2. General Release of All Claims. In exchange for the Severance Payment, you agree to waive and release any and all claims to relief from AudioEye and its affiliated entities, and their respective current and former officers, directors, stockholders, employees, owners, partners, members, parents, affiliates, subsidiaries, divisions, related entities, agents, attorneys, and insurers, (collectively, the “Released Parties”), including without limitation, any and all claims, demands, liabilities, obligations, causes, and causes of action of whatever kind or nature, whether known or unknown, past or present, suspected or unsuspected including, without limitation, those that arise out of or that relate to: your employment with AudioEye; the termination of your employment with AudioEye; all statements or actions of the Released Parties; all claims that arise under the Civil Rights Act of 1964, the Americans with Disabilities Act, the Age Discrimination in Employment Act (the “ADEA”), the Family and Medical Leave Act, the Arizona Employment Protection Act, and the Arizona Civil Rights Act; all claims for wrongful discharge; all claims for retaliation; all claims for breach of any implied or express contract; all claims for intentional or negligent infliction of emotional distress; all claims for defamation; all claims for relief or other benefits under any federal, state, or local statute, ordinance, regulation, or rule of decision; all claims for benefits, wages, bonuses, commissions, compensation, expense reimbursements, disbursements, renewals, severance pay, attorneys’ fees, liquidated damages, punitive damages, and costs; and all other known and unknown claims (collectively, the “Released Claims”).
5.Re-Affirmation.The Executive understands that this Agreement is intended to be entered into immediately (subject to the twenty-one (21) day consideration period and seven (7) day revocation period described in Section 10 below), and that the amendment attached hereto as Exhibit A (the “Amendment”) is intended to be entered into on the Resignation Date.The Executive agrees to execute the attached Amendment to this Agreement on the Resignation Date in order to extend and reaffirm the promises and covenants made by her in this Agreement, including, but not limited to, the general release of all claims.If the Executive fails to execute the Amendment to this Agreement within five (5) days after the Resignation Date, or effectively revokes the acceptance of the Amendment, the Company shall not be obligated to make, or continue, the payments or provide the benefits described in Section 2, Section 3.3, Section 4.1, Section 4.2, and Section 4.3 above.
(b) On October 14, 2016, the Board of Directors (the Board) of Lpath, Inc. (the Company) accepted the resignation of Gary Woodnutt, Ph.D. as the Companys Chief Scientific Officer, effectively immediately, in anticipation of the previously announced merger between the Company and Apollo Endosurgery, Inc. (the Merger). Dr. Woodnutts resignation will be deemed a termination without cause for purposes of his employment agreement with the Company. In connection with Dr. Woodnutts resignation, on October 14, 2016 (the Separation Date), the Company and Dr. Woodnutt entered into a separation agreement and general release of all claims (the Separation Agreement). Pursuant to the terms of the Separation Agreement, Dr. Woodnuttst will receive (i) $344,000, less applicable payroll deductions and required withholdings, representing one year of base salary, (ii) payment of 12 months of COBRA premiums, and (iii) upon closing of the Merger, will be eligible to receive a transition bonus of up to $114,000 pursuant to the Companys executive compensation program, with the amount of such bonus subject to the discretion and approval of the Companys Compensation Committee. Additionally, (i) certain of Dr. Woodnutts unvested stock options totaling 13,467 options will immediately vest in full and Dr. Woodnutt will have until October 14, 2017 to exercise such options, and (ii) Dr. Woodnutts 1,339 unvested restricted stock units will immediately vest in full. As part of the Separation Agreement, Dr. Woodnutt agreed to a general release of all claims. The description of the Separation Agreement set forth above does not purport to be complete and is qualified in its entirety by reference to the Separation Agreement attached as Exhibit 10.1 to this Current Report on Form 8-K and incorporated herein by reference.
7. Release of All Claims. In consideration for the severance and COBRA payments described in Paragraphs 4 and 5 above, to the fullest extent permitted by law, you waive, release and promise never to assert any claims or causes of action, whether or not now known, against the Company or its predecessors, successors or past, present or future subsidiaries, stockholders, directors, officers, employees, consultants, attorneys, agents, assigns, insurers and employee benefit plans and their administrators and fiduciaries with respect to any matter, including (without limitation) any matter related to your employment with the Company or the termination of that employment, including (without limitation) claims to attorneys fees or costs, claims of wrongful discharge, constructive discharge, emotional distress, defamation, invasion of privacy, fraud, breach of contract (express or implied) or breach of the covenant of good faith and fair dealing, claims of discrimination, harassment retaliation and/or civil rights, claims relating to wages or compensation, claims under M.G.L. c. 149, §§148 and 150 (also known as the Massachusetts Wage Act), claims under Title VII of the Civil Rights Act of 1964, the Massachusetts Fair Employment Practices Act, the California Fair Employment and Housing Act, the Age Discrimination in Employment Act of 1967, the Americans with Disabilities Act and all other laws and regulations relating to employment. However, this release covers only those claims that arose prior to the execution of this Agreement and only those claims that may be waived by applicable law. Execution of this Agreement does not bar any claim that arises hereafter, including (without limitation) a claim for breach of this Agreement.
I agree to the terms of this Agreement, and I am voluntarily signing this release of all claims. I acknowledge that I have read and understand this Agreement, and I understand that I cannot pursue any of the claims and rights that I have waived in this Agreement at any time in the future.
C.The Company has offered, and Employee has accepted, additional severance benefits in exchange for a general release of all claims. This Agreement is therefore entered into by the Company and Employee to document the parties’ agreement regarding the terms of Employee’s separation from the Company.
(g)Employee received this Agreement and all Exhibits hereto on or about April 12, 2018. Employee acknowledges that Company advised/hereby advises Employee that she has at least twenty-one (21) days from the date Employee received this Agreement and the Exhibit (s) hereto to consider the terms of the Agreement (including all Exhibits). However, in no event may Employee sign this Agreement before the first calendar day following the Separation Date or after May 3, 2018.Employee agrees that this is a reasonable period of time to consider whether to enter into this Agreement, and that Employee has had adequate opportunity to consider the terms of the Agreement and consider whether to enter into the Agreement. Employee should return the signed Agreement to Company, ATTN: Chief Human Resources Officer, 6300 Lamar Avenue, Overland Park, Kansas 66202. Employee further acknowledges that Employee has requested and received from Company any information that Employee believes is needed to make a knowing and voluntary release of all claims.If Employee fails to execute this Agreement after the Separation Date and on or before May 3, 2018, then this Agreement and offers made in it are revoked.
c. Severance Benefit Eligibility. If at any time the Company (or any parent or subsidiary of the Company) terminates your employment for other than Cause (as defined above), death or permanent disability, then you shall receive a Severance Benefit which shall be paid in lump sum cash payment equal to nine (9)months of Base Salary, provided that you sign a general, confidential release of all claims. You are not eligible for a Severance Benefit if you voluntarily terminate your employment, even if the voluntary termination is for Good Reason. Please note that nothing herein restricts the Companys ability to terminate your employment at will, and no particular amount of notice is required prior to your termination. The Severance Benefit shall be paid as soon as administratively practicable following the Severance Date, but in no event more than two and one half months following the Severance Date and will be subject to you signing the Companys confidential general release of all claims arising out of your employment with the Company and its subsidiaries and affiliates, including any claims related to your termination, and also including an agreement not to disparage the Company, its directors, or its executive officers.
2.2.Release of All Claims. Except as provided for herein, and in further consideration of the mutual covenants hereto, TSAKALIDIS agrees on behalf of him, and his respective successors, assigns, to irrevocably and unconditionally remises, releases, acquits, satisfies and forever discharges EMED, specifically including its agents, directors, officers, affiliates, employees representatives, insurance carriers, attorneys, divisions and subsidiaries, (and all agents, directors, officers, employees, representatives, insurance carriers, and attorneys of such divisions and subsidiaries), and their predecessors, successors, administrators and assigns, and all persons acting by, through, under, or in concert with any of them (collectively "Releases"), of and from any and all claims, actions, causes of action, suits, debts, charges, complaints, claims, liabilities, obligations, promises, agreements, controversies, damages, and expenses (including attorney fees and costs actually incurred), of any nature whatsoever, known or unknown, in law or equity, arising out of the facts contained in the RECITALS.
(d) Release of all Claims. The Executive understands and agrees that the Companys obligation to pay the Executive severance pay under this Agreement is subject to the Executives execution of a valid written waiver and release of all claims which the Executive may have against the Company and/or its successors in the form attached hereto as Exhibit A.
(d) Release of all Claims. The Executive understands and agrees that the Companys obligation to pay the Executive severance pay under this Agreement is subject to the Executives execution and delivery to the Company of a valid written waiver and release of all claims which the Executive may have against the Company and/or its successors in a form acceptable to the Company in its sole and absolute discretion.
6.Release of All Claims. In consideration for receiving the severance benefits described above, to the fullest extent permitted by law, you waive, release and promise never to assert any claims or causes of action, whether or not now known, against the Company or its predecessors, successors or past or present subsidiaries, stockholders, directors, officers, employees, consultants, attorneys, agents, assigns and employee benefit plans (together, the Releasees) with respect to any matter, including (without limitation) any matter related to your employment with the Company or the termination of that employment, including (without limitation) claims to attorneys fees or costs, claims of wrongful discharge, constructive discharge, emotional distress, defamation, invasion of privacy, fraud, breach of contract or breach of the covenant of good faith and fair dealing and any claims of discrimination or harassment based on sex, age, race, national origin, disability or any other basis under TitleVII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, the Older Workers Benefit Protection Act, the Americans with Disabilities Act, Massachusetts G.L.c. 151B and all other state and federal laws and regulations relating to employment. However, this release covers only those claims that arose prior to the execution of this Agreement. Execution of this Agreement does not bar any claim that arises hereafter, including (without limitation) a claim for breach of this Agreement and does not bar any claim for indemnification as set forth in the Indemnification Agreement between you and the Company (the Indemnification Agreement).