Atlantic Capital Bancshares, Inc. Executive Severance and Change in Control Plan (with Form of Participation Agreement)
ATLANTIC CAPITAL BANCSHARES, INC.
EXECUTIVE SEVERANCE AND CHANGE IN CONTROL PLAN
This Executive Severance and Change in Control Plan has been established by Atlantic Capital Bancshares, Inc. (the “Company”) to provide Participants with the opportunity to receive severance benefits in the event of certain terminations of employment. The Plan is intended to further the best interests of the Company and its shareholders by attracting and retaining qualified executives and attempting to assure the present and future continuity, objectivity and dedication of management in the event of a Change in Control. The Plan is intended to qualify as a “top-hat” plan under ERISA, in that it is intended to be an “employee pension benefit plan” (as defined in Section 3(2) of ERISA) which is unfunded and provides benefits only to a select group of management or highly compensated employees of the Company.
In addition to other terms defined herein or in a Participation Agreement, wherever used in this Plan, the following terms shall have the meanings set forth below (unless otherwise indicated by the context):
(For the purposes herein, the term “person” shall mean any individual, corporation, partnership, group, association or other person, as such term is defined in Section 13(d)(3) or Section 14(d)(2) of the Exchange Act, other than the Company, the Bank or any other Affiliate or any employee benefit plan(s) sponsored or maintained by the Company, the Bank or any other Affiliate thereof, and the term “beneficial owner” shall have the meaning given such term in Rule 13d-3 under the Exchange Act.)
For the purposes of clarity, a transaction or event shall not constitute a Change in Control if its principal purpose is to change the state of the Company’s incorporation, create a holding company that would be owned in substantially the same proportions by the persons who held the Company’s securities immediately before such transaction or event or is another transaction or event of other similar effect.
Notwithstanding the preceding provisions of Section 2(g), in the event that any payments under the Plan are deemed to be deferred compensation subject to (and not exempt from) the provisions of Code Section 409A, then such payments, to the extent payable upon a Change in Control, may only be permitted if the Change in Control also qualifies as one or more of the following events (as they are defined and interpreted under Code Section 409A): (A) a change in the ownership of the Company; (b) a change in effective control of the Company; or (C) a change in the ownership of a substantial portion of the assets of the Company.
Notwithstanding the foregoing, no event shall constitute Good Reason unless the Participant notifies the Board in writing regarding the existence of the condition(s) constituting Good Reason no later than sixty (60) days after the Participant knows or should reasonably know of the condition(s), the Company does not cure said condition within thirty (30) days after its receipt of the Participant’s written notice and, in the event the Company does not cure said condition, the Participant terminates his or her employment within thirty (30) days after the period for curing said condition has expired.
(a)General. The Plan shall be administered and interpreted by the Committee; provided, however, that the Board may, in its sole discretion, take any action delegated to the Committee under this Plan as it may deem necessary or appropriate. The members of the Committee shall be deemed independent if and to the extent required under Applicable Law.
(b)Additional Provisions Regarding Committee Authority. Subject to the terms of the Plan and Applicable Law, the Committee shall have full authority in its discretion to take any action with respect to the Plan, including but not limited to the authority to (i) determine individuals who are selected to participate in the Plan; (ii) construe and interpret the Plan, Participation Agreements and any other instruments under the Plan and establish and interpret rules and regulations for administering the Plan; and (iii) make all other determinations deemed necessary or advisable for administering the Plan. Any decision made, or action taken, by the Committee under the Plan shall be final, conclusive and binding on the Company, any Affiliates, any Participant and any other person. The Committee’s authority to select Participants under the Plan shall not in any way restrict the authority of the Company to grant compensation to employees or other service providers under any other compensation plan, program or arrangement of the Company.
(c)Manner of Acting; Indemnification. In addition to action by meeting in accordance with Applicable Law, any action of the Committee with respect to the Plan may be taken by a written instrument signed by all of the members of the Committee, and any action so taken by written consent shall be as fully effective as if it had been taken by a majority of the members at a meeting duly called and held. All expenses incurred in the administration of the Plan shall be paid by the Company. No member of the Board or the Committee shall be liable for any act, omission, interpretation, construction or determination made in connection with the Plan other than as a result of such individual’s willful misconduct. The members of the Board and the Committee shall be entitled to indemnification and reimbursement in the manner and to the fullest extent provided in the Company’s articles of incorporation and/or bylaws and/or pursuant to Applicable Law.
(d)Delegation. The Committee may in its discretion delegate to the Chief Executive Officer or other officers ministerial or other administrative authority under the Plan, subject to the requirements of Applicable Law and such terms and conditions as may be established by the Committee. In the case of such delegation, references to the “Committee” herein shall include such designee or designees, unless the context otherwise requires (as determined by the Committee).
|4.||Eligibility and Participation|
|5.||Effect of Termination of Employment; Severance Benefits|
In the event of a Participant’s termination of employment, the following provisions shall apply. The Committee shall have discretion to determine the basis for a Participant’s termination of employment (subject to the provisions of Section 2(f) and Section 2(s)).
|6.||Life Insurance Benefits|
The Company may apply for and purchase a life insurance policy (the “Policy”) on the life of each Participant in a face amount determined by the Committee. The Participant and the Company shall cooperate in applying for and obtaining any such Policy on the life of the Participant. The Company will pay all premiums due on the Policy in accordance with the terms of the Policy. The Company shall furnish to the Participant a statement of the annual amount of income reportable by the Participant for federal and state income tax purposes, if any, as a result of the insurance protection provided to the Participant under this Plan. In determining the amount of income reportable by the Participant, the Company shall use the term rates mandated from time to time by the Internal Revenue Service. The Participant agrees to report such amount on his or her federal and state income tax returns. The Policy shall at all times be owned by and legal and equitable title shall be held solely by the Company. The Company may exercise all ownership rights granted to the owner thereof by the terms of the Policy, except as otherwise provided by this Plan. The Participant shall have no legal, equitable or beneficial right, title or interest in the Policy, except as otherwise provided by the Plan. The Company shall at all times be entitled to one hundred percent (100%) of the Policy’s cash value, as that term is defined in the Policy. Notwithstanding the foregoing and except as otherwise provided herein, the Participant shall have the right and power to designate a beneficiary or beneficiaries to receive upon the Participant’s death from the death benefit proceeds payable under the terms of the Policy an amount equal to the “Executive Death Benefit.” The amount of each Participant’s Executive Death Benefit shall be set forth in the Participant’s Participation Agreement. A Participant shall have the right to designate and change the beneficiaries with respect to the Participant’s Executive Death Benefit by completing the beneficiary form provided by the insurance company that issued the Policy. Should the Participant fail to designate a beneficiary or should no beneficiary survive the Participant, the beneficiary shall be the Participant’s estate. Should the Participant die while employed by the Company, or, if applicable, during the Severance Period following a termination of employment as provided in Section 5(a), Section 5(b) or Section 5(d) (that is, in the event that Severance Payments are made pursuant to these provisions), the Company shall cause the insurance company to pay in a lump sum directly to the beneficiary or beneficiaries designated by the Participant as soon as practicable
following the date of death of the Participant an amount equal to the Participant’s Executive Death Benefit. The Company shall cooperate with the beneficiary or beneficiaries designated by the Participant in taking whatever action is necessary to collect the Executive Death Benefit. Notwithstanding any provision hereof to the contrary, in the event that, for any reason whatsoever (including, for example, death of the Participant by suicide, or fraud in the inducement) no Policy death benefit is payable under the Policy upon the death of the Participant, no Executive Death Benefit shall be paid under this Plan. Unless otherwise provided herein, all rights to the Participant’s Executive Death Benefit, including the Participant’s right to designate a beneficiary or beneficiaries to receive the Executive Death Benefit, shall automatically terminate on the Participant’s termination of employment with the Company. The Participant agrees to execute such other documents as may be required by the insurance company issuing the Policy on the Participant’s life to implement the provisions of this Section 6.
The Company’s obligation to pay Severance Payments, Pro Rata Incentive Compensation and/or provide other benefits to a Participant under the Plan shall be subject to the Participant’s compliance with the following protective covenants (the “Protective Covenants”), and, by participating in the Plan, a Participant shall be deemed to have agreed to and shall abide and be bound by the following Protective Covenants:
If any of the payments or benefits received or to be received by a Participant (including, without limitation, any payment or benefits received in connection with a Change in Control or the Participant’s termination of employment, whether pursuant to the terms of this Plan or any other plan, arrangement or agreement, or otherwise) (all such payments collectively referred to herein as the “280G Payments”) constitute “parachute payments” within the meaning of Code Section 280G and would, but for this Section 8, be subject to the Excise Tax, then prior to making the 280G Payments, a calculation shall be made comparing (i) the net benefit to the Participant of the 280G Payments after payment of the Excise Tax to (ii) the net benefit to the Participant if the 280G Payments are limited to the extent necessary to avoid being subject to the Excise Tax. Only if the amount calculated under (i) above is less than the amount under (ii) above shall the 280G Payments be reduced to the minimum extent necessary to ensure that no portion of the 280G Payments is subject to the Excise Tax. Any reduction made pursuant to this Section 8 shall be made in a manner determined by the Accounting Firm (as defined below) that maximizes the Participant’s economic position and is consistent with the requirements of Code Section 409A. All calculations and determinations under this Section 8 shall be made by the Company’s regular independent accounting firm at the expense of the Company or, at the election and expense of the Participant, another nationally recognized independent accounting firm (the “Accounting Firm”) acceptable to the Company. The Company shall instruct the Accounting Firm to make all such calculations and determinations in a manner that is in the best interests of the Participant and maximizes the
Participant’s position. For purposes of making the calculations and determinations required by this Section 8, the Accounting Firm may rely on reasonable, good faith assumptions and approximations concerning the application of Code Section 280G and Code Section 4999. The Company and the Participant shall furnish the Accounting Firm with such information and documents as the Accounting Firm may reasonably request in order to make its calculations and determinations under this Section 8. All calculations and determinations by the Accounting Firm shall be binding upon the Company and the Participant. If any payments or benefits are reduced under the Plan pursuant to this Section 8, the Participant shall pay all such assessed excise taxes, and any income taxes and additional excise taxes resulting solely from the payment of such excise taxes. If the provisions of Code Section 280G and Section 4999 or any successor provisions are repealed without succession, this Section 8 will be of no further force or effect.
|9.||Code Section 409A Matters.|
To the extent practicable, payments under the Plan are intended to be either outside the scope of Code Section 409A or to comply with its requirements as to timing of payments. Accordingly, payments under the Plan shall, to the extent practicable, be operated in accordance with the requirements of Code Section 409A, as amended, and the regulations and rulings thereunder, including any applicable transition rules or exemptions thereunder. Without in any way limiting the foregoing, (i) in the event that Code Section 409A requires that any special terms, provisions or conditions be included in the Plan, then such terms, provisions, and conditions shall, to the extent practicable, be deemed to be made part of the Plan, and (ii) terms used in the Plan shall be construed in accordance with Code Section 409A if and to the extent required. The Company shall have authority to take action, or refrain from taking any action, with respect to the payments and benefits under the Plan that is reasonably necessary to comply with Code Section 409A. Any payments that qualify for the “short-term deferral” exception or another exception under Code Section 409A shall be paid under the applicable exception. For purposes of the limitations on nonqualified deferred compensation under Code Section 409A, each payment of compensation under this Plan shall be treated as a separate payment of compensation for purposes of applying Code Section 409A. Notwithstanding anything in the Plan to the contrary, if any amounts or benefits payable under the Plan in the event of the Participant’s termination of employment constitute “nonqualified deferred compensation” within the meaning of Code Section 409A, payment of such amounts and benefits shall commence when the Participant incurs a “separation from service” within the meaning of Treasury Regulation 1.409A-1(h), without regard to any of the optional provisions thereunder, from the Company and any entity that would be considered a single employer with the Company under Code Section 414(b) or 414(c) (as modified by the rules under Code Section 409A) (“Separation from Service”). Such payments or benefits shall be provided in accordance with the timing provisions of the Plan by substituting the Plan’s references to “termination of employment” or “termination” with Separation from Service. In addition, if at the time of the Participant’s Separation from Service, the Participant is a “specified employee” within the meaning of Code Section 409A(a)(2)(B)(i), any amount or benefits that the constitute “nonqualified deferred compensation” within the meaning of Code Section 409A that becomes payable to the Participant on account of the Participant’s Separation from Service shall not be paid until after the earlier of (i) the first (1st) business day of the seventh (7th) month following the Participant’s Separation from Service, or (ii) the date of the Participant’s death (the “409A Suspension Period”) to the extent required to comply with Code Section 409A. Within fourteen (14) calendar days after the end of the 409A Suspension Period, the Participant shall be paid a cash
lump sum payment equal to any payments and benefits that the Company would otherwise have been required to provide under the Plan but for the imposition of the 409A Suspension Period delayed because of the preceding sentence. Thereafter, the Participant shall receive any remaining payments and benefits due under the Plan in accordance with the terms of the Plan (as if there had not been any 409A Suspension Period beforehand). To the extent not otherwise specified in the Plan, all (A) reimbursements and (B) in-kind benefits provided under the Plan shall be made or provided in accordance with the requirements of Code Section 409A, including, where applicable, the requirement that (1) any reimbursement is for expenses incurred during the Participant’s lifetime (or during a shorter period of time specified in the Plan); (2) the amount of expenses eligible for reimbursement, or in kind benefits provided, during a calendar year may not affect the expenses eligible for reimbursement, or in kind benefits to be provided, in any other calendar year; (3) the reimbursement of an eligible expense shall be made no later than the last day of the calendar year following the year in which the expense is incurred; and (4) the right to reimbursement or in kind benefits is not subject to liquidation or exchange for another benefit. Neither the Company, the Bank, other Affiliates, the Board, the Committee nor its or their designees or agents makes any representations that the payments and benefits provided under the Plan comply with Code Section 409A, and in no event will the Company, the Bank, other Affiliates, the Board, the Committee nor its or their designees or agents be liable for all or any portion of any taxes, penalties, interest or other expenses that may be incurred by the Participant (or any person claiming through him or her) on account of non-compliance with Code Section 409A.
|10.||Plan Term; Amendment and Termination|
|11.||Compliance with Recoupment, Ownership and Other Policies or Agreements.|
|12.||Compliance with the Plan.|
By participating in the Plan, each Participant shall be deemed to have agreed to the terms of the Plan, including but in no way limited to the terms of Section 7 herein.
Following such request for review, the Board shall fully and fairly review the decision denying the claim. Prior to the decision of the Board, the Claimant shall be given an opportunity to review pertinent documents.
[Signature Page To Follow]
IN WITNESS WHEREOF, the Plan is executed in behalf of the Company effective as of the 17th day of December, 2020.
ATLANTIC CAPITAL BANCSHARES, INC.
By:/s/ Douglas L. Williams
Name:Douglas L. Williams
Title:Chief Executive Officer and President
By: /s/ Annette F. Rollins
Name:Annette F. Rollins
Executive Vice President and Chief
Atlantic Capital Bancshares, Inc.
Executive Severance and Change in Control Plan
Participant Street Address
Participant City, State, Zip Code
Re: Atlantic Capital Bancshares, Inc. Executive Severance and Change in Control Plan
This Participation Agreement (this “Agreement”) is made and entered into by and between [Participant Name] and Atlantic Capital Bancshares, Inc. (the “Company”) effective as of the date written above.
The Company has adopted the Atlantic Capital Bancshares, Inc. Executive Severance and Change in Control Plan (such plan, as it may be amended and restated, the “Plan”), in order to provide selected eligible executives with the opportunity to receive severance and other benefits in the event of certain terminations of employment, including but not limited to in connection with a change in control of the Company under certain circumstances, and to attract and retain qualified executive officers.
A participant in the Plan is eligible to receive severance and other benefits if his or her employment or service is terminated under certain circumstances, as described in the Plan.
The Company has selected you to be a participant (the “Participant” or “you”) in the Plan, subject to the terms and conditions set forth in this Agreement and the Plan. A copy of the Plan has been provided to you and you acknowledge receipt of a copy of the Plan. The Plan is deemed to be part of the Agreement and its terms are incorporated herein by reference. In the event of a conflict between the terms of the Plan and this Agreement, the terms of the Plan shall control unless the Committee determines otherwise. Unless otherwise defined herein, any capitalized terms used in this Agreement shall have the meanings set forth in the Plan.
In consideration of the mutual covenants contained herein and in the Plan, the Participant and the Company hereby agree as follows:
1. The effective date of your participation in the Plan shall be the date first written above. The Term of the Plan, this Agreement and all rights and obligations under the Plan and this Agreement shall terminate on December 31, 2022, unless the Board or the Committee in its discretion elect to extend the Term of the Plan, and except for any obligations of a Participant under the Plan, including but not limited to the restrictive covenant obligations applicable to the Participant pursuant to Section 7 of the Plan, which obligations of the Participant shall continue in effect in
accordance with the terms of the Plan, notwithstanding the expiration of the Term. The Participant acknowledges and agrees that his or her rights, including the potential right to Severance Payments or other benefits, shall terminate upon the expiration of the Term of the Plan except as otherwise provided in the Plan or the Agreement. Any decision whether to extend, modify and/or amend the Plan, and/or adopt any successor plan or arrangement, after the expiration of the Term shall be in the discretion of the Board or the Committee. The Participant also acknowledges and agrees that the consideration he or she is receiving under the Plan and this Agreement, including any eligibility for extension of benefits as a result of the extension of the Term, is adequate consideration for the rights and obligations to which he or she is subject under the Plan and this Agreement, including but in no way limited to the restrictive covenant obligations under Section 7 of the Plan.
2. Your Severance Multiple in the event that you become entitled to Severance Payments pursuant to Section 5(a) of the Plan due to a Qualifying Termination other than in connection with a Change in Control shall be [________ (__)].
3. Your CIC Severance Multiple in the event that you become entitled to Severance Payments pursuant to Section 5(b) of the Plan due to a Qualifying Termination in connection with a Change in Control shall be [___________].
4. You agree to be bound by the terms of the Plan, including but in no way limited to the restrictive covenants, and other provisions set forth in the Plan, and the right of the Company to cease payments and/or recover payments in the event that you breach such restrictive covenants or as otherwise provided in the Plan. You also hereby consent and agree that the Company shall be entitled to seek, in addition to other available remedies, a temporary or permanent injunction or other equitable relief against such breach from any court of competent jurisdiction, without the necessity of showing any actual damages or that monetary damages would not afford an adequate remedy, and without the necessity of posting any bond or other security. The aforementioned equitable relief shall be in addition to, and not in lieu of, legal remedies, monetary damages or other available forms of relief.
5. Your Executive Death Benefit shall be [$_____________], which benefit, including any rights you may have under the Policy, shall at all times be subject to the terms, conditions and limitations set forth in the Plan (including Section 6 therein), this Agreement, the terms of the Policy and any other documents required to be executed by the insurance company issuing the Policy.
6. You agree that the Plan contains all of the understandings and representations between you and the Company pertaining to the subject matter hereof and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter. You also agree that, if you are entitled to receive severance benefits under the Plan, then you shall not be entitled to receive severance benefits under any other severance plan, employment agreement, employment letter or other plan, agreement or arrangement maintained by the Company, as such plan, agreement or arrangement may be amended from time to time, and you hereby waive any right to such benefits. [You acknowledge and agree that that certain Employment Agreement made and entered into as of _______ __, 2017 (the “Employment Agreement”) by and among you, the Company and the Bank terminated as of December 31, 2020 and is of no further force or effect, and that neither you nor the Company shall have any further rights or obligations under the Employment Agreement.]
7. Except as otherwise provided in this Section 7, any equity awards you have been granted by the Company shall be subject to the terms of the applicable Stock Plan and applicable award agreement. Notwithstanding the foregoing, the Participant and the Company expressly agree that (a) any reference to the Participant’s Employment Agreement (as defined herein or as such term is defined in any Stock Plan or related award agreement) shall hereby be deemed to refer to the Executive Severance and Change in Control Plan, (b) the Participant shall be subject to the restrictive covenants described in Section 7 of the Plan in lieu of the restrictive covenants described in any Employment Agreement, and the equity awards referenced in such award agreements shall be subject to forfeiture and recovery in the event of violation of the restrictive covenants referenced in Section 7 of the Plan, rather than the restrictive covenants referenced in any Employment Agreement, if and to the extent provided in the equity award agreements, and (c) each award agreement entered into between you and the Company under any Stock Plan shall hereby be deemed to be amended to conform to the foregoing, and, further, that, except as described in this Section 7, any such award agreements shall otherwise continue in full force and effect.
8. You shall cease to be a Participant in the Plan if your employment or service is terminated under circumstances that do not entitle you to receive severance benefits under the Plan or as otherwise provided in the Plan.
9. You acknowledge and agree that you have fully read, understand and voluntarily enter into the Plan and this Agreement. You acknowledge and agree that you have received a copy of the Plan and have had an opportunity to consult with your personal tax or financial planning advisor and/or attorney about the tax, financial and legal consequences of your participation in the Plan before signing this Agreement.
This Agreement may be executed in separate counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument. The Plan and this Agreement may be amended as provided in the Plan.
IN WITNESS WHEREOF, the Company has executed this Agreement by its duly authorized officer as of the date set forth below. Please sign below and return the Agreement to the Company’s [Title] at [Address] within [__] days of the date of this Agreement.
[Signature Page to Follow]
Very truly yours,
Atlantic Capital Bancshares, Inc.
By my signature below, I accept my designation as a Participant in the Plan and agree to be bound by and subject to the terms and conditions of this Agreement and the Plan, including but in no way limited to the restrictive covenants and other terms and conditions set forth in the Plan.
RELEASE OF CLAIMS
ATLANTIC CAPITAL BANCSHARES, INC.
EXECUTIVE SEVERANCE AND CHANGE IN CONTROL PLAN
In exchange for certain severance pay, benefits and promises pursuant to that certain Atlantic Capital Bancshares, Inc. Executive Severance and Change in Control Plan (as it may be amended and/or restated (the “Plan”), and that certain Participation Agreement under the Plan dated [______ __, 20__] (the “Participation Agreement”) (which is deemed a part of the Plan), certain of which benefits the Participant would not otherwise be entitled, the Participant, knowingly and voluntarily releases Atlantic Capital Bancshares, Inc. and Atlantic Capital Bank, N.A., their respective subsidiaries, affiliates or related corporations, together with their officers, directors, agents, employees and representatives (collectively, the “Employer”), of and from any and all claims, demands, obligations, liabilities and causes of action, of whatsoever kind in law or equity, whether known or unknown, which the Participant has, may have or ever had against Employer based upon any acts, omissions or events occurring on or before the date of the execution of this Release, including but not limited to claims in common law, whether in contract or in tort, or in equity, including claims of equitable or promissory estoppel, and causes of action under the Age Discrimination in Employment Act, 29 U.S.C. Sections 621 et seq., Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sections 2000e et seq., the Employee Retirement Income Security Act, 29 U.S.C. Sections 1001 et seq., the Americans with Disabilities Act, 29 U.S.C. Section 12101 et seq., and all other federal, state or local laws, ordinances or regulations, for any losses, injuries or damages (including compensatory or punitive damages), attorney’s fees and costs arising out of employment or termination from employment with Employer. Notwithstanding the foregoing, the Participant does not waive or release Employer from any claims, demands, obligations, liabilities or causes of action that may hereafter arise as the result of the breach by Employer of its obligations under the Plan.
The Participant acknowledges that he or she received this Release on the date of termination. The Participant acknowledges that he or she has had a period of twenty-one (21) days from the date of receipt of this Release to consider it. The Participant acknowledges that he or she has been given the opportunity to consult an attorney prior to executing this Release. This Release shall not become effective or enforceable until seven (7) days following its execution by the Participant. Prior to the expiration of the seven (7) day period, the Participant may revoke the Participant’s consent to this Release.
The Participant acknowledges by executing this Release that the Participant has returned to Employer all Employer property in the Participant’s possession.
The Participant acknowledges that the discussions and negotiations relating to the Participant’s termination, the Plan and this Release are confidential and, unless otherwise required by law or for the purposes of enforcing this Release or when needed to consult with the
Participant’s immediate family or tax or legal advisors, neither the Participant nor the Participant’s agents shall divulge, publish or publicize any such confidential information to any third parties or the media, or to any current or former employee, customer or client of Employer or its businesses or any of its affiliates.
Notwithstanding anything in this Release to the contrary, (a) nothing in this Release, the Plan or other agreement prohibits the Participant from reporting possible violations of law or regulation to any governmental agency or entity, including but not limited to the Department of Justice, the Securities and Exchange Commission, the Congress and any agency Inspector General (the “Government Agencies”), or communicating with Government Agencies or otherwise participating in any investigation or proceedings that may be conducted by Government Agencies, including providing documents or other information; (b) the Participant does not need the prior authorization of Employer to take any action described in (a), and the Participant is not required to notify Employer that he or she has taken any action described in (a); and (c) neither this Release nor the Plan limits the Participant’s right to receive an award for providing information relating to a possible securities law violation to the Securities and Exchange Commission. Further, notwithstanding the foregoing, the Participant shall not be held criminally or civilly liable under any federal, state or local trade secret law for the disclosure of a trade secret that (x) is made (i) in confidence to a federal, state or local official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation or law; or (y) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. Additionally, an individual suing an employer for retaliation based on the reporting of a suspected violation of law may disclose a trade secret to his or her attorney and use the trade secret information in the court proceeding, so long as any document containing the trade secret is filed under seal and the individual does not disclose the trade secret except pursuant to court order.
PARTICIPANT ACKNOWLEDGES HE OR SHE FULLY UNDERSTANDS THE CONTENTS OF THIS RELEASE AND EXECUTES IT FREELY AND VOLUNTARILY, WITHOUT DURESS, COERCION OR UNDUE INFLUENCE.
ACKNOWLEDGED AND AGREED TO,
INTENDING TO BE LEGALLY BOUND HEREBY:
Employee / Participant