SEPARATION AGREEMENT AND RELEASE
THIS SEPARATION AGREEMENT AND RELEASE (the "Agreement") is
effective as of this 28th day of March, 2000, by and among Mossimo, Inc., a
Delaware corporation (the "Company"), Xxxxxxx Xxxxxxxxx ("Giannulli") and Xxxxx
X. Xxxxx ("Xxxxx"). The Company, Giannulli and Xxxxx are referred to herein
individually, as a "party" and collectively, as the "Parties".
WHEREAS, the Parties entered into that certain Stockholders
Agreement, dated as of November 30, 1998 (the "Stockholders Agreement"), in
connection with Xxxxx' employment by the Company;
WHEREAS, the Company and Giannulli entered into that certain
Contribution Agreement, dated as of November 30, 1998 (the "Contribution
Agreement"), in connection with Xxxxx' employment by the Company;
WHEREAS, the employment relationship between the Company and
Xxxxx is being terminated and the Parties desire to specify the terms of the
separation; and
WHEREAS, the Parties wish to terminate the Stockholders
Agreement and the Contribution Agreement, and release their respective rights,
claims, obligations and liabilities in connection therewith.
NOW THEREFORE, in consideration of the foregoing recitals and
the mutual representations, covenants, warranties, and agreements contained
herein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Parties hereto, intending to be legally
bound, do hereby agree as follows:
1. RESIGNATION OF XXXXX, OFFICER AND DIRECTOR. Xxxxx
hereby resigns from his employment with the Company and any of its affiliates
effective as of March 28, 2000. Xxxxx acknowledges he is not entitled to any
wages, of any kind, or accrued vacation or paid time-off in connection with his
services for the Company through the date of his resignation. Xxxxx also hereby
resigns from his position as an officer and director of the Company and any of
its affiliates effective as of March 28, 2000. Xxxxx understands and agrees that
he has given up any right to future wages or benefits from the Company.
2. TERMINATION OF STOCKHOLDERS AGREEMENT. The
Stockholders Agreement, and any and all rights or obligations of the Parties
thereunder, are hereby terminated and the Stockholders Agreement shall be null
and void and of no further force or effect. Notwithstanding anything to the
contrary contained in the Stockholders Agreement, no Mossimo Released Party (as
defined at Section 4(a)) or Xxxxx Released Party (as defined at Section 5(a))
shall have any liability or obligation under the Stockholders Agreement,
including without limitation, as a result of any action or failure to act in
connection with the Stockholders Agreement.
3. TERMINATION OF CONTRIBUTION AGREEMENT. The
Contribution Agreement, and any and all rights or obligations of the Parties
thereunder, are hereby terminated and the Contribution Agreement shall be null
and void and of no further force or effect. Notwithstanding anything to the
contrary contained in the Contribution Agreement, neither Giannulli nor the
Company shall have any liability or obligation under the Contribution Agreement,
including without limitation, as a result of any action or failure to act in
connection with the Contribution Agreement.
4. RELEASE OF GIANNULLI AND THE COMPANY BY XXXXX.
a. GENERAL RELEASE. Xxxxx, with the
intention of binding himself and his heirs, executors, administrators, and
assigns, hereby releases and forever discharges Giannulli and the Company,
their subsidiaries, predecessors, successors and assigns, and, to the extent
any of the following parties has a claim for idemnification against Giannulli
or the Company with respect to the relevant Claim (as defined below), all of
their respective associates, owners, stockholders, members, assigns,
employees, agents, directors, officers, partners, representatives, attorneys,
heirs, executors or administrators and all persons acting by, through, under,
or in concert with them, or any of them (each, a "Mossimo Released Party" and
collectively, "Mossimo Released Parties"), of and from any and all manner of
action or actions, causes or causes of action, in law or in equity, suits,
debts, liens, contracts, agreements, promises, liabilities, claims, demands,
damages, losses, costs or expenses, of any nature whatsoever, known or
unknown, fixed or contingent (the "Claims"), which Xxxxx now has or may
hereafter have against Mossimo Released Parties by reason of any and all
acts, omissions, events or facts occurring or existing prior to the Effective
Date, except as expressly provided herein; provided, however, that
notwithstanding the foregoing release if any Mossimo Released Party (other
than Giannulli and the Company and their subsidiaries, predecessors,
successors and assigns) asserts a Claim against Xxxxx, Xxxxx shall have the
right to assert any counterclaim against such Mossimo Released Party. The
Claims released hereunder include, without limitation, (i) any alleged breach
of any employment agreement; (ii) any alleged breach of the Stockholders
Agreement; (iii) any alleged breach of the Contribution Agreement; (iv) any
alleged breach of any covenant of good faith and fair dealing, express or
implied; (iv) any alleged torts or other alleged legal restrictions relating
to the Xxxxx' employment and the termination thereof; and (vi) any alleged
violation of any federal, state or local statute or ordinance including,
without limitation, Title VII of the Civil Rights Act of 1964, as amended,
the Federal Age Discrimination in Employment Act, the Americans With
Disabilities Act, and the California Fair Employment and Housing Act. The
foregoing release of the Claims shall not apply to: any claims for
indemnification under the Company's Certificate of Incorporation and Bylaws,
under applicable law or otherwise; any claims under any directors and
liability insurance coverage of the Company; any breach by the Company or
Giannulli of this Agreement; or any breach by the Company or Giannulli of the
Stock Option Termination Agreement among the Parties dated as of March 28,
2000.
b. RELEASE OF UNKNOWN CLAIMS.
XXXXX ACKNOWLEDGES THAT HE IS FAMILIAR WITH THE PROVISIONS OF
CALIFORNIA CIVIL CODE SECTION 1542, WHICH PROVIDES AS FOLLOWS:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE
TIME OF
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EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST
HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
XXXXX BEING AWARE OF THIS CODE SECTION, HEREBY EXPRESSLY WAIVES ANY RIGHTS HE
MAY HAVE THEREUNDER, AS WELL AS UNDER ANY OTHER STATUTES OR COMMON LAW
PRINCIPLES OF SIMILAR EFFECT.
c. RELEASE OF AGE DISCRIMINATION CLAIMS. Xxxxx
agrees and expressly acknowledges that this Agreement includes a waiver and
release of all claims which Xxxxx has or may have under the Age Discrimination
in Employment Act of 1967, as amended, 29 U.S.C. Section 621, ET SEQ. ("ADEA").
The following terms and conditions apply to and are part of the waiver and
release of the ADEA claims under this Agreement:
(1) That this Agreement is written in a
manner calculated to be understood by Xxxxx.
(2) The waiver and release of claims
under the ADEA contained in this Agreement do not cover rights or claims that
may arise after the date on which Xxxxx signs this Agreement.
(3) The release of the ADEA claims
provides for consideration in addition to anything of value to which Xxxxx is
already entitled.
(4) Xxxxx has been advised to consult
an attorney and has done so before signing this Agreement.
(5) Xxxxx is granted twenty-one (21)
days after Xxxxx is presented with this Agreement to decide whether or not to
sign it. If Xxxxx executes the Agreement prior to the expiration of such period,
Xxxxx does so voluntarily and after having had the opportunity to consult with
an attorney.
(6) Xxxxx will have the right to revoke
the Agreement under the ADEA within seven (7) days of signing the Agreement. In
the event that Xxxxx elects to revoke the Agreement, he shall deliver within the
time period herein to the Chairperson of the Compensation Committee of the
Company's Board of Directors, a writing stating that he is revoking the
Agreement. In the event the Agreement is revoked, this Agreement will be null
and void in its entirety.
d. NO ASSIGNMENT OF CLAIMS. Xxxxx represents
and warrants to the Mossimo Released Parties that there has been no assignment
or other transfer of any interest in any Claim which Xxxxx may have against the
Mossimo Released Parties, or any of them, and Xxxxx agrees to indemnify and hold
the Mossimo Released Parties harmless from any liability, claims, demands,
damages, costs, expenses and attorneys' fees incurred as a result of any person
asserting any such assignment or transfer of any rights or Claims under any such
assignment or transfer from such party.
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e. NO SUITS OR ACTIONS. Xxxxx agrees that if he
hereafter commences, joins in, or in any manner seeks relief through any suit
arising out of, based upon, or relating to any of the Claims released hereunder
or in any manner asserts against the Mossimo Released Parties any of the Claims
released hereunder, then he will pay to the Mossimo Released Parties against
whom such claim(s) is asserted, in addition to any other damages caused thereby,
all attorneys' fees incurred by such Mossimo Released Parties in defending or
otherwise responding to the suit or Claim.
5. RELEASE OF XXXXX BY GIANNULLI AND THE COMPANY.
a. GENERAL RELEASE. Giannulli, with the
intention of binding himself and his heirs, executors, administrators, and
assigns, and the Company, on behalf of itself and its subsidiaries,
predecessors, successors and assigns, hereby release and forever discharge
Xxxxx, his heirs, executors, administrators, agents, representatives,
attorneys, and assigns and all persons acting by, through, under, or in
concert with them, or any of them (each, an "Xxxxx Released Party" and
collectively, "Xxxxx Released Parties") of and from any and all manner of the
Claims which Giannulli or the Company now has or may hereafter have against
Xxxxx Released Parties by reason of any and all acts, omissions, events or
facts occurring or existing prior to the Effective Date, except as expressly
provided herein. The foregoing release of the Claims shall not apply to (i)
any breach by Xxxxx of this Agreement; (ii) any claim concerning the
disclosure or use of confidential or trade secret information in violation of
applicable law; or (iii) any breach by Xxxxx of the Stock Option Termination
Agreement among the Parties effective as of March 28, 2000.
b. RELEASE OF UNKNOWN CLAIMS.
GIANNULLI AND THE COMPANY ACKNOWLEDGE THAT HE AND IT ARE
FAMILIAR WITH THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH
PROVIDES AS FOLLOWS:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE
TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST
HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
GIANNULLI AND THE COMPANY BEING AWARE OF THIS CODE SECTION, HEREBY EXPRESSLY
WAIVE ANY RIGHTS HE OR IT MAY HAVE THEREUNDER, AS WELL AS UNDER ANY OTHER
STATUTES OR COMMON LAW PRINCIPLES OF SIMILAR EFFECT.
c. NO ASSIGNMENT OF CLAIMS. Giannulli and the
Company represent and warrant to the Xxxxx Released Parties that there has been
no assignment or other transfer of any interest in any Claim which Giannulli or
the Company may have against the Xxxxx Released Parties, or any of them, and
Giannulli and the Company agree to indemnify and hold the Xxxxx
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Released Parties harmless from any liability, claims, demands, damages, costs,
expenses and attorneys' fees incurred as a result of any person asserting any
such assignment or transfer of any rights or Claims under any such assignment or
transfer from such party.
d. NO SUITS OR ACTIONS. Giannulli and the
Company agree that if Giannulli or the Company hereafter commences, joins in, or
in any manner seeks relief through any suit arising out of, based upon, or
relating to any of the Claims released hereunder or in any manner asserts
against the Xxxxx Released Parties any of the Claims released hereunder, then
Giannulli or the Company will pay to the Xxxxx Released Parties against whom
such claim(s) is asserted, in addition to any other damages caused thereby, all
attorneys' fees incurred by such Xxxxx Released Parties in defending or
otherwise responding to this suit or Claim.
6. NO ADMISSION. The Parties understand and agree that
the execution of this Agreement shall constitute or be construed as an admission
of any liability whatsoever by the Mossimo Released Parties or the Xxxxx
Released Parties.
7. ADVICE OF COUNSEL. Each Party represents and warrants
that such Party has read this Agreement, that has had adequate time to consider
this Agreement, that has consulted with an attorney prior to executing this
Agreement. Each Party acknowledges that such Party understands the meaning and
effect of this Agreement knowingly, voluntarily and with the intent of being
bound by this Agreement.
8. SEVERABILITY. If any provision of this Agreement
shall be found invalid or unenforceable in whole or in part, then such
provisions shall be deemed to be modified or restricted to the extent and in the
manner necessary to render the same valid and enforceable or shall be deemed
excised from this Agreement as such circumstances may require, and this
Agreement shall be construed and enforced to the maximum extent permitted by law
as if such provision had been originally incorporated herein as so modified or
restricted or as if such provision had not been originally incorporated herein,
as the case may be.
9. AMENDMENT AND MODIFICATION. This Agreement may be
amended, modified, and supplemented only by a written document executed by the
Parties which specifically states that it is an amendment, modification or
supplement to this Agreement.
10. ARBITRATION AND WAIVER OF JURY TRIAL. Except for
claims for emergency equitable or injunctive relief which cannot be timely
addressed through arbitration, the Parties hereby agree to submit any claim or
dispute arising out of the terms of this Agreement and/or any dispute arising
out of or relating to Xxxxx' employment with the Company in any way, to private
and confidential arbitration by a single neutral arbitrator through
JAMS/Endispute. Subject to the terms of this Section 10, the arbitration
proceedings shall be governed by the then current JAMS/Endispute rules governing
employment disputes. The decision of the arbitrator shall be final and binding
on all Parties, and judgment thereon may be entered in any court having
jurisdiction. The Parties shall share equally the arbitrator's fee and all costs
of services provided by the arbitrator and arbitration organization; however,
all costs of the arbitration proceeding or litigation to enforce this Agreement,
including attorneys' fees and witness expenses, shall be paid as the arbitrator
or court awards in accordance with applicable law. Except for claims for
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emergency equitable or injunctive relief which cannot be timely addressed
through arbitration, this arbitration procedure is intended to be the exclusive
method of resolving any claim relating to the obligations set forth in this
Agreement. The Parties, by entering into this Agreement, waive their right, if
any, to a jury trial with respect to any claim subject to this Section 10.
11. SUCCESSORS AND ASSIGNS. This Agreement shall be
binding upon and inure to the benefit of and be enforceable by the Parties and
their respective successors and assigns. Notwithstanding the foregoing, neither
this Agreement nor any rights hereunder may be assigned by any Party without the
prior written consent of the other Parties.
12. ENTIRE AGREEMENT. Each Party represents and warrants
that no promise or inducement has been offered or made except as set forth
herein and the consideration stated herein is the sole consideration for this
Agreement and that this is the entire agreement of the Parties as to the subject
hereof, superseding all previous agreements between or among the Parties or any
of them; provided, however, that this Agreement does not supersede (i) the Stock
Option Termination Agreement among the Parties dated as of March 28, 2000; or
(ii) the Indemnification Agreement between Xxxxx and the Company dated as of
March 28, 2000.
13. GOVERNING LAW. The Parties agree that this Agreement
shall be construed and enforced in accordance with the laws of the State of
California.
14. CONSTRUCTION. This Agreement shall be construed
without regard to the Party or Parties responsible for its preparation, and it
shall be deemed to have been prepared jointly by the Parties. Any ambiguity or
uncertainty arising herein shall not be interpreted or construed against any
Party hereto.
15. COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original and all
of which together shall constitute one and the same document.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered
by the duly authorized officers of the parties hereto as of the date first
written above.
XXXXX X. XXXXX
/s/ XXXXX X. XXXXX
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Date: April 14, 2000
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XXXXXXX XXXXXXXXX
/s/ XXXXXXX XXXXXXXXX
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Date: April 14, 2000
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MOSSIMO, INC.
/s/ XXXXX XXXXXXXXXX
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By: XXXXX XXXXXXXXXX
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Title: Sr. Vice President of Operations
---------------------------------
Date: April 14, 2000
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