SEPARATION AGREEMENT AND GENERAL RELEASE
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SEPARATION AGREEMENT AND GENERAL RELEASE
1. Agreement. This Separation Agreement and General Release ("Agreement") is entered into by and between Iomega Corporation, a Delaware corporation with its principal headquarters in Roy, Utah, on behalf of itself and each of its subsidiaries ("Iomega" or the "Company"), and Xxxxxx X. Xxxxx ("Employee") for the purpose of amicably concluding their employment relationship. By entering into this agreement neither party admits any deficiency, wrongdoing or liability, expressly or by implication.
2. Last Working Day. Employee's last regular working day at Iomega will be October 31, 2001 ("Last Working Day"). The effective date of Employee's termination of employment with Iomega will be October 31, 2001 (the "Termination Date").
3. Consideration.
(a) Iomega shall make a total special severance payment to Employee in the amount of $220,000.00, less necessary federal, state and other withholdings, to be paid in equal bi-weekly increments over approximately eight months beginning on November 1, 2001.
(b) Iomega shall pay to Employee $5,473.28, in a lump sum payment which is equivalent to the cost of COBRA for an eight-month period beginning November 1, 2001 based on Employee's current health insurance benefits through Iomega.
(c) Iomega will provide executive outplacement services to Employee as directed by Iomega for a twelve month period beginning November 1, 2001.
(d) Employee shall retain the two laptops and the printer that he currently utilizes at his home or when he travels.
(e) The amounts and provisions set forth in Section 3 (a) through (d) above will be paid or implemented following receipt of a fully executed and unchanged copy of this Agreement and the expiration of the Age Release Period described in this Agreement. These payments shall be in full satisfaction of any and all claims Employee may have arising directly or indirectly from his/her employment and separation from Iomega. Employee acknowledges and understands that, except as described in Section 3 of this agreement, Employee will not be entitled to receive from Iomega any other severance or termination allowance or any other compensation or payment. Employee acknowledges that the foregoing is not required to be provided by Iomega pursuant to any policy or practice and that Employee is not otherwise entitled to payment.
4. Participation in Benefit and Other Programs. Employee will be entitled to participate through the Termination Date in all employee benefit programs and policies generally available to Iomega employees, in which Employee is eligible to participate, including stock option vesting, health insurance, and Iomega's 401(k) plan (if applicable), as allowed by law.
Employee acknowledges and agrees that, under the terms of any outstanding stock option agreement(s) between Employee and Iomega, the vesting of any options to purchase company stock granted to employee will cease as of the Termination Date, and Employee has a period of three months following the Termination Date within which to exercise any vested options. Any vested options not exercised within the three month period shall expire and thereafter not be exercisable. All unvested options will be canceled on Employee's Termination Date. No unearned bonuses or other incentive compensation will be due Employee.
5. Re-Employment by Iomega. Employee agrees that if employee becomes re-employed with Iomega or is assigned to Iomega as a temporary or contract Employee while Employee is receiving payments pursuant to this Agreement, Employee shall waive any remaining payments which shall be discontinued without affecting any other terms of the Agreement.
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6. Release of All Claims. In consideration of the payments and other valuable consideration under the terms of this Agreement, Employee hereby knowingly, voluntarily, and irrevocably agrees to fully, unconditionally, completely and forever release Iomega, and all of Iomega's predecessors and successors, and their officers, directors, shareholders, agents, employees and representatives, and all parent, subsidiary and affiliated companies, together with their employees, officers, directors and shareholders (the "Released Parties"), from any and all rights and claims, including, without limitation, demands, causes of action, charges, complaints, promises, grievances, losses, damages, liabilities, debts, or injuries, whether known or unknown, contingent or matured, at law or in equity or in arbitration, which Employee holds or has ever held against Iomega resulting from any act, obligation, or omission occurring on or prior to the date Employee signs this Agreement ("Released Claims"), including, but not limited to, any Released Claims connected with or arising out of Employee's employment, or separation therefrom, or terms of such employment or employment separation by Iomega; employee benefit plans whether or not arising under the Employee Retirement Income Security Act of 1974, as amended; any discrimination claims whether or not arising under any local, state or federal law or regulation, public policy or common law (including, without limitation, the Age Discrimination in Employment Act, Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Older Workers Benefit Protection Act; the Worker Adjustment and Retraining Notification Act); or any state, federal or local statute, regulation, public policy, contract or tort principle in any way governing or regulating Employee's employment, or termination, or terms of employment or termination by Iomega. It is expressly agreed and understood that this Agreement is a general release. Nothing contained in this Agreement is a waiver of any rights or claims that may arise after the date of execution by Employee or which, as a matter of law, cannot be released or waived.
THIS MEANS THAT BY SIGNING THIS AGREEMENT, EMPLOYEE WILL HAVE WAIVED ANY RIGHT TO BRING A LAWSUIT, FILE A CHARGE OR BRING A CLAIM AGAINST IOMEGA IN ANY COURT OR AGENCY BASED ON ANY ACTIONS TAKEN UP TO THE DATE AND TIME OF SIGNING THIS AGREEMENT, AND WILL HAVE RELEASED IOMEGA AND THE RELEASED PARTIES FROM ANY AND ALL CLAIMS OF ANY NATURE RELATING TO EMPLOYEE'S EMPLOYMENT, OR SEPARATION THEREFROM, ARISING UP TO THE DATE AND TIME OF SIGNING THIS AGREEMENT.
7. No Admission of Fault. Iomega and Employee agree that this Agreement in whole or in part shall not be admissible in any legal or quasi-legal proceeding as evidence of or admission by Company of any violation of its policies or procedures or local, state or federal law or regulation. Further, Company expressly denies any violation of any of its policies, procedures, local, state or federal laws or regulations.
8. Age Discrimination Release. In addition to the waivers and releases contained in the preceding paragraph, Employee further agrees that in consideration of the payments provided above, she/he also specifically releases Iomega from any and all liabilities claims, causes of action, demand for damages or remedies of any kind, including claims for attorneys' fees and legal costs, arising under the Age Discrimination in Employment Act of 1967, as amended, related to or arising out of his/her employment or termination from employment with Iomega up to and including the date of this Agreement. Employee understands and acknowledges that by this Agreement she/he does not waive any rights or claims relating to age discrimination that may arise after the date of this Agreement. She/he is advised to consult with an attorney regarding this Agreement. Employee also acknowledges that prior to signing this Agreement she/he has 45 days from the date of his receipt of the Agreement within which to consider it and to consult with an attorney of his/her choice regarding it. Should she/he nevertheless elect to execute this Agreement sooner than 45 days after she/he has received it, she/he specifically and voluntarily waives the right to claim or allege that she/he has not been allowed by Iomega or by any circumstances beyond his/her control to consider the Agreement for a full 45 days. Employee also acknowledges and agrees that this Agreement will not become effective or enforceable
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until after seven days from the date it is signed by him ("Age Release Period"). During the Age Release Period Employee understands and agrees that she/he may revoke the provisions of this Section by delivering written notice of this revocation to Xxxxxx Xxxxxx, Director of Human Resources, Iomega Corporation, 0000 Xxxx Xxxxxx Xxx, Xxx, XX 00000.
Employee also acknowledges that he/she has received information regarding the ages and job titles of other employees within his/her department who have also been affected by this reduction in force, as well as the ages and job titles of the employees within his/her department who were not selected for reduction. This information is attached as Exhibit A to this Agreement.
9. Return of Documents. Employee has returned to Iomega all documents, records and materials, relating to Iomega's business, whether stored electronically or in written or printed form, or otherwise, including but not limited to records, notes, memoranda, computer storage media, drawings, reports, files, software materials, notebooks, rolodex files, telephone lists, computer or data processing disks and tapes, marketing plans, financial plans and studies, customer lists, names of business contacts, policies and procedures, and any materials prepared, compiled or acquired by Employee relating to any aspect of Iomega or its business, products, plans or proposals and all copies thereof, in Employee's or related party's possession, custody or control, whether prepared by Employee or others. Employee also agrees to participate in an exit interview upon the termination of Employee's employment with Iomega.
10. Non-Disclosure. Employee acknowledges his or her obligations under a non-disclosure agreement previously entered into between Employee and Iomega. Any breach of Employee's non-disclosure obligations to Iomega shall, in addition to all other remedies available to Iomega, result in the immediate release of Iomega from any obligations it would otherwise have to provide further payments under this Agreement. Employee expressly acknowledges that Iomega is prepared to vigorously enforce these promises, and that violation of this provision could result in the assessment of damages and other legal remedies against Employee and any of Employee's subsequent employers. Any breach by Employee of this provision shall result in the immediate release of Iomega from any obligations it may have to provide further payments under this Agreement, except as may be required by applicable law.
11. Employee Inventions. Employee acknowledges that certain innovations, products and processes invented or discovered by Employee during Employee's employment with Iomega are the property of Iomega and have been assigned to Iomega under an agreement previously entered into between Employee and Iomega which is still in effect. Any breach of Employee's obligations to Iomega with respect to the assignment of inventions shall, in addition to all other remedies available to Iomega, result in the immediate release of Iomega from any obligations it would otherwise have to provide further payments under this Agreement.
12. Non-Disparagement. Employee agrees not to disparage, orally or in writing, Iomega, its officers, employees, management, operations, products, designs, or any other aspects of Iomega's affairs to any third person or entity. Iomega agrees that its executive officers and directors will not disparage, orally or in writing, Employee to any third person or entity.
13. Non-Competition; Non-Solicitation of Employees. Employee and Iomega hereby agree that the agreement dated July 23, 1999 between Employee and COMPANY is amended in that the third paragraph of Section 4 of said agreement shall be amended to read as follows: "Through June 30, 2002, I will not perform services for any entity, including myself, which competes with the company. For purposes of this section, any entity (including but not limited to a person, partnership, corporation, or joint venture) will be considered to compete with the COMPANY if such entity (or in the case of a multi-billion dollar, multi-division corporation, the division thereof for which services are proposed to be performed by Employee) engages directly or indirectly, as part or all of its business, in a) the personal removable storage market, b) the CD-RW optical storage market, or c) the Network Attached Storage ("NAS") market. For purposes of this section, performing services shall include but not be
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limited to positions as an employee, consultant, contractor, officer, joint venturer, owner in full or part (excluding ownership of less than 1% in a publicly traded company), partner or director." All other provisions of such July 23, 1999 agreement shall survive and remain in full force and effect.
Further, Employee agrees that for one year following Employee's separation from employment with Iomega, Employee shall not, directly or indirectly, in any capacity (including but not limited to, as an individual, a sole proprietor, a member of a partnership, a stockholder, investor, officer, or director of a corporation, an employee, agent, associate, or consultant of any person, firm or corporation or other entity) hire any person from, attempt to hire any person from, or solicit, induce, persuade, or otherwise cause any person to leave his or her employment with Iomega.
Any breach of Employee's obligations under this section shall, in addition to all other remedies available to Iomega, result in the immediate release of Iomega from any obligations it would otherwise have to provide further payments under this Agreement.
14. Non-Solicitation of Customers. Employee agrees that for one year following Employee's separation from employment with Iomega, Employee shall not, directly or indirectly, in any capacity, solicit the business of any customer of Iomega except on behalf of Iomega, or attempt to induce any customer of Iomega to cease or reduce its business with Iomega; provided that following Employee's separation from employment with Company he or she may solicit a customer of Iomega to purchase goods or services that do not compete directly or indirectly with those then offered by Iomega. Any breach of Employee's obligations under this paragraph shall, in addition to all other remedies available to Iomega, result in the immediate release of Iomega from any obligations it has to provide further payments under this Agreement.
15. Remedies. The parties shall attempt in good faith to resolve any dispute arising out of or relating to this Agreement by negotiation. The parties recognize that irreparable injury to Iomega will result from a material breach of this Agreement, and that monetary damages will be inadequate to rectify such injury. Accordingly, notwithstanding anything to the contrary, Iomega shall be entitled to one or more preliminary or permanent orders: (i) restraining or enjoining any act which would constitute a material breach of this Agreement, and (ii) compelling the performance of any obligation which, if not performed, would constitute a material breach of this Agreement, and to attorney's fees in connection with any such action.
16. Party's Bear Own Costs. Each party shall bear the cost of, and shall be responsible for, its own attorneys' and accountants' fees and costs, if any, in connection with the negotiation and execution of this Agreement.
17. Agreement is Confidential. Employee further agrees that the terms and conditions of this Agreement are strictly confidential and shall not be discussed with, disclosed or revealed to any other persons, whether within or outside Iomega, except professional advisors with whom Employee may consult regarding this Agreement and Employee's immediate family members, unless disclosure is compelled by subpoena or other legal process. Any breach by Employee of this provision shall immediately release Iomega from any obligations it may have to provide further payments under this Agreement.
18. Entire Agreement. This Agreement and any exhibits hereto constitute the entire understanding of the parties with respect to the termination of Employee's employment with Iomega, except for the agreement referenced in paragraph 13 hereof. Employee warrants that he or she: (a) has read and fully understands this Agreement and any exhibits hereto; (b) has had the opportunity to consult with legal counsel of his or her own choosing and have the terms of this Agreement fully explained; (c) is not executing this Agreement in reliance on any promises, representations or inducements other than those contained herein; and (d) is executing this Agreement voluntarily, free of any duress or coercion.
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19. Severability. The invalidity or unenforceability of any provision or provisions of this Agreement shall not affect the validity or enforceability of any other provision hereof, which shall remain in full force and effect.
20. Governing Law. This Agreement shall be interpreted, construed and governed in accordance with the laws of the State of Utah, without giving effect to the choice of law rules thereof.
21. Nonassignment. Employee warrants that no person other than Employee is entitled to assert any claim based on or arising out of any alleged wrong suffered by Employee in or as a consequence with or severance of employment from Company and that employee has not assigned or transferred or purported to assign or transfer to any person or entity any claim Employee now has or may have against Company or any portion thereof or interest therein.
22. Acknowledgement by Employee. Employee acknowledges and understands the terms and conditions of this document and has been given ample opportunity to consult with counsel and/or someone whose opinion he/she trusts before signing it. By his signature, Employee agrees to the terms set forth above.
Employee has until 7 days following Employee's Termination Date (which is 45 or more days following receipt of this Agreement) to accept the terms and conditions of this Agreement by signing below and returning the document to Xxxxxx Xxxxxx, Director, Human Resources 0000 Xxxx Xxxxxx Xxx, Xxx Xxxx 00000. If Employee does not accept such terms and conditions by such date, this offer shall expire at that time.
| EMPLOYEE | ||
Dated: 11-1-01 |
/s/ Xxxxxx X. Xxxxx Employee Name |
|
IOMEGA CORPORATION |
||
Dated: 11-13-01 |
/s/ Xxxxxxxxx X. Xxxxxx Xxxxxxxxx X. Xxxxxx Vice President, Restructuring |
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SEPARATION AGREEMENT AND GENERAL RELEASE
