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EXHIBIT 10.51
SEPARATION AND RELEASE AGREEMENT
I, Xxxxxx X. Xxxxxx, and Gargoyles, Inc. (the "Company") agree to sever
my employment relationship with the Company under the terms below in this
Separation and Release Agreement (this "Agreement"). I understand that by
signing this Agreement, I will receive certain benefits from the Company in
addition to those I am otherwise entitled under the terms of my Employment
Agreement, as such term is defined below.
RECITALS
A. On March 22, 1995, the Company and I entered into an Employment
Agreement, pursuant to which I continued as the Vice President/Chief Financial
Officer of the Company (the "Employment Agreement").
B. Subject to the terms and conditions of this Agreement, the Company
and I now agree to sever my employment relationship with the Company and to
resolve the terms of such severance and all differences between us.
AGREEMENT
1. Severance of Employment. By signing this Agreement, I am severing my
employment with the Company effective January 31, 1998 (the "Termination Date").
I am also resigning all of my positions as an officer of the Company and as an
officer of any subsidiary of the Company. By signing this Agreement, the Company
is accepting my resignations.
2. Severance Benefits.
(a) Severance Pay. I understand that I will receive an amount
equal to $6,666.66 per month for six (6) months (the "Severance Payment"), from
which normal and authorized withholdings and deductions will be made. I
understand that the Severance Payment will be paid to me in equal installments
of $3,333.33 in accordance with the Company's twice-monthly payroll schedule. I
further understand that if I accept full-time employment during this six-month
period, then my Severance Payments shall cease.
(b) Expense Reimbursement; Product Account. I will be reimbursed
for any reasonable expenses incurred by me prior to the Termination Date on
behalf of the Company, subject to the receipt by the Company of all supporting
documentation. I understand that after the Termination Date I am no longer
authorized to incur expenses or to make commitments on behalf of the Company. I
understand that I will be permitted to continue to purchase product from the
Company at the Company's employee discount price until December 31, 1998. All
purchases must be for cash or by bank card. Any amounts remaining unpaid on my
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account with the Company as of the Termination Date for the purchase of product
shall be deducted from my next paycheck.
(c) FTO. I understand that I will accrue no further Flexible Time
Off from and after the Termination Date. I will be paid for any earned but
unused Flexible Time Off benefits, less all required and authorized deductions,
with my next paycheck.
(d) Cobra; Life and Disability Insurance Policies. For a period
of five (5) months after the Termination Date, the Company will pay to me
amounts for COBRA benefits for me and my family and the premium for my
disability and life insurance coverage, provided, however, that if I become
employed and my new employer provides medical benefits to me, the Company's
obligation to continue to pay COBRA benefits to me and my family under this
Section 2(d) shall cease. After that period, I may elect to pay for COBRA
medical and dental plan continuation coverage for the remaining period allowed
by law, until I am entitled to Medicare, or until I am covered under other plans
with no pre-existing exclusion. The insurance provider, Washington Employers
Trust, will provide further information about my COBRA rights after the
Termination Date. The Company will also provide me with information on the
potential for continuation of the disability and life insurance coverage
currently provided to me through the Company if I pay the premiums for such
coverages.
(e) Eligibility for Unemployment. I understand that while the
Company has no authority to determine unemployment benefits, the Company will
not attempt to interfere or deny such benefits if and when they should become
available to me.
(f) Voice Mail. To assist in my search for new employment, the
Company will provide me with a voice mail box at the Company until June 30,
1998.
3. Stock Options. As of the Termination Date, I am vested in 27,488
options to purchase the Company's common stock, at an exercise price of $3.48
per share, and 3,750 options to purchase the Company's common stock at an
exercise price of $8.00 per share. I understand that the Plan Administrator will
rescind my option grant with respect to all of my options with an exercise price
of $8.00 per share. I further understand that the Plan Administrator will
accelerate the vesting of an additional 2,689 options to purchase the Company's
common stock at an exercise price of $3.48 per share. I further understand that
I will not continue to vest in any more options, that any of my rights to
unvested options shall immediately terminate, and that the vested options will
continue to be governed by the Gargoyles, Inc. 1995 Stock Incentive Compensation
Plan, as Amended and Restated on July 22, 1996. except that the Plan
Administrator will extend the period for me to exercise my vested options to
December 31, 1998.
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4. Complete Release of Claims. By signing this Agreement, I agree not to
start any lawsuits, charges, or other legal action against the Company relating
to my employment with the Company or the benefits that I received or should have
received from the Company. In addition, I, for myself and for my heirs,
representatives, executors, and successors, waive any rights or claims I may
have against the Company, any employee benefit plans sponsored by the Company in
which I participate, and all of the Company's affiliated and related entities,
owners, shareholders, officers, directors, trustees, agents, employees,
employees' spouses, insurers, either past or present, and all of their
successors, agents or assigns (collectively "Releasees"). I hereby release the
Releasees from any and all claims, actions, causes of action, obligations,
costs, expenses, damages, losses, debts, and demands, including attorneys' fees
and costs actually incurred (collectively "Claims") of whatever kind, in law or
in equity, known or unknown, suspected or unsuspected, which arose prior to the
Termination Date.
This release includes, but is not limited to: (i) any Claims under any
local, state or federal laws regulating employment, including without
limitation, the Civil Rights Acts, the Age Discrimination and Employment Act,
the Americans with Disabilities Act, the Workers' Adjustment and Retraining
Notification Act, and the Washington State Law Against Discrimination; (ii)
Claims under the Employee Retirement Income Security Act; (iii) Claims under any
local, state or federal wage and hour laws; or (iv) Claims alleging any legal
restriction on the Company's right to terminate their employees, or personal
injury claims, including without limitation wrongful termination,
discrimination, harassment, breach of contract, defamation, tortuous
interference with business expectancy, black listing, or infliction of emotional
distress, whether arising under statute or common law.
Nothing set forth in this Section 6, however, shall prevent me from
participating in any distributions made to members of any class of shareholders
of the Company for any Claims brought by such class related to events occurring
after December 15, 1997, provided, however, I agree not to initiate, direct, or
be a named plaintiff in any such shareholder litigation against the Company.
5. Cooperation with Company.
(a) Generally. During the next twelve months, I will fully
cooperate with, and from time to time make myself available at the Company's
reasonable request to consult with, the Company on matters in which I was
involved on behalf of the Company. Nothing in this section 5, however, shall
prevent me from taking on other employment, nor shall my obligations under this
section 5 unreasonably interfere with such other employment.
(b) Xxxxxxx Litigation. I agree to cooperate fully with the
Company as the Company may reasonably request in connection with the Company's
defense
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of the lawsuit filed by Xxxxxxx X. and Xxxxx X. Xxxxxxx in the Superior Court
for King County under Cause No. 97-2-18776-1 KNT or any other litigation by
Xxxxxxx relating to her employment with the Company (the "Xxxxxxx Litigation").
If the Company enters into a settlement and release agreement with the Mauldens
in the Xxxxxxx Litigation, in addition to a release of the Company, the Company
shall use its best efforts to obtain a release of all former employees of the
Company. The Company agrees to defend and hold harmless Xxxxxx from and against
all legal fees and expenses incurred by Xxxxxx, if Xxxxxx is added as a
defendant in the Xxxxxxx Litigation.
6. Effect of Prior Agreements. I understand that as of the Termination
Date the Employment Agreement is terminated and is superseded by this Agreement,
and that I shall have no further rights or obligations under the Employment
Agreement except for the terms set forth in Sections 7 through 9 of the
Employment Agreement relating to "Intellectual Property; Nondisclosure of
Confidential Information; Covenant Not to Compete, Dispute Resolution, and
Enforcement", which shall remain in effect following the Termination Date in
accordance with their terms, except that the non-competition period set forth in
7.5(b) of the Employment Agreement shall terminate on January 31, 1999.
7. Nondisparagement; No Solicitation. The Company and I each hereby
pledge not to make statements in disparagement of the other which are intended
to damage the other's reputation. Prohibited actions would include, but not be
limited to, private or public comments, statements, or writings critical of the
other party or any of the Releases or complaints filed against the other party
or any of the Releasees with any regulatory agency. In addition, I agree not to
interfere with the working relationship between the Company and any of its
employees, and for a period of two (2) years after the Termination Date, I
specifically agree not to seek to hire or to hire any employee of the Company to
work for me or for my future employer(s) without the express written consent of
the Company.
8. Consultation with Legal Counsel. I have carefully read all of the
provisions of this Agreement. I further acknowledge that the Company has
encouraged me to review and discuss all aspects of this Agreement with legal
counsel and that I have taken advantage of that opportunity to the full extent
that I deem appropriate.
9. Consideration Period; Revocation Period. I acknowledge that I have
been given 21 days to consider this Agreement, and that I was given the option
to sign the Agreement in fewer than twenty-one (21) days if I desired. I
understand that this Agreement will not be effective for seven (7) days after it
is signed by the Company and me, and that I can revoke this Agreement at any
time during that seven-day period. I understand that no payments will be made
until after the expiration of this seven-day period.
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10. Voluntary Agreement. I understand and acknowledge the significance
and consequences of this Agreement, that it is voluntary, that it has not been
given as a result of any coercion, and expressly confirm that it is to be given
full force and effect according to all of its terms, including those relating to
unknown Claims.
11. Successors This Agreement shall be binding upon the parties hereto
and their heirs, representatives, executors, administrators, successors and
assigns, and shall inure to the benefit of each and all of the Releasees, and to
their heirs, representatives, executors, administrators, successors and assigns.
12. General Provisions
(a) Governing Law. This Agreement is made and entered into in the
state of Washington and shall in all respects be interpreted, enforced and
governed under the laws of the state of Washington. The language of all parts of
this Agreement shall in all cases by construed as a whole, according to its fair
meaning, and not strictly for or against either party.
(b) Invalidity. If any of the provisions of this Agreement are
held to be illegal or invalid, the remaining provisions shall not be affected
thereby, and the illegal or invalid provision shall be deemed not to be a part
of this Agreement.
(c) Entire Agreement. Except for the provisions of the Employment
Agreement which survive the Termination Date, this Agreement represents and
contains the entire understanding between the Company and me in connection with
my separation from the Company. I acknowledge that I have not signed this
Agreement in reliance on any promise, representation, or statement not contained
herein.
13. Non-Admission of Liability. This Agreement shall not be construed in
any way as an admission by the Company of any liability or wrongdoing
whatsoever. Likewise, this Agreement shall not be construed in any way as an
admission by me of any misconduct or impropriety.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of January 30, 1998.
GARGOYLES, INC.,
a Washington corporation
By /s/ XXXXXX X. XXXXX
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Xxxxxx X. Xxxxx, Chairman
/s/ XXXXXX X. XXXXXX
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Xxxxxx X. Xxxxxx
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