4. Release of Claims. In exchange for the payment to Employee of the consideration detailed in this Agreement, Employee, for and on behalf of Employee and Employee’s heirs, administrators, executors, and assigns, does
hereby fully, forever, irrevocably and unconditionally release and discharge NSM, including its past and present officers, directors, partners, members, parents, subsidiaries, divisions, affiliates, agents, employees, shareholders,
representatives, attorneys, predecessors, successors, assigns, and all persons acting by, through, under, or in concert with them (hereinafter collectively referred to as "Releasees"), for anything that has occurred up to the date of execution of
this Agreement, including but not limited to, any and all claims resulting from Employee’s employment with NSM and any and all claims relating to the administration or terms of any employment or benefit plan or contract. This includes all
claims, demands, rights, liabilities, and causes of action of every nature and description whatsoever, whether known or unknown, whether in tort, contract, statute, rule, ordinance, order, regulation, or otherwise, including, without limitation,
any claims arising under or based upon Title VII of the Civil Rights Act, as amended; the Civil Rights Act of 1991, as amended; Section 1981 of U.S.C. Title 42; the Age Discrimination in Employment Act; the Americans with Disabilities Act, as
amended; the Family and Medical Leave Act, as amended; the Fair Credit Reporting Act; the Fair Labor Standards Act, as amended; the Equal Pay Act, as amended; the Employee Retirement Income Security Act, as amended (with respect to unvested
benefits); the Consolidated Omnibus Budget Reconciliation Act; the Sarbanes Oxley Act of 2002, as amended; the Worker Adjustment and Retraining Notification Act, as amended; the Uniform Service Employment and Reemployment Rights Act, as amended;
the Texas Labor Code (specifically including the Texas Payday Act, the Texas Anti-Retaliation Act, Chapter 21 of the Texas Labor Code and the Texas Whistleblower Act) and amendments to those laws; all State and Local statutes that may be legally
waived that employees could bring employment claims under, including any State or Local anti-discrimination statute, wage and hour statute, leave statute, equal pay statute and whistleblower statute; any federal or state constitutions; any and
all claims pursuant to federal, state or local statute or ordinance; any and all claims pursuant to contract, quasi contract, common law or tort; and claims that are known or unknown, suspected or unsuspected, concealed or hidden, or whether
developed or undeveloped, up through the date of Employee’s execution of this Agreement.
Employee does not release any claim which cannot be released by private agreement, such as unemployment compensation claims, workers’ compensation claims, claims of entitlement to vested benefits under any 401(k) plan or other ERISA-covered
benefit plan provided by NSM, and claims after the Effective Date of this Agreement. Nothing in this Agreement shall be construed to prohibit Employee from filing a charge with or participating in any investigation or proceeding conducted by the
Equal Employment Opportunity Commission, National Labor Relations Board, Occupational Health and Safety Administration, Securities and Exchange Commission, the Department of Justice or a comparable state or local enforcement agency.
Notwithstanding the preceding sentence, Employee agrees to waive any right to recover monetary damages in connection with any charges filed by Employee or by anyone else on Employee’s behalf. To the fullest extent permitted by law, Employee
further waives Employee’s right to participate in any collective or class action under the Fair Labor Standards Act or similar or state or local law, and Employee agrees to opt-out of any such collective or class action against NSM, to which
Employee may be or become a party or class member. The preceding waivers do not include and employee has not waived Employee’s right to file an application for or to accept a whistleblower award from the SEC pursuant to Section 21F of the
Exchange Act.
5. No Admission. Execution of this Agreement and compliance with this Agreement shall not be considered as an admission by NSM of any liability whatsoever, or as an admission by NSM of: any violation of the rights of
Employee or of any other person; a violation of any order, law, statute or duty; a breach of any contract; or an act of discrimination whatsoever against Employee or any other person. NSM specifically disclaims any liability to or
discrimination against Employee or any other person; or any alleged violation of any rights of Employee or any person, any order, law, statute, duty; or a breach of any contract on the part of NSM and/or Releasees.
6. Arbitration. Employee acknowledges agreement with the Company's Arbitration Policy and except for any dispute arising out of the breach of the Restrictive Covenants in Paragraph 2 of this Agreement, agrees
to submit any dispute arising out of this Agreement and the termination of the Employee's employment relationship to final and binding arbitration.
7. Confidentiality. Employee agrees to maintain the terms of this Agreement (including the existence of this Agreement) as confidential and agrees not to reveal its contents and/or terms to anyone except Employee’s
spouse, and to his or her lawyer and/or financial consultant, but only to the extent such disclosure is necessary to render professional services in connection therewith. Both Parties further agree to cooperate to preserve the confidentiality
as agreed to herein by means including but not limited to entry of a protective order preserving the confidentiality and restricting disclosure. Employee may not discuss the existence or terms of this Agreement with any NSM employee other than
human resources professionals directly dealing with Employee on this matter.
Additionally, as more explicitly set forth in Section 9 herein, Employee will keep confidential all information regarding NSM’s practices, procedures, business plans, trade secrets, customer lists or product marketing, and personnel
information including performance and compensation information. Employee acknowledges that Employee has specific knowledge of many types of information which is proprietary to NSM, including, without limitation, its current and planned
technology; current and planned corporate and personnel strategies; current and planned acquisition targets; strategic customers and business partners; the identity, skills and interests of NSM’s employees; and the compensation strategy, plan
and information related to key employees. Employee further agrees to treat all such proprietary information as confidential. Employee understands that the above list is not exhaustive, and that confidential information also includes other
information that is marked or otherwise identified as confidential or proprietary in the context and circumstances in which the information is known or used. Employee’s confidentiality obligations under this Agreement shall perpetually survive
the termination of Employee’s employment with NSM.
Notwithstanding anything herein to the contrary, nothing in this Agreement shall prevent Employee from cooperating with any governmental investigation, making a truthful statement or complaint to law enforcement or a government agency,
testifying under oath to law enforcement or a government agency, or from complying with a properly-served and lawfully-issued subpoena or similar order issued by a governmental agency or court of competent jurisdiction.
8. Post-Termination Insider Trading Obligations. Employee understands and acknowledges that pursuant to the NSM insider trading policy, if Employee is in possession of Material Nonpublic Information, Employee may not
trade in Company securities until that information has become public or is no longer material.
9. Intellectual Property Obligations. Employee agrees and acknowledges that all activities in which Employee was engaged during the course of Employee’s employment with the Company were conducted for the benefit of the
Company. As such, any and all inventions, conceptions, discoveries, processes, applications, plans, presentations, strategies and improvements of current or future Company products or services, whether or not patentable or copyrightable,
that Employee may have solely or jointly conceived, discovered, made or reduced to practice during the period of Employee’s employment with the Company (whether or not conceived, discovered, made or reduced to practice by the Employee at the
Company’s facilities or during regular business hours or utilizing resources of the Company), and which related in any way to or arose out of the Company’s actual and/or anticipated development or business activities or products, including
planned or proposed activities or products (collectively hereinafter referred to as “Inventions”), and the benefits and/or rights resulting therefrom, are the sole and exclusive property of the Company. Further, all original works of
authorship, including, but not limited to, any and all reports, plans, presentations, publications, software, systems and writing or compilations of data of every kind and description prepared or devised by the Employee or under Employee’s
discretion while employed by the Company, and which related to or arose out of the actual and/or anticipated development or business activities or products of the Company (collectively hereinafter referred to as “Works”) are the sole and
exclusive property of the Company, including without limitation any Works that may be protectable by copyright or that constitute “works made for hire” as that term is defined in the United States Copyright Act, 17 U.S.C. §101. Employee
acknowledges that the Company’s business interests regarding the protection of its intellectual property and trade secrets are extremely valuable and that the Company is prepared to take all necessary legal steps against the Employee or any
future employer to prevent the misappropriation of such information. This provision does not apply to an invention which qualifies fully under the provisions of Section 2870 of the California Labor Code.
10. Time to Consider and Right to Revoke. Employee acknowledges that Employee has been informed, pursuant to the federal Older Workers Benefit Protection Act of 1990, that:
|
a) |
Employee has the right to consult with an attorney before signing this Agreement;
|
|
b) |
Employee does not waive rights or claims under the federal Age Discrimination in Employment Act that may arise after the date this waiver is executed;
|
|
c) |
Employee has been given twenty-one (21) days within which to consider this agreement. Employee knowingly and voluntarily waives the remainder of the 21 day consideration period, if any, following the date Employee signed this
Agreement below. Employee agrees that Employee has not been asked by NSM to shorten Employee’s time-period for consideration of whether to sign this Agreement. Employee agrees that NSM has not threatened to withdraw or alter the
benefits due Employee prior to the expiration of the 21 day period nor has NSM provided different terms to Employee because Employee has decided to sign this Agreement prior to the expiration of the 21 day consideration period.
Employee understands that having waived some portion of the 21 day consideration period, NSM may expedite the processing of benefits provided to Employee in exchange for signing this Agreement;
|
|
d) |
Employee may, for a period of seven (7) days following the execution of this Agreement, revoke this Agreement and that said Agreement will not be considered effective until the revocation period has passed; and
|
|
e) |
This Agreement is written in a manner in which Employee fully understands and Employee enters into this Agreement knowingly and voluntarily.
|