Exhibit 10.2
AGREEMENT
This Agreement is made and entered into as of
the 7th day of May, 2009 by and between MathStar, Inc., a
Delaware corporation (the “Company”), and Douglas M.
Pihl (“Pihl” or “Employee”) (collectively,
the “Parties”).
RECITALS
WHEREAS, at a meeting of the Board of Directors
of the Company (the “Board”) on May 20, 2008, and
in connection with the curtailment of the Company’s
operations, the Board approved severance payments for the
Company’s employees, including Pihl;
WHEREAS, the Company and Pihl entered into a
Severance Agreement effective July 14, 2008 (the
“Severance Agreement”);
WHEREAS, severance payments subsequently were
made to all of the Company’s employees, including Pihl, who
received $216,286.00 on July 31, 2008 (the “Severance
Payment”);
WHEREAS, because it was not the intent of the
Company’s Board to pay Pihl a severance payment until his
employment with the Company was severed, the Parties wish to
rescind, cancel and revoke the Severance Agreement in its entirety,
including, without limitation, all rights and obligations the
Parties may have, respectively, as set forth in the Severance
Agreement;
WHEREAS, Employee shall be entitled to receive
severance pay in the future unless (1) the Company terminates
Employee’s employment with the Company for
“Cause,” as the term “Cause” is hereinafter
defined, or (2) Employee dies while employed by the Company,
and in exchange for Employee’s signature to and agreement to
be bound by the terms and conditions of the Severance and Release
Agreement substantially in the form attached hereto as
Exhibit A ; and
WHEREAS, the Parties intend the WHEREAS clauses
to be incorporated herein as terms of this Agreement.
NOW, THEREFORE , the Parties hereby agree
as follows:
1.
Definitions
. The
Parties intend all words used in this Agreement to have their plain
meanings in ordinary English. Specific terms we use in this
Agreement have the following meanings:
A.
Employee
, as used herein,
shall include the undersigned Employee and anyone who has obtained
any legal rights or claims through the undersigned
Employee.
B.
Cause , as used herein, shall mean
Employee’s (i) theft or embezzlement of Company property
or property of Company’s customers, (ii) gross
negligence, willful misconduct or insubordination in the
performance of Employee’s job duties, (iii) conviction
of a felony or of any crime involving misrepresentation, moral
turpitude or fraud, or (iv) habitual neglect of
Employee’s job duties.
C.
Company
, as used herein,
shall at all times mean MathStar, Inc., its parent company (if
applicable), its subsidiaries, successors and assigns, its
affiliated and predecessor companies, their successors and assigns,
their affiliated and predecessor companies, and the present or
former directors, officers, employees, representatives, and agents
(including, without limitation, its accountants and attorneys) of
any of them, whether in their individual or official capacities,
and the current and former trustees or administrators of any
pension or other benefit plan applicable to employees or former
employees of the Company, in their official or individual
capacities.
2.
Rescission and
Waiver . The Parties hereby
rescind, cancel and revoke all rights and obligations under the
Severance Agreement, including, without limitation, payment of the
Severance Payment to Pihl.
3.
Repayment of
Severance . On the date of this
Agreement, Pihl shall repay to the Company the Severance Payment,
net of federal and state withholding taxes and medical insurance
premiums, consisting of a payment of $118,112.00, plus interest
accruing on such amount from July 31, 2008 to the date of this
Agreement, for a total repayment amount of $119,441.00 (the
“Repayment Amount”). The Company hereby
acknowledges receipt of the Repayment Amount.
4.
Acknowledgments By
Pihl . Pihl acknowledges and
represents that: (a) he has read this Agreement and
understands its consequences; (b) he has received adequate
opportunity to read and consider this Agreement; (c) he has
been given the opportunity to consult with legal counsel prior to
executing this Agreement; and (d) he has determined to execute
this Agreement of his own free will and acknowledges that he has
not relied upon any statements or explanations made by Company
regarding this Agreement.
5.
Entire
Agreement . This Agreement,
including any exhibits attached hereto or documents expressly
referred to herein, contains the entire agreement between Company
and Employee and supersedes and cancels any and all other
agreements, whether oral or in writing, between Company and
Employee with respect to the matters referred to herein, including
without limitation, the Severance Agreement.
6.
Governing
Law . This Agreement shall
be construed and enforced in accordance with the laws of the State
of Oregon.
(The remainder of this
page intentionally left blank.)
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7.
Counterparts
. This
Agreement may be executed in counterparts with an executed
counterpart to be delivered to the other party. Each such
executed counterpart shall be deemed an original but shall
constitute one and the same instrument.
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MATHSTAR, INC.
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Dated: May 7, 2009
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By:
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/s/ Benno G. Sand
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Benno G. Sand
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Director
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Dated: May 7, 2009
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/s/ Douglas M. Pihl
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Douglas M. Pihl
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Exhibit A
SEVERANCE AND RELEASE
AGREEMENT
In exchange for the promises and covenants
contained herein, MathStar, Inc., a Delaware corporation (the
“Company”), and Douglas M. Pihl
(“Employee”) hereby agree as follows:
1.
Definitions
. We intend
all words used in this Severance and Release Agreement
(“Agreement”) to have their plain meanings in ordinary
English. Specific terms we use in this Agreement have the
following meanings:
A.
Employee
, as used herein,
shall include the undersigned Employee and anyone who has obtained
any legal rights or claims through the undersigned
Employee.
B.
Company
, as used herein,
shall at all times mean MathStar, Inc., its parent company,
its subsidiaries, successors and assigns, its affiliated and
predecessor companies, their successors and assigns, their
affiliated and predecessor companies, and the present or former
directors, officers, employees, representatives, and agents
(including, without limitation, its accountants and attorneys) of
any of them, whether in their individual or official capacities,
and the current and former trustees or administrators of any
pension or other benefit plan applicable to employees or former
employees of the Company, in their official or individual
capacities.
C.
Employee’s
Claims , as used herein, means all
of the rights Employee has now to any relief of any kind from the
Company, whether or not Employee now knows about those rights,
arising out of his employment with the Company and his separation
from employment with the Company, including, without limitation,
claims arising under the Age Discrimination in Employment Act, as
amended by the Older Worker Benefit Protection Act; the Oregon
civil rights laws codified in Oregon Revised Statute sections
659A.100, et seq .; the Americans with Disabilities Act;
Title VII of the Civil Rights Act of 1964, as amended; The Family
Medical and
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