SEPARATION AGREEMENT
AND
RELEASE OF CLAIMS
This Separation Agreement and Release of All Claims ("Agreement") is entered
into this 10 day of March, 1997, between Xxxxxxx X. Xxxxxxxxx ("Employee") and
Xxxxx Brothers, Inc. ("Employer"). The term "parties" shall refer collectively
to both of these entities.
In consideration of the mutual promises herein contained, the adequacy
of which consideration is hereby acknowledged, the parties agree as follows.
1. Employee's employment by Employer is terminated by mutual agreement
as of April 30, 1997 (the "Termination Date"). The parties agree the termination
of employment shall be, for all purposes, deemed to be a voluntary resignation.
Employee hereby resigns as an officer of and director of Employer and its
subsidiaries on the Termination Date.
2. Employer shall provide the following severance benefits to Employee:
a. Employer shall pay Employee four months severance
("severance period") pay, subject to appropriate withholding and deductions as
required by law. This severance pay shall be paid to Employee by continuing to
pay him amounts equaling his regular salary during the employment, on the
regular paydays of Employer, until the severance pay, subject to appropriate
withholding and deductions is paid in full.
Employee's entitlement under this formula totals $38,333.
b. Any vested stock options held by Employee shall expire on
March 31, 1998. Employee may exercise such stock options at any time prior to
the expiration date. Employer agrees to file a Form S-8 with the Securities and
Exchange Commission prior to April 30, 1997 covering the Xxxxx Brothers 1995
Stock Option Plan including options granted to Employee.
c. Any unvested stock options held by Employee, that were
scheduled to vest within six months after the date of execution of this
Agreement, will vest as of the execution of this Agreement and will be subject
to the expiration date stated in paragraph 2b above. The total number of options
that are thus vested are 83,333. Employee will not be entitled to any additional
options.
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d. Employer shall continue Employee's medical and life
insurance during the severance period specified in subparagraph a above. Upon
the expiration of the severance period, Employee shall have all rights to
continuation of such coverages as may be provided by law, including without
limitation COBRA.
e. Employer shall pay Employee two weeks accrued vacation pay
totaling $4,423, upon execution of this Agreement.
f. Employer shall pay Employee a bonus of $20,000 upon
execution of this Agreement for services provided in connection with the
Company's initial public offering of common stock.
The parties acknowledge that the above payments and benefits are
consideration in addition to anything of value to which Employee is already
entitled.
3. Employee, on behalf of himself/herself and his/her marital
community, heirs, executors, assigns and personal representatives, does hereby
release and forever discharge Employer and any parent company, subsidiary
company, and any other company affiliated with or under common ownership with
Employer, and each of their respective current and former officers, partners,
principals, directors, shareholders, attorneys, employees, agents, servants,
representatives, independent contractors, guarantors, heirs, successors,
insurers, assigns, and all affiliated entities, hereinafter collectively
referred to as the "the Released Parties," from any and all claims, demands,
causes of actions, or liability of any kind or character, known or unknown,
arising or accruing through the date this Agreement is executed by Employee,
including without limitation all claims that are in any way related to
Employee's employment by Employer or the termination thereof.
Without limiting the generality of the foregoing, the full release
contained in this paragraph applies to all claims arising under the Civil Rights
Act of 1964; the Age Discrimination in Employment Act of 1967; the Americans
With Disabilities Act of 1990; the Labor Management Relations Act; the Employee
Retirement Income Security Act of 1974; the Fair Labor Standards Act; the Family
and Medical Leave Act; the Immigration Reform and Control Act; the Consolidated
Omnibus Budget Reconciliation Act; the Occupational Safety and Health Act, or
any comparable state
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occupational safety and health statute; the Workers' Adjustment and Retraining
Act; 42 U.S.C. ss. 1981; the Arizona Civil Rights Act; the Arizona Wage Act; or
under any other applicable state or federal statute; and to any common law cause
of action, including without limitation claims for breach of contract, wrongful
discharge, unpaid wages, tort, personal injury, or any claim for attorney's fees
or other damages, costs or expenses of any kind or nature.
Notwithstanding the foregoing, the release contained in this paragraph
does not waive any claim arising out of any breach or alleged breach of this
Agreement, or any claim that may arise after the date this waiver is executed.
4. Each of the persons identified as a subject or beneficiary of the
release provisions of paragraph 3 above is intended as, and is expressly
designated as, a third party beneficiary of this Agreement.
5. On or before the effective date of termination set forth above,
Employee shall return all of Employer's property in his/her possession, custody,
or control, including without limitation all records, files, goods, equipment,
documents, computer software, data, disks, and any other property of any kind or
description whatsoever, including (if applicable) all copies thereof.
6. Employee agrees to keep the terms of this Agreement confidential,
and not to disclose the terms of this Agreement to any person except as may be
required by law. This obligation shall be equally be binding upon Employee's
counsel and upon his/her spouse, who shall also keep the terms of this Agreement
confidential and not disclose them to any person except as may be required by
law.
7. Consistent with the full release contained in paragraph 3 above,
Employee agrees not to file or lodge any type of complaint alleging violation of
any law by Employer with any agency, or otherwise disparage Employer in
statements to any person or assert any claims or demands against it. In the
event that Employee brings such a lawsuit or files or lodges such a complaint in
breach of this paragraph, then Employee shall be required (in addition to such
damages as may be recoverable by Employer) to reimburse Employer the sum and/or
value of all severance benefits received pursuant to paragraph 2 of this
Agreement.
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8. Employee understands and agrees that the execution of this Agreement
and the provision of severance benefits described herein are not to be construed
as an admission by Employer of any liability to Employee, liability being
expressly denied; but this Agreement instead represents a compromise and
settlement of disputed and unliquidated claims.
9. Employee is hereby advised to consult with an attorney before
executing this Agreement. By his/her signature hereon, Employee acknowledges
that he/she has been so advised, and that he/she has had an opportunity to
consult with, and has consulted with, an attorney before executing this
Agreement.
10. Employee acknowledges that he/she has been given a period of
twenty-one (21) days within which to consider this Agreement.
11. For a period of seven (7) days following the execution of this
Agreement by Employee, Employee may revoke the agreement, and the Agreement
shall not become effective or enforceable until the revocation period has
expired. This Agreement shall become effective upon the eighth day following
Employee's signature hereon, provided that Employee has delivered this signed
Agreement to Employer within the same period (the "Effective Date"). Funds to be
paid upon execution of this agreement shall not be paid until the seven day
period has elapsed.
12. This Agreement constitutes the entire Agreement and understanding
among the parties hereto with respect to the subject matter hereof and
supersedes all prior and contemporaneous agreements, understandings, inducements
and conditions express or implied, oral or written, of any nature whatsoever
with respect to the subject matter hereof. This Agreement may not be modified or
amended other than by an agreement in writing signed by the party to be charged
with such modification or amendment.
13. Should any litigation be commenced between the parties hereto
concerning the terms of this Agreement, or the rights and duties of the parties
hereto under this Agreement, the prevailing party in such litigation shall be
entitled, in addition to such other relief as may be granted, to a reasonable
sum as and for the prevailing party's attorneys' fees, experts' fees, and
expenses of litigation.
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14. The provisions of this Agreement are independent of and separate
and severable from each other, and no provision shall be affected or rendered
invalid or unenforceable by virtue of the fact that for any reason any other or
others of them may be invalid or unenforceable in whole or in part. If any
provision of this Agreement is held by a court of competent jurisdiction to be
invalid or unenforceable, that provision shall be deemed modified and replaced
by a provision, as similar in form, content and effect as possible, to the
invalid or unenforceable provision and the Agreement shall be deemed reformed
accordingly. Notwithstanding the foregoing, however, the obligations of either
party shall be rendered null and void if any part of the material consideration
for that party's obligations is or becomes unenforceable and no reasonable
substitute provision with the same material effect is available to the parties.
15. Neither the failure nor any delay on the part of any party to
exercise any right, remedy, power or privilege under this Agreement shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right, power, or privilege preclude any other or further exercise of the same or
of any other right, remedy, power or privilege, nor shall any waiver of any
right, remedy, power or privilege with respect to any occurrence be construed
as a waiver of such rights, remedy, power, or privilege with respect to any
other occurrence.
16. This Agreement is the product of negotiation between the parties.
This Agreement shall be construed in accordance with its plain meaning and shall
not be construed for or against any party on account of the role of any party or
its counsel in the drafting of this Agreement.
17. This Agreement shall be governed by the substantive laws of Arizona
and any action to enforce or construe this Agreement or to declare the rights of
the parties hereunder shall be commenced and maintained in a state or federal
court in Arizona.
18. Employee has read this Agreement, and understands the extent and
effect of its terms, the relinquishment of his/her legal rights and the legal
consequences involved in entering into this Agreement. Employee is satisfied
with the terms and conditions of settlement represented by this Agreement.
Employee is signing this Agreement voluntarily.
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19. The parties agree that upon mutually agreeable terms, Employee will
assist Employer beyond the Termination Date to the extent Employee is not
otherwise employed. Employee to be paid reasonable consulting fees for the
providing of such services.
20. Notwithstanding any portion of the above Agreement:
(a) Company shall indemnify and hold Employee harmless and
defend Employee for, from and against all claims, liabilities, obligations,
fines, penalties and other matters and all costs and expenses relating thereto
that Company and/or such subsidiary or affiliated entity is permitted by
applicable law, except as any of the foregoing arises out of or relates to
Employee's negligence, willful malfeasance and/or breach of this Agreement.
(b) Company represents and warrants to Employee that neither
its articles of incorporation not its bylaws nor any resolutions of its
shareholders or board of directors restricts or limits Companies rights or
obligations to indemnify Employee as provided in subsection (a) of this Section
20, except to the extent such restrictions or limitations are required by
applicable law.
"Employee":
Xxxxxxx X. Xxxxxxxxx
------------------------
(Print name)
/s/ Xxxxxxx X. Xxxxxxxxx
------------------------
(Signature)
"Employer":
XXXXX BROTHERS, INC.
By /s/ Xxxx Xxxxx
------------------------
Its: President & CEO
-------------------
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Spousal Consent
---------------
_____________________, spouse of Employee, acknowledges that he/she has
read the foregoing Settlement Agreement and Release of All Claims, and agrees,
in consideration of the promises of Employee contained therein, to be bound by
the terms thereof, including without limitation the release of any and all
claims that he/she might have against Employer and any parent company,
subsidiary company, and any other company affiliated with or under common
ownership with Employer, and each of their respective officers, partners,
principals, directors, shareholders, attorneys, employees, agents, servants,
representatives, independent contractors, guarantors, heirs, successors,
insurers, assigns, and all affiliated entities, that are in any way related to,
resulting from, or arising out of Employee's employment with Employer or the
termination of that employment.
-------------------------------
Print name
-------------------------------
Signature
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STATE OF ARIZONA )
) ss.
Maricopa County )
On this 12th day of March, 1997, before me the undersigned notary
public, personally appeared Xxxxxxx Xxxxxxxxx, who acknowledged to me that
he/she executed the within instrument for the purposes therein expressed.
/s/ Xxxx X. XxxXxxXxxx
----------------------
Notary Public
My Commission Expires: March 23, 1999
--------------
"OFFICIAL SEAL"
Xxxx X. Xxxxxxxxxx
STATE OF ARIZONA ) Notary Public-Arizona
) ss. Maricopa County
Maricopa County ) My Commission Expires 3/23/99
On this 12th day of March, 1997, before me the undersigned notary
public, personally appeared Xxxxxxxx Xxxxxxxxx, who acknowledged to me that
he/she executed the within instrument for the purposes therein expressed.
/s/ Xxxx X. XxxXxxXxxx
----------------------
Notary Public
My Commission Expires: March 23, 1999
--------------
"OFFICIAL SEAL"
Xxxx X. Xxxxxxxxxx
STATE OF ARIZONA ) Notary Public-Arizona
) ss. Maricopa County
Maricopa County ) My Commission Expires 3/23/99
On this 12th day of March, 1997, before me the undersigned notary
public, personally appeared Xxxx Xxxxx, who acknowledged to me that he/she is an
authorized agent of Xxxxx Brothers, Inc., and as such has executed the within
instrument for the purposes therein expressed.
/s/ Xxxx X. XxxXxxXxxx
----------------------
Notary Public
My Commission Expires: March 23, 1999
--------------
"OFFICIAL SEAL"
Xxxx X. Xxxxxxxxxx
Notary Public-Arizona
Maricopa County
My Commission Expires 3/23/99
8
