SEPARATION AGREEMENT AND RELEASE
The parties to this Agreement are Xxxx Xxxxxxx ("Xxxxxxx") and
Oregon Baking Company, dba Xxxxxx Baking, an Oregon corporation ("Xxxxxx").
RECITALS:
Xxxxxxx has resigned his employment as a President with
Xxxxxx.
Xxxxxxx and Xxxxxx have agreed upon various terms and
conditions relating to Xxxxxxx'x separation from Xxxxxx as set forth in this
Agreement.
Xxxxxxx and Xxxxxx have agreed upon a Nondisclosure,
Noncompetition and Nonsolicitation Agreement effective the same date hereof.
THEREFORE, in consideration of the mutual covenants set forth
herein, the parties agree as follows:
AGREEMENT:
1. EMPLOYMENT SEPARATION. Xxxxxxx has delivered, and Xxxxxx
has accepted, Xxxxxxx'x resignation as an employee of Xxxxxx effective as of
12:00 midnight, December 31, 1998 ("Separation Date").
2. RESIGNATION. Effective February 9, 1999, Xxxxxxx
acknowledges that he resigned from his director position with Xxxxxx. Further,
Xxxxxxx acknowledges and confirms that, effective December 31, 1998, he resigned
from his position as Xxxxxx'x President and any other officer position he may
have held.
3. PAYMENT. Xxxxxxx acknowledges that he has received payment
in full for all salary and benefits to which he is entitled through the
Separation Date. Xxxxxx will continue to pay Xxxxxxx as separation pay his
semi-monthly salary of $5,208.33 in accordance with Xxxxxx'x standard payroll
schedule and procedure until the earliest to occur of the following: (i) the
completion of the six month period following the Separation Date or (ii) the
date Xxxxxxx commences a full time employment relationship. Xxxxxx will withhold
taxes and other withholdings on his separation payments in accordance with all
applicable local, state and federal laws.
4. BENEFITS. Xxxxxx shall pay Xxxxxxx two weeks of accrued,
unused vacation for 1998, such payment to be made at the time of Xxxxxxx'x
January 20, 1999 separation payment. At Xxxxxxx'x expense, Xxxxxx shall continue
Separation Agreement and Release
Page 1
Xxxxxxx'x group health insurance coverage, outside of COBRA, for six months
beginning in January 1999 and continuing through June 1999. Beginning with July
0000, Xxxxxxx shall be responsible for his own COBRA payments for any remaining
period of COBRA eligibility.
5. NEW STOCK OPTION. Seven days after executing this
Agreement, Xxxxxxx shall receive a nonqualified stock option to purchase up to
60,000 shares of Xxxxxx'x Common Stock at $1.00 per share (the "Stock Option")
subject to the standard terms and conditions of Xxxxxx'x 1998 Nonqualified Stock
Option Plan and Stock Option Agreement (and related Stock Purchase Agreement).
Notwithstanding any provisions to the contrary in the Stock Option Plan, Stock
Option Agreement or Stock Purchase Agreement, the Stock Option shall be fully
vested and exercisable at any time until the expiration of the term as provided
in the Stock Option Agreement (i.e., 36 months from the Separation Date).
6. "MARKET STAND-OFF" AGREEMENTS. Xxxxxxx agrees that he will
not sell or otherwise transfer or dispose of any Common Stock (or other
securities, including options) of Xxxxxx held by such Holder for a period of 24
months following the effective date of a registration statement of Xxxxxx filed
under the Securities Act. Xxxxxx may impose stop-transfer instructions with
respect to the shares of Common Stock (or other securities, including options)
subject to the foregoing restriction until the end of said period.
7. TERMINATION OF PRIOR OPTION. Xxxxxxx agrees that the stock
option to purchase up to 100,000 shares of Xxxxxx'x Common Stock granted under
Xxxxxx'x 1997 Stock Option/Issuance Plan is hereby terminated and relinquished
forever. Xxxxxxx agrees to deliver any original documents in his possession
evidencing such option to Xxxxxx within seven (7) days of execution of this
Agreement.
8. NONDISCLOSURE AND NONSOLICITATION AGREEMENT. Concurrently
with the execution of this Separation Agreement and Release, the parties shall
execute a Nondisclosure and Nonsolicitation Agreement in the form attached
hereto.
9. RELEASE. Except as otherwise provided in this Agreement,
Xxxxxxx hereby waives any legal rights and releases and forever discharges
Xxxxxx and its parents and affiliates and their respective directors, officers,
employees, shareholders, attorneys, insurers, accountants, agents of any kind
whatsoever, successors and assigns, from any and all liabilities, demands,
claims, suits, actions, charges, damages, judgments, levies or executions,
whether known or unknown, liquidated, fixed, contingent, direct or indirect,
which have been, could have been or could be raised against Xxxxxx for any
matter whatsoever at any time before execution of this Agreement. Xxxxxxx
acknowledges the full and final waiver and release of all claims which he has or
may have against Xxxxxx, specifically including, but not limited to, all claims
for relief or remedy of any type under any state or federal laws, including, but
not limited to, the federal and state statutes relating to civil rights,
employment discrimination (based on race, color, age, sex, national origin,
marital status, handicap, veterans status, religion, workers compensation and
family relationship), labor, employment rights or benefits, or relating to
employment or termination of employment, wage payments, all as amended, and
including, but not limited to, claims based on alleged breach of employment
contract, breach of fiduciary duty, misrepresentation, fraud, fraud in the
inducement, defamation, tortious conduct of any type arising from or relating to
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Page 2
Xxxxxxx'x employment or termination of employment (including without limitation
Xxxxxxx'x entry into this Agreement), or any other common law theories; and
including, but not limited to, claims under Title VII of the Civil Rights Act of
1964 (as amended) and the Age Discrimination in Employment Act (as amended); and
including, but not limited to, any claims for additional compensation, shares of
Xxxxxx'x capital stock or options or rights to purchase such shares (other than
the Stock Option referenced in Section 4 of this Agreement and his nonqualified
option to purchase up to 1,666 shares of Xxxxxx'x Common Stock), back pay or
benefits of any type; and including, but not limited to, any claim for attorney
fees or costs, for reinstatement or reemployment, or for compensatory or
punitive damages under any applicable statutes or common law theories, except to
the extent that waiver or release of future claims is specifically prohibited by
law.
10. NO ADMISSION OF LIABILITY. Nothing in this Agreement shall
be construed or interpreted in any manner as an admission of liability by any of
the parties released hereby, each of whom expressly denies liability.
11. OLDER WORKERS' BENEFIT PROTECTION ACT. This Agreement is
made in accordance with the Older Workers' Benefit Protection Act (the "Act").
In accordance with the Act, Xxxxxxx acknowledges that:
(a) He has been advised in writing of his right to consult
with an attorney prior to executing this Agreement;
(b) He is aware of, and waives, all rights and claims to
which he may be entitled under the Act other than those
rights or claims that may arise after this Agreement is
executed;
(c) As consideration for executing this Agreement, he has
received compensation of value to which he would not
otherwise be entitled;
(d) He has been given 21 days from the date of receipt for
consideration of this offer, which will expire at the
end of the 21-day period; and
(e) He shall have a period of seven days immediately
following the date of his execution of this Agreement in
which he may revoke the Agreement at his sole election,
by delivering to Xxxxxx on or before the seventh day
following execution the revocation on the last page of
this Agreement, signed and dated.
11. GOVERNING LAW. This Agreement shall be construed in
accordance with and governed by the laws of the state of Oregon without regard
to Oregon conflict of law principles. Any proceeding related to this Agreement
shall be commenced and maintained only in the state or federal courts in
Portland, Oregon and the parties hereby irrevocably submit to the jurisdiction
of any state or federal court sitting in Portland, Oregon, in any action or
proceeding brought to enforce or otherwise arising out of, in connection with,
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Page 3
or relating to this Agreement, and hereby waives any objection to venue in any
such court and any claim that such forum is inconvenient.
12. ENTIRE AGREEMENT. This Agreement is an integrated
agreement which constitutes the entire agreement between the parties with
respect to its subject matter and supersedes all prior agreements,
representations, or understandings, written or oral, with respect to the subject
matter (including without limitation his employment offer letter dated June 24,
1997, as amended). The parties further acknowledge that the terms of this
Agreement are contractual and not mere recitals.
13. SEVERABILITY. In the event any provision of this Agreement
is found to be unenforceable, the parties intend that the remainder of the
Agreement be given full force and effect.
14. ACKNOWLEDGMENT. Xxxxxxx acknowledges: (a) that he has had
a full and fair opportunity to review this Agreement and to consult with his
attorney with respect hereto; (b) that he fully understands all of the terms of
this Agreement; and (c) that he has freely and voluntarily entered into this
Agreement.
EFFECTIVE as of 3-12 , 1999.
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/s/ Xxxx Xxxxxxx
---------------------------------
Xxxx Xxxxxxx
OREGON BAKING COMPANY, dba XXXXXX
BAKING, an Oregon corporation
By /s/ Xxx Xxxxxxxxx
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Title: C.E.O.
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Attachment:
Nondisclosure and Nonsolicitation Agreement
Separation Agreement and Release
Page 4
