ex105bluelinxofarrellsep






                                                                 EXHIBIT 10.5                            SEPARATION AGREEMENT         THIS SEPARATION AGREEMENT (this “Agreement”) is made and entered into this  9th day of March, 2020, by and between SUSAN C. O’FARRELL (“Executive”) and BLUELINX  CORPORATION, a Georgia corporation (“Company”), on its own behalf and on behalf of its  parent,  subsidiaries  and  affiliates,  and  their  respective  predecessors,  successors,  assigns,  representatives, officers, directors, agents and employees.  The term “Company,” when used in  this  Agreement,  includes  its  parent,  subsidiaries  or  affiliates  (including  specifically  BlueLinx  Holdings Inc. (“BHI”)) and their respective predecessors, successors, assigns, representatives, past  or  present  officers,  directors,  agents  or  employees.   Executive  and  Company  are  sometimes  hereinafter referred to together as the “Parties” and individually as a “Party.”                                  BACKGROUND:         A.    Executive  is  employed  as  the  Senior  Vice  President,  Chief  Financial  Officer,  Treasurer and Principal Accounting Officer of Company.         B.    The Employment Agreement between Executive and Company dated May 5, 2014,  as  subsequently  amended  (the  “Employment  Agreement”),  and  Executive’s  employment  with  Company will terminate in all capacities effective as of the Termination Date (as defined below).         C.    Company and Executive wish to avoid any disputes which could arise under the  Employment Agreement and have therefore compromised any claims or rights they have or may  have by agreeing to the terms of this Agreement.         NOW, THEREFORE, FOR AND IN CONSIDERATION of the premises, the mutual  promises, covenants and agreements contained herein, and other good and valuable consideration,  the receipt and sufficiency of which are hereby acknowledged, the Parties hereto hereby agree as  follows:         1.    Termination of Employment.  Executive’s last day of employment with Company  will be April 12, 2020 (the “Termination Date”).  Effective as of the Termination Date, Executive  will cease to serve as the Senior Vice President, Chief Financial Officer, Treasurer and Principal  Accounting Officer of Company, but between the date of this Agreement and the Termination  Date, Executive will continue to remain employed with Company in her current role, and will, in  addition to her regular duties, provide transition services to any newly appointed Chief Financial  Officer,  as  reasonably  requested  by  Company.  If  Executive  voluntarily  terminates  her  employment or Company terminates Executive’s employment before the stated Termination Date  as a result of unsatisfactory performance, the Termination Date shall be deemed to be the date of  such actual, earlier termination.  Executive’s employment with Company, and all other positions  and offices with Company held by Executive on the Termination Date, shall be deemed to have  ended effective as of the Termination Date, and all benefits, privileges and authorities related to  Executive’s employment and services with Company ceased as of the Termination Date, except as  otherwise specifically set forth in this Agreement.                                                                Executive’s Initials _____                                                                                                                      Page 1 





 






                                                                 EXHIBIT 10.5         2.    Interpretation  of  Agreement.   The  Parties  agree  that  their  entry  into  this  Agreement is not and shall not be construed to be an admission of liability or wrongdoing on the  part of either Party.         3.    Future Cooperation.  Executive agrees that, notwithstanding the termination of  Executive’s employment on the Termination Date: (a) Executive, upon reasonable notice, will  make herself reasonably available to Company for a period of two (2) months after the Termination  Date  for the  purposes  of:  (i) providing  information  regarding  the  projects  and  files  on  which  Executive worked for the purpose of transition, and (ii) providing information regarding any other  matter, file, project, customer and/or client with whom or with respect to which Executive was  involved  while  employed  by,  or  providing  services  to,  Company; and  (b)  Executive,  upon  reasonable notice, will make herself reasonably available and provide information as to any matter  as to which she has knowledge or with respect to which she was involved and which is or becomes  the subject of litigation or other dispute, investigation or inquiry by any governmental organization  or entity, or accounting-related inquiry.         4.    Consideration.               (a)   In  consideration  of  Executive’s  termination  of  employment,  Executive’s  full release of Company from any and all Claims as described below, and Executive’s agreement  to perform the other duties and obligations of Executive contained herein, Company will, subject  to ordinary and lawful deductions and Sections 4(b) and (c) below:                     (i)   Pay  to  Executive  a  lump  sum  amount  equal  to  Four  Hundred        Seventy-Five  Thousand  Dollars  ($475,000)  (the  “Severance  Amount”),  to  be  paid  less        applicable withholdings no later than ten (10) business days after the Termination Date;                     (ii)  Pay  to  Executive  a  pro  rata  target  bonus  (the  “Pro-Rata  Bonus        Amount”) equal to Seventy-Seven Thousand Eight Hundred Five Dollars ($77,805), which        equals the target bonus that would be payable to Executive under the terms of Company’s        annual bonus plan for calendar year 2020, multiplied by 25.2% (92 days/365 days).  The        Pro-Rata  Bonus  Amount  shall  be  paid  in  cash,  with  such  amount,  less  applicable        withholdings, paid no later than ten (10) business days after the Termination Date;                     (iii) (a) Vest  and  make  non-forfeitable  all  time-based  restricted  stock        units granted in 2018 on the Release Effective Date, (b) ensure that all performance-based        restricted stock units  granted in  2018 will  continue to  vest  and become non-forfeitable        based on the actual performance of Company, in the same manner and at the same time as        if  Executive  remained  employed  by  Company,  (c) ensure  that  Three  Thousand  Nine        Hundred  Fifty-Nine  (3,959) of  the shares  awarded  as  time-based  restricted  stock  units        granted in 2019 (i.e., one third (1/3) of the total of such restricted stock unit award) will        continue to vest and become non-forfeitable on June 7, 2020 (i.e., in the same manner and        at the same time as of Executive remained employed by Company), and that the remainder        of  such  time-based  restricted  stock  units  granted  in  2019  will  be  forfeited  on  the        Termination Date, and (d) ensure that all performance-based restricted stock units granted        in 2019 will be forfeited on the Termination Date; and                                                                Executive’s Initials _____                                                                                                                      Page 2 





 






                                                                 EXHIBIT 10.5                     (iv)  Provide continued participation in Company’s medical and dental        plans, on the same basis as active employees participate in such plans, until the earlier of        (a) Executive’s  eligibility  for  any  such  coverage  under  another  employer’s  medical  or        dental insurance plans or (b) the date that is one (1) year after the Termination Date; except        that (x) in the event that participation in any such plan is barred, Company shall reimburse        Executive on a monthly basis for any premiums paid by Executive to obtain benefits (for        Executive and her dependents) equivalent to the benefits she is entitled to receive under        the Company’s benefit plans, and Executive agrees that the period of coverage under such        plans (or the period of reimbursement if participation is barred) shall count against the        plans’ obligation to provide continuation coverage pursuant to COBRA, and (y) for the        avoidance of doubt, Company shall not be obligated to pay, or reimburse Executive, for        any such benefits in excess of the portion of the related premium that Company would be        required to pay for such benefits for an active employee).               (b)   Notwithstanding  anything  else  contained  herein  to  the  contrary,  no  payments shall be made or benefits delivered under this Agreement (other than payments required  to be made by Company pursuant to Section 5 below) unless, (i) within twenty-one (21) days of  the date of this Agreement, Executive has signed and delivered to Company a Release in the form  attached hereto as Exhibit A (the “Initial Release”), and Executive does not revoke such Initial  Release  during  the  applicable  revocation  period,  and  (ii) within  thirty  (30)  days  after  the  Termination Date, (x) Executive has signed and delivered to Company another Release in the form  attached hereto as Exhibit A (the “Release”), which has been signed by Executive no earlier than  the  Termination  Date;  and  (y) the  applicable  revocation  period  under  the  Release  has  expired  without Executive having elected to revoke the Release.  The Release shall be effective as of the  day following the expiration of the applicable revocation period without Executive having elected  to revoke the Release (the “Release Effective Date”).  Executive agrees and acknowledges that she  would not be entitled to the consideration described herein absent execution of the Release and  expiration of the applicable revocation period without Executive having revoked the Release.  Any  payments to be made, or benefits to be delivered, under this Agreement within the period after the  Termination Date and prior to the Release Effective Date shall be accumulated and paid in a lump  sum, on the first regular payroll date occurring after the Release Effective Date.               (c)   As a further condition to receipt of the payments and benefits in Section  4(a) above, Executive also waives any and all rights to any other amounts payable to her upon the  termination of her employment relationship with Company, other than those specifically set forth  in this Agreement, including without limitation any severance, notice rights, payments, benefits  and other amounts to which Executive may be entitled under the laws of any jurisdiction and/or  her Employment Agreement, and Executive agrees not to pursue or claim any of the payments,  benefits or rights set forth therein.               (d)   If Company is required to prepare an accounting restatement due to material  noncompliance by Company, as a result of misconduct, with any financial reporting requirement  under the federal securities laws, to the extent required by law, Executive will reimburse Company  for: (i) any bonus or other incentive-based or equity-based compensation received by Executive  from  Company  (including  such  compensation  payable  in  accordance  with  this  Section  4  and  Section  5)  during  the  12-month  period  following  the  first  public  issuance  or  filing  with  the                                                                Executive’s Initials _____                                                                                                                      Page 3 





 






                                                                 EXHIBIT 10.5   Securities  and  Exchange  Commission  (whichever  first  occurs)  of  the  financial  document  embodying that financial reporting requirement; and (ii) any profits realized by Executive from  the sale of Company securities during that 12-month period.         5.    Other Benefits.               (a)   Nothing in this Agreement or the Release shall:                     (i)   alter or reduce any vested, accrued benefits (if any) Executive may        be entitled to receive under any 401(k) plan established by Company; or                     (ii)  affect  Executive’s  right  to  elect  and  pay  for  continuation  of        Executive’s health insurance coverage pursuant to COBRA.               (b)   The Company shall pay Executive:                     (i)   any base salary that accrues through the Termination Date and is        unpaid as of the Termination Date;                     (ii)  Executive’s 401(k) match for 2019 to the extent it is not paid prior        to the Termination Date; and                     (iii) any  reimbursable  expenses  that  Executive  incurs  before  the        Termination Date but are unpaid as of the Termination Date (subject to Company’s expense        reimbursement policy).               (c)   Executive acknowledges that no annual bonus was earned for fiscal year  2019, and that Executive shall not be reimbursed or paid for any accrued but unexpired vacation  days that are unused as of the Termination Date.               (d)   Company  shall continue  to  provide  Executive  with  customary  and  appropriate Directors and Officers Liability Coverage for six (6) years following the Termination  Date as required by Section 4(g)(ii) of the Employment Agreement.          6.    Competitive Activity; Confidentiality; Non-Solicitation.               (a)   The  Parties  acknowledge  and  agree  that,  except  as  specifically  set  forth  below,  Section  7  of  the  Employment  Agreement  (and  any  related  definitions)  survive  the  termination of the Employment Agreement and the termination of Executive’s employment and  are incorporated into this Agreement by reference.  The Parties hereby agree to continue to abide  by the obligations in Section 7 of the Employment Agreement as amended hereby.               (b)   Confidential  Information  and  Trade  Secrets.   Section  7(a)(i)  of  the  Employment Agreement is hereby amended and restated as follows:                     “(i)  Executive  shall  hold  in  a  fiduciary  capacity  for  the  benefit  of        Company  all  Confidential  Information  and  Trade  Secrets.   During  Executive’s                                                                Executive’s Initials _____                                                                                                                      Page 4 





 






                                                                 EXHIBIT 10.5         employment and thereafter for any reason, Executive shall not, without the prior written        consent  of  Company  or  as  may  otherwise  be  required  by  law  or  legal  process,  use,        communicate  or  divulge  Confidential  Information  other  than  as  necessary  to  perform        Executive’s duties for Company; provided, however, that if the Confidential Information        is deemed a trade secret under Georgia law, then the period for nondisclosure shall continue        for  the  applicable  period  under  Georgia  Trade  Secret  laws  in  effect  at  the  time  of        Executive’s termination.  In addition, except as necessary to perform Executive’s duties        for  Company,  during  Executive’s  employment  and  thereafter  for  the  applicable  period        under  the  Georgia  Trade  Secret  laws  in  effect  at  the  time  of  Executive’s  termination,        Executive will not, directly or indirectly, transmit or disclose any Trade Secrets to any        person or entity, and will not, directly or indirectly, make use of any Trade Secrets, for        himself or herself or any other person or entity, without the express written consent of        Company.  This provision will apply for so long as a particular Trade Secret retains its        status as a trade secret under applicable law.  The protection afforded to Trade Secrets        and/or Confidential Information by this Agreement is not intended by the parties hereto to        limit, and is intended to be in addition to, any protection provided to any such information        under any applicable federal, state or local law.                     Pursuant to the Defend Trade Secrets Act of 2016, Executive understands        that:                     An individual may not be held criminally or civilly liable under any federal              or state trade secret law for the disclosure of a trade secret that: (a) is made (i) in              confidence  to  a  federal,  state,  or  local  government  official,  either  directly  or              indirectly,  or  to  an  attorney;  and  (ii)  solely  for  the  purpose  of  reporting  or              investigating a suspected violation of law; or (b) is made in a complaint or other              document that is filed under seal in a lawsuit or other proceeding.                     Further, an individual who files a lawsuit for retaliation by an employer for              reporting a suspected violation of law may disclose the employer's trade secrets to              the  attorney  and  use  the  trade  secret  information  in  the  court  proceeding  if  the              individual: (a) files any document containing the trade secret under seal; and (b)              does not disclose the trade secret, except pursuant to court order.”               (c)   Definitions.  For  purposes  of  this  Agreement  (including  Section  6(b)  hereof), the following capitalized terms shall have the following meanings.               “Confidential Information” means knowledge or data relating to Company that is  not generally known to persons not employed or otherwise engaged by Company, is not generally  disclosed by Company, and is the subject of reasonable efforts to keep it confidential. Confidential  Information includes, but is not limited to, information regarding product or service cost or pricing,  information regarding personnel allocation or organizational structure, information regarding the  business operations or financial performance of Company, sales and marketing plans, and strategic  initiatives (independent or collaborative), information regarding existing or proposed methods of  operation, current and future development and expansion or contraction plans, sale/acquisition  plans  and  non-public  information  concerning  the  legal  or  financial  affairs  of  Company.                                                                 Executive’s Initials _____                                                                                                                      Page 5 





 






                                                                 EXHIBIT 10.5   Confidential Information does not include information that has become generally available to the  public by the act of one who has the right to disclose such information without violating any right  or privilege of Company.  This definition is not intended to limit any definition of confidential  information or any equivalent term under applicable federal, state or local law.               “Person”  means:   any  individual  or  any  corporation,  partnership,  joint  venture,  limited liability company, association or other entity or enterprise.               “Trade Secrets” means all secret, proprietary or confidential information regarding  Company, BHI or any of their respective subsidiaries and affiliates or that meets the definition of  “trade secrets” within the meaning set forth in O.C.G.A. § 10-1-761.         7.    Construction of Agreement and Venue for Disputes.  This Agreement shall be  deemed to have been jointly drafted by the Parties and shall not be construed against either Party.  This Agreement shall be governed by the law of the State of Georgia, and the Parties agree that  any actions arising out of or relating to this Agreement or Executive’s employment with Company  must be brought exclusively in either the United States District Court for the Northern District of  Georgia, or the State or Superior Courts of Cobb County, Georgia.  Notwithstanding the pendency  of any proceeding, either Party shall be entitled to injunctive relief in a state or federal court located  in Cobb County, Georgia upon a showing of irreparable injury.  The Parties consent to personal  jurisdiction and venue solely within these forums and solely in Cobb County, Georgia and waive  all  otherwise  possible  objections  thereto.   The  existence  of  any  claim  or  cause  of  action  by  Executive  against Company,  including  any  dispute  relating  to  the  termination  of  Executive’s  employment  or  under  this  Agreement,  shall  not  constitute  a  defense  to  enforcement  of  said  covenants by injunction.           8.    Severability.  If  any  provision  of  this  Agreement  shall  be  held void,  voidable,  invalid or inoperative, no other provision of this Agreement shall be affected as a result thereof,  and accordingly, the remaining provisions of this Agreement shall remain in full force and effect  as though such void, voidable, invalid or inoperative provision had not been contained herein.         9.    No Reliance Upon Other Statements.  This Agreement is entered into without  reliance upon any statement or representation of any Party hereto or any Party hereby released  other than the statements and representations contained in writing in this Agreement (including all  Exhibits hereto).         10.   Entire  Agreement.  This  Agreement,  including  all  Exhibits  hereto  (which  are  incorporated herein by this reference), contains the entire agreement and understanding concerning  the subject matter hereof between the Parties hereto.  No waiver, termination or discharge of this  Agreement, or any of the terms or provisions hereof, shall be binding upon either Party hereto  unless confirmed in writing.  This Agreement may not be modified or amended, except by a writing  executed by both Parties hereto.  No waiver by either Party hereto of any term or provision of this  Agreement or of any default hereunder shall affect such Party’s rights thereafter to enforce such  term or provision or to exercise any right or remedy in the event of any other default, whether or  not similar.  Notwithstanding the foregoing, the Employment Agreement will remain in effect until                                                                Executive’s Initials _____                                                                                                                      Page 6 





 






                                                                 EXHIBIT 10.5   the Termination Date to the extent the terms of the Employment Agreement are not inconsistent  with the terms of this Agreement and, if inconsistent, the terms of this Agreement will control.         11.   Further Assurance.  Upon the reasonable request of the other Party, each Party  hereto agrees to take any and all actions, including, without limitation, the execution of certificates,  documents or instruments, necessary or appropriate to give effect to the terms and conditions set  forth in this Agreement.         12.   No Assignment.  Neither Party may assign this Agreement, in whole or in part,  without  the  prior  written  consent  of  the  other  Party,  and  any  attempted  assignment  not  in  accordance herewith shall be null and void and of no force or effect.         13.   Binding Effect.  This Agreement shall be binding on and inure to the benefit of the  Parties and their respective heirs, representatives, successors and permitted assigns.         14.   Indemnification.   Company  understands  and  agrees  that  any  indemnification  obligations under its governing documents or the indemnification agreement between Company  and Executive with respect to Executive’s service as an officer of Company remain in effect and  survive  the  termination of  Executive’s  employment  under  this  Agreement  as  set  forth  in  such  governing documents or indemnification agreement.         15.   Nonqualified Deferred Compensation.               (a)   Any  payment or benefit provided pursuant  to  or in  connection with  this  Agreement is intended to comply with the “short term deferral” exception from Section 409A of  the Internal Revenue Code of 1986 (“Section 409A”) specified in Treas. Reg. § 1.409A-1(b)(4)  (or any successor provision) or the “separation pay plan” exception specified in Treas. Reg. §  1.409A-1(b)(9) (or any successor provision), or both of them, and shall be interpreted in a manner  consistent with the applicable exceptions.  If any payment or benefit provided pursuant to or in  connection  with  this  Agreement  is  considered  to  be  deferred  compensation  subject  to  Section  409A, it shall be paid and provided in a manner, and at such time and form, as complies with the  applicable  requirements  of  Section  409A  to  avoid  the  unfavorable  tax  consequences  provided  therein  for  non-compliance.  Executive  and  Company  agree  that  Executive’s  termination  of  employment is an involuntary separation from service under Section 409A.               (b)   Neither Company nor Executive shall take any action to accelerate or delay  the payment of any monies and/or provision of any benefits in any manner which would not be in  compliance with Section 409A (including any transition or grandfather rules thereunder).               (c)   Because  Executive  is  a “specified  employee”  for  purposes  of  Section  409A(a)(2)(B)(i), any payments or benefits provided pursuant to or in connection with Executive’s  “Separation from Service” (as determined for purposes of Section 409A) that constitute deferred  compensation subject to Section 409A shall not be made until the earlier of (i) Executive’s death  or  (ii)  six  months  after  Executive’s  Separation  from  Service  (the  “409A  Deferral  Period”)  as  required by Section 409A.  Payments otherwise due to be made in installments or periodically  during the 409A Deferral Period (“Delayed Payments”) shall be accumulated and paid in a lump                                                                Executive’s Initials _____                                                                                                                      Page 7 





 






                                                                 EXHIBIT 10.5   sum as soon as the 409A Deferral Period ends, and the balance of the payment shall be made as  otherwise  scheduled.   Any  such  benefits  subject  to  the  rule  may  be  provided  under  the  409A  Deferral  Period at  Executive’s expense, with  Executive having a  right  to reimbursement  from  Company once the 409A Deferral Period ends, and the balance of the benefits shall be provided  as otherwise scheduled.               (d)   For  purposes  of  this  Agreement,  all  rights  to  payments  and  benefits  hereunder shall be treated as rights to receive a series of separate payments and benefits to the  fullest extent allowed by Section 409A.               (e)   Notwithstanding any other provision of this Agreement, Company shall not  be liable to Executive if any payment or benefit which is to be provided pursuant to this Agreement  and which is considered deferred compensation subject to Section 409A otherwise fails to comply  with, or be exempt from, the requirements of Section 409A.  Executive shall be solely responsible  for  the  tax  consequences  with  respect  to  any  payment  or  benefit  provided  pursuant  to  or  in  connection with this Agreement, and in no event shall Company have any responsibility or liability  if this Agreement does not meet any applicable requirements of Section 409A.         16.   Counterparts.  This Agreement may be executed in any number of counterparts  and by the Parties hereto in separate counterparts, with the same effect as if the Parties had signed  the same document.  All such counterparts shall be deemed an original, shall be construed together,  and shall constitute one and the same instrument, with original signature, photocopy signature, fax  signature, or electronic signature permitted and accepted.         17.   Protected Rights.  Executive understands that nothing contained in this Agreement  limits Executive’s ability to file a charge or complaint with the Equal Employment Opportunity  Commission,  the  National  Labor  Relations  Board,  the  Occupational  Safety  and  Health  Administration,  the  Securities  and  Exchange  Commission  or  any  other  federal,  state  or  local  governmental agency or commission (“Government Agencies”).  Executive further understands  that  this  Agreement  does  not  limit  Executive’s  ability  to  communicate  with  any Government  Agencies or otherwise participate in any investigation or proceeding that may be conducted by any  Government Agencies, nor does this Agreement impact or limit Executive’s eligibility to receive  an award for information provided to any Government Agencies.                             [signatures on following page]                                                                                          Executive’s Initials _____                                                                                                                      Page 8 





 






                                                                 EXHIBIT 10.5         IN WITNESS WHEREOF, the Parties have executed, or caused their duly authorized  representatives to execute, this Agreement as of the day and year first above written.                                       “Executive”                                          /s/ Susan O’Farrell                                                     Susan O’Farrell                                       “Company”                                       BLUELINX CORPORATION                                        By:  /s/ Mitchell B. Lewis                                                Name: Mitchell B. Lewis                                      Title: President and Chief Executive Officer                                                                                                       Executive’s Initials _____                                                                                                                      Page 9 





 






                                                                 EXHIBIT 10.5                                    EXHIBIT A                                     RELEASE   In consideration for the undertakings and promises set forth in that certain Separation Agreement,  dated as of March 9, 2020 (the “Agreement”), between SUSAN O’FARRELL (“Executive”) and  BLUELINX  CORPORATION      (“Company”),  the  terms  of  which  are  incorporated  herein  by  reference,  Executive  (on  behalf  of  herself  and  her  heirs,  assigns  and  successors  in  interest)  unconditionally releases, discharges, and holds harmless Company and its parent and current and  former  subsidiaries  and  affiliates  and  their  respective  current  and  former  officers,  directors,  employees,  agents,  insurers,  benefit  plans,  assigns  and  successors  in  interest  (collectively,  “Releasees”) from each and every claim, cause of action, right, liability or demand of any kind and  nature, and from any claims which may be derived therefrom (collectively “Released Claims”),  that Executive had, has, or might claim to have against Releasees based upon facts occurring up  to the time Executive executes this Release, whether presently known or unknown to Executive,  including, without limitation, any and all claims listed below, other than any such claims Executive  has or might have under the Agreement:               (a)   arising from or in connection with Executive’s employment, pay, bonuses,        vacation or any other Executive benefits, and other terms and conditions of employment or        employment practices of Company;               (b)   arising out of or relating to the termination of Executive’s employment with        Company or the surrounding circumstances thereof;               (c)   based  on  discrimination  and/or  harassment  on  the  basis  of  race,  color,        religion, sex, national origin, handicap, disability, age or any other category protected by        law under Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, Executive        Order 11246, 42 USC § 1981, the Equal Pay Act, the Age Discrimination in Employment        Act  (“ADEA”),  the  Older  Workers  Benefits  Protection  Act,  the  Equal  Pay  Act,  the        Americans With Disabilities Act, the Rehabilitation Act of 1973, C.O.B.R.A. (as any of        these laws may have been amended), the Genetic Information Nondiscrimination Act, the        Family  and  Medical  Leave  Act,  or  any  other  similar  labor,  employment  or  anti-       discrimination law under state, federal or local law;               (d)   based  on  any  contract,  tort,  whistleblower,  personal  injury,  wrongful        discharge theory or other common law theory; or               (e)   arising  under  the  Agreement  or  any  written  or  oral  agreements  between        Executive and Company or any of Company’s subsidiaries or affiliates  (other than the        Agreement).               Executive expressly acknowledges that this Agreement is intended to include in its        effect, without limitation, all Claims which Executive does not know or suspect to exist in        her favor at the time she signs this Agreement, and that this Agreement contemplates the        extinguishment of any such Claim or Claims.                                                                          _______                                                              Executive’s Initials _____   





 






                                                                 EXHIBIT 10.5         Except as otherwise set forth herein, Executive covenants not to sue or initiate any claims  in any forum against any of the Releasees on account of or in relation to any Released Claim, or  to incite, assist or encourage other persons or entities to bring claims of any nature whatsoever  against Company or Releasees.  Executive further covenants not to accept, recover or receive any  monetary damages or any other form of relief which may arise out of or in connection with any  administrative  proceedings  which  may  be  filed  with  or  pursued  independently  by  any  governmental agency or agencies, whether federal, state or local.  This provision does not prohibit  Executive from filing a lawsuit challenging the validity of Executive’s waiver of claims under the  ADEA.         Notwithstanding anything herein to the contrary, Company and Executive acknowledge  and agree that the above release does not waive any rights or claims that may arise based on facts  or events occurring after the date of Executive’s execution of this Agreement, nor does it serve to  waive any rights or claims that are precluded from being waived by applicable law.         Protected  Rights.  Executive  understands that  nothing  contained  in  this  Release  limits  Executive’s  ability  to  file  a  charge  or  complaint  with  the  Equal  Employment  Opportunity  Commission,  the  National  Labor  Relations  Board,  the  Occupational  Safety  and  Health  Administration,  the  Securities  and  Exchange  Commission  or  any  other  federal,  state  or  local  governmental agency or commission (“Government Agencies”).  Executive further understands  that this Release does not limit Executive’s ability to communicate with any Government Agencies  or  otherwise  participate  in  any  investigation  or  proceeding  that  may  be  conducted  by  any  Government  Agency,  including  providing  documents  or  other  information,  without  notice  to  Company.   This  Release  does  not  limit  Executive’s  right  to  receive  an  award  for  information  provided to any Government Agencies.         In addition, Executive agrees not to file a lawsuit asserting any claims that are waived in  this Release.  If Executive files such a lawsuit, Executive shall pay all costs incurred by Releasees  (or any of them), including reasonable attorney’s fees, in defending against Executive’s claim, and,  as a precondition to filing any such lawsuit, shall return all but $500.00 of the severance benefits  or payments Executive has received.  The preceding two sentences of this paragraph do not apply  if Executive files a charge or lawsuit under the Age Discrimination in Employment Act (“ADEA”)  challenging  the  validity  of  this  Release.   However,  in  the  event  any  such  ADEA  lawsuit  is  unsuccessful, a court may order Executive to pay attorney’s fees and/or costs incurred by Releasees  (or any of them) where authorized by law.  In the event any such ADEA lawsuit is successful, the  severance  benefits  or  payments  Executive  received  for  signing  this  Release  shall  serve  as  restitution, recoupment, or setoff to any monetary award received by Executive.         Executive  hereby  acknowledges  that  Executive  has  no  interest  in  reinstatement,  reemployment or employment with Company or any Releasee, and Executive forever waives any  interest in or claim of right to any future employment by Company or any Releasee.  Executive  further  covenants  not  to  apply  for  future  employment  with  Company  or  any  Releasee,  or  to  otherwise seek or encourage reinstatement.                                                                             _______                                                              Executive’s Initials _____   





 






                                                           EXHIBIT 10.5   By signing this Release, Executive certifies that:         (a)   Executive  acknowledges  and  agrees  that  her  waiver  of  rights  under  this  Release  is knowing and voluntary and complies in full with all criteria set forth in the  regulations promulgated under the Older Workers Benefit Protection Act for release or  waiver of claims under the Age Discrimination in Employment Act and further complies  in full with the Americans with Disabilities Act, Title VII of the Civil Rights Act of 1964,  and any and all other applicable federal, state and local laws, regulations, and orders         (b)   Executive has carefully read and fully understands the provisions of this  Release;          (c)   That the payment referred to in this Release and the Agreement exceeds that  to which Executive would otherwise have been entitled, and that the actual payment is in  exchange for her release of the claims referenced in this Release;         (d)   Executive is advised via this Release, to consult with an attorney before  signing this Release.         (e)   Executive understands that any discussions she may have had with counsel  for Company regarding her employment or this Release does not constitute legal advice to  her and that she has had the opportunity to retain her own independent counsel to render  such advice;         (f)   Executive  understands  that  this  Release  and  the  Agreement  FOREVER  RELEASE  Company  and  all  other  Releasees  to  the  extent  set  forth  above,  except  that  Executive  is  not  releasing  or  waiving  any  claim  under  the  Age  Discrimination  in  Employment Act that may arise after Executive’s execution of this Release;         (e)   In signing this Release and the Agreement, Executive DOES NOT RELY  ON  AND  HAS  NOT  RELIED  ON  ANY  REPRESENTATION  OR  STATEMENT  (WRITTEN OR ORAL) NOT SPECIFICALLY SET FORTH IN THIS RELEASE OR IN  THE  AGREEMENT  by  Company  or  any  other  Releasee,  or  by  any  of  their  agents,  representatives,  or  attorneys  with  regard  to  the  subject  matter,  basis,  or  effect  of  this  Agreement or otherwise, and Executive agrees that this Release will be interpreted and  enforced in accordance with Georgia law;         (f)   Company hereby allows Executive no less than twenty-one (21) days from   Company’s  final  offer  to  consider  this  Release  and  the  Agreement,  and  she  has  had  sufficient time to consider her decision to enter into this Release and the Agreement.  In  the event Executive executes this Release and the Agreement prior to the expiration of the  aforesaid  21-day  period,  she  acknowledges  that  her  execution  of  this  Release  and  the  Agreement before the expiration of the 21-day period was knowing and voluntary and was  not induced in any way by Company or any other person or entity; and         (g)   Executive  agrees  to  its  terms  knowingly,  voluntarily  and  without  intimidation, coercion or pressure.                                                                    _______                                                        Executive’s Initials _____                





 






                                                                 EXHIBIT 10.5         Executive may revoke this Release within seven (7) calendar days after signing it.  To be  effective, such revocation must be delivered to and received in writing by the General Counsel of  Company at the offices of Company at 1950 Spectrum Circle, Suite 300, Marietta, Georgia 30067.   Revocation can be made by hand delivery or facsimile before the expiration of this seven (7) day  period.         This Release may be executed in any number of counterparts and by the Parties hereto in  separate counterparts, with the same effect as if the Parties had signed the same document.  All  such counterparts shall be deemed an original, shall be construed together, and shall constitute one  and the same instrument, with original signature, photocopy signature, fax signature, or electronic  signature permitted and accepted.         IN WITNESS WHEREOF, the undersigned has executed this Release as of the date set  forth below.                                 “Executive”                                    /s/ Susan O’Farrell                                         Susan O’Farrell                                 Dated:  March 9, 2020                                                                           _______                                                              Executive’s Initials _____