EXHIBIT A
GENERAL RELEASE
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THIS GENERAL RELEASE (hereinafter "Release") is made and entered into by
and between [NAME] (hereinafter "[LASTNAME]") and ENCAD, Inc. (hereinafter
"EMPLOYER"), and inures to the benefit of each of EMPLOYER's current, former and
future parents, subsidiaries, related entities, employee benefit plans and their
fiduciaries, predecessors, successors, officers, directors, shareholders,
agents, employees and assigns.
RECITALS
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A. [LASTNAME] was for a period of time an employee of EMPLOYER, most
recently as its [TITLE];
B. On , 199 , [LASTNAME] and EMPLOYER entered into that
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certain letter agreement (the "Letter Agreement") pursuant to which [LASTNAME]
may become entitled to certain severance benefits upon the (i) termination of
[LASTNAME]'s employment under certain circumstances described in the Letter
Agreement and (ii) [LASTNAME]'s execution of a General Release (as defined in
the Letter Agreement). This Release is that General Release described in the
Letter Agreement.
C. [LASTNAME]'s employment with EMPLOYER ceased effective [DATE];
D. [LASTNAME] and EMPLOYER wish permanently to resolve any and all
disputes arising out of [LASTNAME]'s employment with EMPLOYER or the cessation
of that employment.
NOW, THEREFORE, for and in consideration of the execution of this Release
and the mutual covenants contained in the following paragraphs, EMPLOYER and
[LASTNAME] agree as follows:
1. INCORPORATION OF RECITALS. The recitals set forth above and
identification of the parties to, and beneficiaries of, this Release are
incorporated by references as though fully set forth herein.
2. WAGES AND PAID TIME OFF PAID. [LASTNAME] acknowledges that [S/HE] has
been paid for all of [HIS/HER] wages and [HIS/HER] accrued and unused paid time
off.
3. GENERAL RELEASE. [LASTNAME] for [HIM/HER]self, [HIS/HER] heirs,
executors, administrators, assigns and successors, fully and forever releases
and discharges EMPLOYER and each of its current, former and future parents,
subsidiaries, related entities, employee benefit plans and their fiduciaries,
predecessors, successors, officers, directors, shareholders, agents, employees
and assigns (collectively, "Releasees"), with respect to any and all claims,
liabilities and causes of action, of every nature, kind and description, in law,
equity or otherwise, which have arisen, occurred or existed at any time prior to
the signing of this Release, including, without limitation, any and all claims,
liabilities and causes of action arising out of or relating to [LASTNAME]'s
employment with EMPLOYER or the cessation of that employment.
4. KNOWING WAIVER OF EMPLOYMENT-RELATED CLAIMS. [LASTNAME] understands
and agrees that [S/HE] is waiving any and all rights [S/HE] may have had, now
has, or in the future may have, to pursue against any of the Releasees any and
all remedies available to [HIM/HER] under any employment-related causes of
action, including without limitation, claims of wrongful discharge, breach of
contract, breach of the covenant of good faith and fair dealing, fraud,
violation of public policy, defamation, discrimination, personal injury,
physical injury, emotional distress, claims under Title VII of the Civil Rights
Act of 1964, as amended, the Age Discrimination in Employment Act, the Americans
With Disabilities Act, the Federal Rehabilitation Act, the Family and Medical
Leave Act, the California Fair Employment and Housing Act, the California Family
Rights Act, the Equal Pay Act of 1963, the provisions of the California Labor
Code and any other federal, state or local laws and regulations relating to
employment, conditions of employment (including wage and hour laws) and/or
employment discrimination.
5. WAIVER OF CIVIL CODE Section 1542. [LASTNAME] expressly waives any
and all rights and benefits conferred upon [HIM/HER] by Section 1542 of the
Civil Code of the State of California, which states 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."
[LASTNAME] expressly agrees and understands that this Release applies to all
unknown, unsuspected and unanticipated claims, liabilities and causes of action
which [S/HE] may have against EMPLOYER or any of the other Releasees.
6. SEVERABILITY OF RELEASE PROVISIONS. [LASTNAME] agrees that if any
provision of this Release given by [HIM/HER] is found to be unenforceable, it
will not affect the enforceability of the remaining provisions and the courts
may enforce all remaining provisions to the extent permitted by law.
7. PROMISE TO REFRAIN FROM SUIT OR ADMINISTRATIVE ACTION. [LASTNAME]
promises and agrees that [S/HE] will never xxx EMPLOYER or any of the other
Releasees, or otherwise institute or participate in any legal or administrative
proceedings against EMPLOYER or any of the other Releasees, with respect to any
claim covered by the provisions of this Release, including but not limited to
claims arising out of [LASTNAME]'s employment with EMPLOYER or the termination
of that employment, unless [S/HE] is compelled by legal process to do so.
8. PROMISE TO REFRAIN FROM ASSISTING IN SUIT OR ADMINISTRATIVE ACTION.
[LASTNAME] promises and agrees that [S/HE] shall not advocate or incite the
institution of, or assist or participate in, any suit, complaint, charge or
administrative proceeding by any other person against EMPLOYER or any of the
other Releasees,
9. INTEGRATED AGREEMENT. The parties acknowledge and agree that no
promises or
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representations were made to them which do not appear written herein or in the
Letter Agreement and that this Release and the Letter Agreement contains the
entire agreement of the parties on the subject matter hereof and thereof. The
parties further acknowledge and agree that parol evidence shall not be required
to interpret the intent of the parties.
10. VOLUNTARY EXECUTION. The parties hereby acknowledge that they have
read and understand this Release and that they sign this Release voluntarily and
without coercion.
11. WAIVER, AMENDMENT AND MODIFICATION OF RELEASE. The parties agree that
no waiver, amendment or modification of any of the terms of this Release shall
be effective unless in writing and signed by all parties affected by the waiver,
amendment or modification. No waiver of any term, condition or default of any
term of this Release shall be construed as a waiver of any other term, condition
or default.
12. CALIFORNIA LAW. The parties agree that this Release and its terms
shall be construed under California law without regard to conflict of laws
provisions thereof.
13. DRAFTING. The parties agree that this Release shall be construed
without regard to the drafter of the same and shall be construed as though each
party to this Release participated equally in the preparation and drafting of
this Release.
14. COUNTERPARTS. This Release may be signed in counterparts and said
counterparts shall be treated as though signed as one document.
15. PERIOD TO CONSIDER TERMS OF RELEASE. [LASTNAME] acknowledges that
this Release was presented to [HIM/HER] on [DATE] and that [S/HE] is entitled to
have a twenty-one (21) day period in which to consider this Release. [LASTNAME]
acknowledges that [S/HE] has obtained the advice and counsel from the legal
representative of [HIS/HER] choice and executes this Release having had
sufficient time within which to consider its terms. [LASTNAME] represents that
if [S/HE] executes this Release before twenty-one (21) days have elapsed, [S/HE]
does so voluntarily, upon the advice and with the approval of [HIS/HER] legal
counsel, and that [S/HE] voluntarily waives any remaining consideration period.
16. REVOCATION OF RELEASE. [LASTNAME] understands that after executing
this Release, [S/HE] has the right to revoke it within seven (7) days after
[HIS/HER] execution of it. [LASTNAME] understands that this Release will not
become effective and enforceable unless the seven (7) day revocation period
passes and [LASTNAME] does not revoke the Release in writing. [LASTNAME]
understands that this Release may not be revoked after the seven (7) day
revocation period has passed. [LASTNAME] understands that any revocation of
this Release must be made in writing and delivered to EMPLOYER at 0000
Xxxxxxxxxxx Xxxxx Xxxx, Xxx Xxxxx, Xxxxxxxxxx 00000 within the seven (7) day
period. [LASTNAME] understands that [S/HE] will be entitled to receive the
benefits described in the Letter Agreement only if [S/HE] signs and returns the
Notice of Non-Revocation attached hereto as EXHIBIT A to EMPLOYER. [LASTNAME]
will wait at least seven (7) days after signing this Release before signing
EXHIBIT A.
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17. REPRESENTATION BY COUNSEL. The parties represent that they have been,
or have been strongly encouraged by Employer to have engaged and have been,
represented in negotiations for the preparation of this Release by counsel of
their own choosing, and that they have entered into this Release voluntarily,
without coercion, and based upon their own judgment and not in reliance upon any
representations or promises made by the other party or parties or the
undersigned attorneys, other than those contained within this Release and the
Letter Agreement. The parties further agree that if any of the facts or matters
upon which they now rely in making this Release hereafter prove to be otherwise,
this Release will nonetheless remain in full force and effect.
Dated:
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[EMPLOYEE]
EMPLOYER
ENCAD, INC.
Dated: BY:
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APPROVED AS TO FORM AND CONTENT:
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Dated: By:
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Attorneys for [EMPLOYEE]
Dated: By:
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Attorneys for [EMPLOYER]
[COUNTERPART SIGNATURE PAGE TO GENERAL RELEASE]
EXHIBIT A TO GENERAL RELEASE
I certify and confirm that I do NOT revoke the General Release executed by
me on [DATE].
I understand that I must sign and return this document to ENCAD, Inc. no
sooner than seven (7) days after my execution of the General Release in order to
receive any of the benefits due me under the Letter Agreement (as defined in the
General Release), and that I shall not begin receiving any such benefits until
ENCAD, Inc. is in receipt of this notice of non-revocation.
Dated:
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[EMPLOYEE NAME]
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