AWRE 8-K
Aware Inc /Ma/ (AWRE)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D)
OF THE SECURITIES EXCHANGE ACT OF 1934
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
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If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
ITEM 5.02. DEPARTURE OF DIRECTORS OR CERTAIN OFFICERS, ELECTION OF DIRECTOR; APPOINTMENT OF CERTAIN OFFICERS; COMPENSATORY ARRANGEMENTS OF CERTAIN OFFICERS.
As previously announced, David Barcelo, the former Chief Financial Officer and Treasurer of Aware, Inc. (the “Company”), has left the Company. In connection with Mr. Barcelo’s departure, the Company entered into a separation agreement with Mr. Barcelo on November 13, 2023 (the “Separation Agreement”). Pursuant to the terms of the Separation Agreement, Mr. Barcelo is entitled to receive the following severance from the Company once the Separation Agreement becomes effective: (i) $265,224.98, which represents his annual base salary and is payable as salary continuation for twelve months; (ii) vesting of all time-based stock options and other time-based stock-based awards held by Mr. Barcelo that would have vested had he remained employed with Aware through October 31, 2024; and (iii) continuation of certain health benefit coverage through October 31, 2024. The Separation Agreement includes Mr. Barcelo’s agreement not to compete with the Company through October 31, 2024 and a general release by Mr. Barcelo of claims against the Company. The description of the Separation Agreement contained herein is qualified in its entirety by reference to the full text of the Separation Agreement, which is attached as Exhibit 10.1 hereto and incorporated herein by reference.
ITEM 9.01. FINANCIAL STATEMENTS AND EXHIBITS.
No financial statements are required to be filed as part of this Report. The following exhibits are filed as part of this report:
(d) EXHIBITS.
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10.1
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Letter Agreement dated as of November 13, 2023, by and between Aware, Inc. and David Barcelo
Cover Page Interactive Data File (embedded within XBRL document) |
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
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AWARE, INC. |
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Dated: November 15, 2023 |
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By: |
/s/ David K. Traverse
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David K. Traverse |
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Principal Financial Officer |
October 24, 2023
Dear David:
The purpose of this letter agreement (the “Agreement”) is to confirm the terms regarding your separation of employment with Aware, Inc. (together with its subsidiaries, the “Company”).
(a) With the exception of the laptop that was provided to you (which you may keep), you agree to return all Company documents (and any copies thereof whether in hard or electronic form), property (including, without limitation, keys, computers, iPads, computer disks and CD-ROMs, USB storage devices, pagers, phones and credit cards) and transfer any other Company information (including documents, files, etc.) within five (5) business days of the Separation Date. You may return Company documents, property and other Company information to the Company via FedEx using the Company account number. You agree to cooperate with Company representatives in the return of Company property.
(b) You agree to keep confidential all confidential and proprietary information of the Company, and you agree to abide by any and all common law and/or statutory obligations relating to protection and non-disclosure of the Company’s trade secrets and/or confidential and proprietary documents and information.
(c) You agree that all information relating in any way to this Agreement, including the terms and amount of financial consideration provided for in this Agreement, shall be held confidential by you and shall not be publicized or disclosed by you to any person (other than an immediate family member, legal counsel or financial advisor, provided that any such individual to whom disclosure is made agrees to be bound by these confidentiality obligations), business entity or government agency (except as mandated by law).
(d) You agree that you will not make any statements that are professionally or personally disparaging about, or adverse to, the interests of the Company (and/or its officers, directors and managers) including, but not limited to, any statements that disparage any such person, product, service, finances, financial condition, capability or any other aspect of the business of the Company, and that you will not engage in any conduct which is intended to harm professionally or personally the reputation of the Company (and/or its officers, directors and managers). The Company’s executive officers and members of its Board of Directors will not make any public statements that are professionally or personally disparaging about you.
(e) You agree that the breach of any of the foregoing covenants by you shall constitute a material breach of this Agreement and shall relieve the Company of any further obligations hereunder and, in addition to any other legal or equitable remedy available to the Company, shall entitle the Company to recover any compensation already paid to you pursuant to Section 2 of this letter.
Your signature below reflects your understanding of, and agreement to, the terms and conditions set forth above.
Very truly yours,
AWARE, INC.
By: /s/ Robert Eckel /s/ David Barcelo
Name: Robert Eckel David Barcelo
Title: President and CEO
Dated: November 13, 2023
Exhibit A
NONCOMPETE AGREEMENT
This NONCOMPETE AGREEMENT (the "AGREEMENT"), made as of the 24th day of October 2023, is entered into between Aware, Inc., a Massachusetts corporation with offices at 76 Blanchard Road, Burlington, Massachusetts 01803 (the "Company") and David Barcelo, an individual residing at 15 Dawn Circle, Andover MA 01810 (the "Employee").
RECITALS:
A. The Company is willing to grant certain severance and other benefits to the Employee, under the circumstances specified in that certain Employment Agreement dated May 4, 2020 between the Company and the Employee (the “Employment Agreement”) and pursuant to a Separation Agreement dated as of the date hereof by and between the Company and the Employee (the “Separation Agreement”); and
B. As set forth in the Employment Agreement and the Separation Agreement, the Employee's execution of this Agreement is a condition to his receipt of such benefits;
NOW, THEREFORE, in consideration of the mutual covenants and promises contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
(ii) "BUSINESS OF THE COMPANY" shall mean the development, manufacture, marketing and/or distribution of (A) biometric technologies or wavelet compression technologies or (B) any other products or services which the Company sells, has under development or which are subject to active planning at any time during the term of the Employee's employment with the Company.
The Employee represents and warrants that his performance of all the terms of this Agreement does not and will not breach any other agreement by which he is bound.
The Employee understands that this Agreement does not constitute a contract of employment or give the Employee rights to employment or continued employment by the Company.
This Agreement constitutes the entire agreement between the parties and supersedes all prior agreements and understandings, whether written or oral, relating to the subject matter of this Agreement.
This Agreement may be amended or modified only by a written instrument executed by both the Company and the Employee.
This Agreement shall be construed, interpreted and enforced in accordance with the laws of The Commonwealth of Massachusetts, without regard to its choice of law principles. The Employee hereby consents to (a) service of process, and to be sued, in The Commonwealth of Massachusetts and (b) to the jurisdiction of the courts of The Commonwealth of Massachusetts and the United States District Court for the District of Massachusetts, as well as to the jurisdiction of all courts to which an appeal may be taken from such courts, for the purpose of any suit, action or other proceeding arising out of any of Employee's obligations hereunder, and Employee expressly waives any and all objections he may have as to venue in any such courts.
This Agreement shall be binding upon and inure to the benefit of both parties and their respective successors and assigns, including any corporation with which or into which the Company may be merged or which may succeed to its assets or business, provided, however, that the obligations of the Employee are personal and shall not be assigned by him.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year set forth above.
AWARE, INC.
By: /s/ Robert Eckel
Name: Robert Eckel
Title: President and CEO
EMPLOYEE
/s/ David Barcelo
Name: David Barcelo
Exhibit B
GENERAL RELEASE AND WAIVER OF ALL CLAIMS
(INCLUDING OLDER WORKER BENEFITS PROTECTION ACT CLAIMS)
For good and valuable consideration, including without limitation the compensation and benefits set forth in the Separation Agreement dated October 24, 2023 (the “Agreement”) between the undersigned and Aware, Inc. (the “Company”), to which this General Release and Waiver of All Claims is attached, the terms of which Agreement shall survive this General Release and Waiver of Claims, the undersigned, on behalf of and for himself and his heirs, administrators, executors, representatives, estates, attorneys, insurers, successors and assigns (hereafter referred to separately and collectively as the “Releasor”), hereby voluntarily releases and forever discharges the Company, and its subsidiaries (direct and indirect), affiliates, related companies, divisions, predecessor and successor companies, and each of its and their present, former, and future shareholders, officers, directors, employees, agents, representatives, attorneys, insurers and assigns (collectively as “Releasees”), jointly and individually, from any and all actions, causes of action, claims, suits, charges, complaints, contracts, covenants, agreements, promises, debts, accounts, damages, losses, sums of money, obligations, demands, and judgments all of any kind whatsoever, known or unknown, at law or in equity, in tort, contract, by statute, or on any other basis, for contractual, compensatory, punitive or other damages, expenses (including attorney’s fees and cost), reimbursements, or costs of any kind, which the undersigned employee ever had, now has, or may have, from the beginning of the world to the date of this Release, known or unknown, in law or equity, whether statutory or common law, whether federal, state, local or otherwise, including but not limited to any and all claims arising out of or in any way related to the undersigned’s engagement by the Company (including the hiring or termination of that engagement), or any related matters including, but not limited to claims, if any arising under the Age Discrimination in Employment Act of 1967, as amended by the Older Worker Benefits Protection Act; the Civil Rights Act of 1964, as amended; the Civil Rights Act of 1991, as amended; the Family and Medical Leave Act of 1993, as amended; the Immigration Reform and Control Act of 1986; the Americans with Disabilities Act of 1990, as amended; the Employee Retirement Income Security Act (ERISA), as amended; the Massachusetts laws against discrimination and harassment (including Mass. Gen. L. c. 151B), protecting equal rights or concerning the payment of wages (including Mass. Gen. L. c. 149, section 148 et seq. and Mass. Gen. L. c. 151, section 1A, et seq.), and federal, state or local common law, laws, statutes, ordinances or regulations. Notwithstanding the foregoing, nothing contained in this General Release and Waiver of Claims shall be construed to bar any claim by the undersigned to enforce the terms of the Agreement.
Releasor represents and acknowledges the following:
Signed and sealed this 13 day of November, 2023.
Signed: /s/David Barcelo
Name (print): David Barcelo