SETTLEMENT AND SEPARATION AGREEMENTS PLAINTIFF AND DEFENSE PERSPECTIVES

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1 Christina M. Royer Christina M. Royer, Ltd. Cleveland, Ohio (440) William A. Nolan Barnes & Thornburg, LLP Columbus, Ohio (614) SETTLEMENT AND SEPARATION AGREEMENTS PLAINTIFF AND DEFENSE PERSPECTIVES The purpose of this session is to provide attendees with practical advice regarding negotiating settlement and severance agreements. Our session will not walk through these materials from start to finish; rather, it will focus on the interplay between the plaintiff and defense viewpoints on various key issues in negotiating these agreements. These materials will serve as resources for attendees on several of those key issues, providing legal background beyond what we will have time to cover in the program itself. I. TAX ISSUES IN SETTLEMENT AND SEVERANCE AGREEMENTS One of the biggest issues in any settlement or severance negotiation is how and when the monies will be paid out, and what each party s obligations are with respect to taxing authorities. Tax laws and regulations often trip up settlement negotiations because employment lawyers are not typically tax lawyers (and don t play one on TV!). A working understanding of how employment settlements are taxed and reported to IRS can help to remove one of the stumbling blocks in negotiations. 1

2 A. Are employment settlements generally taxable? The short answer is yes. More specifically, it depends on how the settlement is allocated among the various types of damages. The following table shows the different types of damages and whether they are taxable as income to the Employee: Type of Damage Lost wages/back pay and front pay Compensatory damages for emotional distress, pain and suffering (NOT associated with personal physical injury and NOT including medical expenses from emotional distress) Taxable to the Employee as Income? Yes Yes Who Says? 1 26 U.S.C. 104(a)(2); Commissioner v. Schleier, 515 U.S. 323 (1995). 26 U.S.C. 104(a)(2) Compensatory damages for emotional distress, pain, and suffering (associated with personal physical injury) Medical expenses associated with emotional distress Punitive damages EVEN IF ASSOCIATED WITH PHYSICAL INJURY No No Yes 26 U.S.C. 104(a)(2) 26 U.S.C. 104(a)(2) 26 U.S.C. 104(a)(2) 1 IRS Publication 525 also provides useful information on what is, and is not, taxable income. 2

3 Type of Damage Damages arising from a personal physical injury or sickness Liquidated damages (such as FLSA, FMLA, ADEA) Attorneys fees and costs of suit associated with employment discrimination claims Taxable to the Employee as Income? No Yes No Who Says? 1 26 U.S.C. 104(a)(2) Commissioner v. Schleier, 515 U.S. 323 (1995) (where liquidated damages are punitive in nature, they are taxable under 26 U.S.C. 104(a)(2)). 26 U.S.C. 62(a)(20); (e) B. If all of the settlement is taxable anyway, why should we fight over allocating the amounts in the settlement agreement? Even though all of the components of a settlement may be taxable, the way they are reported to IRS determines how taxes must be paid, and in what amount. Allocating the payments in the settlement agreement may also help both parties if, for some reason, the IRS conducts an audit and tries to challenge the way the payments are reported and taxed. If there is no allocation in the agreement, then the IRS is more likely to try to treat all of the settlement as taxable, which is detrimental to both sides. For example, if all of the settlement is determined to be wages, then both the Employee and the Employer may be assessed penalties and interest associated with FICA taxes and the Employer s matching obligation. When a settlement agreement expressly allocates the settlement proceeds among various types of damages, the allocation is generally binding for tax purposes, as long as the agreement is entered into by the parties in an adversarial context; at arm s length; and in good faith. 2 2 E.g., Bagley v. Commissioner, 105 T.C. 396, 406 (1995), aff d 121 F.3d 393 (8th Cir. 1997); Robinson v. Commissioner, 102 T.C. 116, 127 (1994), aff d in part, rev d in part and remanded on other grounds 70 F.3d 34 (5th Cir. 1995); Threlkeld v. Commissioner, 87 T.C. 1294, (1986), aff d 848 F.2d 81 (6th Cir. 1988). 3

4 An express allocation will be disregarded only where the facts and circumstances surrounding the payment indicate that the payment was intended to be for a different purpose. If the settlement agreement contains an express allocation of the settlement proceeds, and the allocation is colorable in light of the claims in the Complaint, then it is more likely to be respected and followed. C. What are the various ways to report these amounts, and what implications does each have? There are two reporting mechanisms for the typical components of an employment settlement: Form W-2 and Form 1099-MISC. Within Form 1099-MISC, there are two further choices: Box 3 or Box 7. Box 3 is for other income, including taxable damage awards. Box 7 is for non-employee compensation over $600. Example: $100,000 settlement of a gender-discrimination claim where the plaintiff was terminated. Plaintiff s attorney s fee is $40,000. Of the remaining $60,000, $20,000 is allocated to wage loss and $40,000 is allocated to emotional distress. Here s how each amount could be reported: 1. For the wage loss portion: W-2 or 1099/Box 7 This decision should be made in consultation with the Employee s tax advisor because it can depend greatly on his or her financial circumstances. a. If reported on W-2: the Employer will treat the payment as if it were a payroll check, and will deduct applicable taxes and withholding for Social Security and Medicare (FICA taxes). The Employer will also have to remit the matching taxes. The Employee will receive a check for an amount that is less than the $20,000, and the Employer will send him or her a W-2 at the end of the year. b. If reported on Form 1099-MISC, Box 7: the Employer will cut a check to the Employee in the full amount of $20,000. The Employer will not deduct any state, federal, or FICA taxes from 4

5 this payment, and it will not remit any matching FICA taxes. At the end of the year, the Employer will send the Employee a 1099 with $20,000 reported in Box For the emotional-distress damages portion: The only choice here is for the Employer to report this portion in box 3 of Form 1099-MISC. This box is for other income and is specifically designed for taxable damage awards, such as emotional distress resulting from nonphysical injury. The Employee will receive a check for the full amount of $40,000, and the Employer will send him or her a Form 1099 with $40,000 reported in box 3. D. Is the Employee subject to higher federal withholding on the wage portion of the settlement, if it is paid in one lump-sum? If the amount of the wage-loss portion of the settlement is more than the Employee s normal earnings, and the Employer is paying this amount as one lump-sum payment (i.e., not over time), the Employee could be subject to higher federal withholding than he or she usually had when receiving regular paychecks. This is often because Employers use payroll services that do one of two things: (1) treat the payment as a supplemental payment and tax it at a flat rate (25% this year); (2) or treat the payment as if the Employee earns this larger amount in every pay period, which would push him or her into a higher tax bracket, and therefore result in more withholding. The rate of withholding for wage-loss payments is a very common sticking point because Employees are dismayed when more federal withholding is deducted and, given the usually acrimonious relationship between the parties at this point, suspects the Employer of trying to do further harm. Employers, for their part, often resist agreeing to tax the wage-loss portion of a settlement at the federal rate applicable on the Employee s last day worked, consistent with the Employee s W-4, fearing some negative consequence from the IRS. 5

6 A little bit of law may go a long way to short circuit this dispute: The IRS regulations state that an employee s remuneration may consist of regular and supplemental wages. 3 Supplemental wages are those that are usually paid without regard to a payroll period, and include payments for back pay. Overtime pay can be either supplemental or regular wages. 4 Because most wage-loss portions of settlements will be supplemental wages, the amount of the payment and other factors determine how withholding is calculated. If a payment falls under the definition of supplemental payment and is $1 million or more, it must be taxed at a flat rate. 5 If a supplemental payment is less than $1 million, the Employer may generally choose to withhold at a flat rate of 25 percent, or calculate withholding based on what is called the aggregate method. 6 If the following conditions are not met, the Employer must withhold based on the aggregate method, and cannot calculate withholding based on a flat 25 percent: (1) income tax has been withheld from the Employee s regular wages during the calendar year of the payment, or the preceding calendar year; and (2) the payment is not made concurrently with regular wages, or is separately stated on the Employer s payroll records. 7 Otherwise, if the above conditions are met, then the Employer may choose between withholding at a flat rate and calculating withholding based on the aggregate method. To calculate withholding using the aggregate method: a. if the payment is paid concurrently with wages for a payroll period: the supplemental payment is added to the regular wages to be paid. Withholding is calculated based on this single payment, taking into consideration the Employee s W C.F.R (g)-1(a)(1) (i). 4 Id.(iv). 5 Id. (a)(2). 6 Id. (a)(6). 7 Id. (a)(7). 6

7 b. if the payment is not paid concurrently with wages for a payroll period: the supplemental wages are added to wages paid within the same calendar year for the last payroll period, if any. Withholding is determined based on this amount, taking into consideration the Employee s W-4. The amount withheld from the regular wages that were paid earlier is subtracted to arrive at the amount of withholding from the supplemental payment. E. Why is it important for the attorneys fees in an employment discrimination case to be paid separately? In 2004, Congress amended the tax code to provide tax relief for contingent attorney-fee payments in employment discrimination cases. This relief came in the form of an above-the-line adjustment for the amount of the attorneys fees, meaning that the amount is not factored into the Employee s adjusted gross income on his or her Form 1040, so it is not subject to tax. Note that the term employment discrimination is very broad, and covers a wide swath of cases, including overtime under FLSA, discrimination under Title VII and related federal statutes, and claims under analogous state statutes, including public-policy claims. 8 II. UNEMPLOYMENT ISSUES IN SEVERANCE AND SETTLEMENT AGREEMENTS With the economy in a terrible state and so many people being laid off or otherwise severed from their employment, the issue of unemployment compensation looms large in settlement and severance contexts. There are many issues relating to unemployment that can complicate settlement and severance negotiations, and dealing with these issues appropriately in the written agreement is of paramount importance to both Employees and Employers. A. Parties to a settlement or severance agreement may not agree that an Employee will waive his or her right to unemployment compensation. Although it may be tempting to try to negotiate a waiver of the right to unemployment benefits to avoid some of the complications that unemployment can pose in settlement and severance contexts, the 8 26 U.S.C. 62(e). 7

8 Unemployment Compensation Act provides that no agreement by an employee to waive his right to benefits is valid. 9 Thus, any negotiations must address only the issue of whether the employer will contest a claim, and other issues that could affect the employee s unemployment compensation, such as those addressed in the sections that follow. B. Certain payments to employees are offset from unemployment compensation, which can affect the timing and characterization of settlement or severance payments. Weekly unemployment compensation benefits are reduced by certain types of payments, including remuneration in lieu of notice ; retirement or pension payments; and separation or termination pay. 10 Notably, however, Social Security payments are no longer offset from unemployment compensation. 11 Remuneration in lieu of notice is a continuation of wages for a designated period after termination of employment. 12 This type of payment is generally made when the employer does not give the employee required or customary notice before dismissal, including payments required under the WARN Act. It is considered wages for the designated period, is subject to employer contributions, and is considered remuneration for purposes of the employee s weekly claim. 13 Separation pay includes payments made to employees in return for their agreeing to a separation from employment. 14 However, according to ODJFS guidance on fact-finding for this issue, severance pay is not deductible in certain circumstances: Severance pay is not deductible when payment(s) is made beyond a reasonable period of time (regardless of whether the employee requested the payments be deferred) after the separation date, allowing for final accounting and payroll processing. A reasonable 9 OHIO REV. CODE ANN (A). 10 Id (A)(1), (3), (4). 11 Id (B). 12 OHIO ADM. CODE Id. 14 Id

9 period of time is based on the employer s pay schedule. If claimant is paid bi-weekly, consider two weeks a reasonable period of time. If claimant is paid monthly, consider 30 days a reasonable time and so forth. 15 It is not clear whether back pay is considered to be earnings for offset purposes, or for overpayment purposes. Overpayment is discussed in Section D. In one section of its UC Law Abstract, the Unemployment Compensation Review Commission states that back pay is earnings and is deductible: An award of back pay is considered earnings. An overpayment order should be issued if unemployment compensation benefits were paid during the period covered by the award However, in another section of the Abstract, the Commission says that settlement payments in exchange for an agreement not to sue are nondeductible in certain situations: Agreements not to sue. The Review Commission generally views a standard agreement not to sue an employer as an agreement to a separation, and any payment conditioned on signing that agreement is still deductible separation pay. Where the individual already has pending legal action against the employer, the Review Commission is more likely to view the conditioned payment as non-deductible settlement pay. 17 The issue of deductions and offsets arises most often in the severance context, where payments are made over time. If an employee applies for Unemployment and is already receiving benefits at the time the parties agree to a severance, the payments under the agreement will create complications for his or her weekly claims. ODJFS will stop payments and, in some cases, force the employee to re-open the benefits claim. 15 Unemployment Compensation Policy Guide, Non-Monetary Issues, Non-Separation, Deductible Income. A copy of this is attached to these materials. 16 OHIO UNEMPLOYMENT COMPENSATION REVIEW COMMISSION, UC LAW ABSTRACT, available at 17 Id. (emphasis added). 9

10 C. On a related note, the Ohio Department of Job & Family Services will allocate severance or separation payments, unless the parties address this issue in the agreement. If the parties severance agreement allocates the payments to weeks in which the Employee claims benefits, the benefits will be reduced by the amount of the severance payments. 18 If the parties do not allocate the payments to particular weeks, then ODJFS will allocate the payments based on the employee s weekly wage, until the total amount of the severance is exhausted. 19 The allocation rules can cause particular problems where a severance is paid as a lump sum, and the parties do not address the allocation of the payment in the agreement. In this situation, the parties should include an allocation in the agreement. D. On another related note, if ODJFS finds that an Employee received benefits, but should not have for some (non-fraud-related) reason, it will assess an overpayment, and require the Employee to pay back benefits received. Because unemployment compensation is subject to overpayment and repayment, it is imperative that issues that could impact an Employee s benefits be addressed precisely in any settlement or severance agreement. Under the Ohio Revised Code, ODJFS has a certain amount of time to assess an overpayment and order re-payment: within six months after the Employee s benefits determination becomes final, or within three years after the Employee s benefit year ends, whichever is later. 20 However, this limitations period does not apply to cases involving retroactive payment of remuneration. 21 Although there appears to be no limitations period for these types of cases, ODJFS may not assess an overpayment or demand repayment unless the agency is notified of the retroactive payment with six months of the date the Employee received it OHIO REV. CODE ANN (A)(5). See also OHIO UNEMPLOYMENT COMPENSATION REVIEW COMMISSION, UC LAW ABSTRACT, available at 19 Id. 20 OHIO REV. CODE ANN (B)(1)(a). 21 Id. (b). 22 Id. 10

11 A retroactive pay award is defined in the regulations as any adjustment in the amount of remuneration paid to an individual as the result of the resolution of a dispute as to the remuneration for services provided by the Employee during the base period, as long as this amount was not used to determine the Employee s application for unemployment benefits or the amount due for a weekly claim. 23 Like severance/separation payments, these payments may be allocated by agreement, or by ODJFS if there is no agreement. 24 To avoid a settlement or severance payment being considered retroactive payment of remuneration, the parties must include language characterizing the payment accordingly. III. VALIDITY (OR NOT) OF NO-REHIRE CLAUSES Employers often want an agreement to specify that the employee cannot be rehired by the employer yes, we will pay you to sign this release, IF you agree we never have to take you back. There is case law support for the validity and enforceability of such clauses or, more specifically, finding that such provisions constitute a legitimate nondiscriminatory reason for a refusal to subsequently hire the employee. Jencks v. Modern Woodmen of America, 479 F.3d 1261 (10th Cir. 2007) (holding that employer's reliance on a former employee's waiver of any right to reemployment or reinstatement in settling a Title VII claim constituted a legitimate and nondiscriminatory reason for the employer's decision not to consider the former employee for a subsequent position); Franklin v. Burlington Northern & Santa Fe Ry. Co., 2005 WL (N.D. Tex. 2005) (employee refused to include no-rehire clause in agreement, but human resources director based subsequent decision not to rehire on honest misunderstanding of eligibility for rehire, which court found to be a legitimate nondiscriminatory reason). The EEOC, however, has aggressively attacked broad no-rehire policies, claiming they constitute disparate impact under the ADEA. One such pending case is EEOC v. AT&T, Case No (S.D.N.Y.), in which the court recently denied AT&T s motion to dismiss the case. The EEOC s complaint in the AT&T case is attached to these materials. While the U.S. Supreme Court has held that a no-rehire policy is a quintessential 23 OHIO ADM. CODE (A). 24 Id. (C). 11

12 legitimate, nondiscriminatory reason for refusing to rehire an employee who was terminated for violating workplace conduct rules in the disparate treatment context, Raytheon Co. v. Hernandez, 540 U.S. 44 (2003), the EEOC s continuing strenuous objections to such policies when implemented on a widespread basis does suggest that employers should be cautious when attempting to legislate a no-rehire rule. IV. OLDER WORKERS BENEFIT PROTECTION ACT (OWBPA) REQUIREMENTS FOR A VALID RELEASE OF FEDERAL AGE CLAIMS The Older Workers Benefit Protection Act ( OWBPA ), codified at 29 U.S.C. 626(f) as an amendment to the Age Discrimination in Employment Act ( the ADEA ), sets forth requirements for a valid release that are unique among discrimination laws. If the waiver of a person s ADEA rights is requested in connection with a layoff affecting only one employee, the OWBPA imposes the following requirements that the waiver: 1. be in writing and understandable by the employee affected or by the average employee entitled to participate; 2. specifically refer to ADEA rights or claims; 3. not waive rights or claims that may arise after the waiver is executed; 4. be in exchange for valuable consideration; 5. advise the individual in writing to consult an attorney before signing the waiver; and 6. provide the employee at least 21 days to consider the agreement and at least seven days to revoke the agreement after signing it. Most lawyers practicing in the area and many employers and employees are aware of this 21/7 requirement and it does not frequently present significant practice issues. If, however, the waiver is requested in connection with an exit incentive or other termination program offered to a group or class of employees, the OWBPA imposes the following requirements that the waiver: 1. provide the employees at least 45 days to consider the agreement and at least seven days to revoke the agreement after signing it; and 2. include written notice, drafted in a manner to be understandable by the average employee entitled to participate, of 12

13 any class, unit, or group of individuals covered by such program, any eligibility factors for such program, and any time limits applicable to such program; and the job titles and ages of all individuals eligible or selected for the program, and the ages of all individuals in the same job classification or organizational unit who are not eligible or selected for the program. There are only a handful of cases concerning the waiver requirements applicable to exit incentive or other termination programs. This likely will change given the current economic climate. Importantly, exit incentive or other employment termination program is defined very broadly: A program exists when an employer offers additional consideration for the signing of a waiver pursuant to an exit incentive or other employment termination (e.g., a reduction in force) to two or more employees. 29 C.F.R (f)(1)(iii)(B) (emphasis added). Once an employer concludes it has an exit incentive or other employment termination program, the issue becomes which employees should receive the written notice; otherwise stated, which employees constitute the decisional unit entitled to information about the program? The decisional unit is that portion of the employer s organizational structure from which the employer chose the persons who would be offered consideration for the signing of a waiver and those who would not be offered consideration for the signing of a waiver. 29 C.F.R (f) provides a variety of examples. For example, if the employer seeks to eliminate ten percent of the employees in a particular facility, the decisional unit would be any of the employees in that entire facility. If, however, the employer sought to eliminate half of the employees in its keyboard department, the decisional unit would only be the keyboard department. 29 C.F.R (f)(3)(iii). The few cases on this issue have helped to somewhat clarify the issue of the decisional unit and what information should be included on the notice. Clearly there is no safe harbor of being overinclusive. See, e.g., Burlison v. McDonald s Corp., 455 F.3d 1242 (11th Cir. 2006) ( In order to evaluate their claims, employees need appropriate data to conduct meaningful statistical analyses. In the discrimination context, the data must permit employees and their attorneys to make meaningful comparisons to determine whether an employer engaged in age discrimination. The data must allow the Appellees to consider whether anything suggests that older employees in their unit were unjustifiably terminated in favor of younger ones. Extending the 13

14 information requirement beyond a decisional unit will in reality only obfuscate the data and make patterns harder to detect. ); Kruchowski v. Weyerhaeuser Co., 446 F.3d 1090 (10th Cir. 2006) ( Defendant failed to provide the correct, mandated information when it informed plaintiffs that the "decisional unit" included all salaried employees of the Mill. Because the information defendant provided did not meet the strict and unqualified requirement of the OWBPA, the Release is ineffective as a matter of law. ); Pagliolo v. Guidant Corp., 483 F. Supp. 2d 847 (D. Minn. 2007) ( The Court finds that Guidant violated the OWBPA by failing to disclose the decisional unit. The Court finds that listing nearly all United States-based employees in Exhibit B does not disclose the decisional unit in a manner calculated to be understood by the average individual eligible to participate in the Severance Plan. ); There just is not a lengthy body of cases to guide attorneys in advising clients in this area. As demonstrated by the cases, courts do not hesitate to invalidate releases.see also Peterson v. Seagate US LLC, 2008 U.S. Dist. LEXIS (D. Minn. May 28, 2008) (invalidating releases because the information presented in the OWBPA notice was inaccurate and presentation of the applicable job titles and codes was confusing); Faraji v. FirstEnergy Corp., 2007 U.S. Dist. LEXIS (N.D. Ohio Mar. 7, 2007) (finding a release invalid because the company failed to disclose the termination program s eligibility factors on the OWBPA notice). It seems likely that the flood of RIFs in the last two years will yield additional case law guidance in this regard. Even with such guidance, this issue will remain perhaps as tricky as any in the employment law arena. V. MUTUALITY: DRAFTING AROUND COMMON AREAS OF DISAGREEMENT It is a common pattern the employer s counsel drafts an agreement, requiring the employee to release claims and promise confidentiality and non-disparagement. The employee s counsel responds requesting mutuality of one or more of those provisions. The employer is generally not unwilling to entertain the concept of mutuality, but asserts that it is not quite apples and apples. With respect to the release, the employer s view is that there is a greater likelihood of latent liability arising from the employee s actions the termination itself is generally the worst thing that the employer can do to the employee, but the employee may have committed acts against the employer s 14

15 interest that the employer has not yet discovered at the time of entering into the agreement. From the employee s point of view, the Ohio Supreme Court s 2007 decision in Greer-Burger v. Temesi, 116 Ohio St. 3d 324, 2007-Ohio-6442, made an employer s release of claims against the employee a necessity. In this case, Greer-Burger sued her former employer, Temesi, for sexual harassment. The case went to trial, and a jury entered a defense verdict. Thereafter, Temesi sued Greer-Burger for abuse of process, malicious prosecution, and intentional infliction of emotional distress. Greer-Burger filed a charge of retaliation with the Ohio Civil Rights Commission. The OCRC found probable cause, and an ALJ entered an order requiring Temesi to cease and desist from retaliatory conduct, in the form of prosecuting his lawsuit. The Ohio Supreme Court held that the filing of a lawsuit by an employer against a former employee who has engaged in protected activity is not per se retaliatory. 116 Ohio St. 3d at 1 of the syllabus. If the employer can demonstrate that its suit is not objectively baseless, the suit shall be allowed to proceed. Id. at 2. With respect to non-disparagement, the employee generally needs only to control his or her own communications, whereas the employer does not want to be bound to controlling every communication of every non-management employee. From the employee s perspective, an important issue tied to nondisparagement is references provided to prospective employers. If the parties can agree on how the reference will be handled (who provides it, what is said, and what is not said), that language should go in the agreement. Similarly, with respect to confidentiality, employers sometimes resist mutuality of obligations. Even though the employer typically has more interest in confidentiality, the employee may also have interest in this type of provision. Drafting the provision to meet those needs, but also balance the employer s ability to control the various individuals involved, can help to address both parties concerns. 15

16 SAMPLE SEVERANCE AGREEMENT This Separation Agreement ( Agreement ) is made by and between Edgar Employee ( Mr. Employee ) and Company, its subsidiaries, parents, affiliates, officers, directors, and employees. WHEREAS, Company and Mr. Employee have agreed to terms that will result in the separation of Mr. Employee from the position of Vice President - Sales of Company and any other employment or other relationships with Company and its subsidiaries, parents, and affiliates. NOW, THEREFORE, in consideration of the mutual obligations and undertakings set forth in this Agreement, the parties agree as follows: 1. Definitions. Throughout this Agreement, the term Company used alone shall encompass the following: (a) Company as well as any subsidiary, parent company, affiliated entity, related entity, or division of any of the foregoing; and (b) Any current or former officer, director, trustee, board member, agent, employee, shareholder, member, representative, insurer, or employee benefit or welfare program or plan (including the administrators, trustees, and fiduciaries of such program or plan) of an entity referenced in or encompassed by subparagraph 1(a). 2. Employment and Other Roles with Company. Mr. Employee s at-will employment shall cease effective October 15, 2010 and he shall not have any authority to enter binding agreements or engage in any other activities affecting the business of Company absent express written consent by the Chief Executive Officer of Company. Mr. Employee also hereby resigns any board memberships or other roles he holds with Company and agrees to cooperate with Company as needed to facilitate such resignations in accordance with any applicable legal requirements. 3. Post-Employment Truthful Testimony. Mr. Employee agrees that he will make himself available for and provide truthful and accurate sworn testimony in the form of deposition, affidavit, and/or court testimony if such testimony becomes necessary in responding to, defending against, and/or addressing any charge, complaint, or claim filed, by any person employed or formerly employed by the Company, or any third-party agency or entity. Company will not compensate Mr. Employee for any such testimony or the time involved in preparing for or providing such testimony; however, Company will reimburse him for reasonable

17 out-of-pocket expenses (e.g., transportation), including reasonable attorneys fees, incurred as a result of the assistance, unless such remuneration would be inappropriate or otherwise prohibited under existing law. 4. Consideration. Company, in consideration for the promises contained herein, agrees as follows: Mr. Employee will receive monetary consideration, which will consist of. This total sum will be divided and paid in installments, with each installment being provided to Mr. Employee on Company s first ordinary pay day in each of the months following his termination of employment. These payments will be subject to all applicable taxes and withholdings and Company will include these payments in the W-2 form(s) issued to Mr. Employee in relation to his employment with Company During the -month period, Mr. Employee and his dependents also will receive all benefits that he received while employed with Company including but not limited to health, dental, vision, and life insurance. Thereafter, Company will provide Mr. Employee and his dependents information about their right to continuation coverage, in accordance with the requirements of COBRA. Mr. Employee agrees that, as part of the consideration for these payments, he will upon reasonable notice be available to consult not more than five (5) hours per month with the Company regarding such Company business matters as the Chairman may reasonably request. The payments and obligations set forth in this Paragraph 4 reflect consideration provided to Mr. Employee over and above anything of value to which he already is entitled. In paying the amounts and/or providing the benefits specified in Paragraph 4, Company makes no representation as to the tax consequences or liability arising from said payment. Moreover, Company and Mr. Employee understand and agree that any tax consequences and/or liability arising from the payments to Mr. Employee shall be the sole responsibility of Mr. Employee, except with respect to the employer-paid portions of Social Security and Medicare taxes ( FICA taxes ). To this extent, Mr. Employee acknowledges and agrees that Mr. Employee will pay any and all income tax which may be determined to be due in connection with the payment described in this Paragraph 4, except any share of FICA taxes that are to be paid by Company. Mr. Employee also agrees to indemnify Company for any and all tax liability (including, but not limited to, fines, penalties, and interest, but excluding attorneys fees) arising from or relating to Mr. Employee s tax treatment of the payments described in this Paragraph 4 and/or imposed by the Internal Revenue Service or any state or other taxing agency or tribunal, except that Mr. Employee shall not be liable to Company for any tax liability associated with Company s responsibility for the employer portion of FICA,

18 or any other employer-portion tax contributions associated with the payments described in this Paragraph 4. This Agreement is intended to comply with the requirements of Section 409A of the Internal Revenue Code. To the maximum extent permitted by law, the Agreement shall be interpreted in a manner that avoids having any amount payable being subject to penalties imposed by Sections 409A(a)(1) or (b) of the Internal Revenue Code. 5. General Releases and Waivers. Mr. Employee, for himself, his agents, assigns, heirs, executors, and administrators, releases and discharges Company from any claim, demand, action, or cause of action, known or unknown, which arose at any time from the beginning of time to the date he executes this Agreement, and waives all rights relating to, arising out of, or in any way connected with his employment with Company, the cessation of that employment, or the compensation or benefits payable in connection with that employment or the cessation of that employment, including (without limitation) any claim, demand, action, cause of action or right, including claims for attorneys fees, based on but not limited to: (a) The Age Discrimination in Employment Act of 1967, as amended ( ADEA ), 29 U.S.C. 621, et seq; (b) The Americans With Disabilities Act of 1990, as amended ( ADA ), 42 U.S.C , et seq; (c) The Family and Medical Leave Act of 1993 ( FMLA ), 29 U.S.C. 2601, et seq., as amended; (d) The Employee Retirement Income Security Act ( ERISA ), 29 U.S.C. 1001, et seq.; (e) Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000(e), et seq.; (f) The National Labor Relations Act, 29 U.S.C. 151, et seq.; (g) Any state and/or local law or ordinance that relates to employers, employees, or the workplace; (h) Any existing or potential entitlement under any Company program or plan, including wages or other paid leave; (i) Any state constitution and/or the United States Constitution;

19 (j) Any existing or potential agreement, contract, representation, policy, procedure, or statement (whether any of the foregoing are express or implied, oral or written); and (k) Claims arising under any other federal, state and local fair employment practices law, disability benefits law, whistleblowing law/statute, and any other employee or labor relations statute, executive order, law or ordinance, and any duty or other employment-related obligation, claims arising from any other type of statute, executive order, law or ordinance; claims arising from contract or public policy, as well as tort, tortious cause of conduct, breach of implied covenant of good faith and fair dealing, breach of contract, intentional and/or negligent infliction of emotional distress, invasion of privacy, defamation, wrongful discharge, negligence, discrimination, harassment, and retaliation, together with all claims for monetary and equitable relief, punitive and compensatory relief and attorneys fees and costs. Mr. Employee understands and agrees that he is releasing Company from any and all claims by which he is giving up the opportunity to recover any compensation, damages, or any other form of relief in any proceeding brought by Mr. Employee or on his behalf. Notwithstanding the foregoing, this Agreement is not intended to operate as a waiver of any retirement or pension benefits that are vested, the eligibility and entitlement to which shall be governed by the terms of the applicable plan, as well as the applicable provisions of ERISA, or any claim, demand, action or cause of action or right, including claims for attorneys fees to enforce this Agreement, or which cannot be waived as a matter of law. Company, on behalf of itself and any subsidiary, parent company, affiliated entity, related entity, or division of any of the foregoing, releases and discharges Mr. Employee, his agents, assigns, heirs, executors, and administrators, from any claim, demand, action, or cause of action, known or unknown, which arose at any time from the beginning of time to the date Company executes this Agreement, and waives all rights relating to, arising out of, or in any way connected with Mr. Employee s employment with Company, the cessation of that employment, including (without limitation) any claim, demand, action, cause of action or right, including claims for attorneys fees, provided that this release of Mr. Employee is not intended to and will not release him from any claims arising in whole or in part from intentional violations of law on his part outside the course and scope of employment. 6. Covenants Not to Sue. (a) Except as to claims from which Company is not released under Paragraph 5, Mr. Employee agrees that he will never sue or file a lawsuit against Company including, without limitation, any lawsuit concerning or in any way

20 related to his employment with Company, the termination of that employment, the compensation or benefits payable in connection with his employment, or any other interaction or relationship with Company, and that no such suit is currently pending. Further, Mr. Employee represents and warrants that he has made Company aware of any complaint or other contact he has made with any government entity or other third party with regard to Company and/or its business operations and/or allegations of any improprieties or legal violations with respect to same, and/or any charge, claim or suit of any kind, on his behalf or that of any other person or entity, with regard to Company or its business operations. Mr. Employee recognizes and agrees that Company is entering into this Agreement relying on this representation and warranty and, in its absence, would not have entered into this Agreement. Should Mr. Employee violate any aspect of this Paragraph, Mr. Employee agrees that any suit shall be null and void, and must be summarily dismissed or withdrawn. Mr. Employee also agrees that if a claim or charge of any kind should be raised, brought, or filed in his name or on his behalf, Mr. Employee waives any right to, and agrees not to take, any resulting award. (b) Except as to claims from which Mr. Employee is not released under Paragraph 5, Company agrees that it will never sue or file a lawsuit against Mr. Employee including, without limitation, any lawsuit concerning or in any way related to Mr. Employee s employment with Company, the termination of that employment, or any other interaction or relationship with Mr. Employee, and that no such suit is currently pending. Further, Company represents and warrants that it is not aware of any pending or threatened complaint or other claim to any government entity by Company or any other third party alleging any improprieties or legal violations concerning Mr. Employee or his work with Company. Company recognizes and agrees that Mr. Employee is entering into this Agreement relying on this representation and warranty and, in its absence, would not have entered into this Agreement. Should Company violate any aspect of this paragraph, Company agrees that any suit shall be null and void, and must be summarily dismissed or withdrawn. Company also agrees that if a claim or charge of any kind should be raised, brought, or filed in its name or on its behalf, Company waives any right to, and agrees not to take, any resulting award. (c) This Paragraph and this Agreement shall not operate to waive or bar any claim which may not under any circumstances be waived or barred. 7. Disclaimer of Liability. This Agreement is not to be construed as an admission of liability or wrongdoing by either party, but is entered into in an effort to provide Mr. Employee with a settlement package and to end the employment relationship on an amicable basis.

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