Exhibit 10.1
SEVERANCE AND RELEASE AGREEMENT
THIS SEVERANCE AND RELEASE AGREEMENT ("Agreement") is between Xxxxxxxxx
Xxxx ("Employee") and N2H2, INC. ("Employer") and is in consideration of their
mutual undertakings as set forth in this Agreement.
Because the parties to this Agreement wish to set forth clearly the
terms and conditions of Employee's departure from his/her employment, they agree
as follows:
1. This Agreement shall not be construed as an admission by Employee of any
misconduct or impropriety. Additionally, this Agreement shall not be
construed as an admission by Employer that it acted wrongfully with
respect to Employee.
2. Employee's last day of employment will be April 17, 2002.
3. Employer will pay Employee as follows:
3.1 Employer will pay Employee for all wages earned through the
effective date identified in paragraph 2.
3.2 Employer will pay Employee for all Employee's earned but unused
vacation on Employee's final paycheck on April 30, 2002.
3.3 If Employee is generally compensated in all or in part by
commissions, Employer will pay Employee his/her quarterly
commissions through March 31, 2002, if any due, consistent with
the Sales Compensation plan dated November 1, 2001.
3.4 If Employee has vested stock option rights, the exercise of those
rights shall be governed by the terms of any applicable Stock
Option Agreement or granting documents and shall not be affected
by this Severance and Release Agreement.
Employee expressly agrees that he/she is not otherwise entitled to any
other compensation in the way of base salary, bonus, incentive
compensation, separation pay, stock options or otherwise.
4. Employer will pay Employee six weeks' severance pay (based on base pay +
non-recoverable draw) in the amount of Fifteen Thousand Nine Hundred
Twenty Three Dollars and Eight Cents ($15,923.08), less all lawful or
required deductions, upon expiration of seven days following the
execution of this Agreement.
5. Until April 30, 2002, Employer will continue its contributions towards
Employee's group medical and dental insurance. After April 30, 2002,
Employee may elect COBRA medical and dental plan continuation coverage
for himself/herself and/or his/her covered dependents for the time
period and under such conditions as are provided by COBRA. If Employee
elects COBRA effective May 1, 2002, then Employer will pay the COBRA
premium for Employee and Employee's eligible dependents for up to two
months. After July 1, 2002, Employee must self-pay to continue his/her
COBRA coverage and coverage for any dependants.
6. If Employee files for unemployment compensation benefits, Employer will
confirm to the Washington State Employment Security Department that
Employee and Employer agreed to a mutual resignation and Employer will
not contest Employee's eligibility for unemployment compensation.
7. Employee will direct all requests for references to Employer's Human
Resources Department, which will confirm the dates of Employee's
employment and his/her job title.
8. Employer and Employee may acknowledge to persons within and outside the
company that their parting was on mutually satisfactory terms. The
parties will use their best efforts, however, to keep the terms of this
Agreement confidential. Employee may disclose the terms of this
Agreement to his/her immediate family. Employer may disclose the terms
of this Agreement to its officers, directors, trustees, or managers who
have a need to know. Either party may disclose the terms of this
Agreement to their respective attorneys, accountants, financial
advisers, auditors, or similar advisors, or in response to legal process
or government requests. Third persons who are authorized to be informed
of the terms of this Agreement shall in turn be advised of this
confidentiality provision and requested to maintain it.
8.1. Employee also agrees that though he/she is no longer employed by
Employer he/she will continue to respect the confidences of
Employer, its officers, directors, or employees and its clients,
in accordance with the "N2H2 Mutual Non-Disclosure Agreement and
Employee Intellectual Property Agreement" which he/she signed on
November 5, 2001.
9. Employee shall immediately review all personal items and return to
Employer all company-owned property in his/her possession or under
his/her control, including, but not limited to, all keys or card keys to
company buildings or property, all company-owned equipment, all company
software, documents and papers (such as reports, blueprints, business
plans and files), credit cards, cell phones, and all other Employer
property. Employee shall return both originals and copies of such
property and shall not use or transfer such property to others.
10. In exchange for the severance pay and other benefits contained in this
Agreement, which are in addition to the benefits Employee is otherwise
entitled to receive, Employee and his/her successors and assigns forever
release and discharge Employer, any of Employer's parent, subsidiary or
related companies, any Employer-sponsored employee benefit plans in
which Employee participates, and all of their respective officers,
directors, trustees, agents, stockholders, employees, employees'
spouses, and all of their successors and assigns (collectively
"Releasees") from any and all employment-related claims, actions, causes
of action, rights, or damages, including costs and attorneys' fees
(collectively "Claims") which Employee may have on behalf of
himself/herself, known, unknown, or later discovered which arose prior
to the date Employee signs this Agreement.
10.1. This release includes but is not limited to, any Claims under any
local, state, or federal laws prohibiting discrimination in
employment, including without limitation the Civil Rights Acts,
the Americans with Disabilities Act, the Age Discrimination in
Employment Act or the Washington State Law Against
Discrimination, or Claims under the Employee Retirement Income
Security Act, any claims under
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the Family Medical Leave Act, or Claims alleging any legal
restriction on Employer's right to terminate its employees, or
personal injury Claims, including without limitation wrongful
discharge, breach of contract, defamation, tortious interference
with business expectancy, or infliction of emotional distress.
10.2. Employee represents that he/she has not filed any Claim against
Employer or its Releasees, and that he/she will not do so at any
time in the future concerning Claims released in this Agreement;
provided, however, that this will not limit Employee from filing
a Claim to enforce the terms of this Agreement.
11. The parties pledge that they will take no action from this date forward
that might interfere with the other's activities or damage the other's
reputation. Prohibited actions would include, but not be limited to,
private or public comments, statements, or writings critical,
disparaging, or derogatory of the other party or the Releasees, or
complaints filed against the other party or the Releasees with any
regulatory agency.
12. Employee understands and acknowledges the significance and consequences
of this Agreement, admits that it is voluntary and that it has not been
given as a result of any coercion, and expressly confirms that it is to
be given full force and effect according to all of its terms, including
those relating to unknown Claims. Employee was hereby advised of his/her
right to seek the advice of an attorney prior to signing this Agreement.
Employee acknowledges that he/she has signed this Agreement only after
full reflection and analysis.
13. Employee has a period of at least 7 days in which to consider this
Agreement, but may sign it in less than 7 days at his/her option.
14. Employer will pay the severance payment as promised in paragraph 4 to
the Employee on the eighth (8th) day after Employee's execution of this
Agreement.
15. If any of the provisions of this Agreement are held to be invalid or
unenforceable, the remaining provisions will nevertheless continue to be
valid and enforceable.
16. This Agreement and its attachments represents and contains the entire
understanding between the parties in connection with its subject matter.
All prior written or oral agreements or understandings are merged into
and superseded by this Agreement. Employee acknowledges that in signing
this Agreement, he/she has not relied upon any representation or
statement not set forth in this Agreement made by Employer or any of its
representatives.
17. This Agreement is made and shall be construed and performed under the
laws of the State of Washington.
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PLEASE READ THIS AGREEMENT CAREFULLY. THIS SEVERANCE AND RELEASE AGREEMENT
INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS.
Dated: 4/15/02 Dated: 4/17/02
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N2H2, INC.: Xxxxxxxxx Xxxx:
By /s/ Xxxxxx X. Xxxx /s/ Xxxxxxxxx Xxxx
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Its CEO & President
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