EXHIBIT 99.3
RETIREMENT AND RELEASE AGREEMENT
I, Xxxx Xxxxxxx, whose address is 0000 Xxxxxxxx Xxxxxxx Xxxxx Xxxxx, Xxx Xxxxx,
XX 00000, , understand that my retirement from Xxxx in the Box will be effective
on December 31, 2005, under the terms provided for in this Agreement. This
Retirement and Release Agreement (Agreement) is entered into in connection with
our mutual agreements regarding my retirement.
Xxxx in the Box Offer. In connection with my retirement, I will remain on the
active payroll until January 23, 2005, at full salary and benefits (less
required payroll deductions). From January 23, 2005, through December 31,
2005(the retirement transition period), I will be paid bi-weekly at a rate of
$12,063.54, which is equal to approximately $313,652 on an annual basis. During
the retirement transition period, I will use any unused or accrued vacation. I
will be eligible during the retirement transition period for benefits including
employee health and life insurance plans at current coverage levels,
indemnification rights as defined in the Indemnity Agreement I signed on August
2, 2002, AYCO services as defined by the AYCO plan, a car allowance and and long
term disability coverage. I will also be eligible for any additional stock or
option vestings that occur during the retirement transition period. In order to
accept this offer, the Continuing Services below must be accomplished. On or
before January 15, 2006, I will receive a $200,000 retirement transition bonus,
less required payroll deductions, conditioned upon my continued employment
through December 31, 2005. If the Continuing Services are not accomplished, the
Xxxx in the Box Inc. offer automatically terminates. This amount is in addition
to wages due to me for work previously performed, and will be paid to me as
consideration for my settlement, release and discharge of any and all known or
unknown claims as described below.
Waiting Period and Revocation. I received this Agreement on November 15, 2004
and have been given a twenty-one (21) day waiting period to consider whether to
sign it. I understand that even if I sign and return this Agreement, I can still
revoke this Agreement within seven (7) days after it is returned to Xxxx in the
Box (Revocation Period) and this Agreement will not become effective or
enforceable until the Revocation Period has expired.
Requirements to Receive Payment. In consideration of the benefits and the amount
Xxxx in the Box has offered to provide me, I must:
(a) sign this Agreement and return it to Xxxx in the Box by either:
(i) hand-delivering the Agreement to Xxxxx Xxxxx, Xx. Vice
President Human Resources and Strategic Planning, 0000 Xxxxxx
Xxxxxx, Xxx Xxxxx, XX 00000 not later than close of business on
December 6, 2004, or
(ii) mailing the Agreement, in which case the envelope must be
postmarked not later than December 6, 2004, and must be
received within a reasonable time thereafter; or
(iii) sending the Agreement by overnight service such as Federal
Express, in which case it must be actually received not later
than December 7, 2004.
Mail and overnight service must be addressed to:
Xxxxx Xxxxx
SVP Human Resources and Strategic Planning
0000 Xxxxxx Xxx.
Xxx Xxxxx, XX 00000
(b) not revoke this Agreement during the seven (7) day Revocation Period;
and
(c) agree to provide and actually provide ongoing services as specified by
Xxxx in the Box while I am an employee, including but not limited to
all customary and normal duties of a Chief Financial Officer upon
request until a replacement is named and such other employment duties
as are assigned after that time. These duties will include senior
level financial strategy projects and duties and will be outlined in
more detail in a job description.
Time When Payment Will Be Made. If I accomplish the Continuing Services
described above, I will receive the payments and benefits described above in the
Xxxx in the Box Offer. If I do not, I will not be entitled to any pay or
benefits other than what I would be entitled to receive while an employee.
Additional Agreements. I will not receive any bonus for Fiscal Year 2005 or any
part of the year. After January 23, 2005, I will be authorized to incur
pre-approved expenses and obligations on behalf of the Company. Vacation earned
or accrued will be used as it is earned. Medical and pension benefits will be
available at current levels pursuant to the terms of the applicable Company
plans. I understand that I will not qualify for the SERP plan. After January 23,
2005, or when a replacement is named, whichever is earlier, the Company may
elect to end my officer status but I will continue to be an employee. In either
event, I will be provided coverage under any applicable D&O insurance coverage
maintained by the Company.
Release of Claims. Various claims and disputes exist/may exist between the
parties. Xxxx in the Box and I desire to resolve all disputes and settle all
known and unknown claims. By signing and returning this Agreement to Xxxx in the
Box, I hereby settle, release and discharge any and all claims which I have or
may have against Xxxx in the Box, its subsidiaries, or affiliates and their
respective officers, directors and employees, arising from my employment with
Xxxx in the Box, including but not limited to all claims arising under any
Federal, State, or local laws or regulations pertaining to discrimination on the
basis of sex, pregnancy, race, color, marital status, religion, creed, national
origin, age, handicap, medical condition, or mental condition status or any
status protected by any other anti-discrimination laws, including, without
limitation, Title VII of the Civil Rights Act of 1964, the Americans with
Disabilities Act, the Age Discrimination in Employment Act, the Family Medical
Leave Act and the Fair Employment and Housing Act, whether such claim be based
on an action filed by me or by a governmental agency.
Unknown Claims/Applicable Law: This Agreement shall be governed by California
law. I understand that I may have claims of which I may be unaware or
unsuspecting which I am giving up by signing this Agreement. I also expressly
waive all rights I might have under Section 1542 of the Civil Code of California
which reads as follows:
1542. Certain claims not affected by general release. 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.
Claims Not Affected. It is understood that this Agreement does not affect any
rights which I may have by reason of any Social Security, Worker Compensation,
or Unemployment laws, or any benefits which may be payable to me now or in the
future under any of the Benefit and/or Welfare Programs of Xxxx in the Box, its
subsidiaries and affiliates, unless these rights are specifically released by
this agreement.
Confidentiality. I agree that I may have had access to confidential information
and trade secrets concerning products, business plans, marketing strategies and
other Company information and that I shall keep these matters completely
confidential.
Non-disparagement. Neither the company nor I will disparage, criticize or
otherwise communicate anything which may have a tendency to harm the other,
except as may specifically be required by law or in connection with any
governmental or regulatory matter.
Continuing Employment. As an employee, I understand that my rights under this
Agreement to receive any unpaid benefits are conditioned upon not committing a
breach of this Agreement, not committing any act which would be good cause(as
defined in the Compensation and Benefits Assurance Agreement for Executives
dated July 2001)for termination of employment or this Agreement, and not
providing services to a competing business or accepting employment elsewhere
before December 31, 2005. This shall not prevent me from being on the Board of
any company that is not in the food, beverage or restaurant industry, unless
permission, which shall not be unreasonably withheld, is granted by the Company.
Advice to Consult With Attorney. I have been (i) advised in writing to consult
with an attorney, and (ii) given adequate time to thoroughly review and discuss
all aspects of this Agreement with my attorney before signing this Agreement and
I have thoroughly discussed, or in the alternative have freely elected to waive
any further opportunity to discuss, this Agreement with my attorney.
The parties voluntarily enter into this Agreement by signing it on ____________,
2004.
________________________________ _____________________________
Witness Signature Xxxx Xxxxxxx
________________________________
for Xxxx in the Box Inc.
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