice of Subsequent
Employment
I shall,
during the Non-Interference Period, notify the Company of any change of address,
and of any subsequent employment (stating the name and address of the employer
and the nature of the position) or any other business activity. I
hereby authorize the Company to disclose to any subsequent employer the terms of
this Agreement and any other information related to my employment by the Company
as may be permitted by applicable law.
Other
Agreements
I hereby
represent to the Company that, except as identified on Schedule B, I am not
bound by any agreement or any other previous or existing business relationship
which conflicts with or prevents the full performance of my duties and
obligations to the Company (including my duties and obligations under this or
any other agreement with the Company) during my employment.
I
understand that the Company is neither requesting, nor does it desire to
acquire, from me any trade secrets, know-how or confidential business
information I may have acquired from others. Therefore, I covenant,
represent and warrant that during my employment with the Company, I will not use
or disclose any proprietary information or trade secrets of any former employer,
or any other person or entity with whom I have an agreement or to whom I owe a
duty to keep such information in confidence. Those persons or
entities with whom I have such agreements or to whom I owe such a duty are
identified on Schedule
B. Additionally, to the extent that I am bound by any
agreements with any of my former employers not to solicit customers or employees
of any former employers for a period of time, I agree, represent and warrant
that I will honor such agreements.
General
This
Agreement may not be assigned by either party except that the Company may assign
this Agreement in connection with the merger, consolidation or sale of all or
substantially all of its business or assets. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective successors and other legal representatives and, to the extent that
any assignment hereof is permitted hereunder, their assignees.
This
Agreement supersedes all prior agreements, written or oral, with respect to the
subject matter of this Agreement. This Agreement may be changed only
by a written instrument signed by both parties hereto.
In the
event that any one or more of the provisions contained herein shall, for any
reason, be held to be invalid, illegal, or unenforceable in any respect, such
invalidity, illegality, or unenforceability shall not affect any other
provisions of this Agreement, and all other provisions shall remain in full
force and effect. If any of the provisions of this Agreement is held
to be excessively broad, it shall be reformed and construed by limiting and
reducing it so as to be enforceable to the maximum extent permitted by
law. I agree that should I violate any obligation imposed on me in
this Agreement, I shall continue to be bound by the obligation until a period
equal to the term of such obligation has expired without violation of such
obligation.
13
No delay
or omission by the Company in exercising any right under this Agreement will
operate as a waiver of that or any other right. A waiver or consent
given by the Company on any occasion if effective only in that instance and will
not be construed as a bar to or waiver of any right on any other
occasion.
I
acknowledge that the restrictions contained in this Agreement are necessary for
the protection of the business and goodwill of the Company and are reasonable
for such purpose. I understand further that my agreement to the
restrictions outlined in this Agreement was a key inducement to my employment by
the Company. I agree that any breach of this Agreement by me will
cause irreparable damage to the Company and that in the event of such breach,
the Company shall be entitled, in addition to monetary damages and to any other
remedies available to the Company under this Agreement and at law, to seek, and
I will not oppose or object to the granting of, equitable relief, including
injunctive relief, and to payment by myself of all costs incurred by the Company
in enforcing the provisions of this Agreement, including reasonable attorneys’
fees. I agree that should I violate any obligation imposed on me in
this Agreement, I shall continue to be bound by the obligation until a period
equal to the term of such obligation has expired without violation of such
obligation.
This
Agreement shall be construed as a sealed instrument and, in light of the
domicile of RWW and the issuance of the Stock Options for RWW Common Stock,
shall in all events and for all purposes be governed by, and construed in
accordance with, the laws of the State of Delaware without regard to any choice
of law principle that would dictate the application of the laws of another
jurisdiction. Any action, suit or other legal proceeding which I may
commence to resolve arising under or relating to any provision of this Agreement
shall be commenced only in a court of the Commonwealth of Massachusetts, in
Boston, Massachusetts (or, if appropriate, a federal court located within
Boston, Massachusetts), and I hereby consent to the jurisdiction and venue of
such court with respect to any action, suit or proceeding commenced in such
court by the Company.
I
HAVE READ ALL OF THE PROVISIONS OF THIS AGREEMENT AND I UNDERSTAND, AND AGREE
TO, EACH OF SUCH PROVISIONS.
|
Date
|
(Signature)
|
|||
| Print Name: |
|
Acknowledged
and
agreed
to:
|
RAND
TECHNOLOGIES OF MICHIGAN, INC.
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
14
SCHEDULE
A
PRIOR
INVENTIONS
The
following is a complete list of all Prior Inventions
______ Additional
Sheets Attached
If I am
claiming any Prior Inventions above, I agree that, if in the course of my
employment with the Company, I incorporate into a Company product, process or
machine a Prior Invention owned by me or in which I have an interest, the
Company shall automatically be granted and shall have a non-exclusive,
royalty-free, irrevocable, transferable, perpetual world-wide license to make,
have made, modify, use and sell such Prior Invention as part of, or in
connection with, such product, process or machine.
15
SCHEDULE
B
PRIOR
COMMITMENTS
16
Exhibit
C
Form of Release
|
[DATE]
|
Boards of
Directors
Rand
Technologies of Michigan, Inc.
Rand
Worldwide, Inc.
Avatech
Solutions, Inc. (collectively, the “Company”)
Except as
set forth in the Employment Agreement by and between myself and the Company
dated as of April 1, 2009 (the “Employment Agreement”), I am entitled to no
severance or termination payment or benefits. I have been notified of
my right to review this release with counsel, and I have received, if I so
chose, legal advice concerning this release.
General Release. In
consideration of the benefits and consideration set forth in the Employment
Agreement by and between myself (“Employee”) and the Company, the sufficiency of
which is acknowledged by Employee, Employee for herself, and for executors,
heirs, administrators, assigns, and anyone else claiming by, through or under
Employee, irrevocably and unconditionally, releases, remises and forever
discharges the Company, its subsidiaries, and its and their present and former
agents, servants, employees, officers, directors, stockholders, successors and
assigns (collectively, the “Releasees”) from, and with respect to, any and all
debts, demands, actions, complaints, charges, causes of action, suits,
covenants, contracts, wages, bonuses, damages and any and all claims, demands,
liabilities and expenses (including attorneys’ fees and costs) whatsoever of any
name or nature both in law and in equity (collectively “Claims”) which Employee
now has or ever had and thereafter, have or assert against the Company or any of
the Releasees, for or by reason of any matter, cause or thing whatsoever which
has happened, developed or occurred on or before the date hereof, except for
claims for severance under the Employment Agreement, including, without in any
way limiting the generality of the foregoing any Claim that Employee might
otherwise have: (i) for tort or contract, or relating to salary, wages, bonuses,
severance, commissions, stock, and stock options, the breach of any oral or
written contract or promise, misrepresentation, defamation, and interference
with prospective economic advantage, interference with contract, intentional and
negligent infliction of emotional distress, negligence, breach of the covenant
of good faith and fair dealing, medical, disability or other leave; (ii) arising
out of, based on, or connected with Employee’s employment, including
terms and conditions of employment, by the Company and the termination of that
employment, including but not limited to claims arising under Section 806 of the
Sarbanes-Oxley Act of 2002, and any other claims alleging retaliation of any
nature; (iii) under M.G.L. c.93A or in any way related to stock options vesting
or exercise, for alleged securities violations; or (iv) for unlawful employment
discrimination of any kind, including discrimination due to age, sex, disability
or handicap, including failure to offer reasonable accommodations, race, color,
religion, pregnancy, sexual orientation, national origin, or sexual or other
unlawful harassment arising under or based on the Ontario Human Rights Code,
Title VII of the Civil Rights Act of 1964, as amended, the Age Discrimination in
Employment Act of 1967 (“ADEA”), as amended, the Americans with Disabilities Act
(“ADA”), the Equal Pay Act of 1963, the Fair Labor Standards Act of 1938, the
Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”), the Family and
Medical Leave Act, the Massachusetts Fair Employment Practices Act, the
Massachusetts Civil Rights Act, the Massachusetts Equal Rights Law, the
Massachusetts or the United States Constitution, including any right of privacy
thereunder, and any other state, provincial or federal equal employment
opportunity or anti-discrimination law, policy, order, regulation or guidelines
affecting or relating to Claims or rights of employees. Employee
further agrees not to institute any Claim to challenge the validity of this
Letter or the circumstances surrounding its execution. This is a
general release, including a waiver for any Claims of age discrimination under
federal and state statutes, such as the ADEA, the Ontario Human Rights Code or
any other applicable anti-discrimination statute.
17
Covenant Not to
Sue. Employee represents and warrants that Employee has not filed any Claims
against the Company or any of the Releasees with any local, state or federal
court or administrative agency. Employee agrees and covenants not to
sue or bring any Claims against the Company or any of the Releasees with respect
to any matters arising out of or relating to Employee’s employment with the
Company or separation from the Company, or any Claims that as a matter of law
cannot be released, such as under workers’ compensation, for unemployment
benefits or any Claims related to the Company’s future involvement with, if any,
Employee’s retirement plans with the Company. Except as set forth
herein, in the event that Employee on Employee’s behalf institutes any
such action, that Claim shall be dismissed upon presentation of this Letter and
Employee shall
reimburse the Company for all legal fees and expenses incurred in defending such
Claim and obtaining its dismissal.
Exclusion. Nothing
in this Letter shall preclude Employee from filing a charge or complaint,
including a challenge to the validity of this Letter, with the Equal Employment
Opportunity Commission, the Massachusetts Commission Against Discrimination or
any other state or provincial anti-discrimination agency or from participating
or cooperating in any investigation or proceeding conducted by any of such
agencies. In the event that a charge or complaint is filed with any
administrative agency by Employee or in the event of an authorized
investigation, charge or lawsuit filed by any administrative agency, Employee
expressly waives and shall not accept any monetary award or damages, costs or
attorneys’ fees of any sort therefrom against the Company or any of the
Releasees.
Waiting
Period. Employee understands that Employee has a period of up
to 21 days to consider this Release and that Employee has been advised to speak
with an attorney. Employee agrees this Release is written in a manner
that Employee understands what Employee is releasing. Employee
understands that this release must be signed no later than ______________ in
order for Employee to be entitled to the benefits given under
it. Employee agrees that upon signing the release Employee becomes
bound by its terms unless Employee revokes the release. Employee
understands Employee may revoke the release within seven days after signing it;
and that unless Employee so revokes it, the release will be fully effective
seven days after Employee has signed it. Once the release is fully
effective, the severance pay will be forwarded by U.S. mail according to the
schedule in the terms of the Employment Agreement.
Yours
truly,
__________
18