Transition and Separation Agreement, dated as of April 2, 2020, by and between Angie Moss and Daseke, Inc
TRANSITION AND SEPARATION AGREEMENT
This TRANSITION AND SEPARATION AGREEMENT (this “Agreement”) is entered into between Angie Moss (the “Employee”) and Daseke, Inc. (the “Company”), and is effective as of the Effective Date (as defined herein). The Company and Employee shall each be referred to in this Agreement as a “Party,” and collectively as the “Parties.”
WHEREAS, Employee has been employed by the Company as Vice President, Chief Accounting Officer, Corporate Controller and Assistant Secretary pursuant to that certain Employment Agreement effective as of February 27, 2017 (the “Employment Agreement”);
WHEREAS, Employee holds 60,000 options to purchase shares of the Company’s common stock at an exercise price of $9.98, which were granted to her on February 27, 2017 (the “Options”) and which the Company acknowledges are fully exercisable as of the date hereof;
WHEREAS, Employee agreed to be bound by certain restrictive covenants in the Employment Agreement, which restrictive covenants remain enforceable as provided herein; and
WHEREAS, Employee and the Company wish to resolve all matters related to Employee’s employment with the Company and the cessation thereof, on the terms and conditions expressed in this Agreement.
NOW THEREFORE, in consideration of the mutual promises contained herein, the Parties, intending to be legally bound, agree as follows:
this Agreement, or the waiver by either Party of any breach of this Agreement, shall not prevent any subsequent enforcement of such term or obligation or be deemed a waiver of any subsequent breach.
[Signature page follows]
IN WITNESS WHEREOF, this Agreement has been duly executed as of the dates written below.
Dated: April 2, 2020/s/ Angie J. Moss
Angie J. Moss
Dated: April 2, 2020Daseke, Inc.
By: /s/ Christopher Easter
Name: Chris Easter
Title: Chief Executive Officer
GENERAL RELEASE AGREEMENT
This General Release Agreement (this “Release”) is by and between Angie Moss (“Employee”) and Daseke, Inc. (the “Company”), and is effective on the eighth day following Employee’s execution of this Release provided she has not revoked it as provided for herein.
WHEREAS, Employee was initially employed by the Company as Vice President, Chief Accounting Officer, Corporate Controller and Assistant Secretary pursuant to that certain Employment Agreement effective as of February 27, 2017 (the “Employment Agreement”);
WHEREAS, Employee and the Company are party to that certain Transition and Separation Agreement effective as of [____________________], 2020 (the “Transition Agreement”) which superseded and replaced, in part, the Employment Agreement; and
WHEREAS Employee’s employment with the Company terminated effective as of [_________________________], 2020 (the “Separation Date”).
NOW, THEREFORE, for and in consideration of the mutual covenants, agreements, and promises set forth herein, and for other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, Employee and the Company hereby agree as follows:
1.Termination. Employee’s employment with the Company terminated effective as of the Separation Date. Employee agrees to and does hereby resign effective as of the Separation Date from any other appointments or positions which she may hold with the Company and its affiliates. Employee agrees to execute all further documents that the Company may reasonably request of her to effectuate such resignations.
2.Consideration. In consideration of Employee’s execution and non-revocation of this Release, and conditioned on Employee’s continued compliance with Sections 8, 9 and 10 of the Employment Agreement (which remain in full force and effect in accordance with their terms), Section 5 of the Transition Agreement, and the covenants and promises contained herein, the Company shall pay and provide to Employee, those amounts described in Section 3(b) of the Transition Agreement in the manner set forth in such Section 3(b) and, if applicable, Section 8 of the Transition Agreement. The Company agrees that if the Company or any of its subsidiaries requests that Employee enter into a separate agreement for consulting or employment after the Separation Date, then Employee may enter into such agreement and it will not be considered a violation of any restrictive covenant nor would such an agreement or the rendering of such services be considered a breach of Sections 8, 9, and/or 10 of the Employment Agreement.
(a)In consideration of the payments and benefits (less all applicable withholdings) set forth in this Release, Employee, on behalf of herself and her agents, spouse, heirs, executors, successors and assigns, knowingly and voluntarily releases, remises, and forever discharges the Company, its parents, subsidiaries or affiliates, together with all of the foregoing entities’ respective current and former principals, officers, directors, partners, shareholders, agents,
representatives, attorneys, insurers, members, managers, and employees, and each of the above listed person’s heirs, executors, successors and assigns whether or not acting as his or her representative, individual or any other capacity (collectively, the “Releasees”), to the fullest extent permitted by law, from any and all debts, demands, actions, causes of actions, accounts, covenants, contracts, agreements, claims, damages, costs, expenses, omissions, promises, and any and all claims and liabilities whatsoever, of every name and nature, known or unknown, suspected or unsuspected, both in law and equity (“Claims”), which Employee ever had, now has, or may hereafter claim to have against the Releasees, including but not limited to, those related to or arising from Employee’s employment with the Company, the cessation thereof, the Employment Agreement, the Transition Agreement, or any other matter, cause or thing whatsoever relating thereto arising from the beginning of time to the date of execution of this Release by Employee (the “General Release”). The General Release shall apply to any Claim of any type, including, without limitation, any Claims with respect to Employee’s entitlement to any wages, bonuses, benefits, payments, or other forms of compensation; any claims of wrongful discharge, breach of contract, breach of the covenant of good faith and fair dealing, violation of public policy, defamation, personal injury, or emotional distress; any Claims of any type that Employee may have arising under the common law; any Claims arising under the Employment Agreement or Transition Agreement; any Claims under Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, the Age Discrimination in Employment Act of 1967 (the “ADEA”), the Older Workers Benefit Protection Act, the Americans With Disabilities Act, the Family and Medical Leave Act, the Employee Retirement Income Security Act, the Texas Human Rights Act, the Fair Labor Standards Act, the federal Workers’ Adjustment and Retraining Notification Act, the Sarbanes-Oxley Act, each as amended; and any other federal, state or local statutes, regulations, ordinances or common law, or under any policy, agreement, contract, understanding or promise, written or oral, formal or informal, between any of the Releasees and Employee, and shall further apply, without limitation, to any and all Claims in connection with, related to or arising out of Employee’s employment relationship, or the termination of employment, with the Company or any Releasee and to any Claims for fraud or fraud in the inducement or fraudulent misrepresentation in relation to any such matters. Notwithstanding this General Release, Employee does not hereby release, waive or relinquish any of Employee’s rights arising out of this Release or to any benefit under any Company benefit plan accrued by Employee prior to the Separation Date. Additionally, Company and Employee agree that Employee will continue to be covered by any and all indemnification agreements, including without limitation, Section 14 of the Employment Agreement as well as any applicable Company directors and officers insurance policy, after the Separation Date, and Employee is not releasing, waiving or relinquishing her rights related to any indemnification she would be entitled to receive as if she continued to be an active employee of the Company. Further, Company and Employee agree that Employee is not releasing, waiving or relinquishing any right to payment of unpaid amounts, if any, owed to Employee pursuant to (i) Section 3(d) of the Employment Agreement that relate to expenses incurred on or before the Separation Date and (ii) Section 3(a)(i) [and Section 3(a)(ii)] of the Transition Agreement.
(b)Except as provided in Section 3(a)(i) [and Section 3(a)(ii)] of the Transition Agreement, Employee acknowledges and agrees that the Company and its affiliates have fully satisfied any and all obligations owed to her, and no further sums are owed to her by the Company or by any of the other Releasees at any time. Employee represents and warrants that Employee has not filed, and Employee will not file, any lawsuit or institute any proceeding, charge, complaint or
action asserting any claim released by this Release before any federal, state, or local administrative agency or court against any Releasee, concerning any event occurring prior to the signing of this Release.
(c)Notwithstanding the foregoing, nothing contained in this Release limits Employee’s ability to file a charge or complaint with any federal, state or local governmental agency or commission (collectively, “Government Agencies”) or limits Employee’s ability to provide information to or communicate with any Government Agencies or otherwise participate in any investigation or proceeding that may be conducted by any Government Agencies in connection with any charge or complaint, whether filed by Employee, on her behalf, or by any other individual. However, to the maximum extent permitted by law, Employee agrees that if such a charge or complaint is made, Employee shall not be entitled to recover any individual monetary relief or other individual remedies. This Release does not limit or prohibit Employee’s right to receive an award for information provided to any Government Agency to the extent that such limitation or prohibition is a violation of law.
(d)Nothing in this Section 3 shall be deemed to release (i) Employee’s right to enforce the terms of this Release, or (ii) any Claim that cannot be waived under applicable law, including any rights to workers’ compensation or unemployment insurance.
(e)Employee hereby represents and warrants to the Releasees that Employee is the sole owner of any Claims that Employee may now have or in the past had against any of the Releasees and that Employee has not assigned, transferred, or purported to assign or transfer any such Claim to any person or entity. Employee represents that she has suffered no work-related injuries while providing services for the Company and represents Employee does not intend to file any claim for compensation for work-related injury. Employee further represents that Employee has not filed any lawsuits or claims against any of the Releasees, or filed any charges or complaints with any agency against any of the Releasees. Employee represents that she has not reported any alleged improper conduct or activity to the Company or any of its affiliates; that she has no knowledge of any such conduct or activity; and that she has not been retaliated against for reporting any allegations of wrongdoing by the Company or any of its affiliates.
(f)Employee acknowledges that this Section 3 contains a waiver of any rights and claims under the ADEA and the Older Workers Benefit Protection Act. Employee acknowledges and represents that she has been given at least twenty-one (21) days during which to review and consider the provisions of this Release and, specifically, the General Release set forth in this Section 3, or has knowingly and voluntarily waived the right to do so, with the execution of this Release constituting a voluntary waiver. Employee further acknowledges and represents that she has been advised by the Company that she has the right to revoke this Release for a period of seven (7) days after signing it. Employee acknowledges and agrees that, if she wishes to revoke this Release, she must do so in a writing, signed by her and received by Soumit Roy, General Counsel, at ***@*** no later than 5:00 p.m. local time on the seventh (7th) day of the revocation period. If the last day of the revocation period falls on a Saturday, Sunday or holiday, the last day of the revocation period will be deemed to be the next business day. If no such revocation occurs, the General Release and this Release shall become effective on the eighth (8th) day following her execution of this Release.
4.Modification. This Release may not be modified or amended except in writing signed by the parties.
5.Successor and Assigns. All the terms and provisions of this Release shall be binding upon and inure to the benefit of the parties hereto and to their respective successors and permitted assigns. Neither this Release nor any rights or obligations hereunder may be assigned by Employee, other than by will or the laws of descent or distribution. Any amounts payable under this Release to Employee after her death shall be paid to Employee’s estate or legal representative.
6.Governing Law. This Release shall be governed by and construed in accordance with the laws of the State of Texas (without giving effect to principles of conflict of law) and, where applicable, the laws of the United States. Venue shall lie exclusively in Dallas County, Texas.
7.Advice to Consult with Attorney; Acknowledgments. Employee acknowledges that she has been and hereby is advised to consult an attorney regarding this Release prior to its execution. Employee agrees that she is receiving benefits under this Release to which she would not be entitled but for execution of this Release. Employee acknowledges that she has read this Release, understands it, and is entering into it voluntarily and without reliance on any representations other than those contained herein.
8.Dispute Resolution. All disputes relating to or arising from this Release (including but not limited to the arbitrability thereof), Employee’s employment with the Company, the Employment Agreement, the 2017 Omnibus Incentive Plan, as amended, and the Transition Agreement shall be resolved in accordance with Section 11 of the Employment Agreement.
9.Entire Agreement. This Release, together with Sections 8, 9, 10 and 11 of the Employment Agreement, and the Transition Agreement constitute the entire agreement between the parties with respect to the subject matter hereof and supersede all prior agreements between the parties with respect to such matters, unless specifically provided otherwise herein. Employee agrees that she is not relying on any representations outside this Release. The parties agree that the Employment Agreement (other than Sections 8, 9, 10 and 11 thereof) and the Transition Agreement (other than Sections 4, 5,  and 8 thereof) are superseded by this Release and are of no further force or effect and that the Release in Section 3 hereof encompasses any and all claims under the Employment Agreement and Transition Agreement.
[Remainder of Page Intentionally Left Blank; Signature Page Follows]
IN WITNESS WHEREOF, the Company has caused this Release to be executed in its corporate name by an officer thereof thereunto duly authorized, and Employee has hereunto set her hand, effective as of the day and year first above written.