Exhibit 10.3
TRANSITION AGREEMENT AND RELEASE
This Transition Agreement and Release (“Agreement”) is made by and between Thomas E. Hale (“Employee”) and Momentive Global Inc. (the “Company”) (collectively referred to as the “Parties” or individually referred to as a “Party”).
RECITALS
WHEREAS, Employee is employed by the Company;
WHEREAS, Employee signed the Company’s Employee Proprietary Information and Inventions Agreement and the Company’s Arbitration Agreement dated as of July 21, 2016 (the “Confidentiality Agreement”);
WHEREAS, Employee signed a confirmatory employment letter with the Company dated September 10, 2018 (the “Employment Letter”);
WHEREAS, Employee signed a Change in Control and Severance Agreement with the Company, effective as of November 1, 2018 (the “Change in Control Severance Agreement”);
WHEREAS, the Company and Employee have entered into Stock Option Agreements granted as of August 29, 2016, March 5, 2018, February 15, 2019, February 18, 2020 and February 16, 2021, pursuant to which Employee was granted the option to purchase shares of the Company’s common stock (each such grant, an “Option” and together, the “Options”), have entered into Restricted Stock Unit Award Agreements granted as of August 29, 2016, March 5, 2018, February 15, 2019 and February 2020, granting Employee the right to receive an award of restricted stock units (each such award, an “RSU Award” and together, the “RSU Awards”), and have entered into a Restricted Stock Award Agreement granted as of February 16, 2021, granting Employee restricted stock (the “RSA Award”), each subject to the terms and conditions of the Company’s 2018 Equity Incentive Plan (the “2018 Plan”) or the Company’s 2011 Equity Incentive Plan, as amended (the “2011 Plan” and each, a “Plan” and collectively, the “Plans”), and the terms and conditions of the Stock Option Agreement, the Restricted Stock Unit Award Agreement, or the Restricted Stock Award Agreement as applicable, related to the award (collectively with the Plans, “Stock Agreements”);
WHEREAS, Employee’s employment with the Company is expected to terminate effective no later than February 28, 2022 (the “Planned Separation Date” and Employee’s actual employment termination date, the “Separation Date”); and
WHEREAS, the Parties wish to resolve any and all disputes, claims, complaints, grievances, charges, actions, petitions, and demands that Employee may have against the Company and any of the Releasees as defined below, including, but not limited to, any and all claims arising out of or in any way related to Employee’s employment with or separation from the Company.
NOW, THEREFORE, in consideration of the mutual promises made herein, the Company and Employee hereby agree as follows:
COVENANTS
a. any and all claims relating to or arising from Employee’s employment relationship with the Company and the termination of that relationship;
b. any and all claims relating to, or arising from, Employee’s right to purchase, or actual purchase of shares of stock of the Company, including, without limitation, any claims for fraud; misrepresentation; breach of fiduciary duty; breach of duty under applicable state corporate law; and securities fraud under any state or federal law;
c. any and all claims for wrongful discharge of employment; termination in violation of public policy; discrimination; harassment; retaliation; breach of contract, both express and implied; breach of covenant of good faith and fair dealing, both express and implied; promissory estoppel; negligent or intentional infliction of emotional distress; fraud; negligent or intentional misrepresentation; negligent or intentional interference with contract or prospective economic advantage; unfair business practices; defamation; libel; slander; negligence; personal injury; assault; battery; invasion of privacy; false imprisonment; conversion; and disability benefits;
d. any and all claims for violation of any federal, state, or municipal statute, including, but not limited to, Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, the Rehabilitation Act of 1973, the Americans with Disabilities Act of 1990, the Equal Pay Act, the Fair Labor Standards Act, the Fair Credit Reporting Act, the Age Discrimination in Employment Act of 1967, the Older Workers Benefit Protection Act, the Employee Retirement Income Security Act of 1974, the Worker Adjustment and Retraining Notification Act, the Family and Medical Leave Act, the Immigration Reform and Control Act, the National Labor Relations Act, the California Family Rights Act, the California Labor Code, the California Workers’ Compensation Act, and the California Fair Employment and Housing Act;
e. any and all claims for violation of the federal or any state constitution;
f. any and all claims arising out of any other laws and regulations relating to employment or employment discrimination;
g. any claim for any loss, cost, damage, or expense arising out of any dispute over the nonwithholding or other tax treatment of any of the proceeds received by Employee as a result of this Agreement;
h. any and all claims of benefits payable pursuant to the Change in Control Severance Agreement; and
i. any and all claims for attorneys’ fees and costs.
Employee agrees that the release set forth in this section shall be and remain in effect in all respects as a complete general release as to the matters released. This release does not extend to any obligations incurred under this Agreement. This release does not release claims that cannot be released as a matter of law. Any and all disputed wage claims that are released herein shall be subject to binding arbitration in accordance with this Agreement, except as required by applicable law. This release does not extend to any right Employee may have to unemployment compensation benefits. Employee acknowledges that Employee’s continued employment through the Planned Separation Date (subject to the at-will provision in Section 2 above) is not contingent on Employee’s execution of this Agreement, and the Company is not requiring Employee to execute this Agreement in exchange for a raise or bonus or as a condition of continued employment. Prior to entering into this Agreement, the Parties had already mutually agreed on the Planned Separation Date, and Employee would be eligible for continued employment through the Planned Separation Date (subject to the at-will provision in Section 2 above) regardless of whether Employee signs this Agreement.
A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.
Employee, being aware of said code section, agrees to expressly waive any rights Employee may have thereunder, as well as under any other statute or common law principles of similar effect.
a. Reduction of Severance Benefits. If any payment or benefit that Employee would receive from the Company (or any successor) or any other party whether in connection with the provisions in this Agreement or otherwise (the “Payment”) would (i) constitute a “parachute payment” within the meaning of Code Section 280G, and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the Payment will be equal to the Best Results Amount. The “Best Results Amount” will be either (x) the full amount of the Payment, or (y) a lesser amount that would result in no portion of the Payment being subject to the Excise Tax, whichever of those amounts, taking into account the applicable federal, state and local employment taxes, income taxes and the Excise Tax, results in Employee’s receipt, on an after-tax basis, of the greater amount. If a reduction in payments or benefits constituting parachute payments is necessary so that the Payment equals the Best Results Amount, reduction will occur in the following order: (A) reduction of cash payments in reverse chronological order (that is, the cash payment owed on the latest date following the occurrence of the event triggering the excise tax will be the first cash payment to be reduced); (B) cancellation of equity awards that were granted “contingent on a change in ownership or control” within the meaning of Code Section 280G in the reverse order of date of grant of the awards (that is, the most recently granted equity awards will be cancelled first); (C) reduction of the accelerated vesting of equity awards in the reverse order of date of grant of the awards (that is, the vesting of the most recently granted equity awards will be cancelled first); and (D) reduction of employee benefits in reverse chronological order (that is, the benefit owed on the latest date following the occurrence of the event triggering the excise tax will be the first benefit to be reduced). In no event will Employee have any discretion with respect to the ordering of Payment reductions. Employee will be solely responsible for the payment of all personal tax liability that is incurred as a result of the payments and benefits received under this Agreement, and Employee will not be reimbursed, indemnified, or held harmless by the Company (or any successor) for any of those payments of personal tax liability.
b. Determination of Excise Tax Liability. Unless the Parties otherwise agree in writing, the Company will select a professional services firm (the “Firm”) to make all determinations required under this Section 22, which determinations will be conclusive and binding upon the Parties for all purposes. For purposes of making the calculations required by this Section 22, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Code Sections 280G and 4999. The Parties will furnish to the Firm such information and documents as the Firm reasonably may request in order to make determinations under this Section 22. The Company will bear the costs and make all payments for the Firm’s services in connection with any calculations contemplated by this Section 22. The Company will have no liability to Employee for the determinations of the Firm.
a) Employee has read this Agreement;
b) Employee has a right to consult with an attorney regarding this Agreement, and has been represented in the preparation, negotiation, and execution of this Agreement by an attorney of Employee’s own choice or has elected not to retain an attorney;
c) Employee understands the terms and consequences of this Agreement and of the releases it contains;
d) Employee is fully aware of the legal and binding effect of this Agreement; and
e) Employee has not relied upon any representations or statements made by the Company that are not specifically set forth in this Agreement.
IN WITNESS WHEREOF, the Parties have executed this Agreement on the respective dates set forth below.
THOMAS E. HALE, an individual
/s/ Thomas E. Halex
Signed
Dated: February 27, 2022
MOMENTIVE GLOBAL INC.
By /s/ Rebecca Cantieri
Chief People Officer
Dated: February 27, 2022