18. Requirements for a Separation Agreement and Release. The Non-Change of Control Severance payments and benefits under Section 5 of this Agreement are conditioned upon Executive timely signing, returning, not revoking, and thereafter complying fully with a Separation Agreement and Release prepared by the Company or the Bank and containing a release of claims, covenant not to sue, non-disparagement clause, and other terms regularly included by the Company in severance agreements for executive-level employees (the “Separation Agreement and Release”). The Separation Agreement and Release will release rights and claims against the Company and the Bank that are in existence when Executive signs it, whether they are known or not known by Executive, other than those rights and claims that are not lawfully waivable. The Separation Agreement and Release will not release vested rights under the benefit plans sponsored by the Company or the Bank. It will be provided to Executive promptly following the Termination Date. The Separation Agreement and Release will specify the time period for Executive to review and consider it and the deadline for executing and returning it to the Company, as well as any applicable revocation period. If Executive does not sign and return the Separation Agreement and Release or, if applicable, timely revokes it, Executive shall be entitled only to the payments and benefits in Section 4(a) of this Agreement through his Termination Date, and the additional amounts set forth in Section 5 shall not be payable.
7.Nondisparagement. Consultant agrees not to make any oral or written disparaging statements (including through social media) concerning Company or any of its affiliates or current or former officers, directors, shareholders, employees or agents. Consultant further agrees not to take any actions or conduct herself in any way that would reasonably be expected to affect adversely the reputation or goodwill of Company or any of its affiliates or any of its current or former officers, members, directors, shareholders, employees or agents. These non-disparagement obligations shall not in any way affect Consultant’s obligation to testify truthfully in any legal proceeding
In consideration for the vesting of your Stock Award pursuant to Paragraph 3(B), you shall deliver to the Company, within twenty-one (21) days (or, if applicable, forty-five (45) days) of the termination of your employment, a fully executed release agreement (the form of which release agreement shall be commercially reasonable) which shall fully and irrevocably release and discharge the Company, its officers, directors, employees and agents from any and all claims, charges, complaints, and liabilities of any kind, known or unknown which you have or may have against any of the foregoing parties, and shall contain commercially reasonable mutual nondisparagement provisions (except that, with respect to the Company’s nondisparagement obligations, such obligations shall be solely to inform its officers and directors that the Company is subject to a non-disparagement provision) (the “Release”).
d. Protection of Confidential and Proprietary Information, Non-Compete Period. You acknowledge your obligations and promises to the Company under Article V, Section 5.1 (Confidentiality), Section 5.2 (Non-Competition; Non-Solicitation; etc.), Section 5.3 (Non-Disparagement), Section 5.4 (Remedies), and Section 5.5 (Ownership of Inventions) of the Employment Agreement (collectively, the “Post-Employment Obligations”) and you agree that such Post-Employment Obligations shall continue to apply in full force and effect during the Consulting Period; for the avoidance of doubt, the length of the Non-Compete Period (as defined in the Employment Agreement) extends through the Consulting Period and your continued receipt of the Consulting Fees and Separation Benefits during the Consulting Period is contingent on your compliance with the Post-Employment Obligations. Any and all work product you create in connection with the Consulting Services will be the sole and exclusive property of the Company. You hereby assign to the Company all right, title, and interest in all inventions, techniques, processes, materials, and other intellectual property developed in the course of performing the Consulting Services.
(e) Non-disparagement. During his employment with the Company and thereafter, the Employee agrees not to make negative comments or statements about, or otherwise criticize or disparage, in any format or through any medium, the Company or any of its affiliates or any of the officers, directors, managers, employees, services, operations, investments or products of the Company or any of its affiliates. For purposes of the foregoing sentence, disparagement shall include, but not be limited to, negative comments or statements intended or reasonably likely to be harmful or disruptive to a person’s or entity’s respective business, business reputation, business operations, or personal reputation.
9. Non-Disparagement. Employee will refrain from making negative or disparaging remarks about the Company or the Company Releasees. Employee will not provide information or issue statements regarding the Company or the Company Releasees, or take any other action, that would cause the Company or the Company Releasees embarrassment or humiliation or otherwise cause or contribute to them being held in disrepute. The Company will instruct the Nondisparagement Group (as such term is defined below) to refrain, during any employment relationship with the Company, from making negative or disparaging remarks about Employee or providing information or issuing statements regarding Employee, or taking any other action, that would cause Employee embarrassment or humiliation or otherwise cause or contribute to him being held in disrepute. The Nondisparagement Group means David Gransee, Steve Kiefer, Sherman Jung, Paul Jarrell, Len Pickus, Robert Maloney, David Langevin, Parimal, Brian Mutch, Paul Moustis, and Jack DeCorte.
2. Compensation. As compensation for the Executive’s continuing employment and service hereunder, in recognition of the Executive’s contributions to the Company and as consideration for the Releases (as defined below), the Executive’s agreement to the Transition Period and the respective terms and conditions thereof, and the other promises of the Executive contained in this Agreement, which shall be deemed to include the Executive’s agreement to (A) remain in the employ of the Company as described above through the Separation Date; (B) comply with the Company’s Code of Business Conduct and Ethics and other policies relating to conduct, as in effect from time to time and applicable to its executive officers; and (C) comply with all covenants regarding confidential information, non-solicitation, non-disparagement, intellectual property and non-competition to which the Executive has agreed as part of his employment with the Company, including, but not limited to, those in the Confidentiality, Intellectual Property, Nonsolicitation & Nondisparagement Agreement with the Executive (as amended from time to time, the “Confidentiality Agreement,” a copy of which is attached hereto as Exhibit A), and the provisions regarding detrimental conduct contained in any Restricted Stock Unit (“RSUs”) Award Agreements between the Executive and the Company (collectively, the “RSU Agreements”), any Restricted Stock (“RSs”) Agreement between the Executive and the Company (collectively, the “Restricted Stock Agreements”) and/or any Stock Appreciation Rights (“SARs”) Award Agreements between the Executive and the Company (collectively, the “SAR Agreements”) (the covenants described in the immediately preceding clauses (A) through (C) of this Section 2 are collectively referred to herein as the “Covenants”); and provided, that the Executive timely signs and returns this Agreement, complies with Covenants and complies with Sections 6, 8 and 12 below and does not revoke the Releases, the Company will provide Executive with the following compensation and benefits:
(c) Non-Disparagement. At all times prior to and after the Separation Date, the Executive will not disparage, place in a false light or criticize, orally or in writing, the business, products, policies, decisions, directors, officers or employees of the Company to any person. The Company also agrees that none of the CEO, any executive officer who reports directly to the CEO or the Executive Chairman will disparage, place in false light or criticize the Executive to any person or entity either orally or in writing. The Company shall advise the Company’s Board of Directors of this provision.
12. Confidentiality, Intellectual Property, Non-Solicitation and Non-Disparagement and Non-Competition. The Company and the Executive acknowledge and agree that the provisions of the Confidentiality Agreement, and all other Covenants shall continue to apply to the Executive prior to and after the Separation Date as if fully set forth in this Agreement. In addition, and in consideration of the compensation described in Section 2 hereof, and the Company’s commitments hereunder, the Company and the Executive also agree as follows:
(b) Non-Disparagement. Executive agrees that, during Executive’s employment with the Company and thereafter, Executive shall not, directly or with or through any other Person, directly or indirectly, make, issue, release, or authorize any written or oral statements to any third Person that are derogatory or defamatory in nature with respect to the Company, or any of their respective members, directors, officers, employees, subcontractors or agents.
Participant and the Company agree to comply with the provisions of Exhibit A to this Plan Agreement, which impose certain confidentiality, non-competition, non-solicitation and non-disparagement obligations upon the parties hereto; provided, however, that if there are any inconsistencies between the terms contained in Exhibit A and Article II of Participant’s Employment Security Agreement, if applicable, with Company, as it may be amended or replaced, the terms of the Employment Security Agreement shall control.
Section 5. Reasonableness of Restrictions. Participant agrees that Participant and Company are engaged in a highly competitive business and, due to Participant’s position with Company and the nature of Participant’s work, Participant’s engaging in any business that is competitive with that of Company will cause Company great and irreparable harm. Participant represents and warrants that the restrains created and the time, scope and geographic area restricted by the foregoing Sections 1, 2, 3 and 4 pertaining to confidential information, non-competition, non-solicitation, and non-disparagement are reasonable, that the enforcement of the restrictions contained in such Sections would not be unduly burdensome to Participant, and that Participant will be able to earn a reasonable living while abiding by the terms included herein. Participant agrees that the restraints created by the covenants in Sections 1, 2, 3 and 4 pertaining to confidential information, non-competition, non-solicitation, and non-disparagement are not outweighed by either the hardship to Participant or any injury likely to the public. If any arbitrator or court determines that any portion of this Exhibit A is invalid or unenforceable, the remainder of this Exhibit A will not thereby be affected and will be given full effect without regard to the invalid provisions. If any court construes any of the provisions of this Exhibit A, or any part thereof, to be unreasonable because of the duration or scope of such provision, such court will have the power to reduce the duration or scope of such provision and to enforce such provision as so reduced.
Participant and the Company agree to comply with the provisions of Exhibit A to this Plan Agreement, which impose certain confidentiality, non-competition, non-solicitation and non-disparagement obligations upon the parties hereto; provided, however, that if there are any inconsistencies between the terms contained in Exhibit A and Participant’s Employment Security Agreement, if applicable, with Company, as it may be amended or replaced, the terms of the Employment Security Agreement shall control.
Participant and the Company agree to comply with the provisions of Exhibit B to this Plan Agreement, which impose certain confidentiality, non-competition, non-solicitation and non-disparagement obligations upon the parties hereto; provided, however, that if there are any inconsistencies between the terms contained in Exhibit B and Participant’s Employment Security Agreement, if applicable, with Company, as it may be amended or replaced, the terms of the Employment Security Agreement shall control.
f. Non-Disparagement. Loudermilk understands and agrees that his entitlement to the benefits agreed to above is conditioned on his continued support of Aaron’s. Loudermilk agrees not to make any oral or written statement or take any other action that disparages or criticizes Aaron’s, its Board of Directors (including individual Directors), its management (including individual executives or managers), or its practices; that harms Aaron’s good reputation; or that disrupts or impairs its normal, ongoing business operations. Loudermilk understands that this nondisparagement provision does not apply on occasions when he is subpoenaed or ordered by a court or other governmental authority to testify or give evidence and that he must, of course, respond truthfully, to conduct otherwise protected by the Sarbanes-Oxley Act, or to conduct or testimony in the context of enforcing the terms of this Agreement or other rights, powers, privileges, or claims not released by this Agreement. Loudermilk also understands that the foregoing nondisparagement provision does not apply on occasions when he provides truthful information in good faith to any federal, state, or local governmental body, agency, or official investigating an alleged violation of any antidiscrimination or other employment-related law or otherwise gathering information or evidence pursuant to any official investigation, hearing, trial, or proceeding. Nothing in this nondisparagement provision is intended in any way to intimidate, coerce, deter, persuade, or compensate Loudermilk with respect to providing, withholding, or restricting any communication whatsoever to the extent prohibited under 18 U.S.C. §§ 201, 1503, or 1512 or under any similar or related provision of state or federal law.
Sign up for our newsletter to get product updates, exclusive client interviews, and more.