exhibit101separationagtf







CONFIDENTIAL SEPARATION AGREEMENT AND RELEASE   This Separation Agreement and Release (the “Agreement”) is entered into by Marcia Miller   (“Employee”) and Energy Focus, Inc. (“Energy Focus”).  Employee and Energy Focus are   collectively referred to in this Agreement as the “Parties.”   In consideration of the promises and agreements contained herein and other good and   valuable consideration, the sufficiency and receipt of which are hereby acknowledged, and   intending to be legally bound, Energy Focus and Employee hereby agree as follows:   1. Employee Continuation and Separation from Employment.  Employee hereby tenders   her resignation as Chief Financial Officer, effective at the end of the day August 15, 2016 ( the   “Separation Date”). Energy Focus hereby accepts Employee’s resignation, and the parties agree   that Employee’s employment with Energy Focus will end on the Separation Date.  Energy focus   agrees that through the Separation Date Employee will continue to receive her current salary and   benefits.  Employee agrees that, through the Separation Date, she will perform her duties in good   faith and provide all appropriate and reasonable assistance to Energy Focus to ensure an orderly   transition of duties to the next CFO, to ensure that all business in regard to Energy Focus is   conducted in a professional, positive and competent manner, and to assist Energy Focus with all   necessary and appropriate securities filings through the Separation Date.     2. Accrued Unused Vacation Days.  Regardless of whether Employee signs this   Agreement, Employee will be paid for accrued unused PTO time, which the Parties agree is 200   hours and which is equivalent to $22,115.38.  Such payout will be made subject to applicable   taxes and withholdings.  Energy Focus will pay Employee this amount on the first regular paydate   after the Separation Date.   3. Severance Pay and Other Consideration.  Subject to, and in consideration of   Employee’s execution and non-revocation of this Agreement, Energy Focus will provide   Employee the following pay and benefits:   (a) Energy Focus will pay Employee separation pay equal to eleven (11) months of   pay at Employee’s regular base salary of $19,166.67 per month.  These payments amount to a   total sum of a total of $210,833.37, less deductions and withholdings as required by applicable   law, and will be made in periodic installments corresponding to Energy Focus’s regular biweekly   payroll dates (the “Severance Pay Period”).  These payments will not begin until after the   Separation Date and after the seven (7) day revocation period described below has expired.   (b) Energy Focus will pay up to $10,000 for any executive coaching or outplacement   services provided to the Employee during the Severance period directly to the provider of these   services upon receipt of an invoice of services renderd.     (c) Additionally, all equity awarded to the Employee prior to January 1, 2016 shall be   fully vested as of the Separation Date.   Employee acknowledges that the payment(s) and other consideration provided in this   section 3 are solely in exchange for the promises in this Agreement, and that in the absence of   this Agreement Employee would not otherwise be entitled to this consideration.   4. No Other Payments.  Other than the payments described in this Agreement, Employee   acknowledges and agrees that Employee has not earned, and is not eligible for any other monies,   bonuses or other compensation from Energy Focus; provided, however, that Employee remains   eligible to receive such benefits as Employee may otherwise be entitled under the qualified   retirement plans of Energy Focus, subject to the terms of such plans and the applicable law.      





 






Confidential Separation and Release Agreement   Page 2 of 5      Employer contributions or matching for any retirement plan contributions shall cease as of the   Separation Date.    5. Release.   A. Scope of Release.  Employee, for herself and anyone claiming on Employee’s   behalf, releases and discharges Energy Focus, Inc., its predecessors, successors and affiliated   entities, and all of their respective directors, trustees, officers, agents, and employees   (collectively, the “Released Parties”) from liability for all claims, demands, rights, actions, causes   of actions, obligations, suits and controversies, known or unknown, arising prior to and up to and   including the date Employee signs this Agreement.  This release includes, but is not limited to:    (a) all claims, demands and causes of action arising out of or in any way related to Employee’s   employment or separation from employment with Energy Focus, including but not limited to any   action sounding in tort or contract (express or implied), any claim for promissory estoppel,   emotional distress, pain and suffering, punitive damages, attorneys fees, benefits, wages or any   other compensation, wrongful discharge, any violation of public policy, any claim of discrimination,   harassment or retaliation on any basis including, but not limited to age, race, religion, sex, national   origin or disability, whether arising under common law or under any federal, state or local law,   including, but not limited to, Title VII of the Civil Rights Act of 1964, the Age Discrimination in   Employment Act (including as amended by the Older Workers Benefit Protection Act), Ohio   Revised Code chapters 4111, 4112, and 4113, the Americans with Disabilities Act, the Family   and Medical Leave Act, and any applicable State laws, and any other law relating to employment,   and any claims growing out of any legal restriction on an employer’s right to discharge its   employees; and (b) any and all claims of any sort arising from events or circumstances occurring   prior to and up to and including the date of Employee signs this Agreement.   B.  Limitation.  The foregoing release does not waive rights or claims that may arise   after the date this Agreement is executed or that cannot be waived as a matter of law.  The   foregoing release does not waive any rights that Employee may have to continue health or other   benefits at Employee’s expense, pursuant to COBRA or applicable state law.  Nothing in any part   of this Agreement is intended to, or shall, interfere with Employee’s right to file or otherwise   participate in a charge, investigation, or proceeding conducted by the Equal Employment   Opportunity Commission or other federal, state, or local government agency.  Employee shall not,   however, be entitled to any relief, recovery, or monies in connection with any such matter brought   against any of the Released Parties, regardless of who filed or initiated any such charge,   investigation, or proceeding.  Employee agrees that Employee will neither seek nor accept, from   any source whatsoever, any further benefit, payment, or other consideration relating to any rights   or claims that have been released in this Agreement.   6. Will Not Seek Re-Employment.  Employee understands and agrees that the employment   relationship with Energy Focus has ended, and Employee agrees not to seek re-employment with   Energy Focus at any time in the future.  If Employee should become re-employed by Energy   Focus in the future, this section shall be sufficient grounds to terminate such employment.   7. Return of Property.  Employee acknowledges that before signing this Agreement, or   within two days after the Separation Date, Employee has returned or will return to Energy Focus   any and all Energy Focus property in Employee’s possession.  Such property includes, but is not   limited to Energy Focus keys, credit cards, records, files, lists and/or any other materials prepared   by Employee or any other Energy Focus employee which relate in any way to Energy Focus.    Employee shall also, by the same deadline, provide to the Chief People Officer a list of passwords   or access codes to Employee’s work computer and any internal systems or external subscriptions   paid for by Energy Focus to which Employee has password-restricted access.     





 






Confidential Separation and Release Agreement   Page 3 of 5      8. No Admission of Liability.  The Parties agree that: (a) this Agreement is a means of   amicably resolving any differences relating to Employee’s employment and separation from   employment; (b) this Agreement is not intended to be, and should not be construed as, an   admission of liability on the part of Energy Focus or Employee; and (c) this Agreement was   proposed and entered into solely for the purpose of amicably resolving all issues arising out of   Employee’s employment and separation from employment.   9. Confidentiality of Energy Focus Information.  Employee understands and agrees that   in the course of employment with Energy Focus, Employee acquired confidential information   concerning the operations of Energy Focus, including but not limited to information concerning its   personnel, clients, programs and services.  Employee understands and agrees that Employee   has a continuing obligation to maintain the confidentiality of all such non-public information even   after employment with Energy Focus has ended.   10. Non-Disparagement.     A. By Employee.  Employee will not make any untrue statements or disclose any untrue   information concerning Energy Focus, its directors, officers, management, staff,   employees, representatives, or agents (collectively, “Energy Focus or its   management”), which are likely to disparage Energy Focus or its management, which   are likely to damage the reputation or business prospects of Energy Focus or its   management, or which are likely to interfere in any way with the business relations   Energy Focus has with its customers (including potential customers), suppliers,   vendors, employees, investors, or shareholders.  Energy Focus acknowledges that   nothing in this Paragraph shall limit Employee from testifying in or otherwise   cooperating with any federal, state, or civil action, investigation or inquiry.   B. By Energy Focus.  Energy Focus’s Chief Executive Officer and Chief People Officer   will not make any untrue statements or disclose any untrue information concerning   Employee, which are likely to disparage or damage the Employee’s reputation or   stature in the business community.  Employee acknowledges that nothing in this   Paragraph shall limit Energy Focus or any of its employees or directors from testifying   in or otherwise cooperating with any federal, state, or civil action, investigation or   inquiry; or from releasing truthful information or making truthful statements.     11. Non-Solicitation.  Employee agrees that, for a period ending ten months after the   Separation Date, Employee will not personally, and will not instruct or assist any other individual   to, persuade or encourage, or attempt to persuade or encourage, (i) any producer, manufacturer,   licensor, supplier, vendor or any other person providing goods or services to Energy Focus not to   conduct business with Energy Focus or to reduce the amount of business it conducts with Energy   Focus; (ii) any customer or potential customer not to conduct business with Energy Focus or to   reduce the amount of business it conducts with Energy Focus; or (iii)  any employee of Energy   Focus to leave Energy Focus’s employ.  For the purposes hereof, “customer” shall include any   prospective customer to whom Energy Focus made a presentation (or similar offering of services)   within a period of ninety (90) days immediately preceding the Separation Date.   12. Non-Competition.   Employe agrees that for the period starting on the Separation Date   and ending ten months later, you will not, directly or indirectly, own, manage, operate, join, control,   be employed by or with, or participate in any manner with a competing business where doing so   will involve you providing the same or substantially similar services, in whole or in part, to a   competing business as those services that you provided to Energy Focus while employed by   Energy Focus.  A competing business, for purposes of this paragraph, shall mean the business     





 






Confidential Separation and Release Agreement   Page 4 of 5      of manufacturing or selling tubular LED lighting on a commercial scale, anywhere within the   United States.   13. Attorney’s Fees.  Both parties agree to bear their own attorney’s fees and related   expenses, if any, in connection with this matter.   14. Choice of Law.  This Agreement shall in all respects be interpreted, enforced under, and   governed by the laws of the State of Ohio.  Notwithstanding the choice or conflict of law rules of   any court or competent jurisdiction, the laws of the State of Ohio should be used to interpret and   enforce this Agreement.  Any litigated dispute over this Agreement or any of the matters   addressed in this Agreement shall be brought and maintained solely in the Court of Common   Pleas for Cuyahoga County, Ohio or in the United States District Court for the Northern District of   Ohio.   15. Modifications. No provisions of this Agreement may be modified, amended, or   terminated, except in a writing signed by Employee and by either the Chief Executive Officer or   Chief People Officer of Energy Focus.   16. Entire Agreement. The only pay, benefit or other consideration for signing this Agreement   is described herein. In exchange for signing this Agreement, Employee is being provided   consideration to which Employee would not otherwise be entitled.  This Agreement constitutes   the complete and final agreement between the Parties, and supersedes any and all prior   representations or agreements, whether written or oral; except that the Confidentiality Agreement   entered into by Employee on or about time of hire remains in full force and effect.  No other   representations, promises or agreements of any kind have been made by any person or entity to   induce Employee to sign this Agreement.  Notwithstanding the foregoing, this Agreement will not   affect Employee’s rights to indemnification or defense as a former officer and employee of Energy   Focus or any of its affiliates under any articles of incorporation, codes of regulations, other charter   documents, insurance policies, or other laws to the extent any are applicable.  Energy Focus will   continue to maintain in effect, directors and officers liability insurance policies that provide   coverage to Employee with respect to acts or omissions by her occurring at any time on or before   the Separation Date; and such policies shall be comparable to the directors’ and officers’ liability   insurance policies in effect on the Separation Date.   17. Severability.  If any part, term, or provision of this Agreement be determined by any court   of competent jurisdiction to be illegal, invalid or unenforceable, the validity of the remaining parts,   terms or provisions shall not be affected thereby and the illegal, invalid, or unenforceable part,   term, or provision shall be deemed not to be a part of this Agreement.   18. Time to Consider/Advised To Consult Counsel.  Employee is being given a period of   at least twenty-one (21) calendar days to consider the terms and conditions of this Agreement   before executing it.  The Parties agree that any modifications made to this Agreement, material   or otherwise, will not restart and/or affect the running of this 21 day period.  Employee is advised   to consult with an attorney of Employee’s choice prior to executing this Agreement.  Employee   acknowledges that Employee has carefully read this Agreement, understands the content and   effect of this Agreement, and intends to be bound by it.   19. Time to Revoke/Effective Date.  This Agreement shall become effective seven (7) days   after Employee has signed it.  Prior to the expiration of the 7-day period, Employee has the right   to revoke this Agreement by delivering written notice of cancellation to the Chief People Officer,   Energy Focus, Inc., Empire State Building, 350 Fifth Avenue, Suite 6705, New York, NY 10118,   in a manner such that the revocation is received before the 7-day period ends.  If Employee does   not revoke this Agreement with the 7-day revocation period, this Agreement shall become   effective upon the expiration of the revocation period.     





 






Confidential Separation and Release Agreement   Page 5 of 5      20. Other Representations.  Employee represents and warrants that (a) if Employee has   incurred any workplace injury at Energy Focus, Employee has previously reported such injury in   writing, and Employee is unaware of any facts that could give rise to any workers compensation   claim that has not already been filed, (b) Employee has reported, and has been paid for, all time   worked through the date Employee signed this Agreement, with the possible exception of time   worked during the last pay period and through the Termination Date, which may not yet have   been paid but will be paid to Employee as described above, and (c) Employee has been provided   all leave that Employee requested, and Employee is unaware of any facts that would give rise to   any claim under the Family Medical Leave Act or any other state or local leave law.  If Employee   disagrees with any of the representations in this section, Employee has fully explained all   applicable details in writing next to Employee’s signature at the end of this Agreement, attaching   additional pages if necessary.   21. Counterparts. This Agreement may be executed in counterparts, all of which taken   together shall constitute an instrument enforceable and binding upon the undersigned parties.   EMPLOYEE ACKNOWLEDGES THAT EMPLOYEE HAS CAREFULLY READ THIS   AGREEMENT AND UNDERSTANDS THE CONTENT AND CONSEQUENCES OF SIGNING   THIS AGREEMENT.  EMPLOYEE FURTHER ACKNOWLEDGES THAT EMPLOYEE   EXECUTES THIS AGREEMENT KNOWINGLY AND VOLUNTARILY WITH THE INTENT TO   BE LEGALLY BOUND BY IT.   Having agreed to the foregoing terms of this Agreement, the Parties have executed it on the date   indicated below.   ENERGY FOCUS, INC. EMPLOYEE            /s/ Gail Thakarar      /s/ Marcia J. Miller      By        Signature            Chief People Officer     Marcia J. Miller      Title        Print Name             June 17, 2016      June 17, 2016       Date       Date