EMPLOYMENT AGREEMENT (Agreement) dated as of March 7, 2013 between The ExOne Company, a Delaware corporation (the
Company), and JoEllen Lyons Dillon (the Executive).
WHEREAS, the Company desires to employ the
Executive as the Chief Legal Officer and Corporate Secretary of the Company;
WHEREAS, the Executive is willing to commit
herself to serve the Company, on the terms and conditions herein provided.
In order to effect the foregoing, the Company
and the Executive wish to enter into this Agreement on the terms and conditions set forth below. Accordingly, in consideration of the premises and the respective covenants and agreements of the parties herein contained, and intending to be legally
bound hereby, the parties hereto agree as follows:
SECTION 1.01. Definitions. For purposes of this Agreement, the following terms have the meanings set forth below:
Affiliate means (i) any entity that, directly or indirectly, is controlled by the Company,
(ii) any entity in which the Company has a significant equity interest, and (iii) an affiliate of the Company as defined in Rule 12b-2 promulgated under Section 12 of the Securities Exchange Act of 1934, as amended.
Base Salary has the meaning set forth in Section 4.01.
Cause means (a) gross negligence in the performance of the Executives duties which results in
material financial harm to the Company; (b) the Executives conviction of, or plea of guilty or nolo contendere to, (i) any felony, or (ii) any misdemeanor involving fraud, embezzlement or theft; (c) the
Executives intentional failure or refusal to perform her duties and responsibilities with the Company, without the same being corrected within fifteen (15) days after being given written notice thereof; (d) the material breach by the
Executive of any of the covenants contained in Articles 6 or 7 of this Agreement; (e) the Executives willful violation of any material provision of the Companys code of conduct for executives and management employees; or
(f) the Executives willful engagement in conduct that is demonstrably and materially injurious to the Company, monetarily or otherwise. The Executive may be terminated for Cause hereunder only by majority vote of all members of the Board
(other than the Executive if applicable).
COBRA has the meaning set forth in Section 5.05.
COBRA Continuation Period has the meaning set forth in Section 5.05.
Code means the Internal Revenue Code of 1986, as amended.
Date of Termination has the meaning set forth in Section 5.07.
Employment Period has the meaning set forth in Section 2.01.
Good Reason means, without the Executives written consent, (a) the material diminution of the
Executives duties or responsibilities, including the assignment of any duties and responsibilities materially inconsistent with her position; (b) a material reduction in the Executives Base Salary (excluding any reduction that is
generally applicable to all or substantially all executive officers of the Company); (c) the Company breaches this Agreement by failing to obtain a written assumption of this Agreement by any person acquiring all or substantially all of the
assets of the Company prior to such acquisition; or (d) the relocation of the Executives principal work location to a location more
than fifty (50) miles from Irwin, Pennsylvania; Notwithstanding the forgoing, in order for the Executive to terminate for Good Reason: (a) the Executive must give written notice to the
Company of her intention to terminate her employment for Good Reason within sixty (60) days after the event or omission which constitutes Good Reason, and any failure to give such written notice within such period will result in a waiver by the
Executive of her right to terminate for Good Reason as a result of such act or omission, (b) the event must remain uncorrected by the Company for thirty (30) days following such notice (the Notice Period), and (C) such
termination must occur within sixty (60) days after the expiration of the Notice Period.
Termination has the meaning set forth in Section 5.06.
Person shall have the
meaning ascribed to such term in Section 3(a)(9) of the Securities Exchange Act of 1934, as amended and used in Sections 13(d) and 14(d) thereof, including a group as defined in Section 13(d).
Permanent Disability means the Executive becomes permanently disabled within the meaning of the long term
disability plan of the Company applicable to the Executive under circumstances whereby the Executive is entitled to receive immediate benefits thereunder.
Reimbursable Expenses has the meaning set forth in Section 4.05. In addition, any Reimbursable Expense shall be made only in accordance with the following conditions:
(a) The reimbursement of any eligible expense shall be made on or before the last day of the Executives taxable year
following the taxable year in which the expense was incurred; and
(b) The right to reimbursement shall not be subject to
liquidation or exchange for another benefit.
Release has the meaning set forth in
Restricted Territory means the counties, towns, cities, states or other
political subdivisions of any country in which the Company or its Affiliates operates or does business.
Start Date has the meaning set forth in Section 2.01.
SECTION 2.01. Employment. The Company shall employ the Executive, and the Executive shall accept employment with the Company, upon
the terms and conditions set forth in this Agreement for the period beginning March 11, 2013 (the date of the beginning of such period to be referred to herein as the Start Date) and ending as provided in Section 5.01
(the Employment Period).
POSITION AND DUTIES
SECTION 3.01. Position and Duties. During the
Employment Period, the Executive shall continue to serve as Chief Legal Officer and Corporate Secretary of the Company. In such capacity, the Executive shall have such responsibilities, powers and duties as may from time to time be prescribed by the
Board; provided that such responsibilities, powers and duties are substantially consistent with those customarily assigned to individuals serving in such positions at comparable companies or as may be reasonably required by the conduct of the
business of the Company. During the Employment Period, the Executive shall devote substantially all of her working time and efforts to the business and affairs of the Company and its subsidiaries, but is permitted to fulfill such obligations on a
flexible-time basis. The Executive shall not directly or indirectly render any services of a business, commercial or professional nature to any other Person or organization, whether for compensation or otherwise, without the prior written consent of
the Company; provided, however, that nothing in this Agreement shall preclude the Executive from managing her personal investments or serving as a director of a not-for-profit organization, so long as such activities do not interfere with the
Executives performance of her duties hereunder.
BASE SALARY AND BENEFITS
SECTION 4.01. Base Salary. As of the Start Date,
the Executives base salary (based on a four-day work week) will be $150,000 per annum (the Base Salary). The Base Salary will be payable in accordance with the normal payroll practices of the Company. Annually, during
the Employment Period, the Board or the Chairman and CEO shall review with the Executive her job performance and compensation, and if deemed appropriate by the Board, in its discretion, the Executives Base Salary may be adjusted; such adjusted
Base Salary shall become the new Base Salary.
SECTION 4.02. Bonuses. During the Employment Period, in addition to the
Base Salary, the Executive shall be eligible to participate in an annual bonus plan on such terms established from time to time by the Board or the Compensation Committee of the Board, as applicable. In making its determination, the Board will
consider, among other factors, Executives work in excess of a four-day week.
SECTION 4.03. Long Term Incentive
Plans. During the Employment Period, the Executive shall be eligible to participate in any long term incentive compensation plan maintained by the Company on the terms established from time to time by the Board or the Compensation Committee of
the Board, as applicable.
SECTION 4.04. Benefits. During the Employment Term, the Executive shall be entitled to
participate in all employee benefit and fringe benefit plans and arrangements made available by the Company to its executives and key management employees upon the terms and subject to the conditions set forth in the applicable plan or arrangement.
The Executive will be entitled to a maximum of four (4) weeks of paid vacation annually during the Employment Period.
SECTION 4.05. Expenses. The Company shall reimburse the Executive for all reasonable expenses incurred by her in the course of
performing her duties under this Agreement which are consistent with the Companys policies in effect from time to time with respect to travel, entertainment and other business expenses (Reimbursable Expenses), subject to the
Companys requirements with respect to reporting and documentation of expenses.
TERM AND TERMINATION
SECTION 5.01. Term. The Employment Period will terminate on the second anniversary of the Start Date unless further extended or sooner terminated as hereinafter provided. Commencing on the second
anniversary of the Start Date and on each anniversary thereafter, the Employment Period will automatically be extended for one (1) additional year, unless not later than ninety (90) days immediately preceding such anniversary, the Company
or the Executive shall have given written notice to the other that it does not wish to extend the Agreement.
Termination for Good Reason or Without Cause. If the Employment Period shall be terminated prior to the expiration of the second anniversary of the Start Date (or the end of the Employment Period as extended pursuant to Section 5.01)
(a) by the Executive for Good Reason, or (b) by the Company without Cause, provided the Executive has delivered a signed Release of claims reasonably satisfactory to the Company (the Release) to the Company pursuant to
the notice provision of Section 10.07 within thirty (30) days of the Date of Termination and not revoked the Release within the seven-day revocation period provided for in the Release, the Executive shall be paid solely (i) Base
Salary through the Date of Termination and any annual bonus awarded in accordance with the Companys bonus program but not yet paid; (ii) an amount equal to one (1) times the Base Salary and one (1) times the target annual bonus
amount, provided that the Executive shall be entitled to any unpaid amounts only if the Executive has not breached and does not breach the provisions of Sections 6.01 and 7.01 hereof; (iii) a pro-rata portion of the Executives target
bonus for the year of termination, calculated by reference to the number of days during the bonus year during which she was employed by the Company; (iv) payment for all accrued, but unused, vacation time through the Date of Termination;
(v) payment for reasonable outplacement assistance services actually incurred by the Executive associated with seeking another employment position within 12 months of the Date of Termination; and (vi) promptly following any such
termination, the Executive shall be reimbursed all Reimbursable Expenses incurred by the Executive prior to such termination. The amounts described
in clauses (i), (ii), and (iv) above will be paid in a single lump sum within ten (10) days after the Date of Termination; provided, however, that no amount shall be paid until
expiration of the 7-day statutory revocation period with respect to the release referred to in this Section 5.02 above. The amount described in clause (iii) shall be paid in accordance with the terms of the applicable plan subject to the
attainment of the performance goals applicable to such bonus award. The amount described in clause (v) shall be paid no later than the end of the calendar year following the year in which such expense is incurred by the Executive. The terms of
all Company restricted stock, restricted stock units, stock options and other equity based awards will be as set forth in the applicable award agreements and medical benefits shall be as provided in Section 5.05 below. The Executives
entitlements under any other benefit plan or program shall be as determined thereunder, except that severance benefits shall not be payable under any other plan or program. Notwithstanding the foregoing, if a termination of employment results in
severance benefits being paid under a change in control agreement (or any successor thereto), no amounts or benefits will be paid to the Executive under this Section 5.02 or 5.05.
SECTION 5.03. Termination Due to Death or Permanent Disability. If the Employment Period shall be terminated prior to the
expiration of the second anniversary of the Start Date (or the end of the Employment Period as extended pursuant to Section 5.01) due to the Executives death or Permanent Disability, the Executive (or her heirs, estate or legal
representative) shall be entitled solely to (i) Base Salary through the Date of Termination and any annual bonus awarded in accordance with the Companys bonus program but not yet paid; (ii) a pro-rata portion of the
Executives target bonus for the year of termination, calculated by reference to the number of days during the bonus year during which she was employed by the Company; (iii) payment for all accrued, but unused, vacation time through the
Date of Termination; and (iv) promptly following any such termination, the Executive (or her heirs, estate of legal representative) shall be reimbursed all Reimbursable Expenses incurred by the Executive prior to such termination. The amounts
described in clauses (i), (ii) and (iii) above will be paid in a single lump sum within ten (10) days after the Date of Termination. The terms of all Company restricted stock units, stock options and other equity based awards will be
as set forth in the applicable award agreements, and the Executives entitlements under any other benefit plan or program shall be as determined thereunder.
SECTION 5.04. Termination for Cause or Other Than Good Reason. If the Employment Period shall be terminated prior to the expiration of the second anniversary of the Start Date (or the end of
the Employment Period as extended pursuant to Section 5.01) (a) by the Company for Cause, or (b) by the Executive other than for Good Reason and not due to the Executives death or Permanent Disability, the Executive shall be
entitled, within ten (10) days following the Date of Termination, to receive solely (i) the Base Salary through the Date of Termination; (ii) payment for all accrued, but unused, vacation time through the Date of Termination; and
(iii) reimbursement of all Reimbursable Expenses incurred by the Executive prior to such termination. The Executives rights under any benefit plan or program shall be as set forth thereunder.
SECTION 5.05. Medical Benefits. If the Employment Period is terminated as a result of a termination of employment as
specified in Section 5.02, the Executive and her dependents shall continue to receive her medical insurance benefits from the Company available through COBRA. If the Executive elects COBRA continuation coverage, the Executive shall continue to
participate in all medical insurance plans she was participating on the Date of Termination, and the Company shall pay the applicable premium. To the extent that Executive had dependent coverage immediately prior to termination of employment,
such continuation of benefits for Executive shall also cover Executives dependents for so long as Executive is receiving benefits under this paragraph and such dependents remain eligible. The COBRA Continuation Period for medical insurance
under this paragraph shall be deemed to run concurrent with the continuation period federally mandated by COBRA (generally 18 months), or any other legally mandated and applicable federal, state, or local coverage period for benefits provided to
terminated employees under the medical plan. For purposes of this Agreement, (a) COBRA means the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, and (b) COBRA Continuation
Period shall mean the continuation period for medical insurance to be provided under the terms of this Agreement which shall commence on the first day of the calendar month following the month in which the date of termination
falls and generally shall continue for an 18-month period or until such time as the executive is employed, whichever is earlier.
SECTION 5.06. Notice of Termination. Any termination by the Company for Permanent Disability or Cause or without Cause or by the Executive with or without Good Reason shall be communicated by
written Notice of Termination to the other party hereto. 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 indicated.
SECTION 5.07. Date of Termination. Date of
Termination shall mean (a) if the Employment Period is terminated as a result of a Permanent Disability, the next business day after a Notice of Termination is given following the Permanent Disability; (b) if the
Employment Period is terminated as a result of death, the date of death; and (c) if the Employment Period is terminated for any other reason, the later of the date the Notice of Termination is given or the end of any applicable correction
period except as otherwise specifically provided herein.
SECTION 5.08. No Duty to Mitigate. The Executive shall
have no duty to seek new employment or other duty to mitigate following a termination of employment as described in Section 5.02 above, and no compensation or benefits described in Section 5.02 shall be subject to reduction or offset on
account of any subsequent compensation, other than as provided in Section 5.05.
SECTION 5.09. Release.
Notwithstanding any other provision hereof, the Executive shall not be required by the Release to release claims that the Executive may have against the Company for reimbursement of ordinary and necessary business expenses incurred by him during the
course of her employment, claims that arise after the effective date of the Release, any rights the Executive may have to enforce Sections 5.02 of this Agreement, and claims for which the Executive is entitled to be indemnified under the
Companys charter, by-laws or under applicable law or pursuant to the Companys directors and officers liability insurance policies.
SECTION 6.01. Confidential Information and Trade Secrets. The Executive and the Company agree that certain materials,
including, but not limited to, information, data and other materials relating to customers, development programs, costs, marketing, trading, investment, sales activities, promotion credit and financial data, manufacturing processes, financial
methods, plans or the business and affairs of the Company and its Affiliates, constitute proprietary confidential information and trade secrets. Accordingly, the Executive will not at any time during or after the Executives employment with the
Company disclose or use for the Executives own benefit or purposes or the benefit or purposes of any Person, other than the Company and any of its Affiliates, any proprietary confidential information or trade secrets. The foregoing obligations
imposed by this Section 6.01 will not apply (i) in the course of the business of and for the benefit of the Company, (ii) if such information has become, through no fault of the Executive, generally known to the public, or
(iii) if the Executive is required by law to make disclosure (after giving the Company notice and an opportunity to contest such requirement). The Executive agrees that upon termination of employment with the Company for any reason, the
Executive will immediately return to the Company all memoranda, books, paper, plans, information, letters and other data, and all copies thereof or therefrom, which in any way relate to the business of the Company and its Affiliates. The
Executive further agrees that the Executive will not retain or use for the Executives account at any time any trade names, trademark or other proprietary business designation used or owned in connection with the business of the Company or
any of its Affiliates.
SECTION 7.01. Noncompetition. (a) The Executive
acknowledges and recognizes the highly competitive nature of the business of the Company and its Affiliates and accordingly agrees that during the term of the Executives employment and for a period of two (2) years after the termination
(i) the Executive will not directly or indirectly engage in any business which is in competition with any line of
business conducted by the Company or any of its Affiliates, including, but not limited to, where such engagement is as an officer, director, proprietor, employee, partner, investor (other than as a holder of less than 1% of the outstanding capital
stock of a publicly traded corporation), consultant, advisor, agent or sales representative, in any Restricted Territory;
(ii) the Executive will not perform or solicit the performance of services for any
customer or client of the Company or any of its Affiliates;
(iii) the Executive will not directly or indirectly induce any
employee of the Company or any of its Affiliates to (1) engage in any activity or conduct which is prohibited pursuant to this Section 7.01, or (2) terminate such employees employment with the Company or any of its Affiliates.
Moreover, the Executive will not directly or indirectly employ or offer employment (in connection with any business which is in competition with any line of business conducted by the Company or any of its Affiliates) to any person who was employed
by the Company or any of its Affiliates unless such person shall have ceased to be employed by the Company or any of its Affiliates for a period of at least twelve (12) months; and
(iv) the Executive will not directly or indirectly assist others in engaging in any of the activities which are prohibited under clauses
(i)-(iii) of this Section 7.01(a) above.
(b) The covenant contained in Section 7.01(a)(i) above is intended to
be construed as a series of separate covenants, one for each county, town, city and state or other political subdivision of a Restricted Territory. Except for geographic coverage, each such separate covenant shall be deemed identical in terms to the
covenant contained in the preceding subsections. If, in any judicial proceeding, the court shall refuse to enforce any of the separate covenants (or any part thereof) deemed included in such subsections, then such unenforceable covenant (or such
part) shall be deemed to be eliminated from this Agreement for the purpose of those proceedings to the extent necessary to permit the remaining separate covenants (or portions thereof) to be enforced.
(c) It is expressly understood and agreed that although the Executive and the Company consider the restrictions contained in
this Section 7.01 to be reasonable, if a final judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against the
Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable.
Alternatively, if any court of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of
any of the other restrictions contained herein.
SECTION 8.01. Equitable Relief. The Executive acknowledges that (a) the covenants contained in Sections 6.01 and 7.01
hereof are reasonable, (b) the Executives services are unique, and (c) a breach or threatened breach by him of any of her covenants and agreements with the Company contained in Sections 6.01 or 7.01 hereof could cause irreparable
harm to the Company for which it would have no adequate remedy at law. Accordingly, and in addition to any remedies which the Company may have at law, in the event of an actual or threatened breach by the Executive of her covenants and agreements
contained in Sections 6.01 or 7.01 hereof, the Company shall be entitled as a matter of right to an injunction, without a requirement to post bond, out of any court of competent jurisdiction, restraining any violation or further violation of such
promises by the Executive or the Executives employees, partners or agents.
SECTION 9.01. (a) Indemnification. The Company agrees that if the Executive is made a party, or is threatened to be made
a party, to any action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that she is or was a director, officer or employee of the Company or is or was serving at the request of the Company as a
director, officer, member, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans, the Executive shall be indemnified and held harmless by the Company
to the fullest extent permitted or authorized by applicable law and the Companys certificate of incorporation or bylaws, against all cost, expense, liability and loss
(including, without limitation, attorneys fees, judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid in settlement) reasonably incurred or suffered by the
Executive in connection therewith, and such indemnification shall continue as to the Executive even if she has ceased to be a director, member, employee or agent of the Company or other entity and shall inure to the benefit of the
Executives heirs, executors and administrators.
(b) D&O Insurance. During the Employment Period, the
Company shall keep in place a directors and officers liability insurance policy (or policies) providing comprehensive coverage to the Executive to the same extent that the Company provides such coverage for any other officer or director
of the Company and, after the expiration of the Employment Period, the Executive shall be entitled to such coverage to the same extent that the Company provides such coverage for any other current or former officer or director of the Company.
SECTION 10.01. Remedies. The Company will have
all rights and remedies set forth in this Agreement, all rights and remedies which the Company has been granted at any time under any other agreement or contract and all of the rights which the Company has under any law. The Company will be entitled
to enforce such rights specifically, without posting a bond or other security, to recover damages by reason of any breach of any provision of this Agreement and to exercise all other rights granted by law. The failure of the Company to enforce at
any time any provision of this Agreement shall in no way be construed to be a waiver of such provision or of any other provision hereof.
SECTION 10.02. Consent to Amendments. The provisions of this Agreement may be amended or waived only by a written agreement executed and delivered by the Company and the Executive. No other
course of dealing between the parties to this Agreement or any delay in exercising any rights hereunder will operate as a waiver of any rights of any such parties. Notwithstanding the foregoing or any provisions of this Agreement to the contrary,
the Company may at any time, with the consent of the Executive, modify or amend any provision of this Agreement or take any other action, to the extent necessary or advisable to ensure that this Agreement complies with or is exempt from
Section 409A of the Code and that any payments or benefits under this Agreement are not subject to interest and penalties under Section 409A of the Code.
SECTION 10.03. Successors and Assigns. All covenants and agreements contained in this Agreement by or on behalf of any of the parties hereto will bind and inure to the benefit of the
respective successors and assigns of the parties hereto whether so expressed or not, provided that the Executive may not assign her rights or delegate her obligations under this Agreement without the written consent of the Company.
SECTION 10.04. Severability. Whenever possible, each provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of this Agreement is held to be prohibited by or invalid under applicable law, such provision will be ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of this Agreement.
SECTION 10.05. Counterparts. This Agreement may be executed
simultaneously in two or more counterparts, any one of which need not contain the signatures of more than one party, but all of which counterparts taken together will constitute one and the same agreement.
SECTION 10.06. Descriptive Headings. The descriptive headings of this Agreement are inserted for convenience only and do not
constitute a part of this Agreement.
SECTION 10.07. Notices. All notices, demands or other communications to be
given or delivered under or by reason of the provisions of this Agreement will be in writing and will be deemed to have been given when delivered personally to the recipient, two (2) business days after the date when sent to the recipient by
reputable express courier service (charges prepaid) or four (4) business days after the date when mailed to the recipient by certified or registered mail, return receipt requested and postage prepaid. Such notices, demands and other
communications will be sent to the Executive and to the Company at the addresses set forth below.
|If to the Executive:
||To the last address delivered to the Company by the Executive in the manner set forth herein.|
|If to the Company:
||The ExOne Company|
||127 Industry Boulevard|
||Irwin, PA 15642|
||Attn: Chairman and CEO|
|Copies of notices to the Company shall also be sent to:|
Buchanan Ingersoll & Rooney PC
One Oxford Centre
301 Grant Street, 20th Floor
Pittsburgh, PA 15219
Attn: Hannah T. Frank,
or to such other address or to the attention of such other person as the recipient party has specified by prior
written notice to the sending party.
SECTION 10.08. Withholding. The Company may withhold from any amounts
payable under this Agreement such federal, state, local or foreign taxes as shall be required to be withheld pursuant to any applicable law or regulation.
SECTION 10.09. No Third Party Beneficiary. This Agreement will not confer any rights or remedies upon any person other than the Company, the Executive and their respective heirs, executors,
successors and assigns.
SECTION 10.10. Entire Agreement. Except as provided below, this Agreement constitutes the
entire agreement among the parties and supersedes any prior understandings, agreements or representations by or among the parties, written or oral, that may have related in any way to the subject matter hereof. Notwithstanding anything contained
herein, the Employee/Independent Contractor Proprietary Information and Assignment of Inventions Agreement dated March 7, 2013 shall not be superseded by this Agreement and remains in full force and effect.
SECTION 10.11. Construction. The language used in this Agreement will be deemed to be the language chosen by the parties to
express their mutual intent, and no rule of strict construction will be applied against any party. Any reference to any federal, state, local or foreign statute or law will be deemed also to refer to all rules and regulations promulgated thereunder,
unless the context requires otherwise. The use of the word including in this Agreement means including without limitation and is intended by the parties to be by way of example rather than limitation.
SECTION 10.12. Survival. Sections 5.02, 5.03, 5.04, 5.05, 5.08, 6.01, 7.01, 8.01, 9.01 and Article 10 hereof will
survive and continue in full force in accordance with their terms notwithstanding any termination of the Employment Period, and the Agreement shall otherwise remain in full force to the extent necessary to enforce any rights and obligations arising
hereunder during the Employment Period.
SECTION 10.14. GOVERNING LAW. ALL QUESTIONS CONCERNING THE CONSTRUCTION,
VALIDITY AND INTERPRETATION OF THIS AGREEMENT WILL BE GOVERNED BY THE INTERNAL LAW OF PENNSYLVANIA, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS.
SECTION 10.15. Internal Revenue Code Section 409A.
(a) If any
benefit provided under this Agreement is subject to the provisions of Section 409A of the Code and the regulations issued thereunder, the provisions of the Agreement shall be administered, interpreted and construed in a manner necessary to
comply with Section 409A and the regulations issued thereunder (or disregarded to the extent such provision cannot be so administered, interpreted, or construed.)
(b) For purposes of the Agreement, the Executive shall be considered to have experienced a termination of employment only if the Executive has terminated employment with the Company and all of its
controlled group members within the meaning of Section 409A of the Code. For purposes hereof, the determination of controlled group members shall be made pursuant to the provisions of Section 414(b) and 414(c) of the Code; provided that
language at least 50 percent shall be used instead of at least 80 percent in each place it appears in Section 1563(a)(1),(2) and (3) of the Code
and Treas. Reg. § 1.414(c)-2. Whether the Executive has terminated employment will be determined based on all of the facts and circumstances and in accordance with the guidance issued under Section 409A of the Code.
(c) For purposes of Section 409A, each severance benefit payment shall be treated as a separate payment. Each
payment under this Agreement is intended to be excepted from Section 409A to the maximum extent provided under Section 409A as follows: (i) the Employees termination date and within the applicable 2 1/2 month period specified in Treas. Reg. §
1.409A-1(b)(4) is intended to be excepted under the short-term deferral exception as specified in Treas. Reg. § 1.409A-1(b)(4); (ii) post-termination medical benefits are intended to be excepted under the medical benefits exceptions as
specified in Treas. Reg. § 1.409A-1(b)(9)(v)(B); and (iii) to the extent payments are made as a result of an involuntary separation, each payment that is not otherwise excepted under the short-term deferral exception or medical
benefits exception is intended to be excepted under the involuntary pay exception as specified in Treas. Reg. § 1.409A-1(b)(9)(iii). The Executive shall have no right to designate the date of any payment under this Agreement.
(d) With respect to payments subject to Section 409A of the Code (and not excepted therefrom), if any, it is intended that each
payment is paid on a permissible distribution event and at a specified time consistent with Section 409A of the Code. The Company reserves the right to accelerate and/or defer any payment to the extent permitted and consistent with
Section 409A. Notwithstanding any provision of this Agreement to the contrary, to the extent that a payment hereunder is subject to Section 409A of the Code (and not excepted therefrom) and payable on account or a termination of
employment, such payment shall be delayed for a period of six months after the date of termination (or, if earlier, the death of the Executive ) if the Executive is a specified employee (as defined in Section 409A of the Code
and determined in accordance with the procedures established by the Company). Any payment that would otherwise have been due or owing during such 6-month period will be paid immediately following the end of the 6-month period in the month following
the month containing the 6-month anniversary of the date of termination.
[remainder of page intentionally left blank]
[Signature Page for JoEllen Lyons Dillon Employment Agreement]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year first above written.
|The ExOne Company|
/s/ S. Kent Rockwell
|Printed Name: S. Kent Rockwell|
|Title: Chairman and CEO|
/s/ JoEllen Lyons Dillon
|JoEllen Lyons Dillon|
SEPARATION OF EMPLOYMENT AND GENERAL RELEASE AGREEMENT
THIS SEPARATION OF
EMPLOYMENT AND GENERAL RELEASE AGREEMENT (this Agreement) is made as of this day of , , by
and between and
(collectively the Company) and
WHEREAS, the Executive formerly was employed by the Company as ;
WHEREAS, the Executive and Company entered into an Employment and Severance Agreement, dated
, , (the Severance Agreement) which provides for certain payments and benefits in the event that the Executives
employment is terminated on account of a reason set forth in the Severance Agreement; and
WHEREAS, the Executives
employment with the Company was terminated for reasons that qualify the Executive to receive certain payments and benefits, as set forth in Article 5 of the Severance Agreement, subject to, among other things, the Executives execution of this
Release as defined therein.
NOW, THEREFORE, for and in consideration of the Companys commitments in Article 5 of the
Severance Agreement, and intending to be legally bound, the Executive and the Company hereby agree as follows:
(a) The Executive does hereby REMISE, RELEASE AND FOREVER DISCHARGE the Company, its affiliates, subsidiaries and parents, and its and their respective officers, directors, employees, and agents, and its and their respective successors and
assigns, heirs, executors, and administrators, as well as the current and former fiduciaries of any pension, welfare, or other benefit plans applicable to the employees or former employees of the Company, and the current and former welfare and other
benefit plans sponsored by the Company (collectively, Releasees) from all causes of action, suits, debts, claims and demands whatsoever in law or in equity, which the Executive ever had, now has, or hereafter may have, whether known or
unknown, or which the Executives heirs, executors, or administrators may have, by reason of any matter, cause or thing whatsoever, from the beginning of time to the date the Executive signs this Agreement, and particularly, but without
limitation of the foregoing general terms, any claims arising from or relating in any way to the Executives employment relationship with the Company, the terms and conditions of that employment relationship, and the termination of that
employment relationship, including, but not limited to, any claims arising under the Age Discrimination in Employment Act, the Older Workers Benefit Protection Act, Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the
Worker Readjustment and Retraining Notification Act, the Consolidated Omnibus Budget Reconciliation Act, the Employee Retirement Income Security Act of 1974, the Pennsylvania Human Relations Act, and any other claims under any federal, state or
local common law, statutory, or regulatory provision, now or hereafter recognized, and any claims for attorneys fees and costs. This Agreement is effective without regard to the legal nature of the claims raised and without regard to whether
any such claims are based upon tort, equity, implied or express contract or discrimination of any sort.
Paragraph 1(a) is intended to be a general release, it is understood and agreed that Paragraph 1(a) excludes claims related to the Executives right to receive the payments and benefits described in Article 5 of the Severance Agreement, as well
as claims under any statute or common law that the Executive is legally barred from releasing, such as the Executives entitlement to vested pension benefits. Notwithstanding any other provision hereof, the Executive shall not release claims
that the Executive may have against the Company for reimbursement of ordinary and necessary business expenses incurred by him during the course of her employment, claims that arise after the effective date of the Release, any rights the Executive
may have to enforce Sections 5.02 of the Severance Agreement, and claims for which the Executive is entitled to be indemnified under the Companys charter, by-laws or under applicable law or pursuant to the Companys directors and
officers liability insurance policies.
(c) Nothing herein is intended to or shall preclude the Executive from filing a
charge with any appropriate federal, state or local government agency and/or cooperating with said agency in its investigation. The Executive, however, explicitly waives any right to file a personal lawsuit or receive monetary damages that the
agency may recover against the Releasees, without regard as to who brought any said complaint or charge. Employee further agrees that to the extent any relief, including monetary relief, is awarded in any such proceeding, all amounts paid as
consideration under Article 5 of the Severance Agreement shall be a setoff and credit against any such award to the fullest extent permitted by law.
(d) The Executive represents and agrees by signing below that the Executive has not been
denied any leave or benefit requested, has received the appropriate pay for all hours worked for the Company, and has no known workplace injuries or occupational diseases.
(e) To the fullest extent permitted by law, the Executive represents and affirms that (i) [other than ,] the Executive
has not filed or caused to be filed on the Executives behalf any claim for relief against any Releasee and, to the best of the Executives knowledge and belief, no outstanding claims for relief have been filed or asserted against the
Company or any Releasee on the Executives behalf; and (ii) [other than ,] the Executive has not reported any improper, unethical or illegal conduct or
activities to any supervisor, manager, department head, human resources representative, agent or other representative of the Company, to any member of the Companys legal or compliance departments, or to the ethics hotline, and has no knowledge
of any such improper, unethical or illegal conduct or activities. The Executive agrees to promptly dismiss with prejudice all claims for relief filed before the date the Executive signs this Agreement.
2. The Company does hereby REMISE, RELEASE AND FOREVER DISCHARGE the Executive from all claims, demands or causes of action arising out
of facts or occurrences prior to the date of this Agreement, but only to the extent the Company knows or reasonably should know of such facts or occurrence and only to the extent such claim, demand or cause of action relates to a violation of
applicable law or the performance of the Executives duties with the Company; provided, however, that this release of claims shall not in any case be effective with respect to any claim by the Company alleging a breach of the Executives
obligations under this Agreement. [Note: The Company and the Executive may, but shall not be required to mutually agree on a case-by-case basis at the time of the signing of this release to include the foregoing provision, or a substantially similar
provision, to this Agreement.]
3. The Executive further agrees and recognizes that the Executives employment
relationship with the Company has been permanently severed, that the Executive shall not seek employment with the Company or any affiliated entity at any time in the future, and that the Company has no obligation to employ the Executive in the
4. The Executive further agrees that the Executive will not disparage or subvert the Company, or make any statement
reflecting negatively on the Releasees including, but not limited to, statements relating to the operation or management of the Company, the Executives employment and the termination of the Executives employment, irrespective of the
truthfulness or falsity of such statement.
5. The Executive acknowledges that if the Executive had not executed this
Agreement containing a release of all claims, the Executive would not have been entitled to the payments and benefits set forth in Article 5 of the Severance Agreement.
6. This Agreement contains the entire agreement between the Company and the Executive relating to the subject matter hereof. No prior or contemporaneous oral or written agreements or representations may
be offered to alter the terms of this Agreement. To the extent Employee has entered into other agreements with the Company that are not in conflict with this Agreement, including, but not limited to the Severance Agreement, the terms of this
Agreement shall not supersede, but shall be in addition to such other agreements.
7. The Executive agrees not to disclose the
terms of this Agreement or the Severance Agreement to anyone, except the Executives spouse, attorney and, as necessary, tax/financial advisor. Likewise, the Company agrees that the terms of this Agreement will not be disclosed except as may be
necessary to obtain approval or authorization to fulfill its obligations hereunder or as required by law. It is expressly understood that any violation of the confidentiality obligation imposed hereunder constitutes a material breach of this
8. The Executive represents that the Executive has returned to the Company and does not presently have in the
Executives possession or control any records and business documents, whether on computer or hard copy, and other materials (including but not limited to computer disks and tapes, computer programs and software, office keys, correspondence,
files, customer lists, technical information, customer information, pricing information, business strategies and plans, sales records and all copies thereof) (collectively, the Corporate Records) provided by the Company and/or its
predecessors, subsidiaries or affiliates or obtained as a result of the Executives prior
employment with the Company and/or its predecessors, subsidiaries or affiliates, or created by the Executive while employed by or rendering services to the Company and/or its predecessors,
subsidiaries or affiliates. In addition, the Executive has or will promptly return in good condition any other Company owned equipment or property, including, but not limited to, automobiles, personal data assistants, facsimile machines, copy
machines, pagers, credit cards, cellular telephone equipment, business cards, laptops and computers. At the Executives request, the Company will make reasonable arrangements to transfer cellular phone numbers and personal fax numbers to the
9. Nothing in this Agreement shall prohibit or restrict the Executive from: (i) making any disclosure of
information required by law; (ii) providing information to, or testifying or otherwise assisting in any investigation or proceeding brought by, any federal regulatory or law enforcement agency or legislative body, any self-regulatory
organization, or the Companys designated legal, compliance or human resources officers; or (iii) filing, testifying, participating in or otherwise assisting in a proceeding relating to an alleged violation of any federal, state or
municipal law relating to fraud, or any rule or regulation of the Securities and Exchange Commission or any self-regulatory organization.
10. The parties agree and acknowledge that the agreement by the Company described herein, and the release of any asserted or unasserted claims against the Releasees, are not and shall not be construed to
be an admission of any violation of any federal, state or local statute or regulation, or of any duty owed by any of the Releasees to the Executive.
11. The Executive agrees and recognizes that should the Executive breach any of the obligations or covenants set forth in Articles 6 and 7 of the Severance Agreement, the Company will have no further
obligation to provide the Executive with the consideration set forth in Article 5 of the Severance Agreement, and will have the right to seek repayment of all consideration paid up to the time of any such breach. Notwithstanding the foregoing, the
Executive acknowledges that if the Executive breaches Articles 6 and 7 of the Severance Agreement, and if the Company terminates or recovers any of the payments or benefits provided under Article 5 of the Severance Agreement (as provided for in
Articles 6 and 7 of the Severance Agreement), the release provided by Section 1 of this Agreement shall remain valid and enforceable.
12. The Executive further agrees that the Company shall be entitled to preliminary and permanent injunctive relief, without the necessity of proving actual damages, as well as to an equitable accounting
of all earnings, profits and other benefits arising from any violations of this Agreement, which rights shall be cumulative and in addition to any other rights or remedies to which the Company may be entitled.
13. This Agreement and the obligations of the parties hereunder shall be construed, interpreted and enforced in accordance with the laws
of the Commonwealth of Pennsylvania.
14. The Executive certifies and acknowledges as follows:
(a) That the Executive has read the terms of this Agreement, and that the Executive understands its terms and effects, including the fact
that the Executive has agreed to RELEASE AND FOREVER DISCHARGE the Releasees from any legal action arising out of the Executives employment relationship with the Company and the termination of that employment relationship; and
(b) That the Executive has signed this Agreement voluntarily and knowingly in exchange for the consideration described herein, which the
Executive acknowledges is adequate and satisfactory to him and which the Executive acknowledges is in addition to any other benefits to which the Executive is otherwise entitled; and
(c) That the Executive has been and is hereby advised in writing to consult with an attorney prior to signing this Agreement; and
(d) That the Executive does not waive rights or claims that may arise after the date this Agreement is executed; and
(e) That the Company has provided the Executive with a period of [twenty-one (21)] or [forty-five (45)]
days within which to consider this Agreement, and that the Executive has signed on the date indicated below after concluding that this Agreement is satisfactory; and
(f) The Executive acknowledges that this Agreement may be revoked within seven
(7) days after execution, and it shall not become effective until the expiration of such seven (7) day revocation period. In the event of a timely revocation by the Executive, this Agreement will be deemed null and void and the Company
will have no obligations hereunder or under Article 5 of the Severance Agreement.
Intending to be legally bound hereby, the
Executive and the Company executed the foregoing Separation of Employment and General Release Agreement this day of ,
|[Insert Company Name]