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EXHIBIT 10.2
SEPARATION AGREEMENT AND RELEASE
This Agreement, dated as of December 14, 2000 ("Effective Date"), is
between Odwalla, Inc., a California corporation ("Odwalla"), and Xxxxxxx X.
Xxxxx ("Xxxxx").
RECITALS
Xxxxx is currently employed by Odwalla.
Xxxxx desires, subject to the terms hereof, to resign effective as of the
Effective Date ("Resignation Date"), and Odwalla is willing to accept Xxxxx'x
resignation.
Odwalla, its Affiliates, and Xxxxx desire to resolve all claims as
described in this Agreement and thereby avoid the expense and uncertainty of
litigation. "Affiliate" shall be defined as any person or entity that directly
or indirectly controls, is controlled by, or is under common control with
Odwalla.
ACCORDINGLY, the parties agree as follows:
1. Settlement Sum. Odwalla agrees to and shall pay Xxxxx the sum of Six
Hundred Fifty-Four Thousand Dollars ($654,000) ("Settlement Sum") payable in
consecutive, equal, bi-weekly installment payments, beginning December 29, 2000
and ending on December 31, 2003 ("Severance Term"). Payment of the Settlement
Sum shall be suspended should Xxxxx not be in compliance with all material terms
of the Agreement. All payments to Xxxxx shall be less withholdings required by
law.
2. Termination of Stock Option Agreements. Xxxxx agrees that any and all
Stock Option Agreements by and between Xxxxx and Odwalla are hereby cancelled
and void, including, options issued to Xxxxx under the Amended and Restated 1997
Stock Option/Stock Issuance Plan dated April 25, 2000 for a total of 143,000
shares. Xxxxx further acknowledges and agrees that in exchange for the
Settlement Sum, any options under these Stock Option Agreements, whether vested
or unvested, have been relinquished by Xxxxx, and that Xxxxx has no rights, and
Odwalla has no obligations, under these Stock Option Agreements.
3. Employer Obligations.
(a) Health Care Coverage. As of the Effective Date, Odwalla shall
provide Xxxxx COBRA benefits as required by law under the Consolidated Omnibus
Budget Reconciliation Act of 1985 ("COBRA") for eighteen (18) months, with
Odwalla to pay
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the COBRA premiums. Upon the conclusion of this initial eighteen (18) month
period, Odwalla will reimburse Xxxxx for the cost of purchasing health care
coverage for an additional eighteen (18) months. Odwalla agrees to reimburse
Xxxxx for health care coverage that is equal to or less than the coverage then
being offered to Odwalla employees. Should Xxxxx obtain employment that offers
comparable health care insurance, Odwalla's obligation to reimburse Xxxxx for
health care coverage shall cease.
(b) Housing Expense Payment. Beginning January 1, 2001, Odwalla
will pay, on Xxxxx'x behalf, housing payments equal to Six Thousand Dollars
($6,000) per month, after applicable withholdings are deducted, for a period of
six (6) months, through June, 2001
(c) Vacation Accruals. Odwalla shall pay Xxxxx for any vacation
time that has accrued, but has not been used, through the Resignation Date,
according to its regularly-established payment practices.
(d) SEC Filings. Odwalla shall assist Xxxxx as to any filings that
he may need to make under federal and state securities laws as a result of his
resignation. Odwalla shall provide Xxxxx the use of its counsel for preparation
of any such filings, at Odwalla's expense.
(e) Authority. Odwalla represents and warrants that this Agreement
has been duly authorized by all necessary corporate action, and is a valid and
binding obligation of Odwalla, enforceable against it in accordance with its
terms.
(f) Indemnification. Odwalla indemnifies and holds harmless Xxxxx
from and against any and all claims or causes of action, and any connected
expenses, including reasonable attorney's fees, that are brought against Xxxxx
arising from or relating to Xxxxx'x employment relationship with Odwalla or any
of its Affiliates up through the Resignation Date, except to the extent that
Xxxxx is found to have acted fraudulently or his actions constitute a crime
under state or federal law ("Indemnified Claims").
4. Employee Obligations.
(a) Resignation. Xxxxx resigns his employment with Odwalla
effective as of the Resignation Date. Upon the Resignation Date, Xxxxx shall be
deemed to have resigned from all offices and directorships then held with
Odwalla or any Affiliate.
(b) Notice. So long as Odwalla is providing COBRA benefits, Xxxxx
shall provide Odwalla advance written notice of (i) the effective date of any
subsequent employment, and (ii) the effective date of coverage under any
applicable benefit plan with such employer.
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(c) Dismissal. Promptly upon receipt of the first payment of the
Settlement Sum, Xxxxx shall cause to be dismissed in their entirety and with
prejudice any and all lawsuits, administrative proceedings, and other actions
against Odwalla involving Xxxxx.
(d) No Obligation to Mitigate. For purposes of clarification and
the avoidance of doubt, Xxxxx shall have no obligation to seek alternative
employment during the Severance Term but if Xxxxx does secure alternative
employment Odwalla shall have a continued obligation to pay the Settlement Sum.
(e) Nondisparagement. Xxxxx shall not disparage Odwalla, any
Affiliate, or any of their officers or employees.
(f) Cooperation. Xxxxx shall cooperate with Odwalla in (i) the
orderly transfer of Xxxxx'x responsibilities to other person(s); and (ii) the
defense of any action brought by any third party against Odwalla that relates in
any way to Xxxxx'x acts or omissions while employed by Odwalla.
(g) Return of Property. Xxxxx shall promptly return to Odwalla all
property of Odwalla, including, without limitation, all equipment, tangible
proprietary information, documents, books, records, reports, contracts, lists,
computer disks (or other computer-generated files or data), or copies thereof,
created on any medium, prepared or obtained by Xxxxx in the course of or
incident to his employment with Odwalla.
(h) Confidential Information. Xxxxx shall not, for the benefit of
any person or entity other than Odwalla, disclose or use any information
regarding Odwalla's business, employees, or customers, which was produced by any
employee of Odwalla in the course of his or her employment or otherwise produced
or acquired by or on behalf of Odwalla, and which is not properly in the public
domain. Information to be held in confidence shall include, but not be limited
to: (i) formulas, teaching and development techniques, processes, trade secrets,
computer programs, electronic codes, inventions, improvements, and research
projects; (ii) information about costs, profits, markets, sales, and lists of
customers or clients; (iii) business, marketing, and strategic plans; and (iv)
employee personnel files and compensation information.
(i) Non-competition. Xxxxx acknowledges and agrees that during his
employment with Odwalla, he has had access to confidential information and that
the activities forbidden by this subsection would necessarily involve the
improper use or disclosure of this confidential information. To forestall this
use or disclosure, Xxxxx agrees that for a period of two and one-half (2 1/2)
years following the Effective Date, Xxxxx shall not, directly or indirectly, (i)
divert or attempt to divert from Odwalla (or any Affiliate) any business of any
kind in which it is engaged; (ii) employ or recommend for employment any person
employed by Odwalla (or any Affiliate) other than his wife, Xxxx Xxxxxx; or
(iii) engage in any business activity that is competitive with Odwalla (or
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any Affiliate) in any state where Odwalla conducts its business, unless Xxxxx
can prove that any of the above actions was done without the use of confidential
information. In addition to the above restrictions on non-competitive activity,
and regardless of whether any use of confidential information is involved, Xxxxx
agrees that for a period of two and one-half (2 1/2) years following the
Effective Date, Xxxxx shall not, directly or indirectly, (i) solicit any
customer of Odwalla (or any Affiliate) known to Xxxxx (while he was employed by
Odwalla) to have been a customer for the provision of products or services the
same or substantially the same as the products and services provided by Odwalla;
or (ii) solicit for employment any person employed by Odwalla (or any Affiliate)
other than his wife, Xxxx Xxxxxx.
(j) Expense Reports. Xxxxx shall submit any and all expense reports
covering the period prior to the Resignation Date no later than 30 days
following the Resignation Date.
5. Release. Xxxxx and his representatives, heirs, successors, and assigns
do hereby completely release and forever discharge Odwalla, any Affiliate, and
its and their present and former shareholders, officers, directors, agents,
employees, attorneys, successors, and assigns (collectively, "Released Parties")
from all claims, rights, demands, actions, obligations, liabilities, and causes
of action of every kind and character, known or unknown, mature or unmatured,
which Xxxxx may have now or in the future arising from any act or omission or
condition occurring on or prior to the Effective Date (including, without
limitation, the future effects of such acts, omissions, or conditions), whether
based on tort, contract (express or implied), or any federal, state, or local
law, statute, or regulation, arising from or relating to Xxxxx'x employment,
compensation, or the termination of employment (collectively, the "Released
Claims"). By way of example and not in limitation of the foregoing, Released
Claims shall include any claims arising under Title VII of the Civil Rights Act
of 1964, the Age Discrimination in Employment Act, the Americans with
Disabilities Act, and the California Fair Employment and Housing Act, as well as
any claims asserting wrongful termination, harassment, breach of contract,
breach of the covenant of good faith and fair dealing, negligent or intentional
infliction of emotional distress, negligent or intentional misrepresentation,
negligent or intentional interference with contract or prospective economic
advantage, defamation, invasion of privacy, and claims related to disability.
Released Claims shall also include, but not be limited to, claims for wages or
other compensation due, severance pay, bonuses, sick leave, vacation pay, life
or health insurance, or any other fringe benefit. Xxxxx likewise releases the
Released Parties from any and all obligations for attorneys' fees incurred in
regard to the above claims or otherwise. Xxxxx acknowledges that upon payment of
the Settlement Sum he has, or will have, received all wages, options, vacation,
and other compensation earned and due as of the Resignation Date.
Notwithstanding the foregoing, Released Claims shall not include any claims
based on obligations created by or reaffirmed in this Agreement.
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6. Section 1542 Waiver. The Parties understand and agree that the Released
Claims include not only claims presently known to Xxxxx, but also include all
unknown or unanticipated claims, rights, demands, actions, obligations,
liabilities, and causes of action of every kind and character that would
otherwise come within the scope of the Released Claims as described in Section
4. Xxxxx , understand that he may hereafter discover facts different from what
he now believes to be true, which if known, could have materially affected this
Agreement, but he nevertheless waives any claims or rights based on different or
additional facts. Xxxxx knowingly and voluntarily waive any and all rights or
benefits that he may now have, or in the future may have, under the terms of
Section 1542 of the California Civil Code, 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.
7. Covenant Not to Xxx. Xxxxx shall not xxx or initiate against any
Released Party any compliance review, action, or proceeding, or participate in
the same, individually or as a member of a class, under any contract (express or
implied), or any federal, state, or local law, statute, or regulation pertaining
in any manner to the Released Claims. Odwalla shall not xxx or initiate against
Xxxxx any action, or proceeding, or participate in the same individually or as a
member of a class, under any contract (express or implied), or any federal,
state, or local law, statute, or regulation pertaining in any manner to
Indemnified Claims, except to the extent required by law.
8. Nonadmission. The parties understand and agree that this is a compromise
settlement of disputed claims and that the furnishing of the consideration for
this Agreement shall not be deemed or construed at any time or for any purpose
as an admission of liability by Odwalla. The liability for any and all claims is
expressly denied by Odwalla.
9. Arbitration. To the fullest extent permitted by law, all claims that a
Party may have against Odwalla or any other Released Party, or which Odwalla may
have against Xxxxx, of any kind, including, but not limited to, all claims in
any way related to (i) the subject matter, interpretation, application, or
alleged breach of this Agreement, (ii) the employment or termination of Xxxxx,
or (iii) Xxxxx'x efforts to find subsequent employment ("Arbitrable Claims")
shall be resolved by arbitration. Arbitrable Claims shall include, but are not
limited to, contract (express or implied) and tort claims of all kinds, as well
as all claims based on any federal, state, or local law, statute, or regulation,
excepting only claims under applicable workers' compensation law and
unemployment insurance claims. By way of example and not in limitation of the
foregoing, Arbitrable Claims shall include (to the fullest extent permitted by
law) any claims arising under Title VII of the Civil Rights Act of 1964, the Age
Discrimination in Employment Act, the
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Americans with Disabilities Act, and the California Fair Employment and
Housing Act. Arbitration of Arbitrable Claims shall be in accordance with the
National Rules for the Resolution of Employment Disputes of the American
Arbitration Association, as amended, and as augmented by this Agreement.
Arbitration shall be final and binding upon the parties and shall be the
exclusive remedy for all Arbitrable Claims. Either party may bring an action in
court to compel arbitration under this Agreement and to enforce an arbitration
award. Otherwise, neither party shall initiate or prosecute any lawsuit or
administrative action in any way related to any Arbitrable Claim.
Notwithstanding the foregoing, either party may, at its option, seek injunctive
relief pursuant to section 1281.8 of the California Code of Civil Procedure. THE
PARTIES HEREBY WAIVE ANY RIGHTS THEY MAY HAVE TO TRIAL BY JURY IN REGARD TO
ARBITRABLE CLAIMS, INCLUDING WITHOUT LIMITATION ANY RIGHT TO TRIAL BY JURY AS TO
THE MAKING, EXISTENCE, VALIDITY, OR ENFORCEABILITY OF THE AGREEMENT TO
ARBITRATE.
10. Notices. Any notice or other communication under this Agreement must be
in writing and shall be effective upon delivery by hand, upon facsimile
transmission to Odwalla (but only upon receipt by Xxxxx of a written
confirmation of receipt), or three (3) business days after deposit in the United
States mail, postage prepaid, certified or registered, and addressed to Odwalla
or to Xxxxx at the corresponding address or fax number (if any) below. Xxxxx
shall be obligated to notify Odwalla in writing of any change in his address.
Notice of change of address shall be effective only when done in accordance with
this Section.
Odwalla's Notice Address: Xxxxx'x Notice Address:
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Odwalla, Inc. Xxxxxxx X. Xxxxx
000 Xxxxx Xxxx Xxxx
Xxxx Xxxx Xxx, XX 00000
Fax Number: 000-000-0000
11. Integration. The parties understand and agree that the preceding
Sections recite the sole consideration for this Agreement; that no
representation or promise has been made by Xxxxx, Odwalla, or any other Released
Party on any subject whatsoever, except as expressly set forth in this
Agreement; and that all agreements and understandings between the parties on any
subject arising from or relating to Xxxxx'x employment, compensation and the
termination of employment are embodied and expressed in this Agreement. This
Agreement shall supersede all prior or contemporaneous agreements and
understandings among Xxxxx, Odwalla, and any other Released Party, whether
written or oral, express or implied, with respect to the subject matters hereof,
including without limitation, any employment-related agreement or benefit plan,
except to the extent that the provisions of any such agreement or plan have been
expressly referred to in this Agreement as having continued effect.
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12. Amendments; Waivers. This Agreement may not be amended except by an
instrument in writing, signed by each of the parties. No failure to exercise and
no delay in exercising any right, remedy, or power under this Agreement shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right, remedy, or power under this Agreement preclude any other or further
exercise thereof, or the exercise of any other right, remedy, or power provided
herein or by law or in equity.
13. Assignment; Successors and Assigns. Xxxxx agrees that he will not
assign, sell, transfer, delegate, or otherwise dispose of, whether voluntarily
or involuntarily, any obligations under this Agreement. Any such purported
assignment, transfer, or delegation prohibited hereunder shall be null and void.
Xxxxx may assign, transfer or otherwise dispose of, whether by operation of law
or otherwise, his rights under this Agreement, including those arising under
Sections 1 and 3. In the event of Xxxxx'x death, payments due and arising
hereunder shall be made to Xxxxx'x estate, designee(s) or legal heirs and
assigns. Xxxxx represents that he has not previously assigned or transferred any
claims or rights released by him pursuant to this Agreement. Odwalla shall not
assign or transfer its rights and obligations hereunder except to a successor to
all or substantially all of the assets of Odwalla, whether by merger,
consolidation, transfer of assets or otherwise so long as such successor assumes
Odwalla's obligations hereunder. Subject to the foregoing, this Agreement shall
be binding upon and shall inure to the benefit of the parties and their
respective heirs, successors, attorneys, and permitted assigns. This Agreement
shall also inure to the benefit of any Released Party. This Agreement shall not
benefit any other person or entity except as specifically enumerated in this
Agreement and their permitted heirs, successors and assigns.
14. Severability. If any provision of this Agreement, or its application to
any person, place, or circumstance, is held by an arbitrator or a court of
competent jurisdiction to be invalid, unenforceable, or void, such provision
shall be enforced to the greatest extent permitted by law, and the remainder of
this Agreement and such provision as applied to other persons, places, and
circumstances shall remain in full force and effect.
15. Governing Law. This Agreement shall be governed by and construed in
accordance with the law of the State of California.
16. Interpretation. This Agreement shall be construed as a whole, according
to its fair meaning, and not in favor of or against any party. By way of example
and not in limitation, this Agreement shall not be construed in favor of the
party receiving a benefit nor against the party responsible for any particular
language in this Agreement. Captions are used for reference purposes only and
should be ignored in the interpretation of the Agreement.
17. Representation by Counsel. The parties acknowledge that (i) they have
had the opportunity to consult counsel in regard to this Agreement; (ii) they
have read and
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understand the Agreement and they are fully aware of its legal effect; and (iii)
they are entering into this Agreement freely and voluntarily, and based on each
party's own judgment and not on any representations or promises made by the
other party, other than those contained in this Agreement.
The parties have duly executed this Agreement as of the date first written
above.
Odwalla, Inc.
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Xxxxxxx X. Xxxxx By: D. Xxxxxxx X. Xxxxxxxxxx
Its: Chief Executive Officer
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