GENERAL RELEASE OF ALL CLAIMS
EXHIBIT 10.2
1. For and in consideration of the promises made in the Executive Employment Agreement
(defined below), the adequacy of which is hereby acknowledged, the undersigned (“Executive”), for
himself, his heirs, administrators, legal representatives, executors, successors, assigns, and all
other persons claiming through Executive, if any (collectively, “Releasers”), does hereby release,
waive, and forever discharge Xxxxxx Inc. (“Company”), the Company’s subsidiaries, parents,
affiliates, related organizations, employees, officers, directors, attorneys, successors, and
assigns (collectively, the “Releasees”) from, and does fully waive any obligations of Releasees to
Releasers for, any and all liability, actions, charges, causes of action, demands, damages, or
claims for relief, remuneration, sums of money, accounts or expenses (including attorneys’ fees and
costs) of any kind whatsoever, whether known or unknown or contingent or absolute, which heretofore
has been or which hereafter may be suffered or sustained, directly or indirectly, by Releasers in
consequence of, arising out of, or in any way relating to Executive’s employment with the Company
or any of its affiliates or the termination of Executive’s employment. The foregoing release and
discharge, waiver and covenant not to sue includes, but is not limited to, all claims and any
obligations or causes of action arising from such claims, under common law including wrongful or
retaliatory discharge, breach of contract (including but not limited to any claims under the
Employment Agreement between the Company and Executive, dated July 16, 2006 (the “Employment
Agreement”) and any claims under any stock option and restricted stock units agreements between
Executive and the Company) and any action arising in tort including libel, slander, defamation or
intentional infliction of emotional distress, and claims under any federal, state or local statute
including Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1866 and 1871 (42
U.S.C. § 1981), the National Labor Relations Act, the Age Discrimination in Employment Act (ADEA),
the Fair Labor Standards Act, the Americans with Disabilities Act of 1990, the Rehabilitation Act
of 1973, the Missouri Human Rights Act (R.S. MO Section 213.010 et seq.), or the discrimination or
employment laws of any state or municipality, or any claims under any express or implied contract
which Releasers may claim existed with Releasees. This release and waiver does not apply to any
claims or rights that may arise after the date Executive signs this General Release. The foregoing
release does not apply to any claims of indemnification under the Employment Agreement or a
separate indemnification agreement with the Company or rights of coverage under directors and
officers liability insurance.
2. Excluded from this release and waiver are any claims which cannot be waived by law,
including but not limited to the right to participate in an investigation conducted by certain
government agencies. Executive does, however, waive Executive’s right to any monetary recovery
should any agency (such as the Equal Employment Opportunity Commission) pursue any claims on
Executive’s behalf. Executive represents and warrants that Executive has not filed any complaint,
charge, or lawsuit against the Releasees with any government agency or any court.
3. Executive agrees never to sue Releasees in any forum for any claim covered by the above
waiver and release language, except that Executive may bring a claim under the ADEA to challenge
this General Release or as otherwise provided in this General Release. If
Executive violates this General Release by suing Releasees, other than under the ADEA or as otherwise set forth in Section 1 hereof, Executive shall be liable
to the Company for its reasonable attorneys’ fees and other litigation costs incurred in defending
against such a suit. Nothing in this General Release is intended to reflect any party’s belief
that Executive’s waiver of claims under ADEA is invalid or unenforceable, it being the interest of
the parties that such claims are waived.
4. Executive acknowledges, agrees and affirms that he is subject to certain post-employment
covenants pursuant to Section 12 of the Employment Agreement, which covenants survive the
termination of his employment and the execution of this General Release.
5. Executive acknowledges and recites that:
(a) Executive has executed this General Release knowingly and voluntarily;
(b) Executive has read and understands this General Release in its entirety;
(c) Executive has been advised and directed orally and in writing (and this subparagraph (c)
constitutes such written direction) to seek legal counsel and any other advice he wishes with
respect to the terms of this General Release before executing it;
(d) Executive’s execution of this General Release has not been coerced by any employee or
agent of the Company; and
(e) Executive has been offered twenty-one (21) calendar days after receipt of this General
Release to consider its terms before executing it.
6. This General Release shall be governed by the internal laws (and not the choice of laws) of
the State of Delaware, except for the application of pre-emptive Federal law.
7. Executive shall have seven (7) days from the date hereof to revoke this General Release by
providing written notice of the revocation to the Company, as provided in Section 14 of the
Employment Agreement, upon which revocation this General Release shall be unenforceable and null
and void and in the absence of such revocation this General Release shall be binding and
irrevocable by Executive.
PLEASE READ THIS AGREEMENT CAREFULLY. IT CONTAINS A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS.
| Date: September 18, 2007 | EXECUTIVE: |
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| /s/ Xxxxxx Xxxxx | ||||
| Name: | Xxxxxx Xxxxx | |||
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