Exhibit 10.26
SEPARATION AGREEMENT AND GENERAL RELEASE OF CLAIMS
This Separation Agreement and General Release of Claims (this “Agreement”) is made by and between 5E Advanced Materials, Inc. (together with its subsidiaries and controlled affiliates, the “Company”) and Susan Seilheimer Brennan (“Employee” and, together with the Company, the “Parties”) with respect to the following facts:
WHEREAS, Employee has been employed as the President and Chief Executive Officer of the Company pursuant to the Employment Agreement, dated March 20, 2023, by and between the Company and Employee (the “Employment Agreement”);
WHEREAS, Employee has submitted notice of her resignation from employment and all offices and board positions with the Company, which notice will be effective June 1, 2024; and
WHEREAS, in connection with the Employee’s resignation, it is the mutual desire of the Parties to effect a final resolution and compromise of any and all matters between them from the beginning of time until the Separation Date (defined below).
THEREFORE, in consideration of the promises and mutual agreements hereinafter set forth, it is agreed by and between the undersigned as follows:
4.10 (Indemnification) of the Employment Agreement.
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Except as otherwise explicitly provided in this Section 4, all terms of Employee’s award agreements for the Equity Awards shall continue to control, including with respect to Employee’s payment of the exercise price for any Stock Option exercise and the Company’s (or its affiliate’s) right to withhold, or to require remittance of, an amount sufficient to cover any federal, state or local withholding tax requirements. For the avoidance of doubt, in the event of Employee’s breach of any of the Restrictive Covenants or any other restrictive covenants to which Employee is bound under any other agreements with the Company, the Employee shall immediately forfeit all Equity Awards, and such Equity Awards, and any benefits derived therefrom, shall be subject to Section 16 below.
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that Employee has earned or become entitled to during Employee’s employment with the Company or its predecessors or affiliates through the date Employee executes this Agreement. Without limiting the foregoing, Employee acknowledges and agrees that none of Employee’s PSUs have vested, and that all of Employee’s PSUs shall be forfeited and terminate immediately upon the termination of Employee’s employment in accordance with the Plan and Employee’s PSU award agreement. Employee agrees that Employee does not have knowledge of any potential or actual dispute with the Company about any unpaid wages or compensation which Employee believes Employee is entitled to but has not been paid as of the date Employee executes this Agreement. Employee understands and acknowledges that Employee shall not be entitled to any payments or benefits from the Company other than those expressly set forth in Sections 2, 3 and 4.
EMPLOYEE ACKNOWLEDGES THAT EMPLOYEE HAS BEEN ADVISED BY LEGAL COUNSEL AND IS FAMILIAR WITH THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH PROVIDES AS FOLLOWS:
“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, HEREBY EXPRESSLY WAIVES ANY RIGHTS EMPLOYEE MAY HAVE THEREUNDER, AS WELL AS UNDER ANY OTHER STATUTES OR COMMON LAW PRINCIPLES OF SIMILAR EFFECT.
Employee agrees that the release set forth in this section shall be and remains in effect in all respects
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as a complete general release as to the matters released. This release does not release claims that cannot be released as a matter of law, including, but not limited to, Employee’s right to report possible violations of federal law or regulation to any governmental agency or entity in accordance with the provisions of and rules promulgated under Section 21F of the Securities Exchange Act of 1934 or Section 806 of the Sarbanes-Oxley Act of 2002, or any other whistleblower protection provisions of state or federal law or regulation and any right to receive an award for information provided thereunder, Employee’s right to file a charge with or participate in a charge by the Equal Employment Opportunity Commission (the “EEOC”), or any other local, state, or federal administrative body or government agency that is authorized to enforce or administer laws related to employment, against the Company for discrimination (with the understanding that Employee’s release of claims herein bars Employee from recovering such monetary relief from the Company or any Released Party for any alleged discriminatory treatment), claims for unemployment compensation or any state disability insurance benefits pursuant to the terms of applicable state law, claims to continued participation in certain of the Company’s group benefit plans pursuant to the terms and conditions of COBRA, claims for indemnity under the bylaws of the Company, as provided for by California or Delaware law or under any applicable insurance policy or pursuant to the Indemnification Agreement with respect to Employee’s liability as an employee, director or officer of the Company, and any claims to any benefit entitlements vested as of the Separation Date pursuant to written terms of any employee benefit plan of the Company or its affiliates and Employee’s right under applicable law.
(21) day period identified above, Employee hereby acknowledges that Employee has freely and voluntarily chosen to waive the time period allotted for considering this Agreement.
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than the last day of the Revocation Period. If Employee does not revoke acceptance of this Agreement within the Revocation Period, Employee’s acceptance of this Agreement shall become binding and enforceable on the eighth (8th) day (Pacific Daylight Time) after the date Employee signs this Agreement.
Notwithstanding the foregoing, nothing in this Agreement shall interfere with the Employee’s right to file a charge, cooperate or participate in an investigation or proceeding conducted by the EEOC or other federal or state regulatory or law enforcement agency. However, the consideration provided to the Employee in this Agreement shall be the sole relief provided to the Employee for the claims that are released by the Employee herein and Employee will not be entitled to recover and agrees to waive any monetary benefits or recovery against the Company in connection with any such claim, charge or proceeding without regard to who has brought such complaint or charge, except that nothing in this Agreement shall be interpreted to prohibit or prevent Employee from recovering an award for filing or participating in any whistleblower complaint filed with the Securities and Exchange Commission.
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the Company or its subsidiaries or affiliates to solicit, induce, or encourage any customer, client, vendor, or other party doing business with any member of the Company and its subsidiaries and affiliates to terminate its relationship therewith or transfer its business from any member of the Company and its subsidiaries and affiliates and the Employee shall not initiate discussion with any such person for any such purpose or authorize or knowingly cooperate with the taking of any such actions by any other individual or entity.
In the event that Employee believes that Employee is legally obligated by statutory or regulatory requirements (including compulsory legal process), to make such disclosures, Employee will contact the Corporate Secretary at [ ] within twenty-four (24) hours of receiving notice that Employee is so obligated.
Employee understands that the confidentiality covenants contained in this Section 11(b) are a material inducement for the Company to enter into this Agreement and that the breach thereof will be considered a material breach of this Agreement.
(i) communicating directly with, filing a charge with, reporting possible violations of federal law or regulation to, participating in any investigation by, or cooperating with the U.S. Securities and Exchange Commission, the Financial Industry Regulatory Authority, the EEOC, the National Labor Relations Board (the “NLRB”), the Occupational Safety and Health Administration, the U.S. Commodity Futures Trading Commission, the U.S. Department of Justice or any other securities regulatory agency, self-regulatory authority or federal, state or local regulatory authority (collectively, “Government Agencies”), or making other disclosures that are protected under the whistleblower provisions of applicable law or regulation, (ii) communicating directly with, cooperating with, or providing information (including trade secrets) in confidence to any Government Agencies for the purpose of reporting or investigating a suspected violation of law, or from providing such information to such party’s attorney(s) or in a sealed complaint or other document filed in a lawsuit or other governmental proceeding, and/or (iii) receiving an award for
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information provided to any Government Agency. Further, nothing herein will prevent Employee from participating in activity permitted by Section 7 of the National Labor Relations Act or from filing an unfair labor practice charge with the NLRB. Pursuant to 18 USC Section 1833(b), Employee will not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that is made: (A) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney, and solely for the purpose of reporting or investigating a suspected violation of law; or (B) in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. Further, nothing in this Agreement is intended to or shall preclude either party from providing truthful testimony in response to a valid subpoena, court order, regulatory request or other judicial, administrative or legal process or otherwise as required by law. If Employee is required to provide testimony, then unless otherwise directed or requested by a Government Agency or law enforcement, Employee shall notify the Company as soon as reasonably practicable after receiving any such request of the anticipated testimony. Further, nothing in this Agreement prevents Employee from discussing or disclosing information about unlawful acts in the workplace, such as harassment or discrimination or any other conduct that Employee has reason to believe is unlawful. Employee is not required to contact the Company regarding the subject matter of any such communications before they engage in such communications.
(30) days following the breach, except for five hundred thousand dollars ($500,000), which shall be deemed sufficient consideration for the release of claims set forth in Section 6 hereof. In the event a court of competent jurisdiction enters final judgment that the Employee has materially breached any enforceable term of this Agreement, including but not limited to, the Restrictive Covenants, (i) any vested Stock Options then held by Employee pursuant to the Plan and the Stock Option Agreement that have not yet been exercised shall be immediately forfeited and terminated, (ii) Employee shall deliver to the Company, upon written notice from the Company to the Employee, any shares of Company common stock acquired upon the exercise of any Stock Options, and (iii) if the Employee has previously sold any of the shares of the Company’s common stock derived from any of the Equity Awards, Employee shall promptly pay to the Company in cash, upon written notice from the Company to the Employee, an amount equal to the lesser of the amount Employee was paid for the sale or the economic value of such acquired shares of common stock at the time judgment is entered.
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Notwithstanding any other provision of this Agreement, if any payment or benefit provided to the Employee in connection with the Employee’s termination of employment is determined to constitute “nonqualified deferred compensation” within the meaning of Section 409A and the Employee is determined to be a “specified employee” as defined in Section 409A(a)(2)(b)(i), then such payment or benefit shall not be paid until the first payroll date following the six-month anniversary of the Separation Date or, if earlier, on the Employee’s death (the “Specified Employee Payment Date”). The aggregate of any payments that would otherwise have been paid before the Specified Employee Payment Date shall be paid to the Employee in a lump sum on the Specified Employee Payment Date and thereafter, any remaining payments shall be paid without delay in accordance with their original schedule.
U.S.C. § 1395y(b)(3)(A) et seq.
THE PARTIES TO THIS AGREEMENT HAVE READ THE FOREGOING AGREEMENT AND FULLY UNDERSTAND EACH AND EVERY PROVISION CONTAINED HEREIN. WHEREFORE, THE PARTIES HAVE EXECUTED THIS AGREEMENT ON THE DATES SHOWN BELOW.
[Signature page follows]
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5E advanced materials, inc. |
| EMPLOYEE |
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By: /s/ David Salisbury |
| By: /s/ Susan Seilheimer Brennan |
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David Salisbury |
| Susan Seilheimer Brennan |
Chairman of the Board |
| June 3, 2024 |
June 3, 2024 |
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[Signature page to Supplemental Release]
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EXHIBIT A
Severance Payments and Benefits
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