June 15, 2007 DELIVERED VIA UPS Scott Loly 319 Arkansas Street San Francisco, CA 94107 Re: Separation Agreement and General Release Dear Scott:
Exhibit
10.70
June 15, 2007
DELIVERED VIA UPS
Xxxxx Xxxx
000 Xxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
000 Xxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Dear Xxxxx:
This letter, upon your signature, will constitute the agreement (hereafter “Agreement”)
between you and RedEnvelope, Inc. (“Company”) on the terms of your separation from employment with
the Company.
1. Your employment with the Company will end effective at the close of business on Friday,
June 15, 2007 (“Separation Date”). Accordingly, as of that date, you will no longer represent to
anyone that you are still an employee of the Company and will not say or do anything purporting to
bind the Company.
2. On the Separation Date you will receive your final paycheck, including all salary and other
earned compensation due through June 15, 2007, including without limitation, all of your accrued
but unused Paid Time Off as of the Separation Date.
3. You represent and agree that by no later than the Separation Date you will have returned to
the Company and not retained any Company, customer or vendor property or information that you
obtained in the course of your employment with the Company, including without limitation, (a) any
personal computers or computer equipment, fax modem, printer, keys to any Company building, office
or property, building pass, cellular telephone, pager, phone card, credit card, Blackberry,
electronic organizer and/or PDA device (collectively “Company Equipment”); (b) any Company
documents, files, records, data, employee records, confidential, proprietary or trade secret
information (“Company Information”); and (c) any documents, files, records, data or other
information of any kind, whether stored electronically or otherwise, pertaining to any of the
Company’s past, present or potential customers, vendors or suppliers that you obtained as a result
of your employment with the Company (“Customer Information”). You further specifically acknowledge
and agree that, in addition to any hard copy documents containing Company Information or Customer
Information, you have destroyed, deleted or returned to the Company any Company Information or
Customer Information that was previously maintained or stored by you on any laptop or other
computer or electronic storage device or media retained by you or used by you in connection with
your employment with the Company, including without limitation any computer or computer discs used
or maintained by you at any location outside of the Company’s premises.
4. In consideration for your promises and covenants in this Agreement, within fifteen (15)
days after the Effective Date (as defined below), the Company will pay you a lump sum amount of
$120,750.00, equal to six months base salary, less applicable tax withholding and all other
required or authorized payroll deductions (“Severance Amount”). Any tax obligations, if any, which
may arise out of this payment are your sole responsibility and you agree to indemnify and defend
the Company and its officers, directors, employees, agents, affiliates and successors from and
against any and all taxes, interest, penalties, claims or other liabilities of any kind arising
from or related to this payment.
Xxxxx Xxxx
June 13, 2007
Page 2
June 13, 2007
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5. You acknowledge and agree that as of the Separation Date, you will have received all earned
wages due from the Company as a result of your employment with the Company. In light of the
forgoing, you further acknowledge and agree that California Labor Code Section 206.5 is not
applicable to the release contained in this Agreement. That section provides in pertinent part
that: “No employer shall require the execution of any release of any claim or right on account of
wages due, or to become due, or made as an advance on wages to be earned, unless payment of such
wages has been made.”
6. As of the Separation Date you will no longer be eligible to participate in any of the
Company’s benefits or compensation plans, except as provided by law, under the terms of the
applicable plans, or as provided in this paragraph. Your existing coverage under the Company’s
group health insurance plan (and, if applicable, the existing group health coverage of your
eligible dependents) will terminate on June 30, 2007 By letter dated June 12, 2007, you were
provided with information regarding your rights to elect continuation of this health insurance
coverage, at your own expense, under the Consolidated Omnibus Budget Reconciliation Act of 1985
(“COBRA”) or any similar state law, provided you make a timely election to do so. Nothing in this
Agreement will impair any rights you may have to elect continued health insurance coverage under
COBRA or any similar state law.
7. All vesting of any existing grants to you of Company stock options will cease as of the
Separation Date. Any rights you may have to exercise any Company stock options that have vested as
of the Separation Date, and the time periods and procedures for such exercise, are governed by the
terms of: (1) any existing Notice of Stock Option Grants and Stock Option Agreements, signed by
both you and the Company (collectively “Stock Agreements”); and (2) the Company’s 1999 Stock Plan
(“Stock Plan”). Nothing in this Separation Agreement will affect any existing, vested rights you
may have under the Stock Agreements or Stock Plan. All vested shares not exercised by the end of
the period specified in your Stock Agreements will be forfeited. All unvested shares will expire
as of your Separation Date.
8. In exchange for the Separation Amount payments and other benefits described herein, and
other valuable consideration, the receipt of which you hereby acknowledge, on behalf of yourself
and your representatives, agents, heirs and assigns, you waive, release, discharge and promise
never to assert any and all claims, liabilities or obligations of every kind and nature, whether
known or unknown, suspected or unsuspected, claimed or unclaimed, that you ever had, now have or
might have as of the Effective Date (as defined herein) against the Company and/or any of its past
or present officers, directors, employees, shareholders, parents, subsidiaries, affiliates,
representatives, attorneys, fiduciaries, predecessors, successors, agents or assigns (collectively
“Released Parties”). The released claims include, without limitation, any claims arising from or
related in any way to your hiring, employment, compensation or separation from employment with the
Company, any Company benefits or benefit plans, and/or the execution of this Agreement. The
released claims also specifically include, without limitation, any claims arising under any
federal, state and local statutory or common law, such as Title VII of the Civil Rights Act, the
federal Age Discrimination in Employment Act, the Family and Medical Leave Act, the California Fair
Employment and Housing Act, the California Family Rights Act, the Americans With Disabilities Act,
the Employee Retirement Income Security Act, the Fair Labor Standards Act, the California Labor
Code (including section 132a claims), the California Government Code (all as amended), the law of
contract and tort, and any claim for recovery of costs and/or attorney’s fees. The released claims
will not
include any claims for state unemployment insurance, disability or workers’ compensation
benefits, any claim for breach of this Agreement or any claims arising after the Effective Date of
this Agreement.
9. You also waive, release, discharge and promise never to assert any and all claims against
any of the Released Parties, even if you do not now know or believe that you have any such claims.
Xxxxx Xxxx
June 13, 2007
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June 13, 2007
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You therefore expressly waive the protection of California Civil Code section 1542, which provides
that:
A general release does not extend the claims which the creditor does
not know or suspect to exist in his favor at the time of executing
the release, which if known to him must have materially affected his
settlement with the debtor.
In short, you agree that you will not initiate any lawsuits, administrative proceedings or
legal actions of any kind against the Company or any of the other Released Parties, except to
enforce any provision of this Agreement, and will not accept the benefits of any lawsuits or claims
of any kind brought on your behalf against the Company or any of the other Released Parties, except
to enforce any provision of this Agreement.
10. Unless required by court order, you will keep the terms of this Agreement strictly
confidential and will not disclose to anyone, without the prior written permission of the Chief
Executive Officer of the Company, any information regarding the terms of this Agreement, the
benefits provided to you under it, or the fact that a payment was made to you; provided, however,
that you may disclose this information to your spouse or domestic partner, and to your attorneys,
accountants or other professional advisors as necessary for them to render professional services to
you. Before making any disclosure to any person(s) permitted under this paragraph you will advise
such person(s) of this confidentiality provision and require them to comply with it to the same
extent as you must.
11. You will not at any time after the Separation Date use, convert or disclose to any third
party or attempt to use, convert or disclose to any third party any confidential, proprietary,
trade secret or other business information of the Company without the prior written authorization
the Company’s Executive Chairman. Moreover, with the exception of any provisions applicable only
during employment, all of the provisions of your Confidential Information and Assignment Agreement
with the Company, dated August 13, 2006 (“Non-Disclosure Agreement”), shall remain in full force
and effect. You have been provided with a duplicate copy of the Non-Disclosure Agreement, which is
incorporated herein in full by this reference. You further acknowledge agree that all the
provisions in the Non-Disclosure Agreement are reasonable and necessary to protect the Company’s
valuable confidential, proprietary, trade secret and other business information.
12. You will not disparage the Company or its business or any of the Company’s officers,
directors, employees, agents, representatives, products, services, methods or procedures and will
not say or do anything that would have a materially adverse impact on the Company or its business.
13. In the event that you breach any of your obligations to the Company under this Agreement,
the Company will be entitled to (a) immediate return of any and all severance benefits provided to
you under this Agreement, including without limitation, the Severance Amount; and (b) obtain
injunctive and all other available relief provided at law or equity. All other duties and
obligations under the Agreement, however, including your waivers and releases, shall remain in full
force and effect.
14. Except as specified below, to the fullest extent allowed by law, any and all disputes,
claims or controversies of any kind arising out of or related in any way to the interpretation or
enforcement of this Agreement, or any other matter (including any statutory or common law claims
against the Company or any of the other Released Parties) shall be fully and finally resolved
through binding arbitration, before a neutral arbitrator, in San Francisco, California, in
accordance with the then existing national rules of the American Arbitration Association for the
resolution of employment disputes, as
Xxxxx Xxxx
June 13, 2007
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June 13, 2007
Page 4
modified in any respect necessary to comply with the
requirements of California law for enforcement of arbitration agreements regarding such disputes.
You and the Company therefore specifically waive any right to a jury trial on any such disputes,
claims or controversies. The prevailing party in any arbitration or other action arising out of or
related to this Agreement shall be entitled to an award of its costs and reasonable attorneys’
fees, in addition to any other relief to which it is entitled. This arbitration provision shall
not apply to any claims for injunctive or other similar equitable relief.
15. This Agreement will in all respects be interpreted, enforced and governed under the laws
of the State of California, without regard to the conflicts of laws rules thereof. In interpreting
the language of this Separation Agreement, both parties shall be treated as having drafted the
Agreement after meaningful negotiations. If any provision of this Agreement is held to be invalid,
void or unenforceable, the remaining provisions shall remain in full force and effect to the
fullest extent permitted by law. This Agreement will inure to the benefit of and be binding upon
the heirs, representatives, successors and assigns of each of the parties
16 This Agreement (including any documents incorporated by reference) constitutes the entire
agreement between the parties as to matters discussed herein and supersedes any prior or
contemporaneous negotiations, representations, promises, agreements, and/or understandings of the
parties with respect to such matters, whether written or oral. The parties acknowledge that they
have not relied on any promise, representation or warranty, expressed or implied, not contained in
this Agreement. This Agreement may only be modified, or any specific requirements waived, in a
writing signed by you and the Executive Chairman of the Company.
17. Pursuant to the Older Workers Benefit Protection Act (“OWBPA”), you acknowledge that you
were provided up to 21 days to consider and accept the terms of this Agreement (although you may
accept it at any time within those 21 days) and that you were advised to consult with an attorney
about the Agreement before signing it.
To accept the Agreement, please date and sign this letter and return it to the undersigned
Company officer. Once you do so, you will still have an additional seven days in which to revoke
your acceptance. To revoke, you must deliver to the undersigned Company officer a written
statement of revocation that is received before the close of business on the seventh day after you
sign the Agreement. If you do not revoke, the eighth day after you sign will be the “Effective
Date” of the Agreement.
Xxxxx, I am pleased that you were able to part ways with Company on these amicable terms. The
Company and I wish you success in your future endeavors.
| RedEnvelope | ||||||
| By: | /s/ Xxx Xxxxxxx
|
|||||
| Vice President, Human Resources | ||||||
Xxxxx Xxxx
June 13, 2007
Page 5
June 13, 2007
Page 5
AGREED:
By signing this letter, I acknowledge that I have read and had the opportunity to carefully review
and consider this Separation Agreement (with an attorney of my choice if so desired); that I fully
understand all of the terms in the Separation Agreement; that I am competent to enter into this
Agreement; and that I voluntarily agree to each of the terms set forth above.
Date:
6/19/07
|
/s/ Xxxxx Xxxx | |||||
