SEPARATION AGREEMENT WITH VARUN
NAGARAJ, DATED MAY 10, 2017
SEPARATION AGREEMENT AND RELEASE
This Separation Agreement
and Release (“Agreement”) is made by and between Varun Nagaraj (“Executive”) and
Sierra Monitor Corporation (the “Company”) (collectively referred to as the “Parties” or individually referred
to as a “Party”).
WHEREAS, Executive was
employed by the Company;
WHEREAS, Executive signed
an offer letter with the Company on or about May 15, 2014 (the “Offer Letter”);
WHEREAS, Executive signed
an Employment, Confidential Information, Invention Assignment and Arbitration Agreement with the Company at the commencement of
Executive’s employment (the “Confidentiality Agreement”);
WHEREAS, the Company previously
granted Executive the stock options and awards of restricted stock, the material terms of which are set forth on Exhibit A
(the “Stock “Awards”) pursuant to the terms of the Company’s stock plan and forms of award agreement thereunder
(collectively, the “Stock Agreements”);
WHEREAS, Executive separated
from employment with the Company effective May 10, 2017 (the “Separation Date”); and
WHEREAS, the Parties wish
to resolve any and all disputes, claims, complaints, grievances, charges, actions, petitions, and demands that the Executive may
have against the Company and any of the Releasees as defined below, including, but not limited to, any and all claims arising out
of or in any way related to Executive’s employment with or separation from the Company.
NOW, THEREFORE, in consideration
of the mutual promises made herein, the Company and Executive hereby agree as follows:
In consideration of Executive’s execution of this Agreement and Executive’s fulfillment of all of its terms and conditions,
and provided that Executive does not revoke the Agreement under Section 5 below, the Company agrees as follows:
Payment. The Company agrees to pay Executive a lump sum approximately equivalent to six (6) months of Executive’s annual
base salary and six (6) months of Executive’s annual target bonus amount, for a total of Two Hundred and Sixty-Two Thousand
Five Hundred Dollars ($262,500), less applicable withholdings. This payment will be made to Executive within ten (10) business
days after the Effective Date of this Agreement.
Payments. Regardless of whether Executive timely elects and pays for continuation coverage pursuant to the Consolidated Omnibus
Budget Reconciliation Act of 1985, as amended (“COBRA”), the Company will pay Executive a total of Twenty-One Thousand
Dollars ($21,000), less applicable withholdings, in lieu of Company-subsidized COBRA coverage. Payments made pursuant to this Section
1.b. shall be made to Executive in equal monthly installments.
Acceleration. As further consideration for Executive’s execution and non-revocation of this Agreement and his fulfillment
of all of its terms and conditions, the Company agrees to accelerate the vesting of fifty percent (50%) of the then-unvested portion
of each outstanding Stock Award, as reflected on Exhibit A. In all other respects, the applicable Stock Award shall be subject
to the applicable terms and conditions of the applicable Stock Agreements.
to Offer Letter. As additional consideration for Executive’s execution and non-revocation of this Agreement, the Company
agrees to amend the third paragraph of page two of the Offer Letter such that Executive will be entitled to the Change of Control
Release Payment (as defined therein) subject to any conditions set forth in the Offer Letter (as amended by this Agreement), minus
the consideration provided under this Agreement (as determined on a component-by-component basis), in the event that a Company
transaction that would constitute a Change of Control thereunder has a definitive agreement signed with one of the parties previously
identified to Executive, such signing occurs within six (6) months from the Separation Date, and such Change of Control closes
on or before March 14, 2018.
Further Severance. Except as explicitly set forth in this Agreement, Executive acknowledges and agrees that Executive is not
entitled to receive any severance compensation or benefits from the Company. Executive hereby waives Executive’s right to
receive any such severance not explicitly set forth in this Agreement and acknowledges that without this Agreement, Executive is
not otherwise entitled to the consideration listed in this Section 1.
Executive’s health insurance benefits shall cease on the last day of the month in which the Separation Date occurs, subject
to Executive’s right to continue Executive’s health insurance under COBRA. Executive’s participation in all benefits
and incidents of employment, including, but not limited to, equity vesting (including the Stock Awards), and the accrual of bonuses,
vacation, and paid time off, ceased as of the Separation Date, except as may be provided in Section 1 above.
of Salary and Receipt of All Benefits. Executive acknowledges and represents that, other than the consideration set forth in
this Agreement, the Company has paid or provided all salary, wages, bonuses, accrued vacation/paid time off, premiums, leaves,
housing allowances, relocation costs, interest, severance, outplacement costs, fees, reimbursable expenses, commissions, stock,
stock options, vesting, and any and all other benefits and compensation due to Executive.
of Claims. Executive agrees that the foregoing consideration represents settlement in full of all outstanding obligations owed
to Executive by the Company and its current and former officers, directors, Executives, agents, investors, attorneys, shareholders,
administrators, affiliates, benefit plans, plan administrators, professional employer organization or co-employer, insurers, trustees,
divisions, and subsidiaries, and predecessor and successor corporations and assigns, (collectively, the “Releasees”).
Executive, on Executive’s own behalf and on behalf of Executive’s respective heirs, family members, executors, agents,
and assigns, hereby and forever releases the Releasees from, and agrees not to sue concerning, or in any manner to institute, prosecute,
or pursue, any claim, complaint, charge, duty, obligation, demand, or cause of action relating to any matters of any kind, whether
presently known or unknown, suspected or unsuspected, that Executive may possess against any of the Releasees arising from any
omissions, acts, facts, or damages that have occurred up until and including the Effective Date of this Agreement, including, without
and all claims relating to or arising from Executive’s employment relationship with the Company and the termination of that
and all claims relating to, or arising from, Executive’s right to purchase, or actual purchase of shares of stock of the
Company, including, without limitation, any claims for fraud, misrepresentation, breach of fiduciary duty, breach of duty under
applicable state corporate law, and securities fraud under any state or federal law;
and all claims for wrongful discharge of employment, termination in violation of public policy, discrimination, harassment, retaliation,
breach of contract (both express and implied), breach of covenant of good faith and fair dealing (both express and implied), promissory
estoppel, negligent or intentional infliction of emotional distress, fraud, negligent or intentional misrepresentation, negligent
or intentional interference with contract or prospective economic advantage, unfair business practices, defamation, libel, slander,
negligence, personal injury, assault, battery, invasion of privacy, false imprisonment, conversion, and disability benefits;
and all claims for violation of any federal, state, or municipal statute, including, but not limited to, Title VII of the Civil
Rights Act of 1964, the Civil Rights Act of 1991, the Rehabilitation Act of 1973, the Americans with Disabilities Act of 1990,
the Equal Pay Act, the Fair Labor Standards Act, the Fair Credit Reporting Act, the Age Discrimination in Employment Act of 1967,
the Older Workers Benefit Protection Act, the Employee Retirement Income Security Act of 1974, the Worker Adjustment and Retraining
Notification Act, the Family and Medical Leave Act, the Sarbanes-Oxley Act of 2002, the Immigration Reform and Control Act, the
California Family Rights Act, the California Labor Code, the California Workers’ Compensation Act, and the California Fair
Employment and Housing Act;
and all claims for violation of the federal or any state constitution;
and all claims arising out of any other laws and regulations relating to employment or employment discrimination;
claim for any loss, cost, damage, or expense arising out of any dispute over the nonwithholding or other tax treatment of any of
the proceeds received by Executive as a result of this Agreement; and
and all claims for attorneys’ fees and costs.
Executive agrees that the release set forth
in this section shall be and remain in effect in all respects as a complete general release as to the matters released. This release
does not extend to any obligations incurred under this Agreement. This release does not release claims that cannot be released
as a matter of law, including any Protected Activity (as defined below). Any and all disputed wage claims that are released herein
shall be subject to binding arbitration in accordance with Section 18, except as required by applicable law. This release does
not extend to any right Executive may have to unemployment compensation benefits.
of Waiver of Claims under ADEA. Executive acknowledges that Executive is waiving and releasing any rights Executive may have
under the Age Discrimination in Employment Act of 1967 (“ADEA”), and that this waiver and release is knowing and voluntary.
Executive agrees that this waiver and release does not apply to any rights or claims that may arise under the ADEA after the Effective
Date of this Agreement. Executive acknowledges that the consideration given for this waiver and release is in addition to anything
of value to which Executive was already entitled. Executive further acknowledges that he/she has been advised by this writing that:
(a) Executive should consult with an attorney prior to executing this Agreement; (b) Executive has twenty-one (21) days
within which to consider this Agreement; (c) Executive has seven (7) days following Executive’s execution of this Agreement
to revoke this Agreement; (d) this Agreement shall not be effective until after the revocation period has expired; and (e) nothing
in this Agreement prevents or precludes Executive from challenging or seeking a determination in good faith of the validity of
this waiver under the ADEA, nor does it impose any condition precedent, penalties, or costs for doing so, unless specifically authorized
by federal law. In the event Executive signs this Agreement and returns it to the Company in less than the 21-day period identified
above, Executive hereby acknowledges that Executive has freely and voluntarily chosen to waive the time period allotted for considering
this Agreement. Executive acknowledges and understands that revocation must be accomplished by a written notification to the person
executing this Agreement on the Company’s behalf that is received prior to the Effective Date. The Parties agree that changes,
whether material or immaterial, do not restart the running of the 21-day period.
Civil Code Section 1542. Executive acknowledges that Executive has been advised to consult with legal counsel and is familiar
with the provisions of California Civil Code Section 1542, a statute that otherwise prohibits the release of unknown claims, which
provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO
CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF
KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
Executive, being aware of said code section,
agrees to expressly waive any rights Executive may have thereunder, as well as under any other statute or common law principles
of similar effect.
Pending or Future Lawsuits. Executive represents that Executive has no lawsuits, claims, or actions pending in Executive’s
name, or on behalf of any other person or entity, against the Company or any of the other Releasees. Executive also represents
that Executive does not intend to bring any claims on Executive’s own behalf or on behalf of any other person or entity against
the Company or any of the other Releasees.
for Employment. Executive understands and agrees that, as a condition of this Agreement, Executive shall not be entitled to
any employment with the Company, and Executive hereby waives any right, or alleged right, of employment or re-employment with the
Company. Executive further agrees not to apply for employment with the Company and not otherwise pursue an independent contractor
or vendor relationship with the Company.
Subject to Section 12 governing Protected Activity, Executive agrees to maintain in complete confidence the existence of this Agreement,
the contents and terms of this Agreement, and the consideration for this Agreement (hereinafter collectively referred to as “Separation
Information”). Except as required by law, Executive may disclose Separation Information only to Executive’s immediate
family members, the Court in any proceedings to enforce the terms of this Agreement, Executive’s attorney(s), and Executive’s
accountant(s) and any professional tax advisor(s) to the extent that they need to know the Separation Information in order to provide
advice on tax treatment or to prepare tax returns, and must prevent disclosure of any Separation Information to all other third
parties. Executive agrees that Executive will not publicize, directly or indirectly, any Separation Information.
Secrets and Confidential Information/Company Property. Executive reaffirms and agrees to observe and abide by the terms of
the Confidentiality Agreement, specifically including the provisions therein regarding nondisclosure of the Company’s trade
secrets and confidential and proprietary information, and nonsolicitation of Company employees. Executive’s signature below
constitutes Executive’s certification under penalty of perjury that Executive has returned all documents and other items
provided to Executive by the Company (with the exception of a copy of the Employee Handbook and personnel documents specifically
relating to Executive), developed or obtained by Executive in connection with Executive’s employment with the Company, or
otherwise belonging to the Company.
Cooperation. Subject to Section 12 governing Protected Activity, Executive agrees that Executive will not knowingly encourage,
counsel, or assist any attorneys or their clients in the presentation or prosecution of any disputes, differences, grievances,
claims, charges, or complaints by any third party against any of the Releasees, unless under a subpoena or other court order to
do so or as related directly to the ADEA waiver in this Agreement. Executive agrees both to immediately notify the Company upon
receipt of any such subpoena or court order, and to furnish, within three (3) business days of its receipt, a copy of such subpoena
or other court order. If approached by anyone for counsel or assistance in the presentation or prosecution of any disputes, differences,
grievances, claims, charges, or complaints against any of the Releasees, Executive shall state no more than that Executive cannot
provide counsel or assistance.
Activity Not Prohibited. Executive understands that nothing in this Agreement shall in any way limit or prohibit Executive
from engaging in any Protected Activity. For purposes of this Agreement, “Protected Activity” shall mean filing a charge,
complaint, or report with, or otherwise communicating, cooperating, or participating in any investigation or proceeding that may
be conducted by, any federal, state or local government agency or commission, including the Securities and Exchange Commission,
the Equal Employment Opportunity Commission, the Occupational Safety and Health Administration, and the National Labor Relations
Board (“Government Agencies”). Executive understands that in connection with such Protected Activity, Executive is
permitted to disclose documents or other information as permitted by law, and without giving notice to, or receiving authorization
from, the Company. Notwithstanding the foregoing, Executive agrees to take all reasonable precautions to prevent any unauthorized
use or disclosure of any information that may constitute Company confidential information under the Confidentiality Agreement to
any parties other than the Government Agencies. Executive further understands that “Protected Activity” does not include
the disclosure of any Company attorney-client privileged communications. Any language in the Confidentiality Agreement regarding
Executive’s right to engage in Protected Activity that conflicts with, or is contrary to, this paragraph is superseded by
Executive agrees to refrain from any disparagement, defamation, libel, or slander of any of the Releasees, and agrees to refrain
from any tortious interference with the contracts and relationships of any of the Releasees. Executive shall direct any inquiries
by potential future employers to the Company’s human resources department.
In addition to the rights provided in the “Attorneys’ Fees” section below, Executive acknowledges and agrees
that any material breach of this Agreement, unless such breach constitutes a legal action by Executive challenging or seeking a
determination in good faith of the validity of the waiver herein under the ADEA, or of any provision of the Confidentiality Agreement
shall entitle the Company immediately to recover and/or cease providing the consideration provided to Executive under this Agreement
and to obtain damages, except as provided by law, provided, however, that the Company shall not recover One Hundred
Dollars ($100.00) of the consideration already paid pursuant to this Agreement and such amount shall serve as full and complete
consideration for the promises and obligations assumed by Executive under this Agreement and the Confidentiality Agreement.
Admission of Liability. Executive understands and acknowledges that this Agreement constitutes a compromise and settlement
of any and all actual or potential disputed claims by Executive. No action taken by the Company hereto, either previously or in
connection with this Agreement, shall be deemed or construed to be (a) an admission of the truth or falsity of any actual or potential
claims or (b) an acknowledgment or admission by the Company of any fault or liability whatsoever to Executive or to any third party.
Executive agrees that for a period of twelve (12) months immediately following the Effective Date of this Agreement, Executive
shall not directly or indirectly solicit any of the Company’s employees, consultants or other service providers to leave
their employment at, consultancy with or other service to the Company.
The Parties shall each bear their own costs, attorneys’ fees, and other fees incurred in connection with the preparation
of this Agreement.
THE PARTIES AGREE THAT ANY AND ALL DISPUTES ARISING OUT OF THE TERMS OF THIS AGREEMENT, THEIR INTERPRETATION, EXECUTIVE’S
EMPLOYMENT WITH THE COMPANY OR THE TERMS THEREOF, OR ANY OF THE MATTERS HEREIN RELEASED, SHALL BE SUBJECT TO ARBITRATION IN SANTA
CLARA COUNTY, CALIFORNIA BEFORE JUDICIAL ARBITRATION & MEDIATION SERVICES (“JAMS”), PURSUANT TO ITS EMPLOYMENT
ARBITRATION RULES & PROCEDURES (“JAMS RULES”). THE ARBITRATOR MAY GRANT INJUNCTIONS AND OTHER RELIEF IN SUCH DISPUTES.
THE ARBITRATOR SHALL ADMINISTER AND CONDUCT ANY ARBITRATION IN ACCORDANCE WITH CALIFORNIA LAW, INCLUDING THE CALIFORNIA CODE OF
CIVIL PROCEDURE, AND THE ARBITRATOR SHALL APPLY SUBSTANTIVE AND PROCEDURAL CALIFORNIA LAW TO ANY DISPUTE OR CLAIM, WITHOUT REFERENCE
TO ANY CONFLICT-OF-LAW PROVISIONS OF ANY JURISDICTION. TO THE EXTENT THAT THE JAMS RULES CONFLICT WITH CALIFORNIA LAW, CALIFORNIA
LAW SHALL TAKE PRECEDENCE. THE DECISION OF THE ARBITRATOR SHALL BE FINAL, CONCLUSIVE, AND BINDING ON THE PARTIES TO THE ARBITRATION.
THE PARTIES AGREE THAT THE PREVAILING PARTY IN ANY ARBITRATION SHALL BE ENTITLED TO INJUNCTIVE RELIEF IN ANY COURT OF COMPETENT
JURISDICTION TO ENFORCE THE ARBITRATION AWARD. THE PARTIES TO THE ARBITRATION SHALL EACH PAY AN EQUAL SHARE OF THE COSTS AND EXPENSES
OF SUCH ARBITRATION, AND EACH PARTY SHALL SEPARATELY PAY FOR ITS RESPECTIVE COUNSEL FEES AND EXPENSES; PROVIDED, HOWEVER, THAT
THE ARBITRATOR SHALL AWARD ATTORNEYS’ FEES AND COSTS TO THE PREVAILING PARTY, EXCEPT AS PROHIBITED BY LAW. THE PARTIES HEREBY
AGREE TO WAIVE THEIR RIGHT TO HAVE ANY DISPUTE BETWEEN THEM RESOLVED IN A COURT OF LAW BY A JUDGE OR JURY. NOTWITHSTANDING THE
FOREGOING, THIS SECTION WILL NOT PREVENT EITHER PARTY FROM SEEKING INJUNCTIVE RELIEF (OR ANY OTHER PROVISIONAL REMEDY) FROM ANY
COURT HAVING JURISDICTION OVER THE PARTIES AND THE SUBJECT MATTER OF THEIR DISPUTE RELATING TO THIS AGREEMENT AND THE AGREEMENTS
INCORPORATED HEREIN BY REFERENCE. SHOULD ANY PART OF THE ARBITRATION AGREEMENT CONTAINED IN THIS PARAGRAPH CONFLICT WITH ANY OTHER
ARBITRATION AGREEMENT BETWEEN THE PARTIES, THE PARTIES AGREE THAT THIS ARBITRATION AGREEMENT SHALL GOVERN.
Consequences. The Company makes no representations or warranties with respect to the tax consequences of the payments and any
other consideration provided to Executive or made on Executive’s behalf under the terms of this Agreement. Executive agrees
and understands that Executive is responsible for payment, if any, of local, state, and/or federal taxes on the payments and any
other consideration provided hereunder by the Company and any penalties or assessments thereon. Executive further agrees to indemnify
and hold the Releasees harmless from any claims, demands, deficiencies, penalties, interest, assessments, executions, judgments,
or recoveries by any government agency against the Company for any amounts claimed due on account of (a) Executive’s failure
to pay or delayed payment of federal or state taxes, or (b) damages sustained by the Company by reason of any such claims, including
attorneys’ fees and costs.
409A. It is intended that this Agreement comply with, or be exempt from, Code Section 409A and the final regulations and official
guidance thereunder (“Section 409A”) and any ambiguities herein will be interpreted to so comply and/or be exempt from
Section 409A. Each payment and benefit to be paid or provided under this Agreement is intended to constitute a series of separate
payments for purposes of Section 1.409A-2(b)(2) of the Treasury Regulations. Payments under Section 1 of this Agreement will be
made no later than March 15, 2018. The Company and Executive will work together in good faith to consider either (i) amendments
to this Agreement; or (ii) revisions to this Agreement with respect to the payment of any awards, which are necessary or appropriate
to avoid imposition of any additional tax or income recognition prior to the actual payment to Executive under Section 409A. In
no event will the Releasees reimburse Executive for any taxes that may be imposed on Executive as a result of Section 409A.
The Company represents and warrants that the undersigned has the authority to act on behalf of the Company and to bind the Company
and all who may claim through it to the terms and conditions of this Agreement. Executive represents and warrants that Executive
has the capacity to act on Executive’s own behalf and on behalf of all who might claim through Executive to bind them to
the terms and conditions of this Agreement. Each Party warrants and represents that there are no liens or claims of lien or assignments
in law or equity or otherwise of or against any of the claims or causes of action released herein.
In the event that any provision or any portion of any provision hereof or any surviving agreement made a part hereof becomes or
is declared by a court of competent jurisdiction or arbitrator to be illegal, unenforceable, or void, this Agreement shall continue
in full force and effect without said provision or portion of provision.
Fees. Except with regard to a legal action challenging or seeking a determination in good faith of the validity of the waiver
herein under the ADEA, in the event that either Party brings an action to enforce or effect its rights under this Agreement, the
prevailing Party shall be entitled to recover its costs and expenses, including the costs of mediation, arbitration, litigation,
court fees, and reasonable attorneys’ fees incurred in connection with such an action.
Agreement. This Agreement represents the entire agreement and understanding between the Company and Executive concerning the
subject matter of this Agreement and Executive’s employment with and separation from the Company and the events leading thereto
and associated therewith, and supersedes and replaces any and all prior agreements and understandings concerning the subject matter
of this Agreement and Executive’s relationship with the Company, including the Offer Letter (other than the last paragraphs
of pages 2 (as amended herein) and 3 thereof as provided which shall survive in full force and effect), but with the exception
of the Confidentiality Agreement and the Stock Agreements, except as otherwise modified or superseded herein.
Oral Modification. This Agreement may only be amended in a writing signed by Executive, on the one hand, and the Company’s
Executive Chairman or Chief Financial Officer, on the other.
Law. This Agreement shall be governed by the laws of the State of California, without regard for choice-of-law provisions.
Executive consents to personal and exclusive jurisdiction and venue in the State of California.
Date. Executive understands that this Agreement shall be null and void if not executed by Executive within twenty one (21)
days. Each Party has seven (7) days after that Party signs this Agreement to revoke it. This Agreement will become effective on
the eighth (8th) day after Executive signed this Agreement, so long as it has been signed by the Parties and has not been revoked
by either Party before that date (the “Effective Date”).
This Agreement may be executed in counterparts and each counterpart shall be deemed an original and all of which counterparts taken
together shall have the same force and effect as an original and shall constitute an effective, binding agreement on the part of
each of the undersigned. The counterparts of this Agreement may be executed and delivered by facsimile, photo, email PDF, or other
electronic transmission or signature.
Execution of Agreement. Executive understands and agrees that Executive executed this Agreement voluntarily, without any duress
or undue influence on the part or behalf of the Company or any third party, with the full intent of releasing all of Executive’s
claims against the Company and any of the other Releasees. Executive acknowledges that:
||Executive has read this Agreement;|
||Executive has been represented in the preparation, negotiation, and execution of this Agreement by legal counsel of Executive’s own choice or has elected not to retain legal counsel;|
||Executive understands the terms and consequences of this Agreement and of the releases it contains;|
||Executive is fully aware of the legal and binding effect of this Agreement; and|
||Executive has not relied upon any representations or statements made by the Company that are not specifically set forth in this Agreement.|
IN WITNESS WHEREOF, the Parties have executed
this Agreement on the respective dates set forth below.
||VARUN NAGARAJ, an individual|
|Dated: ________________, 2017
||SIERRA MONITOR CORPORATION|
|Dated: ________________, 2017
||Gordon R. Arnold|
Equity Awards Held by Executive as of Separation
Stock Option Awards
||Per Share Exercise Price
||Total Number of Shares Granted
||Total Number of Shares Vested and Outstanding as of Separation Date
||Total Number of Shares Eligible for Acceleration as of Separation Date
Restricted Stock Awards
||Total Number of Shares Granted
||Total Number of Shares Vested and issued as of Separation Date
||Total Number of Shares Eligible for Acceleration as of Separation Date