SEPARATION AGREEMENT AND GENERAL RELEASE
EXHIBIT 10.3
SEPARATION AGREEMENT AND GENERAL RELEASE
This Separation Agreement and General Release (the “Agreement”) is entered into by Xxxxxxx
Xxxxx (“Employee”) and Xxxxx Soda Co. (the “Company”), and will become effective on the Effective
Date specified in Section 13.
RECITALS
A. Employee has been the Company’s Chief Executive Officer and a member of the Company’s Board
of Directors. Employee has resigned his employment with the Company effective May 1, 2009 but will
continue to serve as a director on the Company’s Board of Directors until his term expires on the
date of the Company’s 2009 annual meeting of shareholders, which is currently scheduled to be held
on May 27, 2009 (the “2009 Annual Meeting”).
B. In consideration of the mutual promises and agreements in this Agreement, including the
release of any and all claims that Employee may claim to have against the Company, the Company
wishes to modify the terms of a certain stock option held by Employee.
Therefore, in consideration of the mutual promises set forth herein, Employee and the Company
enter into the following:
AGREEMENTS
1. Resignation as Employee; Expiration of Term as Director
Employee acknowledges and confirms his resignation from employment with the Company effective
May 1, 2009. Employee acknowledges and agrees that he has been paid all compensation owed to him
as of May 1, 2009, and that he has been reimbursed for all reimbursable expenses. Employee further
acknowledges and confirms that his term as a director shall expire (and he shall no longer serve as
a director) on the date of the 2009 Annual Meeting.
2. Post-Employment Obligations
Employee acknowledges and reaffirms Employee’s post-employment obligations pursuant to the
Noncompetition and Nonsolicitation Agreement and the Confidentiality Agreement, each signed by
Employee as a condition of his employment with the Company.
3. General Release of Claims
(a) Employee expressly waives any claims that Employee may have against the Company
(including, for purposes of this Section 3, all parents, affiliates, subsidiaries, officers,
directors, shareholders, managers, employees, agents, investors, and representatives) and releases
the Company from any claims, whether known or unknown, which existed or may have existed at
any time up to the date of Employee’s execution of this Agreement, including claims related in any
way to Employee’s employment with the Company or the ending of that relationship. This waiver and
release includes, but is not limited to, any claims for wages,
Separation Agreement & General Release
bonuses, employment benefits, stock
options or restricted stock, or damages of any kind whatsoever, 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
the Company’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. § 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, except as described in Paragraphs 4(d) and 4(e) below.
(b) The Company expressly waives any claims that the Company may have against Employee,
whether in Employee’s capacity as an employee, officer or director of the Company or otherwise, and
releases Employee from any claims, whether known or unknown, which existed or may have existed at
any time up to the date of Employee’s execution of this Agreement, including claims related in any
way to Employee’s employment, status or performance as an officer, or directorship or other
relationship with the Company or the ending of such relationships. This waiver and release
includes, but is not limited to, any claims for excesss wages, bonuses, employment benefits, stock
options or restricted stock paid or provided to Employee, and damages of any kind whatsoever,
whether 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 fiduciary duty or obligation,
express or implied, or any theory of negligence or harassment in any form, except as described in
Paragraph 4(d) and 4(e) below.
(c) It is the intention of the parties that this Agreement is a General Release which shall be
effective as a bar to each and every claim, demand, or cause of action released by this Agreement.
Each party releasing or waiving any claims under this Agreement (Employee or the Company, as
applicable, the “Releasing Party”) recognizes that it may have some claim, demand, or cause of
action against the other party of which the Releasing Party is totally unaware and unsuspecting,
which the Releasing Party is giving up by execution of this Agreement. It is the intention of the
Releasing Party in executing this Agreement that it will deprive it of each such claim, demand, or
cause of action and prevent it from asserting it against any other party as to whom a General
Release has been given.
(d) The waiver and release set forth in this Section 3 is intended to be construed as broadly
and comprehensively as applicable law permits. However, the waiver and release shall not be
construed as waiving or releasing any claim that as a matter of law cannot be waived or released.
(e) The Releasing Party represents that it has not filed any complaints, charges or lawsuits
against the other party with any governmental agency or any court, and agrees that it will not
initiate any complaints or lawsuits in the future based on claims that are released and waived
hereby. However, nothing in this Agreement shall preclude either party from filing a lawsuit for
the exclusive purpose of enforcing its rights under this Agreement. In addition, Employee does not
waive Employee’s right to file a charge with the Equal Employment
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Opportunity Commission or other
government agency. However, Employee waives any right to recover monetary remedies and agrees that
he will not accept any monetary remedy as a result of any charge or legal action filed against the
Company by any such agency.
(f) The Releasing Party represents and warrants that it 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 it has the full right and power to grant, execute and deliver the releases,
undertakings, and agreements contained herein.
4. Stock Option
Pursuant to its original terms, the stock option to purchase 160,000 shares of the Company’s
common stock granted to Employee under the Company’s 2002 Stock Option and Restricted Stock Plan on
December 9, 2008 (the “Option”) will continue to vest until Employee no longer serves as a director
on the Company’s Board of Directors, and immediately prior to such time, the Option will become
fully vested and exercisable and shall remain exercisable until May 27, 2012. To the extent the
Option is not exercised by 5:00 PM Pacific Time on May 27, 2012, the Option will expire. Except as
modified hereby, the Option will continue to be subject to its original terms.
5. No Admission of Wrongdoing
This Agreement shall not be construed as an admission by either party of any wrongful or
unlawful act or breach of contract.
6. Nondisparagement
Each of the Compnay and the Employee agrees to refrain from making any derogatory or
disparaging comments to the press or any individual or entity regarding the other party (and, as
and if applicable, its directors, officers and employees), its business or related activities, or
the relationship between the parties. This Section 6 does not apply to truthful testimony in legal
or quasi-legal proceedings or as otherwise required by law.
7. Return of Property
Employee confirms that Employee has returned to the Company all files, memoranda, records,
credit cards, pagers, computers, computer files, passwords and pass keys, card keys, or related
physical or electronic access devices, and any and all other property received from the Company or
any of its current or former employees or generated by Employee in the course of employment.
8. 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.
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9. Entire Agreement
This Agreement sets forth the entire understanding and agreement between Employee and the
Company with respect to the subject matter hereof, and (except as provided in this Agreement)
supersedes any prior agreements or understandings, express or implied, pertaining to the terms of
Employee’s employment with the Company, the employment relationship and/or the termination of the
employment relationship and benefits to be provided in connection therewith. Each party
acknowledges that in executing this Agreement, such party does not rely upon any representation or
statement by the other party (or, as and if applicable, any representative of the other party)
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.
10. Binding Agreement; Successors and Assigns
This Agreement binds the parties’ heirs, administrators, representatives, executors,
successors, and assigns, and will inure to the benefit of the respective heirs, administrators,
representatives, executors, successors, and assigns of any person or entity as to whom the release
set forth in Section 3 applies.
11. Fees and Costs
The prevailing party in any legal proceeding relating to the enforcement of this Agreement
shall be entitled to recover its costs, expenses and reasonable attorneys’ fees to the extent
permissible under law.
12. Internal Revenue Code
The Company makes no representations or warranties to Employee with respect to any tax,
economic or legal consequences of this Agreement or any payments to Employee hereunder.
13. Knowing and Voluntary Agreement; Consideration and Revocation Periods
Each party agrees that it has carefully read and fully understands all aspects of this
Agreement, including the fact that this Agreement releases any claims that such party might have
against the other party, including, without limitation, claims by Employee under the federal Age
Discrimination in Employment Act. Each party agrees that it has not relied upon any
representations or statements not set forth herein or made by the other party (or, as and if
applicable, employees, agents or representatives of the other party). Each party agrees that it
has been advised to consult with an attorney prior to executing the Agreement, and that such party
has either done so or knowingly waived the right to do so, and now enters into this Agreement
without duress or coercion from any source. Employee agrees that he has been provided the
opportunity to consider for twenty-one (21) days whether to enter into this Agreement, and has
voluntarily chosen to enter into it on this date. Employee may revoke this Agreement for a period
of seven (7) days following his execution of this Agreement by providing written notice of
revocation to Xxxx Xxxxx, Xxxxx Soda, Inc., 000 Xxxxx Xxxxxx X., Xxxxxxx, Xxxxxxxxxx 00000.
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The
“Effective Date” of this Agreement shall be the first day following the expiration of the seven (7)
day period without revocation by Employee.
[Remainder of page is left blank. Signature page follows.]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates indicated below.
| XXXXX SODA COMPANY | XXXXXXX XXXXX | |||||||
By:
|
/s/ Xxxxxxx Xxxxxxx
|
/s/ Xxxxxxx X. Xxxxx
|
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| Xxxxxxx Xxxxxxx | ||||||||
Its:
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Chairman of the Compensation and Governance Committee | |||||||
Dated:
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May 6, 2009 | Dated: May 8, 2009 | ||||||
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