SEPARATION AGREEMENT AND RELEASE OF CLAIMS
It is hereby agreed by and between Sunrise International Leasing
Corporation ("Sunrise") and Xxxxx X. Xxxxxxx ("Xxxxxxx") as follows:
WHEREAS, Schwach is an employee of Sunrise, and has stated his
intention to voluntarily resign from his position;
WHEREAS, Schwach wishes to receive certain payments and other valuable
consideration to which he would not otherwise be entitled; and
WHEREAS, the parties wish to set forth the terms of their agreement in
writing.
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises and covenants contained herein, and for other good and valuable
consideration the receipt and sufficiency of which is specifically acknowledged
by the parties, Sunrise and Schwach agree as follows:
1. Last Date of Employment. Sunrise and Schwach agree that his last
date of employment will be November 30, 1997 and he will continue to receive his
normal salary and benefits through such date. During the remainder of his
employment, Schwach will assist Sunrise in implementing its strategic plan.
Schwach will be deemed to have voluntarily resigned his employment effective
November 30, 1997, and shall receive no further salary or other payments of any
sort except as specifically set forth in this Separation Agreement and Release.
Sunrise will, upon the signing of this Separation Agreement and Release, and the
expiration of the 15 and 21-day periods as set forth in Paragraphs 10 and 12
without rescission, pay Schwach a severance in an amount equivalent to his
current base salary, of $10,500 a month, less any required deductions, according
to the normal payroll schedule, for the period December 1, 1997 through August
31, 1998. Sunrise will reimburse Schwach for business expenses incurred through
November 30, 1997. Sunrise will continue to indemnify Schwach in his capacity as
an officer and employee in accordance with applicable law.
2. Extension of Stock Option Election. Schwach's outstanding stock
option agreements dated February 15, 1995 (of which 7,500 are exercisable at
$5.00 per share), April 23, 1996 (all 25,000 of which are exercisable at $2.625
per share) and April 23, 1996 (of which 2,000 are exercisable at $2.625 per
share) are hereby amended to extend the 60-day period after termination of
employment in which such option can be exercised to one year. Therefore, such
options shall be exercisable until November 30, 1998, but only to the extent
they are exercisable at November 30, 1997. Schwach acknowledges that such
options might no longer qualify as incentive stock options, and agrees to take
whatever actions Sunrise may reasonably request to enable Sunrise to satisfy any
income tax or withholding obligations in connection with such exercise.
3. Computers. Sunrise agrees that, upon the signing of this Separation
Agreement and Release, and the expiration of the 15 and 21-day periods as set
forth in Paragraphs 10 and 12 of this Agreement, without rescission, Schwach may
keep the two computers which he has in his possession, and that Sunrise will
provide for upgrades to such computers if it is technically practical to do so.
4. Return of Property. Schwach shall, prior to November 30, 1997,
return to Sunrise all documents or other items, whether on computer disk or
otherwise, and all copies thereof, within his possession or control belonging to
Sunrise or in any manner relating to the business of, or the services provided
by Sunrise, or the duties and services performed by Schwach on behalf of
Sunrise. Schwach acknowledges, by his signature to this Separation Agreement and
Release, that he has returned or will return all such documents and materials,
or will erase any computer files of such documents or materials, and has not
retained any copies of such documents and materials.
5. Nondisclosure. Schwach acknowledges that he has not, and agrees that
he will not, at any time, directly or indirectly, disclose or discuss to any
other entity or person any Confidential Information of Sunrise, without the
prior written approval of the Chief Executive Officer and President of Sunrise.
For purposes of this Agreement, the term "Confidential Information" shall
include any information of Sunrise, whether in print, or on a computer disc, or
tape, including a formula, pattern, compilation, program, device, method,
technique, or process which (a) derives independent economic value, actual or
potential, from not being generally known in the leasing industry or to the
public or to other persons who can obtain economic value from its disclosure or
use; and (b) is the subject of efforts that are reasonable under the
circumstances to maintain its secrecy. Schwach acknowledges that such
Confidential Information includes current and potential customers, customer
lists, forms and agreements identified by Sunrise as of the date of this
agreement and used in the vendor program leasing business of Sunrise, and
specifically includes vendor program agreements and related documents.
Notwithstanding anything to contrary herein, Confidential Information shall not
include information which is available to the public.
6. Non-Competition. In consideration of the mutual covenants herein,
including but not limited to the payments to which he would not otherwise be
entitled, Schwach acknowledges and agrees that he will not, for the period
through August 31, 1998, on behalf of or for any person or entity:
a. directly or indirectly, as an employee, participate or engage
in, manage, operate, control, render advice or assistance to
providing vendor leasing programs of the same type provided by
Sunrise to its vendors.
b. directly or indirectly, contact or solicit any current or
potential customer of Sunrise as of the date of this
Agreement;
c. for any reason influence or solicit, or attempt to influence
or solicit, either directly or indirectly, any employee of
Sunrise or any related company to terminate his or her
employment with Sunrise or any related company, or to work for
any person or entity other than Sunrise or any related
company.
7. Release of Claims. In consideration of the severance pay and other
benefits set forth in Paragraphs 1, 2 and 3 of this Separation Agreement and
Release, to which Schwach would not otherwise be entitled, Schwach, for himself,
his heirs, representatives, agents, successors and assigns, hereby releases and
forever discharges Sunrise and any parent, subsidiary, and related entity, and
all present and past officers, directors, shareholders, employees, agents and
representatives of Sunrise, or of any parent, subsidiary, or related entity and
the successors and assigns of each, from any and all manner of past, present, or
future, claims, demands, actions, causes of action, administrative claims,
liability, damages, claims for punitive or liquidated damages, claims for
attorney's fees, costs and disbursements, individual or class action claims, or
demands of any kind whatsoever, including but not limited to any claims for
wages, vacation, severance, benefits, any claims arising by statute, in tort or
contract, any claims arising under Title VII of the Civil Rights Act, 42 U.S.C.
ss. 2000e et seq., the Age Discrimination in Employment Act, 29 U.S.C. ss. 621
et seq., the Americans with Disabilities Act, 42 U.S.C. ss. 12101, et seq., the
Family and Medical Leave Act, 29 U.S.C. ss. 2601, et seq., the Minnesota Human
Rights Act, Minn. Stat. Ch. 363, the Minneapolis Civil Rights Ordinance, any
other claims arising under federal, any state or local law, or any claims in any
manner relating to Schwach's employment with or separation from Sunrise, arising
in law or equity, whether known, suspected or unknown, and however originating
or existing, from the beginning of time to the date of the signing of this
Separation Agreement and Release.
Schwach agrees to and hereby does release and discharge Sunrise, and
any parent, subsidiary, and any related entity, and all present and past
officers, directors, shareholders, employees, agents and representatives of
Sunrise, any parent, subsidiary, or related entity, and the successors and
assigns of each, not only from any and all claims that Schwach could make on
Schwach's own behalf, but also those that may or could be brought by any other
person, entity or organization on Schwach's behalf, and Schwach specifically
waives any right to become, and agrees not be become, a member of any class in
any proceeding or case in which a claim or claims against Sunrise, or any
parent, subsidiary, or any related entity, or any present or past officers,
directors, shareholders, employees, agents or representatives of Sunrise, or of
any parent, subsidiary, or related entity, and the successors and assigns of
each, arise, in whole or in part, from any event which occurred from the
beginning of time to the date of this Separation Agreement and Release.
Schwach further agrees that he will not institute any civil action,
administrative proceeding or other legal proceeding of any nature against
Sunrise, or any parent, subsidiary, or any related company or any present or
past officers, directors, shareholders, employees, agents or representatives of
Sunrise, or of any parent, subsidiary, or any related company, or the successors
and assigns of each, including but not limited to any action or proceeding
raising claims for wages, vacation, severance, benefits, any claims arising by
statute, in tort or contract, any claims arising under Title VII of the Civil
Rights Act, 42 U.S.C. ss. 2000e et seq., the Age Discrimination in Employment
Act, 29 U.S.C. ss. 621 et seq., the Americans with Disabilities Act, 42 U.S.C.
ss. 12101, et seq., the Family and Medical Leave Act, 29 U.S.C. ss. 2601, et
seq., the Minnesota Human Rights Act, Minn. Stat. Ch. 363, the Minneapolis Civil
Rights Ordinance, any other claims arising under federal, any state or local
law, or any claims in any manner relating to Schwach's employment with or
separation from Sunrise, arising in law or equity, whether known, suspected or
unknown, and however originating or existing, from the beginning of time to the
date of the signing of this Separation Agreement and Release. If, for any
reason, an administrative or other legal proceeding results in any relief to
Schwach based on any claims or demands noted in this Separation Agreement and
Release, Schwach further agrees that the consideration provided to Schwach under
this Separation Agreement and Release shall be in full satisfaction of any such
claims or demands, and that Schwach will not be entitled to any further relief
of any kind.
Notwithstanding anything to the contrary herein, nothing in this
Agreement is intended to extinguish any claim which arises out of facts or
circumstances occurring after Schwach's execution of this Agreement, that
Schwach may have relating to his status as a shareholder of Sunrise or arising
out of Sunrise's breach of this Agreement. Schwach is not aware of any claims or
potential claims arising out of his status as a shareholder.
8. Release of Claims by Sunrise. In consideration of the mutual
covenants herein, Sunrise, and all present and past officers, directors,
shareholders, employees, agents and representatives of Sunrise, all in their
capacity as such, and their successors and assigns, hereby release and forever
discharge Schwach, his heirs, representatives, agents, and the successors and
assigns of each, from any and all manner of past, present, or future, claims,
demands, actions, causes of action, administrative claims, liability, damages,
claims for punitive or liquidated damages, claims for attorney's fees, costs and
disbursements, individual or class action claims, or demands of any kind
whatsoever, including any claims but not limited to arising by statute, in tort
or contract, any claims arising under federal, any state or local law, arising
in law or equity, whether known, suspected or unknown, and however originating
or existing, from the beginning of time to the date of the signing of this
Agreement and Release.
Sunrise agrees to and hereby does release and discharge Schwach, his
heirs, representatives, agents, and the successors and assigns, not only from
any and all claims that Sunrise could make on its own behalf, but also those
that may or could be brought by any other person, entity or organization on
Sunrise's behalf, and Sunrise specifically waives any right to become, and
agrees not to become, a member of any class in any proceeding or case in which a
claim or claims against Schwach, his heirs, representatives, agents, and the
successors and assigns, arise, in whole or in part, from any event which
occurred from the beginning of time to the date of this Agreement and Release.
Sunrise further agrees that it will not institute any civil action,
administrative proceeding or other legal proceeding of any nature against
Schwach, his heirs, representatives, agents, or their successors and assigns,
including but not limited to arising by statute, in tort or contract, any claims
arising under federal, any state or local law, arising in law or equity, whether
known, suspected or unknown, and however originating or existing, from the
beginning of time to the date of the signing of this Agreement and Release. If,
for any reason, an administrative or other legal proceeding results in any
relief to Sunrise based on any claims or demands noted in this Agreement and
Release, Sunrise further agrees that the consideration provided to Sunrise under
this Agreement and Release shall be in full satisfaction of any such claims or
demands, and that Sunrise will not be entitled to any further relief of any
kind.
9. Affirmation Regarding Pending Matters. Schwach affirms that he has
not filed or instituted any charge, complaint, or action against Sunrise, or any
parent, subsidiary, or any related company or any present or past officers,
directors, shareholders, employees, agents and representatives of Sunrise, or of
any parent, subsidiary, or any related company, or the successors and assigns of
each. If there is outstanding any such charge, complaint, or action, Schwach
agrees to seek its immediate withdrawal and dismissal with prejudice. If for any
reason the charge, complaint, or action is not dismissed, Schwach agrees not to
voluntarily testify, provide documents, or otherwise participate, or to permit
others to voluntarily participate on Schwach's behalf, in any further proceeding
arising therefrom or associated therewith and to execute such other papers or
documents as may be necessary to have the charge dismissed with prejudice.
Sunrise affirms that it has not filed or instituted any charge,
complaint, or action against Schwach, his heirs, representatives, agents, or
their successors and assigns. If there is outstanding any such charge,
complaint, or action, Sunrise agrees to seek its immediate withdrawal and
dismissal with prejudice. If for any reason the charge, complaint, or action is
not dismissed, Sunrise agrees not to voluntarily testify, provide documents, or
otherwise participate, or to permit others to voluntarily participate on
Sunrise's behalf, in any further proceeding arising therefrom or associated
therewith and to execute such other papers or documents as may be necessary to
have the charge dismissed with prejudice.
10. Notification of Rights under the Minnesota Human Rights Act (Minn.
Stat. ch. 363) and Federal Age Discrimination in Employment Act (29 U.S.C. ss.
621 et seq. ). Schwach is hereby notified of his right to rescind the release of
claims in regard to claims arising under the Minnesota Human Rights Act, Minn.
Stat. ch. 363, within (15) calendar days, and in regard to claims arising under
the Federal Age Discrimination in Employment Act, 29 U.S.C. ss. 621, et seq.,
within seven (7) calendar days, of his signing of this Separation Agreement and
Release, rescission periods to run concurrently. The rescission must be in
writing and delivered or mailed to: Xxxxx Xxxxxxxxx, Sunrise Resources, Inc.,
0000 Xxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxx Xxxxxx, XX 00000. If delivered by
mail, the rescission must be post-marked within the required period, properly
addressed to the individual noted above at the above address, and sent by
certified mail, return receipt requested. It is further understood that, if
Schwach rescinds the release of claims in accordance with this Paragraph 10,
that Schwach will not be entitled to the payments, benefits or property as set
forth in Paragraphs 1, 2, and 3, (apart from his salary through his last date of
employment, November 30, 1997 and business expense through the same date), and
Schwach will immediately reimburse Sunrise for, or return any such payments or
property. This Separation Agreement and Release will be effective upon the
expiration of the 15-day period noted in this Paragraph 10 without rescission.
11. Acknowledgment of Reading and Understanding/Consultation with
Counsel. By Schwach's signature to this Separation Agreement and Release,
Schwach acknowledges and agrees that he has carefully read and understood all
provisions of this Separation Agreement and Release, and that he has entered
into this Separation Agreement and Release knowingly and voluntarily. Schwach
further acknowledges that Sunrise has advised Schwach to consult with counsel
prior to signing this Separation Agreement and Release, and that Schwach has
done so or chosen not to do so of his own accord.
12. Period for Consideration. By his signature to this Separation
Agreement and Release, Schwach acknowledges that Sunrise has informed Schwach
that he has 21 days from the date of receipt of this Separation Agreement and
Release to consider whether its terms are acceptable to Schwach, and that he has
had the benefit of the 21-day period.
13. Nonadmission. It is expressly understood and agreed that this
Separation Agreement and Release does not constitute, nor shall either be
construed as an adjudication or finding on the merits of any potential claim by
Schwach, nor does this Separation Agreement and Release constitute, nor shall
either be in any manner construed, as an admission of any wrongful conduct or
liability on the part of Sunrise, any parent, subsidiary, or any related company
or any present or past officers, directors, shareholders, employees, agents or
representatives of Sunrise, or of any parent, subsidiary, or any related
company, or the successors and assigns of each, by all of whom any such
liability is expressly denied.
14. Confidentiality. Schwach understands and agrees that this
Separation Agreement and Release and the terms of this Separation Agreement and
Release shall remain confidential and that Schwach shall not disclose any such
information to any person or entity, other than Schwach's counsel, Schwach's
accountant, Schwach's tax advisor, and Schwach's immediate family members, and
prospective employers during the course of seeking employment, except as
required by law, subpoena or court order, without the express written consent of
Sunrise.
15. Public Announcement. Sunrise and Schwach agree that any public
announcement by Sunrise shall communicate simply that Schwach has voluntarily
resigned from his position at Sunrise.
16. Successors and Assigns. This Agreement shall inure to the benefit
of the successors and assigns of Sunrise., and the heirs of Schwach.
17. Entire Agreement. This Separation Agreement and Release, when
signed by Schwach, supersedes any prior agreement, oral or written, and contains
all of the terms and conditions agreed upon by Sunrise and Schwach with respect
to the subject matter hereof. No other agreements except for stock option
agreements referred to in Paragraph 2, whether oral or written, not specifically
referred to or included herein, shall be deemed to exist or modify this
Separation Agreement and Release or bind Sunrise and Schwach. No modification,
release, discharge or waiver of any provision of this Separation Agreement and
Release shall be of any force or effect unless made in writing and signed by the
parties hereto, and specifically identified as a modification, release or
discharge of this Separation Agreement and Release. If any term, clause or
provision of this Separation Agreement and Release shall for any reason be
adjudged invalid, unenforceable or void, the same shall not impair or invalidate
any of the other provisions of the Separation Agreement and Release, all of
which shall be performed in accordance with their respective terms. Schwach
acknowledges, by his signature to this Separation Agreement and Release, that he
has not relied on any representations or statements, whether oral or written,
other than the express statements of this Separation Agreement and Release, in
signing this Separation Agreement and Release.
Dated: Nov 13, 1997 /s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
SUNRISE INTERNATIONAL LEASING
CORPORATION
Dated: Nov 13, 1997 By /s/ Xxxxx Xxxxxxxxx
Its CEO
