EFTA01083266

TRANSITION AND RELEASE AGREEMENT THIS TRANSITION AND RELEASE AGREEMENT, dated August 2013, by and among Te-fasilitate-a-sinooth-trafisition-and-thea-the-tennination-ef-their—empleynient telaionshipr bgC3 LLC (the "Company") William H. Gates ("WHO"). Melinda F. Gates ("MFG"). Watermark Estate Management Services. LLC ("WEMS"). the Bill & Melinda Gates Foundation ("BMGF"lon behalf of its Managers and the lndi'.'idualt (as defined below in Section 24), and Dr. Boris Nikolic ("Dr. NIkolIcir a-sing4e-persenragree-as-followsi RECITALS; A. The Company and Dr. Nikolic entered into an employment agreement dated regarding Dr. Nikolic's employment with Company doted (the "Employment Agreement"). B. The parties hereto Gumpany-and-DrrNikolie-desire wish-to enter into this Transition and Release Agreement ("Agreement") in order to facilitate a smooth transition and termination of the employment relationship between the Company and Dr. Nikolic as well as the termination of the business and financial relationships of Dr. Nikolic with the parties hereto and certain of their affiliated entities. C. Nothing in this Agreement is intended as or should be construed as an admission of liability by an an Feasen-te-betiew4hat-any-liability-ex-im.s-as-it-FeladS40-the-employment-relationship-and-cleaiaion te-tenninate-auch-relationship. AGREEMENTS NOW, THEREFORE, in consideration of the foregoing premises and the mutual agreements and other provisions contained herein, the parties hereto, intending to he legally hound, do hereby agree as follows:Pnwided-that D.. Nikolie-exeeut ind-does-net revoke-this-Agreementrtreepartiedegreeits4ellowst 1. Employment Through Separation Date and Post-Employment Cooperation. In partial consideration of the Waiver and Release contained in Section 2, the Restrictive Covenants contained or referenced in Section 4, and the other terms and conditions of this Agreement, Company agrees to change the "at-will" status of Dr. Nikolic's employment to a length of term employment relationship, which is anticipated to run from August 19, 2013 through July I, 2014, provided that Dr. Nikolic is performing his duties in a manner satisfactory to Company; provided further however: (i) the parties may mutually agree to extend the last date of Dr. Nikolic's employment with Company beyond July 1, 2014, (ii) Dr. Nikolic may voluntarily choose to terminate his employment with Company sooner than July 1, 2014, and (iii) Company may Cammented [D11: Not are of there:non for this whole section choose (or decide) to have Dr. Nikolic stop performing services prior to July 1, 2014, and any as X eft:sanely presides dim the date of terminmion can be extended such decision shall in no way negate the agreements made by the parties to this Agreement. Dr. only by mutual agreement but can be shortened by either pony acting alone. So haw u that really not jute an 171.Wlii employmem? Darren 2013-08.0I I/:41:00 EFTA01083266 Nikolic's last day of employment shall be the "Separation Date". Dr. Nikolic claims and shall claim no firther right of employment by Company after the Separation»atel. CaDinentel [D2]: so this is saying lto' BN con only b:pg for 11 months of emptmatenc tic best. unies%rh company terminatet him early. which me Company *mars to be atle to do fm any 2. Waiver and Release. reasco or to reason at all. I fDr. Nikolic is temainetedearly he still only gen the same smeratce as itle wee terminated in I1~tb. Does not noem particularty fair. 2.1 Damen 2013-08.01 17:14:00 a. Dr. Nikolic, on behalf of himself and his heirs, executore, administrators and CAMiDerited [031: Mar are theadual terms and cceditictit of Dr. Nikolies ooatiored einpbymam? I(11e panles are wending for assigns, expressly waives against Company, Watermark Estate Management Services, diere to he a agreement !ora It111/. Men the agreemem sheald LLC, and their present an - former f-tine ent (including without specifyamperaation ad bonus. enmene the hmited bases to ferntimre for"cause" and set ronh any morsqueues iiimmainetion limitation any other entities owned or controlled by William H. Gates III), predecessors, *lach are not covered m this agreement. successors and assigns, the Bill & Melinda Gates Foundation. and their present and former Diantn 2013-08.01 11:45:00 owners, officers, directors, stockholders, managers, employees, agents, trustees, representatives, general and limited partners, mombers and attomeys, and William li. Gates III and Melinda F. Gates (the "IndIvIduals") and their respective present and former employees, agents, representatives, and attorneys (all of which are collectively referred to as the "Gates Released Panties"), any and all claims, damages, causes of action or disputes, whether known or unknown, based upon acts or omissions occurring or that could be alleged to have occuned at the time of or prior to the execution of this Agreement (the "Gates Released Claims"); and Muller releases, discharges and acquits the Gates Released Panles, individually and in their representative capacities, from any and all Gates Released Claims. This waiver and release includes, but is not limited to, any and all claims for ~MMS [M]: This n gin exponsite genera' rek-ase and waner Mat is getimed in imor of not ealy spo:ific nam& blues hm wages, employment benefits, and damages of any kind whatsoever arising out of any UtellMttl partita maf [ware primes. Whit ta the omrolt, fe contraets, expressed or implied (including without limitation the Employment Agreement example. of maning a release ol"Itniire 4111131a and hann relued ontziet"! Alla langtmge is a linie namsmentor lor etui* »bat and any amendments thereto); any covenant of good faith and fair dealing; estoppel or is a "fornier prot.:mum'? Not sure bow you release fatum Ma misrepresentarion; discrimination or retaliation on any unlawful basis, including, without isme of which naiy not men mist as of the date this agreement is to be etecuied. Very ontgom mpnwde a general release ta (Dunro( limitation, harassment; privacy; defamation; wrongful termination or constructive ~rood partita. Perhas mase is rome gny against whom BN discharge; any federal, state, local or other govemmental statute or ordinance, including, naga have a claim and does not imend to release. V"mald be ok to release all olme unnemed muts to thea represcniatite capaciims without limitation. Title VII of the Civil Rights Act of 1964, as amended, the Americans only tor <Lima reiaung to BN's emptoymem with the Company with Disabilities Act, the Washington Law Against Discrimination, the Age Discrimination and tbc tefMilUBIUM of the same or same speeitte rebted mum lhat Agreement neet to more aurowly delict tbc scope of the in Employment Act, as amended ("ADEA"), the Older Workers' Benefit Protection Act of release it a n not gomg to spui:kak>, identity the pertaw who ise 1990 ("OWBPA"), the Employee Retirement Income Security Act, as amended to benefit (rom du release. Darren ("ERISA"), any wage payment statute; or any other legal limitation on the employment 2013-0801 1137:00 relationship (collectively sometimes the "Release"). Excluded from this Release are claims Dr. Nikolic may have with regard to vested benefits under ERISA, or any other claim that may not be released under this Agreement by law; additionally, despit. Dr. Nikeliels-aeeeptitttee-of4his-Release; nothing in this Release will prevent Dr. Nikolic from (i) initiating or causing to be initiated on his behalf any complaint, charge, claim or proceeding against Company betere any local, state or federal agency, court or other body challenging the validity of the waiver of claims under the Age Discrimination in Employment Act or the Older Workers Benefit Protection Act contained in this Release (but no other portion of the Release) or (ii) initiating or panicipating in any investigation or proceeding conducted by the Equal Employment Opportunity Commission ("EEOC"). Dr. Nikolic represents and warrants that he is the sole and exclusive owner of Dr. Nikolic's nalas in and to all Gates Released Claimsrstid-that-ne-other-pony-has-any-right; fitle-or interest-wlassever-in-eny-oflhe-matters-mferred-to-herein, and that he is unaware of any basis to assen any form of charge or claim of unlawful discrimination. EFTA01083267 b. Each of the Except-as-stated-hereinr agither-party-having-any-basis-or-reason-to beheye-thin-DrrNikolie-has-engaged-iii-any-inappropriate-c-onduefrCompany,r en-beha4fol its-Managers-and-the Individuals MAGI:, and WEMS. on behalf of itself, himself, and herself. and the heirs, executors, administrators, successors and assigns thereof, expressly waives against Dr. Nikolic and his heirs, executors, administrators, successors and assigns call of which are collectively referred to as the ':Nikolic Released Parties"), any and all claims, damages, causes of action or disputes, whether known or unknown, based upon acts or omissions occurring or that could be alleged to have occurred at the time of or prior to the execution of this Agreement (the "Nikollc Released Claims- ): and further releases discharges and acquits the Nikolic Released Parties, individually and in their representative capacithN, from any and all Nikolic Released Claims. This waiver and release includes, but Commented (DS]: This is im expansive scampi release and waiver that is graccof in Eaor venni only specific named maim km is not limited to, any and all claims of any kind whatsoever arising out of any contracts tieramed parties and future ponies. What is the pupate, for expressed or implied (including without limitation the Employment Agreement and any example. of requiring a release of "futureaffiliates and future related entities-.. Also bnpame is a little non.sametor for ewinpk what amendments thereto): any covenant of good faith and fair dealing: estoppel or is a "former predeceusort Not sure bow you release Imre panics.. misrepresentation: harassment: privacy: or defamation. releases-DrrNikolie-from-any-and scene of which may not men mist as of the date this agreement ix so be executed. Very onerous to pnaside a general release in favored' all-liability-arigin-01A-a-any-aets-andier-ernif‘iefIS-ducing-the-geurse-of--his-empleymenit timumed panics. Perhaps thee ix sane party against whom RN might have a claim and does MX intend to release. Wcsald be al to release all of the unmated names in their representative capacities based-en-affornanye-rnisconduct-by-De-NikAlierEM14-known-to-Conwany-m-the-titne-of du only for claims relating to BN's employment with the Company and the termitustion of the same or some specilk related maxim You aced to define the cope of the release you are Oct going to confidentiality-as-detined-in-any.-conficlentiatity-aspeeinem-previeusbi-signed-by-Dr. specifically identify the persons who re to benefit foam the release. Damns 10110801 14,43:00 misrepresentation-Of-wcengfal-ifithiereRWII47 Commented [D6): This release on the caber hind is very meow and subject to exceptions for unknown misceedact. This release 2.2 Each of the parties hereto DrrNikolie-represents and warrants that such party he should mirror the language of the release to be gaveled by ON. This has not filed or caused to be filed any lawsuit, arbitration, complaint, or charge with respect to release should be granted by all of the parties that RN release's° the extent possible. How dam the Company gram arelease as Malice any claim this Agreement purports to waive. Dr. Nikolic understands that nothing in this its mammal? The meager* lei on behalfofthe Company and not Agreement prevents him from filing or prosecuting a charge with any administrative agency with the other way around. How does the eximany base at ability to bind RO and MU? lithe release is to be meaningful. it should be respect to any such claims; however Each party hereto . DfrNaelk-fiirther understands and fain and tame:able with no ceneouts cc maroons. lithe agrees that such party lw-will not seek and hereby waives any claim for personal damages and/or company m seeking a general release. than thisrelease should also be a general release. The release should at lean be granted by The other personal relief. Each party hereto Dr:ililielie-agrees to cause the withdrawal or dismissal Company. RG. MG. BNICiF and WEN'S. who should be nasal with prejudice of any claim such party lw-has purported to waive under this Agreement. This signatories to the agreement Darien Section shall not apply to claims challenging the validity of this Release in connection with 2013.07.31 II:43:00 federal Age Discrimination in Employment Act ("ADEA") claims. 4f—DTNlielic--is—evec awarded-Of recovers any arseunt ass s., ., claim h.. has purported m waive :.. t is A greemenr al. Nikais—agFeec,—that—the—arnount—ef--any—awarii—or—resoveskall—be—ten4ece4—brhim—to—tis *thlidity-fif-glica-Releatie-in-seaftestion-withaggA-elaims, 3. Property. Dr. Nikolic agrees: (i) that at any time upon the Company's request, and without request upon his Separation Date, he will immediately return to the Company, and cause to be fully deleted and expunged all copies from all computer systems, back up drives or servers, email servers, smart phones, Microsoft Tablet or related device, and any other data storage media in his possession or control (electronic or othcnvisL), entlia :a tl- or anttrvi of third perties-te-whoto-he-ttiey-Iteve-proyitied-sueh-infonnetien-witheut-euthei;zetion, any and all property (other than property which rightfully belongs to Dr. Nikolic) that Dr. Nikolic received or took from or was given access to by any Released-PaitGatiN Released Party or any Company vendor or contractor, or that specifically relates to any Gates Released Party and that Dr. Nikolic EFTA01083268 generated in the course of Dr. Nikolic's relationship with and in connection with his performing his employment duties to the with-Company, its related entities and the Bill & Melinda Gates Commented [D7J: There hat to be a eane.out for pkvtin that properly belongs to Dr. N.kohc. alto. Ore phr.w generated in a Foundation, including without limitation all files, memoranda, keys, cellular phones, credit course of Dr. NtholK't employment alto hat to be lased tome cards, manuals, employee handbooks, security technology and other company equipment, data, generated rube dour.< of and trecdkall) relating to cola:dam-II and nonpublic man with respect to has anployincor h ss too photographs, records and other documents, including emails and other electronically recorded brood documents and data, and physical property; and (ii) to certify that he has done so. -DE--Nikolte Darren 2013-0801 14:59:00 reprasents-and-warrants-that-Ne-is-tiot-aware-of-any-person-or-entity-that-is-imunanthorwod-or Commented [D8]: This is leo tread mei expansive. Should be wrongful-possession-of-asy-Confidential-informatiom-Co'nfidential-Materials-thoth-as-dofined simply that he has to return any property that des a rightfully or—other—propearef—Conmattyrthe Bill & Melinda—Gates—Foundation—m—the belong to Dr. Niolie and which rightfully belongs to the Company that he imy have keened or have token from the Company. etc. IncEwiduakl.Anything to the contrary provided in this Section 3 notwithstanding. Dr. Nikolic Donna shall be entitled to retain conies of any records that may be necessary or appropriate for personal 10110.011501:00 tax and accounting nunioses or as may otherwise be required to enable him to comply with Commented [D9]: Dr. Nikolse should not be requited to make representations as. to %%babel' Otheril pozumion of information or applicable law or regulations. materials is wrongful and whether the informaisce or materials they roam is comidomial or not. Ibex mates a basis to rescind the 4. Restrictive Covenants. severance Darren 101108011306:00 4.1 a. For purposes of this Agreement. "Restrcitive Covenants" shall mean DrrNileehe n..po.s,Ntts and ww...fts that Dr. N;kol:e-lras nu violated any provision of any agreement signed by Dr. Nikolic in favor of the Company, its related entities, the Bill & Melinda Gates Foundation, or the Individuals pertaining to confidentiality of information or ownership of intellectual property (collectively referred to as "Restrictive Covenants"), including without limitation the Employment Agreement, and any amendments thereto. Dr. Nikolic agrees that lie shall comply fully with the terms and conditions of the Restrictive Covenants, which shall remain in full force and effect and are incorporated into this Agreement by reference. Dr. Nikolic further agrees that he shall keep the existence of this Agreement, its terms and conditions, confidential; except that Dr. Nikolic may disclose this Agreement and its terms to his legal counsel, tax advisor other professional advisors and domestic partner (if any), provided such individuals also agree to maintain the confidentiality of this Agreement and its terms, and as otherwise provided by law. The parties agree that violation by Dr. Nikolic of any obligation that he has under any Restrictive Covenant or Section 4 of this Agreement will cause the Company, or the Gates Released Parties-or-other-entititne-vcrson, harm, some or much of which is difficult to quantify, such as present and future economic harm; and/or may be intangible, such as reputational harm or other negative impacts on various relationships, efforts to determine actual damages, or potential unknown incidental and/or consequential costs. In the event that Dr. Nikolic violates any obligation that he has under any Restrictive Covenant or Section 4 of this Agreement, Dr. Nikolic agrees that he owes and shall pay th e Company and that the Company will be entitled to recover from his any damages as determined by an arbitrator pursuant to Paragraph 9 below. b. In the event Company the Individuals. BMGF or WEMS violates any obligation under this Agreement each of the Company. the Individuals. BMGF and WEMS agrees that it. he or she owes and shall pay Dr. Nikolic and that Dr. Nikolic will be entitled to Commented [D10]: There should ben reciprocal set of recover from the party that violates such obligation. Company-any damages as promions onSection b that mirror the prmisaom in Semen a. determined by an arbitrator pursuant to Paragraph 9 below. Tense pontoons are rawly missing from this Semen. Darren /0110801 11107:00 EFTA01083269 4.2 Dr. Nikolic acknowledges that in the course of his employment with Company, its related-emitieeaffiliates and the Bill & Melinda Gates Foundation Dr. Nikolic he-has acquired considerable knowledge about the Company, its affiliates known to Dr. Nikolicrelated-entities. the Bill & Melinda Gates Foundation, Company managed premises, the Individuals (as defined in Section 2.1) and members of the Individuals' family, the home and business of the Individuals, and the friends, guests, business associates or acquaintances of the Individuals. For the purposes of this Transition Agreement "Confidential Information" means all information learned by Dr. Nikolic in any way related to the Company, its related entities, the Bill & Melinda Gates Foundation, the Individuals and members of the Individuals' family, the home and business of the Individuals, and the friends, guests, business associates or acquaintances of the Individuals whether such information is written, oral or observed. Without limiting the Commented [D11): Ike definition of Conlick-mial Information needs to be sc 401down Fut unless spec i focally designated as generality of the foregoing, "Confidential Information" includes information of any nature, with confidential to U1111112. it hat to be information thin is obviously or without further written designation, relating to: (a) the personal lives, schedules, habits, confidemial et of a type that is typically considered to be confidemial. It has to be nonpublic admiration. It can't be property, financial affairs, business, social or personal practices and interests, family, guests, infonuition that some how come into the public domain thmugb to business associates or acquaintances, travel and/or events associated with the Company or the violation by Dr. Nikolic. It cannot be information dut Dr. Nil:else cos denominate that be knew prior to leaning or a. h can't Fe Individuals; (b) any buildings, improvements or facilities located at or being constructed on infonuition provided to Or Nilolic independently by a pawn oat property owned or controlled by the Company, the Individuals or the Bill & Melinda Gates oar a conunatul or legal obligation to refrain from dlr.:losing it so him. Foundation; (c) the work performed by Dr. Nikolic or others at the Company's, the Individuals' Damn or the Bill & Melinda Gates Foundation's direction; (d) the subject matter of the communications 2013-63.01 II: I0:00 between Dr. Nikolic or others and Company, the Bill & Melinda Gates Foundation or the Commented [D12): Again. this ain't be mirk that is publicly &mimed or is obviously not confidential. Individual; (e) any systems developed or under development for use at the Company's, the Dynan Individuals', related entities', the Bill & Melinda Gates Foundation's or the Company managed 2013-05.01 18:12:00 premises' properties, including without limitation, any information about existing or proposed Commented [D13): see commems above. It can't be that the subject nutter of my communications are confidential. the scope of information processing (IT) equipment, systems and software; audio visual equipment, systems these restrictions need to be rammed mated:orally. and software; and security equipment, systems and software; and (f) technical and non-technical Doran 2013-0801 18: B:00 information related to the actual or prospective business or activities of the Company or the Individuals, affiliates known to Dr. Nikolic. the Bill & Melinda Gates Foundation or ht e Company managed premises including, without limitation, information related to patents, copyrights and trade secrets, branding, techniques, sketches, drawings, models, inventions, know-how, processes, apparatus, equipment, algorithms, software programs, software source documents, research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, manufacturing, purchasing, customer lists, price lists, business forecasts, products, services, sales and merchandising and marketing plans and information. "Confidential Materials" shall mean all tangible materials containing Confidential Information, including without limitation, summaries, notes, blueprints, drawings, photographs, slides, negatives, databases, written or printed documents or information recorded on digital or electronic media, whether machine-readable or user-readable. No Confidential Information or Confidential Materials shall be used by Dr. Nikolic except as is reasonably necessary to pefomt his duties of employment or as otherwise expressly authorized by the Company. Except as is reasonably necessary to perform his duties of employment. Dr. Nikolic shall not disclose er—pemit—the—diselesure—ef—any Confidential Information or Confidential Materials to any third party without the Company's explicit written approval in advance of any such disclosure, except as may be required by law or pursuant to a lawful subpoena or other order issued a government authority or by a court of competent jurisdiction. Without limiting the generality of the foregoing, unless expressly asked in writing by the Company for his assistance, which assistance would be subject to a written agreement signed by the Company, Dr. Nikolic shall not (a) be involved in contributing to or the EFTA01083270 preparation of any book, article, story, video or film about or relating to the Company, any of its affiliates known to Dr. Nikolicrelated—entities, the Bill & Melinda Gates Foundation, the Individuals and members of the Individuals' family, th e home and business of the Individuals, or the friends, guests, business associates or acquaintances of the Individuals or any of their business, social or personal interests or give interview(s) (on or off the record) regarding such inatteri; or (b) produce or contribute to any written, oral, electronic, or other accounts. Callnlelblid [D14): Regarding friends. gimes. humsess asniciamo, and aoqustimamo. if the miner does not have any Gates fictionalized or otherwise, that relate to or resemble his employment with the Company, its relationship and the matter was not within Or. Nilotic's knowledge affiliates that are known to Dr. Nikolictekated-entities, the Bill & Melinda Gates Foundation as a rank of his Gates relationship. then the matter should not he maw so this prohibition. That is to my. this is again to) expansive Individuals, or services for the Individuals or the Individuals themselves or members of the and coven unidentified persons- It must therefore be limitol Individuals' family. Dr. Nikolic understands and agrees that there may be no adequate remedy at nroFerlY. Darren law for the Company or other entities or persons protected under this Section 4.2 in the event of 20I3-08-0I its breach, or threatened breach, and any such entity or person, in addition to any other remedies available at law or in equity, shall be entitled to injunctive relief to prevent any breach of this obligation or to minimize the consequences thereof. Notwithstanding the foregoing, if Dr. Nikolic should breach the provisions of this Section 4.2, the Company, the Bill & Melinda Gates Foundation and the Individuals shall be entitled, in addition to but not as a limit on any other remedies available to the Company, the Bill & Melinda Gates Foundation and the Individuals, to recover automatically any proceeds or remuneration of any nature whatsoever that Dr. Nikolic receives in regard to or as a result of the disclosure of any such confidential linformatiori. trh Commented [DID]: Proceedsshould be the limit of liability and ace in addition to other remedies. Otherwise delete this provisicea Bill & Melinda Gates Foundation and Individuals are third-party beneficiaries of this Agreement. Darren 20B-08.01 IS4n:00 4.3 Commented (D16): There should beery:it:neat COVNIAM against disclosure and use of confidential information and confidential 1113ICtillit mrteeming Or. Nilotic withpm...mons for a. Dr. Nikolic shall refrain from making, expressing or implying any derogatory or injunctive rebel ta disparaging comments regarding any Releasecl-Pat4Gates Released Party to the press or to Omen 201.1-08.01 15:42:00 any individual or entity, by any mode or medium of communication. Failure to abide by Commented (D17): They need to be actual names eo this this provision shall be deemed a material breach of this Agreement; provided, however, agreement. not Third.liony Dertficiertes. Dr. Nikolic should have that nothing in this provision will prevent Dr. Nikolic from giving truthful testimony if privity with WHG. Atha, DAIGF and WENS and all should be ponies tothis Agreement. properly subpoenaed to testify under oath or if otherwise required by law. In the event Darren Dr. Nikolic is subpoenaed to testify under oath relating to any matter regarding any of the 101106.0111:19:00 Reletised-PatKiates Released Parties, he agrees to and shall (unless prohibited by law) CommeMeel (DIG): Ibis needs to be limited. If we are dealing with anyone other than the Goes family. BAlliF. W EMS. the provide notice and a copy of such subpoena to the Managers of the Company as soon as Company or is mawgerr, then this restriction cm only apply to practicable upon receipt, but no later than 3 business days after receipt or if reasonably those persons in the context oflbw Gales relationship Also. it em only apply to the omens that Dr. Nikolte Leon that the penes is a possible within one business day following receipt in the event that the return date of the Reiensof Puny. ponseularly when there are unnamed Released subpoena is less than 5 days. Dr. Nikolic agrees that he will not provide any information Parties. Damn about any Released-PertGates Released Parties absent a proper subpoena and in a formal, 2013-080f ISIO:00 court reported context, unless otherwise required by law or in connection with an arbitration or court proceeding arising out of this Agreement or the Severance Agreement. By way of example, and not limitation, Dr. Nikolic agrees that he shall not provide any declaration testimony in any matter relating to any of the ReleaseeHlertGates Released Parties unless otherwise required by law or in connection with an arbitration or court proceeding arising out of this Agreement or the Severance Agreement: b. The Company, its Managers„-and-the Individuals BMGF. WEMS. and all the officers, directors, and employees of the foregoing shall refrain from making, expressing or implying any derogatory or disparaging comments regarding myDrrNikolic Released Parties to the press or to any individual or entity by any mode or medium of EFTA01083271 communication. Failure to abide by this provision shall be deemed a material breach of this Agreement, provided, however, that nothing in this provision will prevent the Company, its Managers,-artd-the Individuals BMGF WEMS and the officers, directors and employees thereof from giving truthful testimony if properly subpoenaed to testify under oath. In the event the Company, its Managers and the Individuals are subpoenaed to testify under oath relating in any way to Dr. Nikolic, the Company, its Managers and the Individuals shall (unless prohibited by law) provide notice and a copy of such subpoena to Dr. Nikolic as soon as practicable upon receipt but in no event later than 3 business days after receipt-and-or. if reasonably possible within one business day following receipt in the event that the return date of the subpoena is less than 5 days. Each of the Company. its Managers. the Individuals. BMGF. WEMS and the officers directors and employees of the foregoing agrees that such person will not provide any information about any Nikolic Released Parties absent a proper subpoena and in a formal court reported context, unless otherwise required by law or in connection with an arbitration or court proceeding arising out of this Agreement or the Severance Agreement. By way of example, and not limitation. Each of the Company, its Managers the Individuals. BMGF. WEMS and the officers, directors and employees of the foregoing agrees that such party shall not provide any declaration testimony in any matter relating to any of the Nikolic Released Parties, unless otherwise required by law or in connection with an arbitration or court proceeding arising out of this Agreement or the Severance Agreement. 5. Indemnification. a. Dr. Nikolic agrees that any inaccuracies in any of his representations, warranties, or covenants in this Agreement will constitute a material breach of this Agreement by Dr. Nikolic, providing the Company or any affected Gates Released Party with any and all rights and remedies any such party has or may have in law or equity against Dr. Nikolic. Dr. Nikolic agrees to indemnify, defend, save and hold the Company or any affected Gates Released Party and each of their respective current and former officers, directors, employees, partners, legal counsel and other representatives and agents harmless front and against any and all liabilities, claims, demands, losses, damages, costs and expenses of any kind or nature whatsoever (including, without limitation, reasonable attorneys' fees and costs), that arise out of or are connected with, or are related in any way to any inaccuracies in Dr. Nikolic's representations, warranties, and/covenants contained in this Agreement. Dr. Nikolic agrees that the indemnification, defend, save and hold harmless obligations that he has undertaken pursuant to this Section 5 will be enforceable regardless of whether he has or purports to have a claim against any Gates Released Party. b. The Company the Individuals. BMGF and WEMS agrees that they it-shall have the same obligations to Dr. Nikolic as those set forth in Paragraph 5(a) above. including the indemnity. defense and hold harmless obligations therein in the event that there are any inaccuracies in its representations, warranties or covenants in this Agreement. Said obligations shall be ioint and several obligations of the Company. the Individuals. BMGF and WEMS. 7 EFTA01083272 6. Further Consideration Opportunity. As further consideration for Dr. Nikolic's representations. warranties, and covenants herein, and in the Severance, Waiver and Release Agreement discussed below, and subject to the conditions precedent set forth below, provided that Dr. Nikolic performs his duties in a manner satisfactory to ht e Company through the Separation Date, the Company agrees as follows: Commented [D19): This small clause provides an enormous ea for any of the seteratee obligatiorn. It is too opts aided. If that is to he any basis to avoid honoring the seveninee obligations 6.I that must be wry explicit and defined mesons, rather than failure to pa-reamduties in a manner satisfactorily to the conapaity. Darren a. The Company shall provide Dr. Nikolic a Severance Payment in an amount of 2013-0S-01 16: la:00 equal to the average of his last two year's base salary and bonus, if any, in the total gross amount of Dollars, less applicable deductions and withholding. The Severance Payment Gimmented [D20): Specify amount_ Are they saying only one year's salary and bxsie Is that %dot was discussed? shall be paid out as follows: (i) the gross sum of Dollars shall be paid on the Darren Company's next practicable payroll after the Effective Date (if any) of the Severance, Waiver 2013-0S.01 lb la:00 and Release Agreement attached hereto as Exhibit A; and (ii) the gross sum of Dollars on Commented (D21): how mach u mad immediately atlet re•enact agreement is signed? Company's payroll date. Payment shall be made by mailing such payment by check to Dr. Darren Nikolic at the address written below or by direct deposit to his last identified bank account. 2013)&01 lb 17:00 Commented (D22): how much is paid on this pa)nyll date and b. Upon written notice by Dr. Nikolic to (bgC3) within days of the Effective how long after the severuge agreement is signed u this to be paid? Darren Date, if any, of the Severance Agreement attached hereto, Dr. Nikolic may request to purchase 2011080116:1::00 from [bgC3] (a) up to 30% of (bgC3)'s equity interests in Foundation Medicine and (b) up to Commented (D23): Why make an enure sewrisnee weenie= 30% of (bgC3)'s equity interests in ResearchGate, in each case in cash at a price per share or unit with almost identical temnions to the Transition Agreement. Seems like mertall sad unnecessary. Why not simply require aoadduionsl equivalent to the original price per share or unit paid by (bgC3) (collectively, the "Investment set ofmutual releases to beexecutedafter Dr. Nikolic's employment Opportunity".). Upon delivery of such notice, subject to any applicable requirements or ends, require Dr. Nikebc and the parties to the Transition Agreement to re-affirm in inning the surviste &dig:miens ofthe Transition restrictions set forth in applicable law or any existing agreements or documents relating to Agreement and Dr. Nikolie top:nidea certificatethat there has [bgC3)'s investment in such entities, (i) (bgC3J shall prepare customary documents evidencing been no breath of tbe Transitice AVNICAISA and cementing the certilketice required in Steam 3. the transfers of such equity interests, (ii) Dr. Nikolic shall execute and deliver any agreements or Darren instruments required by applicable law or any existing agreements or documents relating to 2013-0801 1829:00 [bgC3)'s investment in such entities, and any other agreements or instruments as (bgC3], Foundation Medicine or ResearchGate may otherwise reasonably request, and (iii) the closing of such purchases shall occur no later than (45) days after the delivery of such notice, subject to extension by mutual agreement. (Note: the foregoing is subject to review of the transfer restrictions applicable to the Foundation Medicine and ResearchGate investments and other legal review./ Commented (D24): Wasn't this supposed to he an option to picture the equilialem of the interests with a right to put the same to bgC3 so that SO% of the profit wmald bepaidto Dr. Nikolic? 6.3 As conditions precedent to being entitled to receive any of the "Severance Would this oar also avoid any specific transfer rt4LIICIIJAt imposed Payment" or the Investment Opportunity set forth in this Section 6, within twenty-one (21) days by those investment entities? Right now. it appears that the MMUS of even the option gram is subject to question. of the Separation Date, Dr. Nikolic (or his estate, as applicable) must (i) sign and deliver and DMITta thereafter not revoke a Severance, Waiver and Release Agreement <••`••en^r1n"y-in the form 2013-0801 1829:00 attached hereto as Exhibit A-ar-a-foon-othee.seise-ascepiable40-Gempany; (ii) be and remain in full compliance with the terms of this Agreement, entered Commented [D25): Why make an emir severance agreement wit"argikOUG: and (iii) have provided the certificate required by Section 3. The Company with almost identicai provisions so the Transition Agreement. Seems shall have no obligation to make any payments or provide any benefits to the Dr. Nikolic like overkill and unnecetriey. why not simply require an additional set of walla' releases to be executed after Dr. Nikolic's empbrnete hereunder unless and until after the Effective Date (as defined in the Severance, Waiver and ends, require Dr. Nike& and the parties to the TransitionApemen' Release Agreement required by this Section to re-alfirm in writing the surviving ding:nieces ofthe Tomlin. Agreement and Dr. Nikolic mprxnidea certificate that there has been no breechof tbe Transition Agreement and eentaining the 6.4 This Section 6 supersedes any and all agreements, understandings or certilketice required in SediC413. arrangements relating to severance, transition or other amounts payable to Dr. Nikolic upon Doren 2013-0801 18:30:00 EFTA01083273 termination including any and all such agreements, understandings or arrangements with the Company, its affiliatmelated—entities, or the Individual(s), all of which shall be deemed cancelled and terminated upon execution of this Agreement'. Commented (D26]: Need to verify Si them are no other ri#M mar toy otherogreements which maI to survive. Thix pawns.° Ittlilalte all other semance sod pasbemployment nth's. Any 7. Severability. The provisions of this Agreement are severable, and if any provision of it is other agreemom should not be donned a:gelled. hut sts.mild only found to be unlawful or unenforceable, it shall be deemed narrowed to the extent required to to the <AWN thin they conflict with the provisions of this Agreement make it lawful and enforceable. If such modification is not possible, such provision shall be Darien severed from the Agreement and the remaining provisions shall remain fully valid and 2013-05.01 l6:S2:00 enforceable to the maximum extent consistent with applicable law provided, however, that Section 2 may not be severed from the Agreement. 8. Review Period and Effective Date. Dr. Nikolic may take up to twenty-one (21) calendar days from receipt of this Agreement to consider its terms, after which time the offer of this Agreement shall expire and may no longer be accepted. Dr. Nikolic may execute this Agreement before expiration of the twenty-one (21) day period, in which case Dr. Nikolic shall be deemed to have waived the remainder of the consideration period. To accept this Agreement, Dr. Nikolic must execute and confidentially deliver the Agreement to bgC3 LLC, 4000 Carillon Point, Kirkland, WA 98033, attention - CONFIDENTIAL - Larry Cohen. Dr. Nikolic has a period of seven (7) calendar days after executing the Agreement to revoke the Agreement, should he wish to do so. To revoke, Dr. Nikolic must deliver a notice revoking acceptance of the Agreement to Conmmided ED27]: There is no notice prcwitice in this Larry Cohen at the offices of the Company noted above within the seven-day revocation period. Agnes( This Agreement shall become effective on the eighth (81h) day after Dr. Nikolic executes this Owen 2013-0801 l6:56:00 Agreement, provided that Dr. Nikolic has not revoked the Agreement ("Effective Date"). 9. Dispute Resolution. Subject to the Company's right to seek equitable or injunctive relief in court, any and all disputes that arise under this Agreement that are not informally resolved shall be resolved by final and binding arbitration by a sole, neutral arbitrator in Seattle, Washington, under the applicable rules of the American Arbitration Association governing employment disputes. In any such dispute, no party shall be entitled to the benefit of any principle of contract construction premised upon the relative bargaining power of the parties, the identity of the party partly or wholly responsible for drafting the portion of the Agreement giving rise to the dispute, contra prnferentum, contracts of adhesion, or any similar contract construction principle. In any arbitration or litigation arising from this Agreement, the prevailing party shall be entitled to costs and attorneys' fees; provided, however, that this sentence shall not apply to any claim Dr. Nikolic may have challenging the validity of this Agreement under the ADEA or OWBPA. This Agreement shall be governed by and interpreted under the laws of the State of Washington, including without limitation the statutory statute of limitations periods defined under state law for "actions," but excluding the State of Washington's choice of law rules. 10. Other. Nothing in this Agreement is intended as or should be construed as an admission of liability by any of the parties to the Agreement or any other person or party. This Agreement may be modified only in writing signed by me ager-of:C-'entranyall of the parties to this Agreement. 1. Knowing and Voluntary Agreement. Dr. Nikolic hereby warrants and represents that Dr. Nikolic: (1) has carefully read this Agreement and finds the manner in which it is written understandable; (2) knows the contents hereof; (3) has been advised to consult with Dr. Nikolic's EFTA01083274 personal advisor and attorney regarding this Agreement and its effects prior to executing this Agreement and has done so or waives the right to do so; (4) understands that in signing this Agreement he forever releases ht e Company and the Gates Released Parties from all claims, damages. and disputes that may have arisen before the date of this Agreement as set forth in this Agreement, including any claims under the ADEA or OWBPA (other than claims challenging the validity of this Agreement under the ADEA or OWBPA), or other statutes; (5) understands the Agreement's contents and its final and binding effect (6) has been given twenty-one days to review and analyze this entire Agreement and seven days to revoke acceptance should he wish to do so; and (7) has signed the Agreement as his free and voluntary act. Dr. Nikolic acknowledges that in executing this Agreement, 12. No natty hereto DrrNikeire-doeg-not-reliesy upon any representation or statement by any person Released-Perty-concerning the subject matter of this Agreement, except as expressly set forth in the text of thise Agreement. 1WHG, MBG, BMGF, WEMS ALL NEED TO BE SIGNATORIES TO THIS AGREEMENTI bgC3 LLC By Signature Larry Cohen Its Manager Dr. Boris Nikolic Date Date Address: 10 EFTA01083275 EXHIBIT A SEVERANCE, WAIVER AND RELEASE AGREEMENT 11 EFTA01083276 JTHIS AGREEMENT IS NEARLY IDENTIFICAL TO THE TRANSITION AGREEMENT. RATHER THAN HAVE TWO SEPARATE IDENTICAL AGREEMENTS SIGNED AT DIFFERENT TIMES, WOULD IT NOT BE SIMPLER TO HAVE THE TRANSITION AGREEMENT ALSO SERVE AS THE SEVERANCE AGREEMENT AND TO MAKE THE SEVERANCE PAYMENTS AND INVESTMENT BENEFIT SUBJECT TO THE REOUIREMENTS THAT: MUTUAL RELEASES IDENTICAL TO THOSE CONTAINED IN THE TRANSITION AGREEMENT BE SIGNED AFTER DR. NIKOLIC'S EMPLOYMENT ENDS, ALL PARTIES RE-AFFIRM THE SURVIVING PROVISIONS OF THE TRANSITION AGREEMENT AFTER DR. NIKOLIC'S EMPLOYMENT ENDS AND DR. NIKOLIC SIGN A CERTIFICATE THAT THERE HAS BEEN NO BREACH OF THE TRANSITION AGREEMENT AND CERTIFYING AS TO THE MATTERS IN SECTION 3 OF THE TRANSITION AGREEMENT IF FOR SOME REASON A SEPARATE SEVERANCE AGREEMENT ItREQUIRED. THEN THE PROVISIONS OF THIS SEVERANCE AGREMEENT SHOULD BE CONFORMED TO THE ABOVE REVISIONS AND COMMENTS IN THE TRANSITION AGREEMENT SEVERANCE, WAIVER AND RELEASE AGREEMENT This Severance, Waiver and Release of Claims Agreement ("Severance Agreement") is hereby offered and executed by bgC3 LLC (the "Companv-1and accepted and executed by DR. BORIS NIKOLIC ("Dr. Nlkollc"), a single person, in accordance with the Transition and Release Agreement dated , 2011 between Dr. Befi.s-Nikolic and the Company [CONFORM TO ADD ALL PARTIES TO THE TRANSITION AGREEMENT] (the "Transition and Svei Rdet nent"gC-3-66C--eGomponym.). h Commented [DU]: In that tha relates and relined provisions in this Severance Agivemem need to be signed by Wilt,Mat. BMGE and WEMS. dim they need to be peaks to Nit Agreement least for the limited purpmes being subjeet to those provisiorti. RECITALS Dawn 20O-05.01 III:45:00 A. The Company and Dr. Nikolic are parties to the Transition and Release Agreement. B. The Transition and Release Agreement provides for certain payments to Dr. Nikolic upon termination of Dr. Nikolic's employment under certain circumstances, provided that Dr. Nikolic signs and delivers to the Company within 21 days of the Separation Date described in the Transition and Release Agreement a Severance, Waiver and Release Agreement in so.1/40, ^sts.tly-the form of this Severance Agreement, and does not revoke the same. C. Dr. Nikolic desires for the Company to make payments in accordance with the Transition and Release Agreement and therefore executes this Severance Agreement. 12 EFTA01083277 D. Nothing in this Severance Agreement is intended as or should be construed as an admission of liability by the Company or Dr. Nikolic, and neither party has any information or reason to believe that any liability exists as it relates to the employment relationship and decision to terminate such relationship. NOW, THEREFORE, in consideration of the foregoing premises and the mutual agreements and other provisions contained herein, the parties hereto, intending to be legally bound, hereby agree as follows: AGREEMENTS 1. Employment Through Separation Date. The last day of Dr. Nikolic's employment with or service to Company in any capacity was , 2014 ("Separation Date"). Dr. Nikolic claims and shall claim no further right of employment by Company after the Separation Date. 2. Wages and Benefits. Dr. Nikolic agrees that he has received all compensation, benefits and other amounts owed his by virtue of his employment with Company, including salary through , 2014 ("Last Paid Workday"). Dr. Nikolic will be paid any unpaid portion Commented [D29]: hal dm coveted by the release. Doren of his regular compensation, as applicable, from the Last Paid Workday through the Separation 2.013-0:30I 16:59:00 Date, less applicable taxes and withholdings, on bgC3's next regular payday following the Separation Date. Coverage under Company's group medical, vision and dental plan shall extend through and end on the last day of the month in which the Separation Date falls and Dr. Nikolic may thereafter exercise whatever rights Dr. Nikolic has for continued coverage under COBRA at Dr. Nikolic's sole expense. Any funds Dr. Nikolic has in Company's 401(k) plan shall be handled in accordance with the terms and conditions of that plan. Dr. Nikolic will be reimbursed for business related expenses that are reimbursable under the usual practices of Company that were incurred prior to the Separation Date, provided that requests for reimbursements for such items are submitted in accordance with Company's policy within thirty (30) days after the Separation Date. Except as stated in this Agreement, all compensation and benefits, including any life insurance or long-term disability insurance coverage, shall cease on the Separation Date. Comments [D30]: The provisions ofthis Section 2 need to be caned out of the rekote. Darren 3. Consideration. 2011010117:0:00 3.1 In consideration of Dr. Nikolic's representations, warranties, and covenants herein, Company agrees as follows: a. Company shall provide Dr. Nikolic a Severance Payment in the total gross amount of Dollars, less applicable deductions and withholding. The Severance Payment shall be paid out as follows: (i) the gross sum of Dollars shall be paid on Company's next practicable payroll after the Effective Date (if any) of the Severance, Waiver and Release Agreement attached hereto as Exhibit A; and (ii) the gross sum of Dollars on Company's payroll date. Payment shall be made by mailing such payment by check to Dr. Nikolic at the address written below or by direct deposit to his last identified bank account. (CONFORM TO REVISIONS AND COMMENTS MADE 13 EFTA01083278 REGARDING THE SAME PROVISION IN THE TRANSITION AGREEMENT) b. Upon written notice by Dr. Nikolic to lbgC3) within days of the Effective Date, if any, of the Severance Agreement attached hereto, Dr. Nikolic may request to purchase from [bgC3] (a) up to 30% of [bgC3)'s equity interests in Foundation Medicine and (b) up to 30% of [bgC3]'s equity interests in ResearchGate, in each case in cash at a price per share or unit equivalent to the original price per share or unit paid by [bgC3) (collectively, the "Investment Opportunity".). Upon delivery of such notice, subject to any applicable requirements or restrictions set forth in applicable law or any existing agreements or documents relating to [bgC3]'s investment in such entities, (i) (bgC3] shall prepare customary documents evidencing the transfers of such equity interests, (ii) Dr. Nikolic shall execute and deliver any agreements or instruments required by applicable law or any existing agreements or documents relating to [bgC3)'s investment in such entities, and any other agreements or instruments as [bgC3], Foundation Medicine or ResearchGate may otherwise reasonably request, and (iii) the closing of such purchases shall occur no later than [45) days after the delivery of such notice, subject to extension by mutual agreement. (Note: theforegoing is subject to review of the transfer restrictions applicable to the Foundation Medicine and ResearchGate investments and other legal review./[CONFORM TO REVISIONS AND COMMENTS MADE REGARDING THE SAME PROVISION IN THE TRANSITION AGREEMENT[ 3.2 In consideration of the terms and conditions herein, Dr. Nikolic enters into this Severance Agreement. 4. Waiver and Release. 4.1 Dr. Nikolic, on behalf of himself and, heirs, executors, administrators and assigns, expressly waives against Company, Watermark Estate Management Services, LLC, the Bill & Melinda Gates Foundation and their present, former and future affiliates, related entities (including without limitation any other entities owned or controlled by William H. Gates III), predecessors, sucrnsors and assigns, and their present and former owners, officers, directors, stockholders, managers, employees, agents, trustees, representatives, general and limited partners, members and attorneys, and William H. Gates Ill and Melinda F. Gates (the "Individuals") and their respective present and former employees, agents, representatives, and attorneys (all of which are collectively referred to as "Released Parties"), any and all claims, damages, causes of action or disputes, whether known or unknown, based upon acts or omissions occurring or that could be alleged to have occurred at the time of or prior to the execution of this Agreement ("Released Claims"); and further releases, discharges and acquits Released Parties, individually and in their representative capacities, from any and all Released Claims. This waiver and release includes, but is not limited to, any and all claims for wages, employment benefits, and damages of any kind whatsoever arising out of any contracts, expressed or implied (including without limitation the Employment Agreement and any amendments thereto); any covenant of good faith and fair dealing; estoppel or misrepresentation; discrimination or retaliation on any unlawful basis, including, without limitation, harassment; privacy; defamation; 14 EFTA01083279 wrongful termination or constructive discharge; any federal, state, local or other governmental statute or ordinance, including, without limitation, Tide VII of the Civil Rights Act of 1964, as amended, the Americans with Disabilities Act, the Washington Law Against Discrimination, the Age Discrimination in Employment Act, as amended ("ADEA"), the Older Workers' Benefit Protection Act of 1990 ("OWBPA"), the Employee Retirement Income Security Act, as amended ("ERISA"), any wage payment statute; or any other legal limitation on the employment relationship (collectively sometimes the "Release"). Excluded from this Release are claims Dr. Nikolic may have with regard to vested benefits under ERISA, or any other claim that may not be released under this Agreement by law; additionally, despite Dr. Nikolic's acceptance of this Release, nothing in this Release will prevent Dr. Nikolic from (i) initiating or causing to be initiated on his behalf any complaint, charge, claim or proceeding against Company before any local, state or federal agency, court or other body challenging the validity of the waiver of claims under the Age Discrimination in Employment Act or the Older Workers Benefit Protection Act contained in this Release (but no other portion of this Release) or (ii) initiating or participating in any investigation or proceeding conducted by the Equal Employment Opportunity Commission ("EEOC"). Dr. Nikolic represents and warrants Dr. Nikolic is the sole and exclusive owner of all Released Claims, and that no other party has any right, tide or interest whatsoever in any of the matters referred to herein, and that he is unaware of any basis to assert any form of charge or claim of unlawful discrimination. !CONFORM TO REVISIONS AND COMMENTS MADE REGARDING THE SAME PROVISION IN TI I E TRANSITION AGREEMENT( 4.2 Dr. Nikolic represents and warrants that he has not filed or caused to be filed any lawsuit, arbitration, complaint, or charge with respect to any claim this Agreement purports to waive. Dr. Nikolic understands that nothing in this Agreement prevents his from filing or prosecuting a charge with any administrative agency with respect to any such claims; however, Dr. Nikolic further understands and agrees that he will not seek and hereby waives any claim for personal damages and/or other personal relief Dr. Nikolic agrees to cause the withdrawal or dismissal with prejudice of any claim he has purported to waive under this Agreement. This Section shall not apply to claims challenging the validity of this Release in connection with federal Age Discrimination in Employment Act ("ADEA") claims. If Dr. Nikolic is ever awarded or recovers any amount as to a claim he has purported to waive in this Agreement, Dr. Nikolic agrees that the amount of any award or recovery shall be tendered by him to the Company or setoff against any award or recovery associated with any successful challenge to the validity of this Release in connection with ADEA claims. (CONFORM TO REVISIONS AND COMMENTS MADE TO THE SAME PROVISION IN THE TRANSITION AGREEMENT( 4.3 Except as stated herein, neither party having any basis or reason to believe that Dr. Nikolic has engaged in any inappropriate conduct, Company, on behalf of its Managers and the Individuals, releases Dr. Nikolic from any and all liability arising out of any acts and/or omissions during the course of his employment; however, expressly excluded from this Release are any claims that Company may have based on affirmative misconduct by Dr. Nikolic not known to Company at the time ofExecution of this Agreement, including, but not limited to, acts of fraud, breach of confidentiality as defined in any confidentiality agreement previously signed by Dr. Nikolic, conversion of property, compromise to computer or other security, 15 EFTA01083280 embezzlement, misrepresentation or wrongful inducement. (CONFORM TO REVISIONS AND COMMENTS MADE TO THE SAME PROVISION IN THE TRANSITION AGREEMENT 5. Property. Dr. Nikolic represents and warrants that he has returned to Company, and caused to be fully deleted and expunged all copies from all computer systems, back up drives or servers, email servers, smart phones, Kindle (IN TRANSITION AGREEMENT THIS WAS IDENTIFIED AS A MICROSOFT TABLET (or related device, and any other data storage media in his possession or control (electronic or otherwise), and/or in the possession or control of third parties to whom he may have provided such information without authorization, any and all property that Dr. Nikolic received or took from or was given access to by any Released Party or any Company vendor or contractor, or that Dr. Nikolic generated in the course of Dr. Nikolic's relationship with Company and its related entities, including without limitation all files, memoranda, keys, cellular phones, credit cards, manuals, employee handbooks, security technology and other company equipment, data, photographs, records and other documents, including emails and other electronically recorded documents and data, and physical property. Dr. Nikolic represents and warrants that he is not aware of any person or entity that is in unauthorized or wrongful possession of any Confidential Information, Confidential Materials (both as defined below), or other property of Company, the Bill & Melinda Gates Foundation or the Individuals. 'CONFORM TO REVISIONS AND COMMENTS MADE TO THE SIMILAR PROVISION IN THE TRANSITION AGREEMENT 6. Restrictive Covenants. 6.1 a. Dr. Nikolic represents and warrants that Dr. Nikolic has not violated any provision of any agreement signed by Dr. Nikolic in favor of Company, its related entities, the Bill & Melinda Gates Foundation, or the Individuals pertaining to confidentiality of information or ownership of intellectual property (collectively referred to as "Restrictive Covenants"), including without limitation the Employment Agreement, and any amendments thereto. Dr. Nikolic agrees that he shall comply fully with the terms and conditions of the Restrictive Covenants, which shall remain in full force and effect and are incorporated into this Agreement by reference. Dr. Nikolic further agrees that he shall keep the existence of this Agreement, its terms and conditions, confidential; except that Dr. Nikolic may disclose this Agreement and its terms to his legal counsel, tax advisor, and domestic partner (if any), provided such individuals also agree to maintain the confidentiality of this Agreement and its terms, and as otherwise provided by law. The parties agree that violation by Dr. Nikolic of any obligation that he has under any Restrictive Covenant or Section 4 of this Agreement will cause Company, Released Parties or other entities or persons harm, some or much of which is difficult to quantify, such as present and future economic harm; and/or may be intangible, such as reputational harm or other negative impacts on various relationships, efforts to determine actual damages, or potential unknown incidental and/or consequential costs. In the event that Dr. Nikolic violates any obligation that he has under any Restrictive Covenant or Section 4 of this Agreement, Dr. Nikolic agrees that he owes and shall pay Company and that Company will be entitled to recover from his any damages as determined by an arbitrator pursuant to Section 10 below. 'CONFORM TO REVISIONS AND 16 EFTA01083281 COMMENTS MADE TO THE SIMILAR PROVISION IN THE TRANSITION AGREEMENT b. In the event Company violates any obligation under this Agreement, Dr. Nikolic will be entitled to recover from Company any damages as determined by an arbitrator pursuant to Section 10 below. (CONFORM TO REVISIONS AND COMMENTS MADE TO THE SIMILAR PROVISION IN THE TRANSITION AGREEMENT' 4.2 Dr. Nikolic acknowledges that in the course of his employment with Company, its related entities, and the Bill & Melinda Gates Foundation, he has acquired considerable knowledge about Company, its related entities, Company managed premises, Individuals (as defined in Section 2.1) and members of the Individuals' family, home and business of the Individuals, and friends, guests, business associates or acquaintances of the Individuals. For the purposes of this Transition Agreement "Confidential Information" means all information learned by Dr. Nikolic in any way related to Company, its related entities, Individuals and members of the Individuals' family, home and business of the Individuals, the Bill & Melinda Gates Foundation and friends, guests, business associates or acquaintances of the Individuals whether such information is written, oral or observed. Without limiting the generality of the foregoing, "Confidential Information" includes information of any nature, with or without further written designation, relating to: (a) the personal lives, schedules, habits, property, financial affairs, business, social or personal practices and interests, family, guests, business associates or acquaintances, travel and/or events associated with Company or the Individuals; (b) any buildings, improvements or facilities located at or being constructed on property owned or controlled by Company, the Individuals or the Bill & Melinda Gates Foundation; (c) the work performed by Dr. Nikolic or others at Company's, the Individuals' or the Bill & Melinda Gates Foundation direction; (d) the subject matter of the communications between Dr. Nikolic or others and Company, the Bill & Melinda Gates Foundation or the Individuals; (e) any systems developed or under development for use at Company's, the Individuals', related entities' or Company managed premises' properties, including without limitation, any information about existing or proposed information processing (IT) equipment, systems and software; audio visual equipment, systems and software; and security equipment, systems and software; and (t) technical and non-technical information related to the actual or prospective business or activities of Company or the Individuals, related entities, the Bill & Melinda Gates Foundation or Company managed premises including, without limitation, information related to patents, copyrights and trade secrets, branding, techniques, sketches, drawings, models, inventions, know-how, processes, apparatus, equipment, algorithms, software programs, software source documents, research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, manufacturing, purchasing, customer lists, price lists, business forecasts, products, services, sales and merchandising and marketing plans and information. "Confidential Materials" shall mean all tangible materials containing Confidential Information, including without limitation, summaries, notes, blueprints, drawings, photographs, slides, negatives, databases, written or printed documents or information recorded on digital or electronic media, whether machine-readable or user- 17 EFTA01083282 readable. No Confidential Information or Confidential Materials shall be used by Dr. Nikolic except as expressly authorized by Company. Dr. Nikolic shall not disclose or permit the disclosure of any Confidential Information or Confidential Materials to any third party without Company's explicit written approval in advance of any such disclosure. Without limiting the generality of the foregoing, unless expressly asked in writing by Company for his assistance, which assistance would be subject to a written agreement signed by Company, Dr. Nikolic shall not (a) be involved in contributing to or the preparation of any book, article, story, video or film about or relating to Company, its related entities, the Bill & Melinda Gates Foundation, Individuals and members of the Individuals' family, home and business of the Individuals, or friends, guests, business associates or acquaintances of the Individuals or any of their business, social or personal interests or give interview(s) (on or off the record) regarding such matters; or (b) produce or contribute to any written, oral, electronic, or other accounts, fictionalized or otherwise, that relate to or resemble his employment with Company, its related entities, the Bill & Melinda Gates Foundation Individuals, or services for Individuals or Individuals themselves or members of the Individuals' family. Dr. Nikolic understands and agrees that there may be no adequate remedy at law for Company or other entities or persons protected under this Section 4.2 in the event of its breach, or threatened breach, and any such entity or person, in addition to any other remedies available at law or in equity, shall be entitled to injunctive relief to prevent any breach of this obligation or to minimize the consequences thereof. Notwithstanding the foregoing, if Dr. Nikolic should breach the provisions of this Section 4.2, Company, the Bill & Melinda Gates Foundation and Individuals shall be entitled, in addition to but not as a limit on any other remedies available to Company, the Bill & Melinda Gates Foundation and Individuals, to recover automatically any proceeds or remuneration of any nature whatsoever that Dr. Nikolic receives in regard to or as a result of the disclosure of any such confidential information. The Bill & Melinda Gates Foundation and Individuals are third-party beneficiaries of this Agreement. (CONFORM TO REVISIONS AND COMMENTS MADE TO THE SAME PROVISION IN TII E TRANSITION AGREEMENT' DfrN4ketis-erdalevektiges4hat-in-the-ethirse-ef-44is-empleymem-with-Compayrits-related ef444i4s;-aail-the-Bil4-8•401elimila-Gates-Fekiatlatiearhe-has-aequiced-eeasklerabie4.aewledge abemt-Gempanyr its-Mated-entitiesr the-Bil4-&-Melintla-Gates-Fetradatienr Gempanrmanaged pr-emise-sr lactiviiltrals-(af,-Elefined-M-Seetien-2,14-and-members-ef-the-loclividualsfamityr heme and-busixess-ef--the-Individealsr afld-fFiendsr gteestsr hosiness-assesiates-er-aequaimanee.s-ef-tlie IndividualsFef-the-purposes-44h4s-ThlaSitififl-AgFeement.=C-enficlemial-laferlmatiennmeaarral4 infermatien-lea r.:-Nikolie-in-any-way-relatesl-te-C-empallyr its-rela4ed-ent.itiesr the-Bill-L% Melin4a-GatefrPountlationrthe4n4ivititials-a444-members-ef-the-ierii344ualsfamil heme-and kesinass-ef-the-India.,iduals,aad-frieear guestsr basiness-assesiates-er-acquaintanees-ef-the Individuals-vtether.-sue14-infefmation-irrWalenr Of&I-er-obsepaketit-limiting-the genecality-ef-the-fecegeing enficlential-Infefmatienninekedes-infecmatien-ef-any-naturer with er-witheut-fui4her-wcitten-designatienr relating-te (e)-the-pefse her4i4lesr habits, • PrePeftyrrinaneiel-affairsrbusinessrseeial-er-pepgenal-praetieeerand-intecestsr fami gueses, kesiness-assesiates-er-aequaimaseesr travel-aacifec-eveats-assesiateel-5.vitli-C-empanrer.-the Individuals(4)-any-beildingsr laffEPANHOMS-Of-faeilities-leeatechat-er-being-ecruklueted-en coat-olled Fetinelatience)-the-wer-k-peffer414 44046-of-04i4GRI-at-ce'mpan te-ludividualsLIN 19 EFTA01083283 the-Bill-&-Nielinda-Eirties-IMundation:s-direetioni-(d)-the ,ttbjeet-mutter-of-ilte-eomitionications between Dr. Nikelie-or-others-and-companyr the-Bill & Melinda-Gates-Foundation-or-the Individttal e)-any-systems-developed-or-under-deweloinent-for-use-at-Gomparty4rthe Individualr eloted-eniitie the-liill-8-N4elinda-Gmes-FoundationIrror-comparty-managed premisefHnopenieer ineluding-without-linniationr any-inforntation-about-exisfing-or-proposed information-processing-(1T)-equipmentr systems-and-sonwareHntdio-visual-equipmentrsysteins and software: and security guipnint. sytt ins and colbvarc; mid fi) txhnieal-and-non-4ee1iniea1 inlbnnaiien-relatcd to tha actual or prosp3ctivc buciiwsa or activities of Company-oc-aie Indneldnalsc r ' . " ndation-or-Company-managed premisas information-mlated-to-patemsr copyrights-and-trade seermar brandingrteeltniqneer sketeltesF.-drawingsrittodelsr inventions,rknow-bowrproce:zzs. apparatus;-equipment. algorithms, sectware-programscsoliware-so. uree-doeumentsc rosearelt, experintental-Nmorkrdeve4opmentrdesign-dmails-and-speeitteetioner engineeringr ilitanoial informationrpromweinent-rennireineithir manufaetoringr oitrehasing. CUS0114er-li&LSr pfiee-lisps buginocerfereeastec-produetr serktieer eales-and-merehandising-and-inarketing-plaw,-and infonnanoi lideatialamerialsnshall-meanmll-tangible-materials-eontaining-Goar-ideanal Mfermation-.-Metuding-withent-limitatioar sommariesrnotesrbkieprintsr drawingsrphotographer. alides,negativern-dmabaser,r writtei ted-doeuments-or-information-resordi3d-on-digital-Or Contidential-Matarials shall he-wed by Dr. Nikolic axcept as expressly authori2ed by Company, OrrNita:die-A. tall-nm-diselose-or-pennit-the-diselosure-of-any-Confidential-Information-or Concidentiol-Matefia rd-par ithout-Company1/2 -emptioit-written-approval-inndvanee ollany-sneh-diselemireWithoot-litnning-the-geiteralityLot:thamegoingr unless-et:measly-asked in-weting-brCompany-for-Ilis-m;simaneer whieb-ansistanee-would-be-subjeet-te-a-wntten agfeemem-r.igne444,Compasyr Dfl-Ni1Aio-shall-m4-(4)-be-invol4ed-in-c-eneFiblming-to-or-the preparationany-bookr aMele-s, tei3,r 2Aidee-er-Cdm-abent-or-relating-to-Compan its-r-elated cao4i4yr kome-and-baSi4.56-of-the-Indivicloatsr or-fFieadsr goestsr busioess-assooiates-Or aelosia4aose-g-ot=the-tod.i.vi4uals-or-any-of-theic-basioessr sooial-or-peEsenal-ioieFests-or-give iotewiev40400-or-off-the-Fecord.)-regardiag-sash-M1448ESOf-(4)-pcoefoe-C4-6444Fibia84o-any kis-employment-wit14-Gempany,its-related-eminesr the-Bi44-864.44inda-Ga4e6-Feandation family9F4441(elio-tiodefstafick-aod-agmes-that-thece-may-be-oo-adequate-r-enieefratayfor Compapfrof-011it•Eeetilies-or-p3F604M-pfoieeted-uniter-this-Seetioo-,h2-ia-the-04814444-46-1,flash, er-thfeaeaed4;reat-44-anti-a sh-entity-er-per-Sfifir ill-additien-te-any-egieF-Femedies-awitable-at J--• or in equity, -hall b. entitled to injuneti—i-Panat kre^h ^Pk,. ""r^n-rt-ro iniamiae-the-eomemeencep,41tereof-Agetwititstanding-the-foregoingr if-DfrNikolie-should-breash the-pt-epeisiens-ef-thk-Smien-4,2,Gempaayr the-Bi44-&-Meliada-Gates-Feundatien-and lo40.44uals-shall-be-614tigthilr iii-aildigen40-but-oe;-wea-liokii-011-aoy-oehec-Femeclies-amailable4o Gempan tite-Bill-&-lvkAtinda-Gatee-Foundation-and-IndWidualor te-recover-autemaneally-any proseeds-or-remonermion-e‘aar14.141re-wItatseever-thatarblaolie-reeeives-in-regarel-to-or-as-a resolt-of-the-diseleame-of-any-ouelt-eonftdential-inceemation -The-gill-&-Ntlelinda-Gates Izmindation-and-Indi4idual.s-afe-I444-paly-beneke-iaries-olltl ittent, 6.3 19 EFTA01083284 a. Dr. Nikolic shall refrain from making, expressing or implying any derogatory or disparaging comments regarding any Released Party to the press or to any individual or entity, by any mode or medium of communication. Failure to abide by this provision shall be deemed a material breach of this Severance Agreement; provided, however, that nothing in this provision will prevent Dr. Nikolic from giving truthful testimony if properly subpoenaed to testify under oath. In the event Dr. Nikolic is subpoenaed to testify under oath relating to any matter regarding any of the Released Parties, he agrees to and shall (unless prohibited by law) provide notice and a copy of such subpoena to the Managers of Company as soon as practicable upon receipt, but no later than 3 business days after receipt, or within one business day following receipt in the event that the return date of the subpoena is less than 5 days. Dr. Nikolic agrees that he will not provide any information about any Released Parties absent a proper subpoena and in a formal, court reported context. By way of example, and not limitation, Dr. Nikolic agrees that he shall not provide any declaration testimony in any matter relating to any of the Released Parties. JCONFORM TO REVISIONS AND COMMENTS MADE TO THE SIMILAR PROVISION IN THE TRANSITION AGREEMENT' Cempanyr its-Prlinsipalsr and-its-Managers-shall-refiain-from-rnakingr amp:easing-Or implying-afPfrderegatepy-Gfaspapaging-e.ontinenis-reganting-DE-Nikelts-4-any-mode-Of ntedium-ef.seinffitinisatien, b. Company, its Managers and the Individuals shall refrain from making, expressing or implying any derogatory or disparaging comments regarding Dr. Nikolic to the press or to any individual or entity by any mode or medium of communication. Failure to abide by this provision shall be deemed a material breach of this Agreement, provided, however, that nothing in this provision will prevent Company, its Managers and the Individuals from giving truthful testimony if properly subpoenaed to testify under oath. In the event Company, its Managers and the Individuals are subpoenaed to testify under oath relating in any way to Dr. Nikolic, Company, its Managers and the Individuals shall (unless prohibited by law) provide notice and a copy of such subpoena to Dr. Nikolic as soon as practicable upon receipt but in no event later than 3 business days after receipt and or within one business day following receipt in the event that the return date of the subpoena is less than 5 days. ICONFORM TO REVISIONS AND COMMENTS MADE TO THE SIMILAR PROVISION IN THE TRANSITION AGREEMENT( 7. Indemnification. a. Dr. Nikolic agrees that any inaccuracies in any of his representations, warranties, or covenants in this Severance Agreement will constitute a material breach of this Severance Agreement by Dr. Nikolic, providing Company or any affected Released Party with any and all rights and remedies any such party has or may have in law or equity against Dr. Nikolic. Dr. Nikolic agrees to indemnify, defend, save and hold Company or any affected Released Party and each of their respective current and former officers, directors, employees, partners, legal counsel and other representatives and agents harmless from and against any and all liabilities, claims, demands, losses, damages, costs and expenses of any kind or nature whatsoever (including, without limitation, reasonable 20 EFTA01083285 attorneys' fees and costs), that arise out of or are connected with, or are related in any way to any inaccuracies in Dr. Nikolic's representations, warranties, and/covenants contained in this Severance Agreement. Dr. Nikolic agrees that the indemnification, defend, save and hold harmless obligations that he has undertaken pursuant to this provision will be enforceable regardless of whether he has or purports to have a claim against any Released Party. (CONFORM TO REVISIONS AND COMMENTS MADE TO THE SIMILAR PROVISION IN THE TRANSITION AGREEMENT] b. Company agrees that it shall have the same obligations to Dr. Nikolic as those set forth in Paragraph 7(a) above in the event that there are any inaccuracies in its representations, warranties or covenants in this Agreement. 'CONFORM TO REVISIONS AND COMMENTS MADE TO THE SIMILAR PROVISION IN THE TRANSITION AGREEMENT] \ \ 8. Severability. The provisions of this Severance Agreement are severable, and if any provision of it is found to be unlawful or unenforceable, it shall be deemed narrowed to the extent required to make it lawful and enforceable. If such modification is not possible, such provision shall be severed from this Severance Agreement and the remaining provisions shall remain filly valid and enforceable to the maximum extent consistent with applicable law provided, however, that Section 4 may not be severed from this Severance Agreement 9. Review Period and Effective Date. Dr. Nikolic may take up to twenty-one (21) calendar days from receipt of this Severance Agreement to consider its terms, after which time the offer of this Severance Agreement shall expire and may no longer be accepted. Dr. Nikolic may execute this Severance Agreement before expiration of the twenty-one (21) day period, in which case Dr. Nikolic shall be deemed to have waived the remainder of the consideration period. To accept this Severance Agreement. Dr. Nikolic must execute and deliver this Severance Agreement to bgC3 LLC, 4000 Carillon Point, Kirkland, WA 98033, attention Larry Cohen. Dr. Nikolic has a period of seven (7) calendar days after executing this Severance Agreement to revoke this Severance Agreement, should he wish to do so. To revoke, Dr. Nikolic must deliver a notice revoking Commented [D313: There “ no nowt provnice in this Ammer. acceptance of this Severance Agreement to Larry Cohen at the offices of Company noted above Doren within the seven-thy revocation period. This Severance Agreement shall become effective on 101108011129:00 the eighth (801) day after Dr. Nikolic executes this Agreement, provided that Dr. Nikolic has not revoked this Severance Agreement ("Effective Date"). 10. Dispute Resolution. Subject to Company's right to seek equitable or injunctive relief in court, any and all disputes that arise under this Severance Agreement that are not informally resolved shall be resolved by final and binding arbitration by a sole, neutral arbitrator in Seattle, Washington, under the applicable rules of the American Arbitration Association governing employment disputes. In any such dispute, no party shall be entitled to the benefit of any principle of contract construction premised upon the relative bargaining power of the parties, the identity of the party partly or wholly responsible for drafting the portion of this Severance Agreement giving rise to the dispute, contra proferentum, contracts of adhesion, or any similar 21 EFTA01083286 contract construction principle. In any arbitration or litigation arising from this Severance Agreement, the prevailing party shall be entitled to costs and attorneys' fees; provided, however, that this sentence shall not apply to any claim Dr. Nikolic may have challenging the validity of this Severance Agreement under the ADEA or OWBPA. This Severance Agreement shall be governed by and interpreted under the laws of the State of Washington, including without limitation the statutory statute of limitations periods defined under state law for "actions", but excluding the State of Washington's choice of law rules. II. Other. Nothing in this Severance Agreement is intended as or should be construed as an admission of liability by any of the parties to this Severance Agreement or any other person or party. This Severance Agreement may be modified only in writing signed by all the [males to this Severance Agreementlk."N.iketis-al4d-the-Manager-ef-.Gempafty. 12. Knowing and Voluntary Agreement. Dr. Nikolic hereby warrants and represents that Dr. Nikolic: (I) has carefully read this Severance Agreement and finds the manner in which it is written understandable; (2) knows the contents hereof; (3) has been advised to consult with Dr. Nikolic's personal advisor or attorney regarding this Severance Agreement and its effects prior to executing this Severance Agreement and has done so or waives the right to do so; (4) understands that in signing this Severance Agreement he forever releases Company and the Released Parties from all claims, damages, and disputes that may have arisen before the date of this Severance Agreement as set forth in this Severance Agreement, including any claims under the ADEA, OWBPA (other than claims challenging the validity of this Agreement under the ADEA or OWBPA), or other statutes; (5) understands this Severance Agreement's contents and its final and binding effect (6) has been given twenty-one days to review and analyze this entire Severance Agreement and seven days to revoke acceptance should he wish to do so; and (7) has signed this Severance Agreement as his free and voluntary act. 13. The parties hereto Dr,N4Icelie-acknowledges that in executing this Severance Agreement, no party hereto has relied Dfr-Nikelie-does-na-rely-upon any representation or statement by any person Released-Party-concerning the subject matter of this Severance Agreement, except as expressly set forth in the text of this -Severance Agreement. )INCLUDE WWI. MBG. BMGF. WEMS AS SIGNATORIES' bgC3 LLC By Signature Larry Cohen Its Manager Dr. Boris Nikolic Address: Date 22 EFTA01083287 23 EFTA01083288 3208821.1 EFTA01083289 EFTA01083290