SEPARATION AGREEMENT AND RELEASE
SEPARATION AGREEMENT AND RELEASE
THIS SEPARATION AGREEMENT AND RELEASE (the "Agreement") is entered into by Xxxxx Xxxxxx (hereinafter referred to as "Employee") and xxxxxxxxx.xxx, its parent, affiliates, subsidiaries, officers, directors, and managers (hereinafter referred to as "xxxxxxxxx.xxx" or "Employer"). The effective date of this Agreement is October 3, 2005.
RECITALS
WHEREAS, Employee was employed by the Company as Vice President, General Manager, & Chief Marketing Officer and most recently as the Vice President, Retail Over the Counter; and
WHEREAS, the Employee wishes to terminate her employment with the Company, effective October 14, 2005; but has agreed to assist the Company until December 31, 2005 to facilitate a smooth transition of this termination (the "Transition Period"); and
WHEREAS, the parties wish to clarify and resolve any disputes that may exist between the Employee and xxxxxxxxx.xxx arising out of her employment relationship; and
WHEREAS, the Employee is hereby advised of her right to consult an attorney prior to signing this Agreement. Employee has either consulted an attorney of her choice or voluntarily elected not to consult legal counsel, and understands that she is waiving all potential claims against the Company arising prior to the effective date of this Agreement and relating to her employment in any way; and
WHEREAS, Employee acknowledges that she enters into this Agreement knowingly and voluntarily without coercion or duress from any source. Employee has had a reasonable time in which to consider whether she wished to sign this Agreement.
AGREEMENTS
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual promises contained below, it is agreed as follows:
1. EMPLOYMENT AND OFFICES: ENDING DATE AND RESPONSIBILITIES
The Company and Employee acknowledge and agree that Employee's employment with the Company and its affiliates, and her status as an officer, will terminate effective October 14, 2005 (the "Termination Date"); provided however that Employee will use best efforts to be available to consult with or perform small projects for the Company during the Transition Period. Employee understands and agrees that this termination is effective with respect to all offices and positions she holds with the Company and any of its affiliates.
2. BENEFITS FROM EMPLOYER
As consideration for the release of claims set forth below and other obligations under this Agreement:
xxxxxxxxx.xxx will pay Employee separation payments up to an amount equivalent to her current base salary through December 31, 2005 (the "Separation Payments"). In addition, if any vice president receives a bonus for his or her performance during the 2005 Fiscal Year, Employee will be awarded a bonus at the discretion of the CEO. All payments will be subject to customary tax withholdings and paid on regularly scheduled payroll dates after the effective date of this Agreement. The Company will accelerate vesting on options that would have otherwise vested during the Transition Period. The Company shall allow Employee to exercise vested option grants until March 31, 2006.
xxxxxxxxx.xxx has paid its portion of the medical and dental benefits insurance premium that Employee has been receiving as an employee of xxxxxxxxx.xxx through October 31, 2005. In addition, if Employee elects to continue coverage under COBRA, and in exchange for the promises contained in paragraph six below, xxxxxxxxx.xxx will, through the end of December 2005 pay that portion of Employee's COBRA premium that corresponds to the same level of medical and dental benefits insurance coverage paid for by xxxxxxxxx.xxx as of the date of Employee's termination (the "COBRA" Benefits"). Employee understands that Employee has the obligation to formally elect COBRA coverage if such coverage is desired and that xxxxxxxxx.xxx may, at its discretion, reimburse Employee for COBRA payments or make COBRA payments directly on behalf of the Employee.
The Employee's right to Separation Payments and COBRA Benefits will immediately cease if Employee earns any amount from employment, consulting or other performance of personal services through December 31, 2005. Employee shall disclose to the Company if she receives (or has the right to receive) any such earnings.
3. VALID CONSIDERATION
Employee and xxxxxxxxx.xxx agree that the offer of Separation pay and benefits by xxxxxxxxx.xxx to Employee described in the preceding paragraph is not required by xxxxxxxxx.xxx's policies or procedures or by any pre-existing contractual obligation of xxxxxxxxx.xxx or by any statute, regulation or ordinance, and is offered by xxxxxxxxx.xxx solely as consideration for this Agreement. In the event Employee fails to abide by the terms of this Agreement, xxxxxxxxx.xxx may elect, at its option and without waiver of other rights or remedies it may have, not to pay or provide any unpaid Separation payments or benefits, and to seek to recover previously paid Separation pay.
4. STOCK OPTIONS
Except for the acceleration of vesting described in Section 2, Employee acknowledges and agrees that no shares will vest after her Termination Date.
5. REAFFIRMATION OF CONFIDENTIALITY AND INVENTIONS AGREEMENT
Employee expressly reaffirms and incorporates herein as part of this Agreement the Confidentiality and Inventions Agreement, which Employee signed as part of her employment with xxxxxxxxx.xxx, a copy of which is attached hereto as Exhibit A, which shall remain in full effect.
6. RELEASE OF CLAIMS
Employee expressly waives any claims against xxxxxxxxx.xxx (including, for purposes of this paragraph 6, all parents, affiliates, subsidiaries, officers, directors, stockholders, managers, employees, former employees, agents, investors, and representatives, predecessors and successors) and further releases xxxxxxxxx.xxx (including its parents, affiliates, subsidiaries, officers, directors, stockholders, managers, employees, former employees, agents, investors, and representatives, predecessors and successors) from any claims, whether known or unknown, which existed or may have existed at any time up to the date of this Agreement, including claims related in any way to Employee's employment with xxxxxxxxx.xxx or the ending of that relationship. This release includes, but is not limited to, any claims for wages, bonuses, employment benefits, stock options, or damages of any kind whatsoever, claims arising out of any common law torts, arising out of any contracts, express or implied, any covenant of good faith and fair dealing, express or implied, any theory of wrongful discharge, any theory of negligence, any theory of retaliation, any theory of discrimination or harassment in any form, any legal restriction on xxxxxxxxx.xxx's right to terminate employees, or any federal, state, or other governmental statute, executive order, or ordinance, including, without limitation, Title VII of the Civil Rights Act of 1964 as amended, the Civil Rights Act of 1991, the Civil Rights Act of 1866, 42 U.S.C. Section 1981, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Older Workers Benefit Protection Act, the Family and Medical Leave Act, the Employee Retirement Income Security Act, the Washington Law Against Discrimination, or any other legal limitation on or regulation of the employment relationship. Employee agrees to indemnify and hold xxxxxxxxx.xxx harmless from and against any and all loss, costs, damages, or expenses, including, without limitation, reasonable attorneys' fees incurred by xxxxxxxxx.xxx arising out of any breach of this Agreement by Employee or resulting from any representation made herein by Employee that was false when made. Notwithstanding any other provision of this Agreement to the contrary, this waiver and release shall not apply to any claims by either party arising under that certain Indemnification Agreement between Employee and xxxxxxxxx.xxx, and which is reaffirmed and incorporated herein as part of this Agreement.
Employee represents that Employee has not filed any complaints, charges or lawsuits against xxxxxxxxx.xxx with any governmental agency or any court, and agrees that Employee will not initiate, assist or encourage any such actions, except as required by law. Employee further agrees that if a commission, agency, or court assumes jurisdiction of such claim, complaint or charge against xxxxxxxxx.xxx on behalf of Employee, Employee will request the commission, agency or court to withdraw from the matter. This clause does not prohibit employee from enforcing the terms of this Agreement.
Employee represents and warrants that she is the sole owner of the actual or alleged claims, rights, causes of action, and other matters which are released herein, that the same have not been assigned, transferred, or disposed of in fact, by operation of law, or in any manner and that she has the full right and power to grant, execute and deliver the releases, undertakings, and agreements contained herein.
7. NO ADMISSION OF WRONGDOING
This Agreement shall not be construed as an admission by either party of any wrongful act, unlawful discrimination, or breach of contract. Employer specifically disclaims any liability to or discrimination against Employee or any other person.
8. NONDISPARAGEMENT
Employee agrees to refrain from making any derogatory or disparaging comments to the press or any individual or entity regarding xxxxxxxxx.xxx's business or related activities or the relationship between the parties.
9. RETURN OF PROPERTY
Employee confirms that Employee has returned to Employer all files, memoranda, records, credit cards, pagers, computers, computer files, passwords and passkeys, Card Keys, or related physical or electronic access devices, and any and all other property received from Employer or any of its current or former employees or generated by Employee in the course of employment.
10. BREACH OR DEFAULT
Any party's failure to enforce this Agreement in the event of one or more events that violate this Agreement shall not constitute a waiver of any right to enforce this Agreement against subsequent violations.
11. SEVERABILITY
The provisions of this Agreement are severable, and if any part of it is found to be unlawful or unenforceable, the other provisions of this Agreement shall remain fully valid and enforceable to the maximum extent consistent with applicable law. If any one or more of the provisions of this Agreement is for any reason held to be excessively broad as to duration, geographical scope, activity, subject or for any other reason, it will be construed by limiting it and reducing it, so as to be enforceable to the extent compatible with the applicable law as it then appears in order to carry out the intent of the provision to the greatest extent possible.
12. ENTIRE AGREEMENT
This Agreement sets forth the entire understanding between Employee and xxxxxxxxx.xxx and supersedes any prior agreements or understandings, express or implied, pertaining to the terms of Employee's employment with xxxxxxxxx.xxx and the employment relationship. Employee acknowledges that in executing this Agreement, Employee does not rely upon any representation or statement by any representative of xxxxxxxxx.xxx concerning the subject matter of this Agreement, except as expressly set forth in the text of the Agreement. No modification or waiver of this Agreement will be effective unless evidenced in a writing signed by both parties.
13. GOVERNING LAW
This Agreement will be governed by and construed exclusively in accordance with the laws of the State of Washington without reference to its choice of law principles. Any disputes arising under this Agreement shall be brought in a court of competent jurisdiction in the State of Washington.
14. KNOWING AND VOLUNTARY AGREEMENT
Employee represents and agrees that Employee has read this Agreement, understands its terms and the fact that this Agreement releases any claims that Employee might have against Employer. Further, Employee understands that Employee has the right to consult counsel of choice and has either done so or knowingly waived the right to do so, and enters into this Agreement without duress or coercion from any source.
15. OPPORTUNITY TO CONSIDER AND REVOKE AGREEMENT
Employee agrees that she has been encouraged to seek legal counsel to review this Agreement, has been provided the opportunity to consider whether to enter this Agreement, and has voluntarily chosen to enter the Agreement on this date. Employee acknowledges that she is voluntarily executing this Agreement, that she has carefully read and fully understands all aspects of this Agreement, that she has not relied upon any representations or statements not set forth herein or made by Employer's agents or representatives.
IN WITNESS WHEREOF, the parties have executed this Agreement.
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