Exhibit 10.2
AGREEMENT
This Agreement (the “Agreement”) is dated as of May 1, 2015 and is made byand between DecisionPoint Solutions, Inc., a Delaware corporation (the “Company”), and Michael Roe (“Executive”). The Agreement establishes certain payment provisions in the event that the Executive is separated from employment with the Company under the identified circumstances defined in the Agreement. This Agreement does not create a contract of employment; Executive agrees that he is and will remain an employee at will.
| 1. | Termination ofEmployment |
1.1. Termination by the Company. The Company may terminateExecutive's employment with the Company with or without Cause. For purposes of this Agreement, “Cause”means(i) any failure by Executive to perform Executive's material duties hereunder (other than any such breachorfailure duetoExecutive'sphysicalormentalillness)andthecontinuanceofsuchfailure for morethan 30 days after the Company notifiesExecutive in writingthat Executivehas failedor is failingto perform such duties; (ii) Executive's engaging in fraud, willful misconduct or dishonesty that has caused or is reasonably expected to result in material injury to the Company or any of its affiliates or their respective businesses or reputations; (iii) any breach by Executive of any fiduciary duty owed to the Company or any ofits affiliates, where the conduct ofExecutive is notconsistentwithor taken underadvice ofthe Company's counsel; (iv) Executive's conviction of, or entering a plea of guilty or nolo contendere to, a crime that constitutes a felony in the jurisdiction involved; or (v) any material breach by Executive of any of Executive's obligations hereunder or under any other written agreement or covenant with the Companyor any of its affiliates and the continuance of such breach for more than 30 days after the Company notifies Executive in writing that Executive has breached or is breaching Executive's obligations hereunder or under any other written agreement or covenant with the Company or any of its affiliates.
1.2. Termination for Good Reason. Executive may terminate Executive's employment with the Company with or without Good Reason. For purposes of this Agreement,“GoodReason”means, in each case occurring without Executive's consent: (i) a material diminution inExecutive'sauthorities, duties or responsibilities; (ii) a material reduction in Executive's base salary and/orbonus opportunity as in effect on the date hereof (other than a reduction that applies to allsenior executives); or (iii) the relocation of Executive's primary place of business more than fifty (50)milesfrom Executive's primary place of business on the date hereof; provided, however, that in order to terminate Executive's employment for Good Reason based on any such event or events, Executive must (x) give notice to the Company within 30 days of the occurrence of the event giving riseto Good Reason, specifically identifying the acts or omissions constituting the grounds forGoodReason, (y) provide the Company with 30 days to cure such event, and (z) terminate hisemployment within 30 days following the end of such cure period if the Company has not cured suchevent.
1.3. NoticeofTermination. Anyterminationof Executive'semploymentbytheCompanyor by Executive shall be communicated by a written Notice of Termination addressed to the otherpartytothis Agreement. A “Notice of Termination” shall mean a notice stating that Executive'semploymentwith the Company has been or will be terminated and the specific provisions of this Section 1underwhich such termination is beingeffected.
1.4. Date of Termination. As used in this Agreement, the term “Date of Termination”shall mean (i) if Executive's employment is terminated by the Company for Cause, the date any applicablecure period expires (and, if there is no applicable cure period, the date specified in the Notice ofTermination); provided, thatifExecutiveisentitledtocurethenatureofsuchterminationandsocures,theNoticeof Termination shall be of no force or effect; (ii) if Executive's employment is terminated by Executivefor Good Reason, the last day of the 30-day period referred to in Section 1.2(z); (iii) if Executive's employment terminates by reason of Executive's death, the date of Executive's death; and (iv)if Executive's employment is terminated for any other reason, the date specified in the Notice of Termination (which shall be at least 30 days but no more than 60 days after the date of such notice).
1.5. Payments Upon CertainTerminations.
1.5.1. Termination Without Cause or For Good Reason. If the Company terminates Executive's employment withoutCause or Executive terminates his employment for Good Reason, the Company shall pay or provide toExecutive:
1.5.1.1. any accrued but unpaid base salary, in each case through the Date of Termination(the“AccruedBenefits”),whichshallbe paidonthetenthdayaftertheDateofTermination (or, if such day is not a business day, the next business day after such day);plus
1.5.1.2. as liquidated damages in respect of claims based on provisions of this AgreementandprovidedthatExecutiveexecutesanddeliversageneralreleaseofallclaimsinformand substance satisfactory to the Company, substantially in the form attached hereto in Exhibit I, within 60 days following the Date of Termination: (I) continued payment of Executive's base salary as in effecton the Date of Termination (without regard to any reduction in base salary that constitutes the event (or one of the events) giving rise to a Termination by Executive for Good Reason), which base salary shall bepaid insubstantiallyequalperiodic installments onthe Company'sregular payrolldatesbeginning on thenext payroll date immediately following the 60th day after the Date of Termination and continuing for three months of severance thereafter; and (II) continued medical benefits and dental benefits, or Company payment of the cost of COBRA premiums for substantially the same medical and dental coverage as Executive had as of Executive's last day of active employment (subject to general changes in the Company's plans), in either case,ata cost no greaterto Executive thanwhat Executivewould have paidhad Executive remained an active employee of the Company, for three months of severance after the Date ofTermination.
1.5.1.3. Notwithstanding the foregoing, if the Company terminates Executive's employment without Causeor Executive terminates his employment for Good Reason, in either case within 60 days before the occurrence of a Change in Control within 365 days following anyChangein Control, the Company shall pay or provide toExecutive:
1.5.1.4. the Accrued Benefits;plus
1.5.1.5. as liquidated damages in respect of claims based on provisions of this Agreement and provided that Executive executes and delivers a general release of all claims in formand substance satisfactory to the Company, substantially in the form attached hereto in Exhibit I, within60 daysfollowingtheDateofTermination:(I)continuedpaymentofExecutive'sbasesalaryasineffecton theDate of Termination (without regard toanyreduction in base salary that constitutes the event(or one of the events) giving rise to a Termination by Executive for Good Reason), which base salary shall be paid insubstantiallyequal periodicinstallments onthe Company's regular payrolldates beginning onthe next payroll date immediately following the 60th day after the Date of Termination and continuing for twelve months of severance thereafter; (II) continued medical and dental benefits or Company payment of the cost ofCOBRA premiums for substantially the same medical and dental coverage as Executive had as of Executive's last day of active employment (subject to general changes in the Company's plans), in either case, at a cost no greater to Executive than what Executive would have paid had Executive remained an active employee of the Company, for twelve months of severance after the Date of Termination; and (III) accelerated vesting of all outstanding unvested equity awards as of the Date of Termination, notwithstanding any language to the contrary in the awardagreements.
1.5.2. Termination For Any Other Reason. If Executive's employment is terminated for any reason other than those specified in Section 1(.5.1, the Company shall pay Executive the Accrued Benefits on the tenth day after the Date ofTermination(or, if such day is not a business day, the next business day after suchday).
1.5.3. Effect of Termination on Other Plans and Programs. In the eventthat Executive's employment with the Company is terminated for any reason, Executive shall be entitled to receive all amounts payable and benefits accrued under any otherwise applicable plan,policy,programor practice of the Company in which Executive was a participant immediately prior to the Dateof Termination in accordance with the terms thereof; provided, that if Executive receives paymentspursuant to Section 1.5.1 of this Agreement, Executive shall not be entitled to receive any paymentsor benefits under any such plan, policy, program or practice providing any severance orincentive compensationexceptas setoutinthis Agreement.
1.6. Resignation Upon Termination. Effective as of any Date of Termination orotherwiseas of the date of Executive's termination of employment with the Company, Executive shallresign, inwriting,fromallpositionsthenheldbyExecutivewiththeCompanyanditsaffiliatesunless otherwise requested by the Company.
“Change in Control” means the consummation of a merger of consolidation of the Company with or into another entity or any other corporate reorganization, if fifty percent (50%) or more of the combined voting power of the continuing or surviving entity’s securities outstanding immediately after such merger, consolidation, or other reorganization is owned by persons who were not shareholders of the Company immediately prior to such merger, consolidation, or other reorganization; (ii) a change in ownership or control of the Company after the date hereof, effected through the direct or indirect acquisition by any person or related group of persons of securities possessing more than 50% of the total combined voting power of the Company’s outstanding securities; (iii) the sale, transfer or other disposition of all or substantially all of the Company’s assets; or (iv) the liquidation or dissolution of the Company (other than a liquidation or dissolution occurring upon a merger or dissolution thereof).
Notwithstanding the foregoing, a "Change in Control" shall not be deemed to occur upon theif its sole purpose is to change the state of the Company’s incorporation or to create a holding company that will be owned in substantially the same proportions by the persons who held the Company’s securities immediately before such transaction.
2. RestrictiveCovenants
The Company and the Executive have previously entered into a Non-Disclosure Agreement (the “NDA”), which contains certain restrictive covenants. Both parties mutually agree that the NDA is valid, and binding, and further agree that it is incorporated herein by reference.
3. EntireAgreement
This Agreement constitutes the entire agreement between the Company and its affiliatesand Executivewithrespecttothesubjectmatterhereofandsupersedesallundertakingsand agreements,whetheroralorin writing, previouslyentered intoby the Companyand/or itsaffiliates and Executivewithrespect thereto, including, without limitation, any offer letter, change of control agreement, boardresolution ororal agreement. All prior correspondenceand proposals and allprior offer letters, promises, representations, understandings, arrangements andagreements relating tosuch subject matter(including, but not limited to, those made to or with Executive by any other person) are merged herein and superseded hereby.
4.1. Binding Effect; Assignment. This Agreement shall be binding on and inure to thebenefit of the Company and its respective successors and permitted assigns. This Agreement shall alsobe binding on and inure to the benefit of Executive and Executive's heirs, executors, administrators andlegal representatives. This Agreement shall not be assignable by any party hereto without the priorwritten consent of the other parties hereto, except as provided pursuant to this Section 4.1. The Companymay effect such an assignment without prior written approval of Executive upon the transfer of allor substantially all of its business and/or assets (by whatevermeans).
4.2. Governing Law; Waiver of JuryTrial.
4.2.1. Governing Law; Consent to Jurisdiction. This Agreement shall begovernedin all respects, including as to interpretation, substantive effect and enforceability, by the internal lawsof theStateofCalifornia,withoutregardtoconflictsoflawsprovisionsthereofthatwould require application of the laws of another jurisdiction other than those that mandatorily apply. Each party hereby irrevocably submits to the jurisdiction of the courts of the State of California and the federal courts of the United States of America located in California solely in respect of the interpretationand enforcement of the provisions of this Agreement and in respect of the transactions contemplatedhereby.
4.2.2. Waiver of Jury Trial. Each party acknowledges and agrees that anycontroversy which may arise under this Agreement is likely to involve complicated and difficultissues,and therefore each party hereby irrevocably and unconditionally waives any right such party may have toa trial by jury in respect of any litigation directly or indirectly arising out of or relating to thisAgreement, or the breach, termination or validity of this Agreement, or the transactions contemplated bythisAgreement.
4.3. Taxes. All amounts payable and benefits provided hereunder shall be subject to anyand all applicable taxes, as required by applicable federal, state, local and foreign laws and regulations.
4.4. Amendments; Waiver. No provision of this Agreement may be modified, waived ordischargedunless suchmodification, waiver or discharge is approvedby a PersonauthorizedbytheCompanyandisagreedtoinwritingbyExecutive.Nowaiverbyanypartyheretoatanytime of any breach by any other party hereto of, or compliancewith, any condition or provision ofthis Agreement to be performed by such other party shall be deemed a waiver of similar or dissimilar provisionsor conditions at the same or at any prior or subsequent time. No waiver of any provision of this Agreement shall be implied from any course of dealing between or among the partieshereto or fromany failure by any party hereto to assert its rights hereunder on any occasion or series of occasions.
4.5. Severability. In the event that any one or more of the provisions of this Agreementshall be or become invalid, illegal or unenforceable in any respect, the validity, legality and enforceabilityof the remaining provisions contained herein shall not be affectedthereby.
(f)Notices. Any notice given pursuant to this Agreement shall be in writing anddelivered personally, sent by reputable, overnight courier service (charges prepaid), sent by registered orcertified mail, return receipt requested and postage prepaid, or by facsimile, and addressed to (i) if to the Company: DecisionPoint Solutions, Inc., Research Drive, Irvine California, withacopy(whichshallnotconstitutenotice)toRob Schroeder, Taglich Brothers Inc.; and (ii)iftoExecutive,atthelastknownaddressofExecutive setforthonthe books andrecordsof theCompany. Anypartytothis Agreement maydesignatea new address by notice to that effect given to the other party hereto. Such notice shall be deemed to havebeen given and shall be effective: at the time delivered by hand, if personally delivered; one business day after being sent,if sent byreputable,overnightcourier service;on the thirdbusiness day after mailing,if sent by registered or certified mail; andat the time when confirmationof successfultransmission is received by the sending facsimile machine, if sent by facsimile.
(g) Survival. The Company and Executive hereby agree that the provisions ofthis Agreement that are intended to survive the expiration of this Agreement shall survive the expiration of this Agreement in accordance with theirterms.
(h) Section 409A. The parties intend that any amounts payable hereunder shall either comply with or be exempt from section 409A of the Code ("Section 409A") (includingunder Treasury Regulation §§ 1.409A-l(b)(4) ("short-term deferrals") and (b)(9) ("separation pay plans," including the exceptions under subparagraph (iii) and subparagraph (v)(D)) and otherapplicableprovisions of Treasury Regulation §§ 1.409A-1 through A-6). For purposes of Section 409A,eachpayment that may be made under this Agreement shall be deemed to be a separate payment. With respect to amounts under the Agreement that are "deferred compensation" subject to Section 409A(i)any provisions of this Agreement that provide for payment that is triggered by Executive'semployment termination (or substantially similar phrase) shall be deemed to provide for payment that is triggered only by Executive's "separation from service" within the meaning of Treasury RegulationSection §1.409A-1(h), and (ii) if Executive is a "specified employee" within the meaning ofTreasury Regulation Section §1.409A-l (i) on the date of his or her separation from service (with suchstatus determined by the Company in accordance with rules established by the Company in writing in advance of the "specified employee identification date" that relates to the date of suchseparation from service or in the absence of such rules established by the Company, under the default rulesforidentifying specified employees under Treasury Regulation Section 1.409A-l(i)), then anypayment triggered by such separation from service shall not be made until the date which is the earlier of (A)the expiration of the twelve (12)-month period measured from the date ofsuch separationfrom serviceand (B)the dateof Executive'sdeath,tothe extent requiredunderCodeSection 409A;upon theexpiration of the foregoing delay period, all paymentsdelayed pursuant to thisclause(ii) shall be paidto Executive in a lump sum and any remaining paymentsdue under this Agreement shall be paid in accordance with the normal payment dates specified for them in this Agreement. For the avoidance of doubt, it is intended that any expense reimbursement made to Executive hereunder shallbe exempt from Section 409A. Notwithstanding the foregoing, if any expense reimbursement made hereunder shall be determined to be "deferred compensation" within the meaning of Section 409A, then the amount of expenses eligible for reimbursement during one taxable year shall not affect the amount of the expenses eligible for reimbursement during any other taxable year, (ii) the expense reimbursement shall be made on or before the last day of Executive's taxable year following the taxable year in which the expense was incurred and (iii) the right to expense reimbursement hereunder shall not be subject to liquidation or exchange for another benefit. The Company makes no representation to Executive regarding the tax treatment of any payment under this Agreement, and Executive is solely responsible for all taxes due with respect to any payment under thisAgreement.
(i) Counterparts. This Agreement may be executed in counterparts, each of which shallbe deemedanoriginal,andallofwhichtogethershallconstituteoneandthesameinstrument.Theparties heretoagreetoacceptasignedfacsimile copy or portable documentformat ofthisAgreement as afully binding original.
(j) Headings. The section and other headings contained in this Agreement are forthe convenience of the parties only and are not intended to be a part hereof or to affect the meaningor interpretationhereof.
--Signature page follows--
IN WITNESS WHEREOF,the Company has duly executed this Agreement by itsauthorized representative,andExecutivehashereuntosetExecutive'shand,ineachcaseeffectiveas of thedate first abovewritten.
| | DECISIONPOINT SOLUTIONS,INC. |
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| | By: | |
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| Name: | Jim DeSocio |
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| Title: | Board member, Interim CEO |
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| | | Michael Roe |
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EXHIBIT 1
RELEASE AGREEMENT
[DATE]
[EXECUTIVE NAME]
[ADDRESS]
[ADDRESS]
Dear[EXECUTIVE NAME]:
This Release Agreement (the “Release") is being delivered pursuant to theAgreement dated[DATE]between DecisionPoint Solutions, Inc. ("Company") and[EXECUTIVE NAME](the" Agreement").
(a) Release of Claims. You, on behalf of yourself and your family, agents,representatives, heirs, executors, trustees, administrators, attorneys, successors and assigns(the “Releasors"), hereby irrevocably and unconditionally release, settle, cancel, acquit, dischargeand acknowledge to be fully satisfied, and covenant not to sue the Company and each ofits respective subsidiaries, affiliates, successors and assigns, and each of their respectivepredecessors, stockholders, partners, members, directors, managers, officers, employees, agents orother representatives, and employee benefit plans of the Company (including current and former trusteesand administrators of these plans) (collectively, the "Releasees") from any and all claims, contractualorotherwise, demands, costs, rights, causes of action, charges, debts, liens, promises,obligations,complaints, losses, damages and all liability of whatever kind and nature, whether known or unknown, andhereby waiveanyandallrights thathe,she or itmayhave from the beginning of time up to andincluding the time of signing this Release, or that otherwise may exist or may arise in respect of youremployment or separation from employment with the Company and each of its subsidiaries and affiliates or is in any way connected with or related to any applicable compensatory or benefit plan,program,policyor arrangement;provided,that such released claims shall not include any claims to enforce your rights under, or with respect to, this Release.
(b) Covenant Not to Sue; Certain Proceedings. The Releasors agree not to bring anyaction, suit or proceeding whatsoever (including the initiation of governmental proceedingsor investigations of any type) against any of the Releasees hereto for any matter orcircumstance concerning which the Releasors have released the Releasees under this Release. Further, the Releasors agree not to encourage any other person or suggest to any other person that he, she or it institute any legal action against the Releasees. Notwithstanding the foregoing, this release isnot intended to interfere with your right to file a charge with the Equal Employment Opportunity Commissioninconnection withanyclaimyoubelieveyoumayhaveagainstthe Companyand eachof its subsidiaries or affiliates. The Releasors hereby agree to waive the right to any relief (monetaryor otherwise) in any action, suit or proceeding you may bring in violation of this Release, including any proceeding before the Equal Employment Opportunity Commission or any other similar body or in any proceeding brought by the Equal Employment Opportunity Commission or any other similar body on your behalf.
(c) ExtentofRelease.Thisreleaseisvalidwhetheranyclaimarisesunderanyfederal,state or local statute (including, without limitation, Title VII of the Civil Rights Act of 1964, theCivil Rights Act of 1991, the Age Discrimination in Employment Act of 1967, the Equal Pay Act,the Americans with Disabilities Act of 1990, the Employee Retirement Income Security Act of 1974, the Fair Labor Standards Act, the Family and Medical Leave Act, the California Statutes Annotated, the California Law Against Discrimination, the California Family Leave Act, the CaliforniaState Wage and Hour Laws and Regulations, and all other statutes regulating the terms and conditions of your employment), regulation or ordinance, under the common law or in equity (including any claims intort or under contract for wrongful discharge or otherwise), or under any policy, agreement, understanding or promise, written or oral, formal or informal, between the Company or any of its subsidiaries or affiliates, and yourself.
(a) Third Party Beneficiaries. All Releasees under this Release who are notsignatoriesto this Release shall be deemed to be third party beneficiaries of this Release to the sameextent as if they were signatorieshereto.
(b) Withholding. The Company shall withhold from any amounts payable underthis Release such federal, state and local taxes as may be required or permitted to be withheld pursuantto any applicable law orregulation.
(c) Entire Agreement. This Release constitutes the sole and complete understanding of you, the Company and each of its subsidiaries and affiliates with respect to the subject matterhereof.YouandtheCompanyrepresenttoeachotherthatinexecutingthisRelease,youandtheCompany do not rely and have not relied upon any representation or statement not set forth herein made by any other person with regard to the subject matter, basis or effect of thisRelease.
(d) Amendment: Waiver; Successors. No amendment, modification or alteration ofthetermsandprovisionsofthisAgreementshallbebindingunlessthesameshallbeinwritinganddulyexecuted by you and the Company. No waiver of any of the provisions of this Release shall bedeemed to or shall constitutea waiver of any other provision hereof. No delay on the part of any party heretoin exercisinganyright,power or privilegehereunder shalloperate asa waiverthereof. This Release shall be binding upon the parties hereto and their respective successors, transferees and assigns.
(e) GoverningLaw; Severability. ThisRelease willbegovernedbytheLawsofthe State of California, without regard to its conflict of Laws rules. In the event that any one ormore of the provisions of this Release is held to be invalid, illegal or unenforceable, thevalidity, legality and enforceability of the remaining provisions will not in any way be affected orimpairedthereby.
(f) Counterparts. This Release may be executed in counterparts, each of which shallfor allpurposesbedeemedtobeanoriginal,andallofwhichshallconstitutethesameinstrument.The parties hereto agree to accept a signed facsimile copy or portable document format of this Release asa fully bindingoriginal.
By signing below, you affirm that you were advised to consult with an attorney before signingthisRelease and were given ample opportunity to do so,i.e.,a period of no less than twenty-one (21)days in which to review this agreement and consider whether or not you wish to sign it (which, by signingthisRelease prior to the expiration of such period, you have expressly agreed to waive). If you do signit, you will have seven (7) days from the date it is signed to revoke your acceptance of it. If you wishto revokeyouracceptanceoftheRelease withinthisseven(7)daytimeperiod,youmustsoadvisethe Company in writing by delivering to [NAME] a written statement stating that you wish to revoke thisRelease or not be bound by it. You understand that thisRelease will not become effective untilthe eighth (8th) day after you return the original signedRelease to the Company (such date beingreferred to herein as the "Effective Date"). You understand that if you request additional time to review the terms of thisRelease, a reasonable extension of time will be granted. You understand that if you revokethisRelease, you will not be entitled to the payments or other benefits set forth in the Agreement.
If thisRelease correctly sets forth your understanding of our agreement with respect to theforegoing matters, please so indicate by signing below on the line provided for yoursignature.
| | DECISIONPOINT SOLUTIONS,INC. |
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| | By: | |
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| Name: | |
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| Title: | |
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| | Acknowledged and Agreed: |
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| | [EXECUTIVE NAME] |
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| | Date: | |
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