AGREEMENT AND GENERAL RELEASE
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AGREEMENT
AND GENERAL RELEASE
Emeritus
Corporation ("Emeritus") and Xxxx Xxxxxx, his heirs, executors, administrators,
successors, and assigns (collectively referred to throughout this Agreement
as
“Xxxxxx”), agree that:
1. Resignation
as Officer.
Xxxxxx
hereby resigns as an officer of Emeritus and Emeritus accepts Xxxxxx'x
resignation effective May 1, 2007 (“Resignation Date”).
2. Consideration.
In
consideration for signing this Agreement and General Release ("Agreement")
and
compliance with the promises made herein, Emeritus agrees, subject to the change
of control provisions in Paragraph 2(g):
(a)
to
pay Xxxxxx'x salary at its current rate ($241,500 per year) and to keep Xxxxxx
and his spouse on the Executive benefit plan for a two-year period commencing
on
the Resignation Date (the “Separation Period”) in addition commencing May 1,
2009 to pay Xxxxxx an annual salary of $144,900 equal to 60% of base annual
salary at time of retirement through April 30, 2010;
(b)
to
pay Xxxxxx’x continued insurance coverage under COBRA for 18 months, following
the end of the Separation Period. At the end of the COBRA period, Emeritus
will
pay a one-time cash payment to cover medical premiums on an individual plan
for
Xxxxxx and his spouse until Xxxxxx reaches the age of 65;
(c)
to
pay a pro-rated bonus earned (if any) under the Executive Bonus plan for 2007
for 1st quarter achievements; even if said bonus would not be deemed earned
under the terms of the Executive Bonus plan, if other executives receive bonuses
under the 2007 Executive Bonus plan, Xxxxxx will be entitled to an appropriate
discretionary pro-rata bonus;
(d)
to
maintain Xxxxxx’x participation in the Top Hat plan through end of Separation
Period including any mandatory company matching contributions;
(e)
to
permit Xxxxxx'x outstanding stock options to continue to vest during the
Separation Period. Xxxxxx shall have ninety (90) days following the end of
the
Separation Period to exercise said options;
(f)
that
Xxxxxx may maintain his long term disability insurance policy with Xxxxxx
responsible for the premiums as of June 1, 2007;
(g)
in
the event of a change of control as defined in the Company’s 2006 Stock Option
Plan, Emeritus will have the option of calculating an equivalent lump sum amount
to cover any remaining financial obligations set forth in Paragraphs 2(a) -
(h)
and paying said lump sum to Xxxxxx;
(h)
to
give Xxxxxx the option, upon next annual renewal of company-provided life
insurance, to convert to an individual policy with Xxxxxx responsible for
premiums;
(i)
to
provide and pay for legal counsel in the event Xxxxxx is named as an individual
defendant in any lawsuits in the future filed by any third party that arise
out
of Xxxxxx’x work on behalf of Emeritus:
(j)
to
allow Xxxxxx to keep computer and cell phone and transferring cell phone to
Xxxxxx’x personal account.
3. No
Consideration Absent Execution of this Agreement.
Xxxxxx
understands and agrees that he would not receive the monies and/or benefits
specified in paragraph “2” above, except for his execution of this Agreement and
the fulfillment of the promises contained herein.
4. Revocation.
Xxxxxx
may revoke this Agreement for a period of seven (7) calendar days following
the
day he executes this Agreement. Any revocation within this period must be
submitted, in writing, to Xxx Xxxx and state, "I hereby revoke my acceptance
of
our Agreement." The revocation must be personally delivered to Xxx Xxxx or
his
designee, or mailed to Xxx Xxxx and postmarked within seven (7) calendar days
of
execution of this Agreement. This Agreement shall not become effective or
enforceable until the revocation period has expired. If the last day of the
revocation period is a Saturday, Sunday, or legal holiday in the state in which
Xxxxxx was employed at the time of his last day of employment, then the
revocation period shall not expire until the next following day which is not
a
Saturday, Sunday, or legal holiday.
5. General
Release of Claims.
Xxxxxx
knowingly and voluntarily releases and forever discharges Emeritus, its
affiliates, subsidiaries, divisions, successors and assigns and the current
and
former employees, officers, directors, members, managers and agents thereof
(collectively referred to throughout the remainder of this Agreement as
“Employer”), of and from any and all claims, known and unknown, Xxxxxx has or
may have against Employer as of the date of execution of this Agreement,
including, but not limited to, any alleged violation of:
| · |
Title
VII of the Civil Rights Act of 1964, as
amended;
|
| · |
The
Civil Rights Act of 1991;
|
| · |
Sections
1981 through 1988 of Title 42 of the United States Code, as
amended;
|
| · |
The
Employee Retirement Income Security Act of 1974, as amended
("ERISA");
|
| · |
The
Immigration Reform and Control Act, as
amended;
|
| · |
The
Americans with Disabilities Act of 1990, as
amended;
|
| · |
The
Age Discrimination in Employment Act of 1967, as
amended;
|
| · |
The
Workers Adjustment and Retraining Notification Act, as
amended;
|
| · |
The
Occupational Safety and Health Act, as
amended;
|
| · |
Washington
Law Against Discrimination in Employment - Wash. Rev. Code Ch. 49.60.010
et seq.
|
| · |
Washington
State Civil Rights Act - Wash.
Rev. Code§49.60.400
|
| · |
Washington
Statutory Provisions Against Retaliation/Discrimination for Filing
a
Workers’ Compensation Claim - Wash. Rev. Code
§51.48.025
|
| · |
Washington
Age Discrimination Law - Wash. Rev. Code Title 49,
§49.44.090
|
| · |
Washington
Sex Discrimination Law - Wash. Rev. Code Ch. 49.12,
§200
|
| · |
Washington
Equal Pay Law - Wash. Rev. Code Title 49,
§49.12.175
|
| · |
Washington
Family Leave Act - Wash. Rev. Code §49.78.005 et seq. and §49.78.010 et
seq.
|
| · |
Washington
Wage Payment and Work Hour Laws
|
| · |
The
Washington Industrial Safety and Health Act - Wash. Rev. Code Ch.
49.17
|
| · |
Arizona
Civil Rights Act - Ariz. Rev. Stat. §41-1401 et seq.
|
| · |
Arizona
AIDS Testing and Confidentiality Act - Ariz.
Rev. Stat. Art. 4, Tit. 36, §36-661, 664-668
|
| · |
Arizona
Equal Pay Law - Ariz. Rev. Stat. Art. 6.1, Ch. 2, Tit. 23, §23-340 et
seq.
|
| · |
Arizona
Genetic Testing Laws - Title 12, Ch. 19, Art. 1, Ariz.
Rev. Stat. §12-2801 and Title 20, Art. 6, Ariz. Rev. Stat.
§20-448.02
|
| · |
Arizona
Employment Protections Act - Title 00, Xx. 0, Xxx. 0, Xxxx.
Rev. Stat. §23-1501
|
| · |
Arizona
Constructive Discharge Law - Title 00, Xx. 0, Xxx. 0, Xxxx.
Rev. Stat. §23-1502
|
| · |
Arizona
Wage Payment and Work Hour Laws
|
| · |
Arizona
Occupational Safety and Health Act, as
amended
|
| · |
Arizona
Political Activities of Employees Law - Ariz. Rev. Stat. §16-1012 et seq.
|
| · |
Arizona
Drug Testing Law - Ariz. Rev. Stat.
§23-493
|
| · |
Any
allegation for costs, fees, or other expenses including attorneys’ fees
incurred in these matters.
|
7.
Affirmations.
(a)
Xxxxxx affirms that he has not filed, caused to be filed, or presently is a
party to any claim, complaint, or action against Employer in any forum or form.
(b)
Xxxxxx further affirms that he has been paid and/or has received all leave
(paid
or unpaid), vacation and floating holiday pay, compensation, wages, bonuses,
commissions, and/or benefits (including any monies to which he is entitled
in
his section 401(k) plan) to which he may be entitled and that no other leave
(paid or unpaid), vacation and floating holiday pay, compensation, wages,
bonuses, commissions and/or benefits (including any monies to which he is
entitled in his section 401(k) plan) are due to him, except (1) any already
vested benefit under ERISA, and (2) as provided in this Agreement.
(c)
Xxxxxx furthermore affirms that he has no known workplace injuries or
occupational diseases and has been provided and/or has not been denied any
leave
requested under the Family and Medical Leave Act.
(d)
Xxxxxx affirms that he has returned any and all of Employer's property in his
possession or control.
(e)
Xxxxxx further affirms that Xxxxxx has not been retaliated against for reporting
any allegations of wrongdoing by Employer or its officers, including any
allegations of corporate fraud. Both Parties acknowledge that this Agreement
does not limit either party’s right, where applicable, to file or participate in
an investigative proceeding of any federal, state or local governmental agency.
To the extent permitted by law, Xxxxxx agrees that if such an administrative
claim is made, Xxxxxx shall not be entitled to recover any individual monetary
relief or other individual remedies.
8.
Confidentiality.
Xxxxxx
agrees not to disclose any information regarding the existence or substance
of
this Agreement, except to his spouse, tax advisor, and an attorney with whom
Xxxxxx chooses to consult regarding his consideration of this Agreement.
Employer also affirms he has not divulged any proprietary or confidential
information of Employer and will not divulge such information at anytime
hereafter.
9. Non-disparagment.
The
parties hereto agree they have not made and will not make any statements
disparaging each other. Xxxxxx specifically agrees not to speak with the press
or media about Employer in a disparaging or negative manner.
10. Governing
Law and Interpretation.
This
Agreement shall be governed and conformed in accordance with the laws of
Washington without regard to its conflict of laws provision. In the event the
Xxxxxx breaches any provision of this Agreement, Xxxxxx and Employer affirm
that
either may institute an action to specifically enforce any term or terms of
this
Agreement. Should any provision of this Agreement be declared illegal or
unenforceable by any court of competent jurisdiction and cannot be modified
to
be enforceable, excluding the general release language, such provision shall
immediately become null and void, leaving the remainder of this Agreement in
full force and effect.
11.
Nonadmission
of Wrongdoing.
The
parties agree that neither this Agreement nor the furnishing of the
consideration for this Release shall be deemed or construed at anytime for
any
purpose as an admission by either party of any liability or unlawful conduct
of
any kind.
12.
Amendment.
This
Agreement may not be modified, altered or changed except upon express written
consent of both parties wherein specific reference is made to this
Agreement.
13. Entire
Agreement.
This
Agreement sets forth the entire agreement between the parties hereto, and fully
supersedes any prior agreements or understandings between the parties, with
the
sole exception of the Emeritus Confidentiality Policy. Xxxxxx acknowledges
that
he has not relied on any representations, promises, or agreements of any kind
made to him in connection with his decision to accept this Agreement, except
for
those set forth in this Agreement.
XXXXXX
HAS BEEN ADVISED THAT HE HAS AT LEAST TWENTY-ONE (21) CALENDAR DAYS TO CONSIDER
THIS AGREEMENT AND HAS BEEN ADVISED IN WRITING TO CONSULT WITH AN ATTORNEY
PRIOR
TO EXECUTION OF THIS AGREEMENT.
XXXXXX
AGREES THAT ANY MODIFICATIONS, MATERIAL OR OTHERWISE, MADE TO THIS AGREEMENT
DO
NOT RESTART OR AFFECT IN ANY MANNER THE ORIGINAL TWENTY-ONE (21) CALENDAR DAY
CONSIDERATION PERIOD.
HAVING
ELECTED TO EXECUTE THIS AGREEMENT, TO FULFILL THE PROMISES AND TO RECEIVE THE
SUMS AND BENEFITS IN PARAGRAPH “2” ABOVE, XXXXXX FREELY AND KNOWINGLY, AND AFTER
DUE CONSIDERATION, ENTERS INTO THIS AGREEMENT INTENDING TO WAIVE,
SETTLE
AND RELEASE ALL CLAIMS HE HAS OR MIGHT HAVE AGAINST
EMPLOYER.
IN
WITNESS WHEREOF, the parties hereto knowingly and voluntarily executed this
Agreement as of the date set forth below:
Emeritus
Corporation
__/s/
Xxxx Becker___________
Xxxx
Xxxxxx
Date:04/07/07
By:/s/
Xxxxxx X. Xxxx
Xxxxxx
X.
Xxxx
Chief
Executive Officer
Date:04/13/07
