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Exhibit 10.32
EMPLOYMENT SEPARATION AGREEMENT
Xxxx Xxxxxx ("Xxxxxx") is employed by N2H2, Inc. ("N2H2") pursuant to an
Executive Employment Agreement (the "Employment Agreement") dated May 10, 1999.
N2H2 and Xxxxxx have agreed that Xxxxxx'x employment and all relationships with
N2H2 are terminating, according to the following terms.
1. XXXXXX'X LOAN IS REPAID IN FULL.
On or about August 2, 2000, Xxxxxx executed a Promissory Note (the
"Note") in favor of N2H2 in the principal amount of $600,000. Pursuant to the
terms of the Redemption Agreement, this loan is repaid in full.
2. XXXXXX'X RESIGNATION.
Xxxxxx resigns his employment with N2H2 effective November 15, 2000.
3. PAYMENT BY N2H2 TO XXXXXX.
N2H2 agrees to pay Xxxxxx $75,000.00, less lawful deductions, payable as
follows: a) four payments of $6,250.00, less lawful deductions, through December
31, 2000, on N2H2's ordinary pay days and b) a lump sum payment on January 5,
2001 of $50,000.00, less lawful deductions.
4. PALM PILOT AND LAPTOP.
N2H2 agrees to permit Xxxxxx to keep the Palm Pilot and laptop he has
been most recently using in connection with his employment.
5. STOCK REDEMPTION.
Xxxxxx agrees to tender to N2H2 shares of stock pursuant to the Stock
Redemption Agreement attached hereto.
6. STOCK OPTION.
N2H2 hereby grants and Xxxxxx accepts, an option to purchase 50,000
shares of N2H2's Common Stock at an exercise price of $1.50 per share. This
option vests immediately and will expire on November 15, 2005. Such exercise
will be made by tendering the exercise price to N2H2, at its offices, along with
a letter stating Xxxxxx'x intent to so exercise.
7. MUTUAL RELEASE OF ALL CLAIMS.
Xxxxxx hereby agrees to fully and forever release, acquit, and discharge
N2H2 and its past and present parent, subsidiary and affiliated corporations,
divisions, and business entities, and N2H2's and their past and present
officers, directors, trustees, employees and agents from
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any and all liability for any and all injuries, claims, demands, damages,
actions or suits of any kind or nature, including attorneys' fees and costs,
based on any facts in existence in whole or in part at the time of the signing
of this Agreement, and whether known or unknown at the time this Agreement is
executed by Xxxxxx.
Included, without limitation, in this Release of All Claims is any claim
of violation of the federal Age Discrimination in Employment Act, or the
Washington state law against age discrimination, or breach of contract or
entitlement to or promise of additional compensation or benefits of any kind
while employed at or upon ceasing employment with N2H2. The list of claims in
this paragraph is merely illustrative of the claims being released by Xxxxxx; he
intends by signing this Agreement to release any and all claims he has against
N2H2.
8. INDEMNIFICATION. N2H2 agrees that it will indemnify Xxxxxx in
connection with his activities as an employee and officer of the Corporation to
the full extent provided under any N2H2 applicable insurance policies now in
effect, or that become effect in the future and relate to events during Xxxxxx'x
employment.
9. ALL ACCRUED UNUSED VACATION, EXPENSE REIMBURSEMENTS, AND BONUSES TO
BE CASHED OUT. On January 5, N2H2 will pay Xxxxxx a) the value of all unused
vacation pay accrued through November 15, 2000, which totals $20,563.80, less
lawful deductions and b) the value of any bonus calculated pro rata through
November 10, 2000, less lawful deductions. N2H2 will also promptly pay Xxxxxx to
reimburse him for business expenses incurred by him through November 15, 2000,
provided Xxxxxx submits to N2H2 expense reports for all such expenses by
December 15, 2000. Xxxxxx acknowledges that, except for the payments he will be
paid hereunder or in the Redemption Agreement, as of the time he signed this
Agreement, N2H2 has provided to him all other payments, if any, to which he had
any claim or right or entitlement in whole or in part as of the date he signed
the Agreement. In short, Xxxxxx acknowledges that, excepting as provided herein,
N2H2 has cashed him out in full in any and all benefits and obligations to which
he had any legal or equitable claim in whole or in part involving N2H2.
10. COBRA COVERAGE. As part of the severance package and in return for
Employee's release herein, Employer agrees to pay Employee and dependent's COBRA
group medical coverage until April 30, 2000.
11. ENTIRE AGREEMENT AND NO ORAL MODIFICATIONS. This Employment
Separation Agreement contains the full agreement between Xxxxxx and N2H2
concerning the cessation of his employment with N2H2. There are no oral
agreements or understandings between Xxxxxx and N2H2 which are not set out in
this written Separation Agreement. No portion of this Agreement may be changed,
deleted or added to, except by a written confirmation signed and dated by Xxxxxx
and N2H2.
12. NULLIFICATION OF EMPLOYMENT AGREEMENT.
The parties acknowledge and agree the Employment Agreement is hereby
null and void and replaced in its entirety by this Agreement.
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13. ARBITRATION OF BREACHES OF OR DISPUTES ABOUT THE SEPARATION
AGREEMENT. In the event that N2H2 or Xxxxxx contend that any portion of this
Agreement has been breached or in the event of any dispute between N2H2 and
Xxxxxx about the terms or interpretation of any portion of this Agreement, N2H2
and Xxxxxx that their respective remedy will be to have an arbitrator, selected
and acting pursuant to the Rules of the American Arbitration Association,
promptly consider the claimed breach or dispute, and issue a decision. The
arbitrator shall have the authority to interpret this Agreement, but shall have
no authority to add to, delete from or modify this Agreement. N2H2 agrees to pay
seventy-five percent of the cost of the arbitrator's services provided Xxxxxx
pays twenty-five percent of such cost. Each party will bear its own costs of
preparing for and presenting their case at the arbitration, including attorneys'
fees. The decision of the arbitrator shall be final and binding, and shall be
enforceable in a court of competent jurisdiction.
14. NOTICES. Every notice required by the terms of this Employment
Separation Agreement shall be given in writing by serving the notice upon the
party to whom it was addressed personally or by registered or certified mail,
return receipt requested, at the address set forth below or at such other
address as may hereafter be designated by notice given in compliance with the
terms of this Agreement. Notice which is given in accordance with this provision
shall be deemed to have been completed on the date the notice is personally
served, in the event of personal service, or on the third calendar day after the
notice is placed in the U.S. Mails with proper postage and addressing.
If to Xxxxxx: Xxxx X. Xxxxxx
00000 Xxxxx Xxxxx Xxxxx
Xxxxxxxxxx Xxxxxx, XX 00000
If to N2H2: N2H2, Inc.
000 0xx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000
Attn: Chief Executive Officer
15. WAIVER. No waiver of any of the provisions hereof shall be valid
unless in writing, signed by the party against whom such claim or waiver is
sought to be enforced, nor shall failure to enforce any right hereunder
constitute a continuing waiver of the same or a waiver of any other right
hereunder.
16. SEPARABILITY. If any paragraph, sentence, term or provision of this
Agreement or the application of the Agreement is found by a court of competent
jurisdiction or the AAA arbitrator designated in paragraph 12, to be invalid or
unenforceable, that determination shall not affect, impair or invalidate the
remainder of this Agreement or the application of the Agreement. Each paragraph,
sentence, term, and provision not directly designated to be invalid or
unenforceable shall be valid and enforceable to the fullest extent permitted by
law.
17. ASSIGNMENT. N2H2 may assign any benefits it has under this Agreement
to the entity of its choice.
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18. WASHINGTON STATE LAW GOVERNS. This Employment Separation Agreement
shall be construed according to the laws of the state of Washington.
19. OLDER WORKERS BENEFIT PROTECTION ACT: NOTICE TO CONSULT ATTORNEY,
WAITING PERIOD, AND RIGHT OF RESCISSION. Xxxxxx acknowledges that he has been
informed that he has been instructed to seek the independent advice and counsel
of an attorney before deciding whether to sign this Agreement, that he has had
an opportunity to have an attorney review this Agreement and advise him about it
prior to signing.
Xxxxxx understands, acknowledges, and agrees that he may consider this
Employment Separation Agreement for a period of twenty-one (21) days after first
receiving the unsigned Agreement. Up to seven (7) days after the Agreement has
been signed by Xxxxxx and delivered to N2H2, he may revoke the Agreement by
notifying N2H2 in writing of his revocation of the Agreement.
November 14, 2000 /s/ XXXX XXXXXX
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Date Xxxx X. Xxxxxx
X0X0, Inc.
November 14, 2000 By /s/ XXXXX X. XXXXXXXXX
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Date Xxxxx X. Xxxxxxxxx
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(print name)
Its President
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