SEPARATION AGREEMENT AND GENERAL RELEASE
This Separation Agreement and General Release (this “Agreement”)
is entered into between Kubient, Inc., together with its existing and future direct and indirect subsidiaries and controlled affiliates (the “Company”), and Mitchell Berg
(“Employee”) (each individually, a “Party,” and collectively, the “Parties”). The Parties hereby agree as follows:
1. Separation of Employment. Employee hereby
acknowledges that Employee’s employment with the Company terminated effective May 3, 2024 (the “Separation Date”).
2. Accrued Obligations and Benefits. In
accordance with the Employment Agreement between Employee and Company dated November 18, 2021 (the “Employment Agreement”), and regardless of whether Employee enters into
this Agreement, within ten (10) days of the Separation Date Employee will receive the monies contemplated in Section 4(b) of the Employment Agreement. Provided Employee was already enrolled in the Company’s group healthcare insurance benefit plans
during employment, Employee’s coverage under such plans will end as of the last day of the month in which the Separation Date occurs. If Employee wishes to continue healthcare insurance benefits coverage beyond such date at his own expense,
Employee must timely elect such coverage under the Consolidated Omnibus Budget Reconciliation Act (“COBRA”). Except as expressly provided in the Restricted Stock Unit
Award Agreement (dated February 15, 2022), between the Company and Employee (the “Award Agreement”) or in this Agreement, Employee will receive no additional compensation,
bonus, severance, commissions, equity or other benefits on or after the Separation Date. Employee expressly acknowledges that Employee did not earn an Annual Bonus in the fiscal year prior to the fiscal year in which the Separation Date occurs that
has not yet been paid. Further, Employee acknowledges that he has not earned an Annual Bonus for the current fiscal year. As such, Employee acknowledges that no Annual Bonus is due to Employee under the terms of Section 4(c)(iv) of the Employment
Agreement. Additionally, employee acknowledges that he was not awarded and is not entitled to any “PSUs” under the Performance Share Award Agreement dated February 15, 2022 (the “PSU
Agreement”) and any rights or obligations under the PSU Agreement are hereby forfeited and terminated.
3. Survival of Post-Termination Rights and Obligations.
Employee acknowledges and understands that the Parties’ post-termination obligations and rights under (a) the Confidential Information, Invention Assignment and Arbitration Agreement entered into by and between the Parties on November 23, 2021 (the
“CIAAA”), (b) the Employment Agreement, and (c) the Award Agreement shall survive the termination of Employee’s employment with the Company and shall remain in full force
and effect hereafter.
4. Consideration to Employee. Pursuant to the
terms of this Agreement and Section 4(c) of the Employment Agreement, Employee is receiving certain severance and other benefits to which Employee would not otherwise be entitled. In exchange for promises by Employee in this Agreement, including
but not limited to a release of claims and promise to cooperate post-termination, and provided that this Agreement is timely signed by Employee, returned to the Company, and not revoked as set forth in Section 15 of this Agreement, the Company
shall provide to Employee the following consideration (collectively, the “Consideration”):
a. COBRA Subsidy. If Employee timely and
properly elects healthcare insurance continuation coverage under COBRA, timely pays the applicable COBRA premium directly to the COBRA administrator, and remits documentation of Employee’s payment of the applicable COBRA premium to Elisabeth
DeMarse at Elisabeth.DeMarse@kubient.com, with a copy to Asaf Weitzman at Asaf.Weitzman@kubient.com, no later than thirty (30) days after Employee pays the applicable COBRA premium, then the Company shall reimburse Employee for the difference
between the monthly COBRA premium paid by Employee for Employee and Employee’s dependents and the monthly premium amount paid by Employee for such coverage prior to the Separation Date (“COBRA Subsidy”). Such COBRA Subsidy shall be paid to Employee by the last day of each month immediately following the month in which Employee timely remits documentation to the Company evidencing the premium payment paid by
Employee. Employee shall be eligible to receive such COBRA Subsidy until the earliest of: (i) the sixth (6th) month following the month in which the Separation Date occurs; (ii) the date Employee is no longer eligible to receive COBRA continuation
coverage; and (iii) the date on which Employee becomes eligible to receive similar coverage from another employer or other source. Employee agrees to notify the Company immediately if Employee becomes covered by a group health plan of a subsequent
employer.
b. Lump Severance Payment. The Company shall pay
Employee the total gross amount of ONE HUNDRED FIFTY THOUSAND and 00/100 DOLLARS ($150,000.00), representing the equivalent of six (6) months of Employee’s
base salary at the rate in effect immediately prior to the Separation Date, less applicable taxes and withholdings, in a single lump sum within thirty (30) days following the Effective Date of this Agreement (as defined in Section 15 below).
5. Release. In exchange for the Consideration
described in Section 4 above, Employee, on behalf of Employee and Employee’s representatives, heirs, successors and assigns, hereby completely releases and forever discharges the Company and any past, present, and future parent companies,
subsidiaries, divisions, and affiliates of the Company, and its and their past, present, and future shareholders, officers, directors, members, agents, employees, attorneys, insurers, employee benefit plans, and their administrators, successors,
and assigns (collectively, “Released Parties”) from all claims, rights, demands, actions, obligations, and liabilities of every kind, known or unknown, which Employee may
now have or has ever had up through the date Employee signs this Agreement (the “Release”). This Release includes, but is not limited to, all claims arising out of
Employee’s employment with the Company and the termination of that employment, whether based on tort, contract (express or implied) (including, but not limited to, the Employment Agreement, the Award Agreement, and the PSU Agreement), or any
federal, state, or local law, regulation, or ordinance (collectively, “Released Claims”). By way of example only, Released Claims include any claims arising under Title
VII of the Civil Rights Act of 1964, the Family and Medical Leave Act, the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. (the “ADEA”), the Older Worker’s Benefit Protection Act, the Post Civil War Civil Rights Acts (42 USC §§ 1981-1988), the Civil Rights Act of 1991, the Equal Pay Act, the
Occupational Safety and Health Act, the Americans with Disabilities Act, the Uniformed Services Employment and Reemployment Rights Act, the Davis-Bacon Act, the Walsh-Healey Act, the Employee Retirement Income Security Act (other than claims for
vested benefits), Executive Order 11246, the Worker Adjustment and Retraining Notification Act, the Sarbanes-Oxley Act, and any other federal, state, or local statute, regulation or ordinance governing the employment relationship. This Release
further includes any claims asserting negligent or intentional infliction of emotional distress; negligent or intentional misrepresentation; negligent or intentional interference with contract or prospective economic advantage; fraud; defamation;
invasion of privacy; claims related to disability; any and all claims for wages, commissions, compensation, reimbursement, disbursements, bonuses, benefits, equity, vacation, and/or penalties; and any other claims arising under or related to
employment laws or regulations. Employee likewise releases the Released Parties from any and all obligations for attorneys’ fees and other legal costs incurred in regard to the above claims or otherwise. This Release covers all waivable claims,
including those not specifically mentioned in this Agreement.
6. Waiver of Unknown Claims. The Parties
understand and agree the Release in Section 5 above includes not only claims presently known to Employee, but also all unknown or unanticipated claims, rights, demands, actions, obligations, and liabilities of every kind that are covered by the
Release. Employee understands that Employee may later discover facts different from what Employee now believes to be true, which, if known, could have materially affected Employee’s decision to sign this Agreement, but Employee nevertheless waives
any claims or rights based on such different or additional facts.
7. No Claims Filed; Covenant Not to Sue.
Employee affirms that Employee has not filed nor caused to be filed, and is not presently a party to, any lawsuits or arbitrations against any of the Released Parties in any forum; provided, however, that nothing in this Section 7 shall be
interpreted as requiring Employee to disclose any claims, complaints, or communications Employee has made, or information Employee has disclosed, to the U.S. Securities and Exchange Commission (“SEC”) concerning actual or possible violations of securities law. Employee also promises not to sue or participate in any lawsuit or arbitration against the Company or any of the other Released Parties, either individually
or as a class member or a claimant in a collective action, alleging any claim covered by the Release in Section 5 above. Nothing in this Section 7 prevents Employee from filing a suit to (a) enforce this Agreement or (b) challenge its validity
under the ADEA. Consequences of breaching this Section 7 are described below in Section 14.
8. Release Exclusions and Additional Employee Protections.
Nothing in the Release in Section 5 above or anything else in this Agreement limits or otherwise affects: rights to any vested retirement benefits or other accrued benefits to which Employee is already entitled; claims for workers’ or unemployment
compensation; claims that arise after the date Employee signs this Agreement; claims to enforce this Agreement; and any other claims that cannot lawfully be waived. In addition, nothing in any part of this Agreement limits Employee’s rights to:
file a charge with, provide information to, testify to or before, or participate in an investigation or proceeding conducted by, any federal, state, or local government agency responsible for enforcing any law; report possible violations of any law
or regulation to any such agency; make other disclosures protected under whistleblower provisions of any law or regulation; or disclose or discuss a sexual assault or sexual harassment dispute arising after this Agreement is signed by Employee.
Notwithstanding the above, Employee expressly waives all rights to recover money or other individual relief in connection with any administrative or court action related in any way to any claim covered by the Release in Section 5 above, whether
brought by Employee or on Employee’s behalf. However, Employee may recover money properly awarded by the SEC as a reward for providing information to that agency.
9. Non-Disparagement. Employee agrees and
warrants that at no time in the future will the Employee make any statements (orally or in writing, including, without limitation, whether in fiction or nonfiction) or take any actions which in any way disparage or defame any of the Released
Parties, or in any way, directly or indirectly, cause or encourage the making of such statements, or the taking of such actions by anyone else, including but not limited to other current or former employees of the Company (except as outlined in
Section 8 above).
10. Taxes and Indemnification. Employee agrees to
pay all taxes (other than Company’s share of payroll taxes) found to be owed based upon the Consideration provided to Employee under this Agreement and to indemnify and hold the Company harmless for any federal, state and local tax liability
(including taxes, interest, penalties or the like, and required withholdings), which may be asserted against or imposed upon the Released Parties by any taxing authority related to such Consideration due to Employee’s non-payment of taxes for which
Employee is legally responsible. Employee understands and agrees that the Company may file any necessary tax documentation regarding the Consideration provided to Employee under this Agreement. Employee and the Company acknowledge that nothing
herein constitutes tax advice to the other Party.
11. Employee Representations. Employee represents
and warrants that Employee has: (a) been paid all compensation owed for all hours worked, including, but not limited to, any overtime and bonus if applicable; (b) received all the requested leave and leave benefits and protections for which
Employee was eligible under the Family and Medical Leave Act or otherwise; and (c) not suffered any on-the-job injury for which Employee has not already filed a claim. In addition, it is Company policy to encourage reporting within the Company all
possible violations of any law, and no one has interfered with Employee’s reporting of any such violations. Employee further represents that: (i) Employee has not alleged any claim against the Company or any other Released Parties, the factual
foundation for which involves sexual harassment under applicable law; and (ii) no part of the Consideration pursuant to this Agreement is a payment related to sexual harassment or sexual abuse as set forth in Section 162(q) of the Internal Revenue
Code.
12. Cooperation. Employee agrees that following
the Separation Date, Employee will cooperate fully with the Company in connection with: (a) any defense, prosecution, or investigation of claims or demands by or against third parties; and (b) any matters arising from or related to events during
Employee’s employment by the Company. In addition, Employee agrees to execute any documents required to carry out the terms of this Agreement. Such cooperation includes, without limitation, being available to the Company upon reasonable notice,
without subpoena, to provide truthful and accurate information in witness interviews plus deposition and trial testimony. The Company will reimburse Employee for reasonable out-of-pocket expenses incurred in connection with any such cooperation
(excluding forgone wages, salary, or other compensation) and will make reasonable efforts to accommodate Employee’s scheduling needs.
13. Non-Admission. This Agreement is intended to
facilitate an amicable separation of Employee’s employment with the Company and is not intended and shall not be construed as an admission of wrongdoing by either Party.
14. Effect of Breach; Return of Consideration; Attorney’s
Fees. If Employee breaches the surviving terms of the CIAAA, the Employment Agreement, or Sections 7, 9, 11, 12, 17, or 22 of this Agreement, the Company’s obligations to provide Employee the Consideration above shall cease
immediately except for $200, and Employee will be required to repay to the Company the entire Consideration received by Employee except for $200; alternatively, the Company may at its option forego the remedy above and instead require Employee to
pay the Company’s legal costs incurred in enforcing the CIAAA, the Employment Agreement, and/or this Agreement, including its reasonable attorneys’ fees. Further, nothing in this Agreement prevents the Company from pursuing an injunction to enforce
the surviving terms of the CIAAA, the Employment Agreement, or Sections 7, 9, 11, 12, 17, or 22 of this Agreement. Nothing in this Section 14 is intended to, nor shall be construed to apply to any contrary rights of Employee under the ADEA.
15. Time to Consult, Consider and Revoke; Effective Date.
By this Agreement, Employee has been advised to consult with an attorney before signing this Agreement. Employee acknowledges and understands that the Release in Section 5 above effectively waives all claims under the ADEA, and agrees that this
Agreement complies with the OWBPA. Employee also acknowledges the Company has provided Employee with the disclosure required under 29 U.S.C. § 626(F)(1)(H). Employee further acknowledges that Employee has had the opportunity to consider this
Agreement and the disclosure for forty-five (45) days before signing this Agreement, although Employee had the option to sign it sooner. Any material or non-material changes made to this Agreement after Employee receives this Agreement do not
restart the running of the 45-day review period. Employee has seven (7) days in which to revoke this Agreement after signing it if Employee wishes (the “Revocation Period”).
To revoke this Agreement, Employee must send the Company a written notice of revocation addressed to Elisabeth DeMarse, Interim CEO and President of the Board of Directors, via email at: Elisabeth.DeMarse@kubient.com, before the Revocation Period
expires, with the original notice of revocation sent via U.S. Mail to Ms. DeMarse at Kubient, Inc., 500 7th Avenue, 8th Floor, New York, NY 10018, postmarked no later than the last day of the Revocation Period. This Agreement
shall become effective on the eighth (8th) day after the date Employee signs this Agreement, provided that Employee has not timely revoked it (the “Effective Date”). In
the event Employee fails to timely sign this Agreement, or revokes this Agreement within seven days after having signed it, the Company’s obligations under this Agreement shall be null and void. Employee acknowledges and understands that the
Company is not obligated to provide the Consideration to Employee until after the Effective Date.
16. Integration; Modification. Employee
acknowledges that this Agreement, the CIAAA, the Employment Agreement, and the Award Agreement constitute the entire agreement between the Parties pertaining to the subject matter hereof, and supersede any other agreements and understandings among
Employee, the Company and any other Released Parties, whether written or oral, express or implied, regarding Employee’s employment, termination, and benefits. Employee has not relied on any statement or promises by anyone other than those contained
in this Agreement and has entered into this Agreement knowingly without reliance upon any other representation, promise, or inducement not set forth herein. This Agreement shall not be modified unless in writing and signed by both the Company and
Employee.
17. Transfer of Claims. Employee has not assigned,
transferred, or purported to assign or transfer to any person or entity any claims released under Section 5 above. Employee agrees to indemnify and hold the Released Parties harmless against all rights, claims, warranties, demands, debts,
obligations, liabilities, costs, legal costs (including attorneys’ fees), or judgments based on or arising out of any such assignment or transfer. Employee further warrants that nothing prohibits Employee from entering into this Agreement.
18. Binding Effect. This Agreement shall bind and
inure to the benefit of the Parties’ representatives, agents, successors, assigns, heirs, attorneys, current and future affiliates, and predecessors, as well as any of the Released Parties. This Agreement shall not benefit any other person or
entity except as specified in this Agreement.
19. Sufficiency of Consideration; Severability.
Employee agrees that the Consideration provided to Employee hereunder is good and valuable consideration for Employee’s signing of this Agreement. Should a court of competent jurisdiction determine that the Release in Section 5 above is invalid,
void or unenforceable, then Employee agrees the Company’s obligations under this Agreement are null and void and Employee shall return to the Company the Consideration. If any other provisions in this Agreement are held by a court of competent
jurisdiction to be invalid, void or unenforceable, the remaining provisions shall continue in full force. In the event of a final, non-reviewable, non-appealable determination that any provision in this Agreement (in either case, whether in whole
or in part) is void or constitutes an unreasonable restriction against Employee, such provision shall not be rendered void but shall be deemed modified or reformed by the court to the minimum extent necessary to make such provision enforceable for
the longest duration and the greatest scope as may constitute a reasonable restriction under the circumstances. Nothing in this paragraph is intended to, nor shall be construed to apply to any contrary rights of Employee under the ADEA.
20. Governing Law, Interpretation, Arbitration.
This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to its conflicts of law principles. This Agreement shall be construed as a whole, according to its fair meaning, and not in favor
of or against any Party for any reason. Any and all disputes between the Parties arising from or related to this Agreement shall be resolved solely and exclusively by final and binding arbitration held in New York County, New York through Judicial
Arbitration & Mediation Services (“JAMS”) in the same manner contemplated for resolution of claims arising under the Employment Agreement, as set forth in Section 8 of
the Employment Agreement.
21. Representation by Counsel. The Parties
acknowledge that (a) they have had the opportunity to consult counsel in regard to this Agreement, and (b) they have read and understand this Agreement and are fully aware of its legal effects.
22. Return of Company Property. Employee represents
that on or before the Separation Date, Employee returned to the Company all Company property in Employee’s possession or control, including without limitation, all books, manuals, records, reports, notes, contracts, lists, blueprints, and other
documents, or materials, or copies thereof (including computer files), keys, building card keys, company credit cards, telephone calling cards, computer hardware and software, laptop computers, docking stations, cellular and portable telephone
equipment, and all other proprietary information relating to the business of the Company or its subsidiaries or affiliates.
23. No Waiver. No waiver of any claim for breach
of rights under this Agreement shall be deemed a broader waiver unless the broader waiver is acknowledged in a writing executed by the waiving Party.
24. Headings; Electronic Transmissions; Counterparts.
Headings in this Agreement are for reference purposes only and shall not in any way affect this Agreement’s meaning or interpretation. This Agreement may be executed in several counterparts and by electronic transmissions (e-mail, facsimile and/or
scanner) and all so executed copies shall constitute one Agreement, binding on all the Parties hereto, even though the Parties are not signatories to the original or same counterpart.
25. Acceptance. To accept this Agreement,
Employee must sign and date below and return this Agreement within forty-five (45) days to Elisabeth DeMarse, Interim CEO and President of the Board of Directors, Kubient, Inc., 500 7th Avenue, 8th Floor, New York, NY 10018,
email at Elisabeth.DeMarse@kubient.com.
[SIGNATURES ON FOLLOWING PAGE]
Employee represents and warrants that Employee has read this Agreement in its entirety, has been offered forty-five (45) days to review this Agreement, has been advised to consult with an attorney, fully understands
all the terms of this Agreement, and voluntarily and knowingly accepts those terms.
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EMPLOYEE
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COMPANY
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KUBIENT, INC.
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Mitchell Berg
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By:
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Elisabeth DeMarse
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Mitchell Berg
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Elisabeth DeMarse, Interim CEO and President of the Board of Directors
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