AGREEMENT TO MODIFY EMPLOYMENT
AND
GENERAL RELEASE OF ALL CLAIMS
THIS AGREEMENT TO MODIFY EMPLOYMENT AND GENERAL RELEASE OF ALL CLAIMS
(hereinafter "Agreement") is made this 21 day of December 2000, by and between
Xxxxx Xxxxxxx (hereinafter "Xxxxxxx") and Unico American Corporation, a Nevada
corporation (hereinafter "Company"), in reference to the following facts:
WHEREAS, Xxxxxxx was employed by Company as Vice President and General
Counsel pursuant to the Employment Agreement dated November 27, 1996
(hereinafter "Original Employment Agreement") and is a Director of the Company;
WHEREAS, pursuant to the Original Employment Agreement, Xxxxxxx'x term
of employment is until December 1, 2001;
WHEREAS, the Parties have agreed to terminate the Original Employment
Agreement and enter into a New Employment Agreement (hereinafter "New Employment
Agreement") as provided for herein modifying Xxxxxxx'x employment and status
with the Company;
THEREFORE, for valuable consideration, receipt of which is hereby
acknowledged, the Parties agree as follows:
1. Termination of Original Employment Agreement.
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Effective upon the execution of this Agreement ("Effective Date"), the
Original Employment Agreement shall be deemed terminated and Xxxxxxx shall be
deemed to have resigned from his position as Vice President and General Counsel
of the Company and from his position as a Director of the Company's Board of
Directors.
2. New Employment Agreement.
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Concurrently with the execution of this Agreement, the parties shall
enter into the New Employment Agreement as set forth in Exhibit A hereto.
3. Payments to Xxxxxxx.
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x. Xxxxxxx shall receive a Guaranteed Bonus of Thirty Thousand
Dollars for the calendar year ending December 31, 2000 to be paid on or
before December 31, 2000. In addition, Company will pay Xxxxxxx a
Guaranteed Bonus of Thirty Thousand Dollars for the calendar year
ending December 31, 2001 to be paid on or before December 31, 2001
provided: (1) That Xxxxxxx`s employment is not terminated for cause by
the Company prior to December 31, 2001; and (2) That Xxxxxxx does not
resign his employment with the Company prior to December 31, 2001.
These Guaranteed Bonuses are in lieu of any other claims to a Bonus
that Xxxxxxx might otherwise assert under the Original Employment
Agreement or under any other agreements between the parties hereto.
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x. Xxxxxxx has previously asserted that he has not received
all of the cost of living adjustments to which he is entitled pursuant
to the terms of the Original Employment Agreement. The Company has
asserted that Xxxxxxx has received all of the cost of living
adjustments to which he is entitled pursuant to the terms of the
Original Employment Agreement. In settlement of all disputes between
Xxxxxxx and the Company relating to Xxxxxxx`s claims concerning the
cost of living adjustments pursuant to the terms of the Original
Employment Agreement, the Company shall pay Xxxxxxx the sum of $5000 on
or before December 31, 2001.
c. In addition to the Guaranteed Bonus and the cost of living
adjustment referenced in Sections 3a and 3b above, and except as
provided in Sections 3a and 3b above, Xxxxxxx shall be entitled to all
salary and employee benefits to which he would otherwise be entitled
pursuant to the Original Employment Agreement through the Effective
Date.
4. Prior Agreements Canceled. Except as provided for herein, agreements
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entered into between Xxxxxxx and Company arising out of or relative to Xxxxxx'x
employment by Company, including but not limited to, the Original Employment
Agreement and any other contract of employment, are hereby canceled and shall
have no further force or effect.
5. General Release. Xxxxxxx releases Company as follows:
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a. In consideration of payments and other consideration as set
forth in this Agreement, to which Xxxxxxx understands and acknowledges
he would not, absent this Agreement, be entitled to receive, Xxxxxxx
hereby knowingly and voluntarily waives, releases, acquits and forever
discharges the Company, and all of its affiliates, parents,
subsidiaries and their respective agents, officers, directors,
shareholders and employees from any liability, action, suit, claim,
damages, judgment, known or unknown, liquidated or unliquidated, fixed
or contingent which he has ever had or has, arising out of actions by
the Company prior to the Effective Date of this Agreement and arising
out of or in conjunction with Xxxxxx'x employment with the Company or
any of its affiliates or the termination thereof, including, without
limitation, claims for personal injury, pain and suffering, defamation,
negligence or other tortious conduct, claims under federal, state or
local common law or statute, as well as any form of employment
discrimination prohibited under Title VII of the Civil Rights Act of
1964, the Americans with Disability Act (hereinafter "ADA"), ERISA, any
anti-discrimination law or ordinance, any applicable collective
bargaining agreement, any applicable wage and hour laws, and for
wrongful discharge, breach of contract, breach of any express or
implied promise, retaliation, breach of public policy, or any other
theory, whether legal or equitable, including any claims which could
have been asserted up to the Effective Date of this Agreement;
x. Xxxxxxx further agrees to expressly waive and relinquish
any of the rights and benefits that he might otherwise have or claim to
have under the provisions of Section 1542 of the California Civil Code,
which provides as follows:
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"A general release does not extend to claims which
the creditor does not know or suspect to exist in his
favor at the time of executing the release, which if
known by him must have materially affected his
settlement with the debtor."
c. The foregoing waiver of the provisions of Section 1542 of
the California Civil Code was separately bargained for, and Xxxxxxx
expressly agrees that the releases contained herein shall be given full
force and effect in accordance with each and all of the expressed terms
and provisions relating to unknown and unsuspected claims, demands and
causes of action, if any. Xxxxxxx acknowledges that he may have
sustained damages, expenses and losses that are presently unknown or
not suspected, and that such damages, expenses and losses, if any, may
give rise to additional claims for damages, expenses and losses in the
future, which are not now anticipated by him. Nevertheless, Xxxxxxx
acknowledges that this Agreement has been negotiated and agreed upon in
light of this realization and, being fully aware of the situation,
hereby expressly waives all rights that he may have under California
Civil Code section 1542, as well as under any other state or federal
statute or common law principle of similar effect; and
d. Notwithstanding any provision herein, Xxxxxxx does not
hereby waive any vested benefits he may have under any pension plan
sponsored by Company which are subject to the Employee Retirement
Income Security Act (ERISA), any rights to obtain continued health plan
coverage under the Consolidated Omnibus Budget Reconciliation Act
(COBRA), any rights which may not be waived by law, or the right to
indemnification and defense pursuant to Labor Code section 2802 as the
result of any legal action or other proceeding commenced by any third
party against Xxxxxxx for acts arising out of the discharge of his
duties as an employee of Company.
6. Waiver of Age Discrimination in Employment Act Rights. In addition,
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Xxxxxxx hereby knowingly and voluntarily waives any rights he may have pursuant
to the Age Discrimination in Employment Act (hereinafter "ADEA") as amended by
the Older Workers? Benefit Protection Act of 1990 (hereinafter "OWBPA") subject
to the following conditions.
a. This waiver is part of the Agreement.
x. Xxxxxxx understands that he is waiving his rights
to make any claim based upon age discrimination or any rights he may
have pursuant to the ADEA or the OWBPA.
c. The waiver of rights pursuant to this section applies only
to rights or claims in existence before or at the time of the execution
of this Agreement and does not apply to any rights or claims that may
arise after the date the waiver is executed.
d. This waiver is in exchange for consideration in
addition to anything of value to which Xxxxxxx is already entitled.
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x. Xxxxxxx is hereby advised in this writing:
(1) To consult with an attorney prior to the execution of
this Agreement;
(2) To be represented by counsel in all matters relative to
the Agreement, including this waiver; and
(3) To seek the advice of his counsel as to the legal effect
of entering into the Agreement and this waiver.
Xxxxxxx has represented to the Company that he is an attorney
and specifically waives his right to consult with counsel in connection
with all matters relating to this Agreement and the New Employment
Agreement (Exhibit A hereto).
x. Xxxxxxx has been given sufficient time to consider this
Agreement and specifically waives his right to be given twenty-one (21)
days within which to consider this Agreement.
x. Xxxxxxx shall have a period of seven (7) days following the
execution of this Agreement to revoke this Agreement and it shall not
become effective or enforceable until the revocation period has
expired.
h. This waiver applies only to Xxxxxxx and does not
affect any other individual or any class, unit, or group of
individuals.
i. Neither this Agreement nor the waiver of rights under the
ADEA or OWBPA arises out of any bona fide employee benefit plan,
voluntary early retirement incentive plan or any other exit incentive
or other employment termination program.
7. No Transfers. Each Party hereto warrants and represents that
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it has not heretofore assigned, transferred or encumbered any of the claims,
demands, duties, liabilities, debts, obligations or causes of action, or any
matter or portion thereof released hereunder, or which is the subject of this
Agreement.
8. Legal Action. In any legal action or other proceeding brought to
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enforce or interpret any of the terms of this Agreement, the prevailing
party shall be entitled to recover reasonable attorneys' fees and legal costs
incurred in connection therewith.
9. Time of the Essence. Time is of the essence in this Agreement with
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respect to all of the terms, provisions, covenants and conditions contained
herein, including specifically, but not limited to, the payment of any monies or
execution and delivery of any documents provided for herein.
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10. Drafting. The Parties hereto agree that this Agreement has been
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jointly negotiated and drafted, that the order of the paragraphs has no
significance, and that the language hereof shall be construed as a whole
according to its fair meaning and interpretation, and not strictly for or
against any of the Parties hereto.
11. Cooperation. Each party hereto agrees to take such further action
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and execute and deliver such further documents, and to give oath to or
acknowledge before a notary public any documents reasonably deemed necessary or
convenient by any party to implement the terms or intent hereof.
12. Survival. Notwithstanding anything to the contrary herein, all
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rights and obligations, representations and warranties created under or
pursuant to this Agreement shall survive the execution and delivery of this
Agreement, the releases contained herein, and the documents provided for herein.
13. No Admission of Liability. This Agreement is a settlement of
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disputed claims, and each of the Parties hereto agrees and acknowledges that
nothing contained herein shall constitute or be deemed an admission of any fact
or liability with respect to any claim, contention or cause of action that is
the subject matter hereof.
14. Entire Agreement. This Agreement and the documents incorporated
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herein or concurrently executed herewith shall constitute the entire agreement
between the Parties hereto with respect to the subject matter hereof, and shall
supersede all prior agreements, understandings, warranties, representations and
negotiations of any party herein concerning the subject matter hereof.
15. Binding Effect. This Agreement shall inure to the benefit of and
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be binding upon the successors in interest of each of the Parties hereto.
16. Amendments. This Agreement may not be released, amended or
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modified in any manner whatsoever, except in writing, signed by each of the
Parties hereto.
17. Gender. All references herein to the singular or plural shall
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be deemed to refer to the other, as the context requires, and all references to
the masculine, feminine or neuter shall refer to all of such genders, unless the
context requires otherwise.
18. Governing Law. This Agreement shall be deemed to have been
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entered into and shall be construed and interpreted in accordance with the laws
of the State of California. Venue of any action arising from or related to this
Agreement shall be in Los Angeles County, California.
19. Counterparts. This Agreement may be executed in one or more
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separate counterparts, each of which, when so executed, shall be deemed an
original and shall together constitute one and the same instrument which may be
sufficiently evidenced by any one counterpart, and each of which shall be fully
effective against all persons executing the same and all persons or entities
claiming under them.
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20. Captions. The captions of this Agreement are solely for the
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convenience of the Parties, do not compromise any part of this Agreement, and
shall not be used to interpret or determine the validity of any provision
hereof.
21. Authority. Each party that is not a natural person hereto hereby
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represents and warrants that it has the power, authority and capacity to enter
into and perform this Agreement, and the person signing on behalf of such party
represents and warrants that he is duly authorized to so act.
22. Representation. All Parties to this Agreement have been represented
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by counsel of their own choosing and have been fully advised by their respective
counsel and understand that by entering into this Agreement, they are waiving
valuable rights and have created other rights and obligations and with that
knowledge and understanding, freely enter into this Agreement.
IN WITNESS WHEREOF, this Agreement is entered into and shall be
effective as of the date first written above.
DATE: December 21, 2000 /s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx
DATE: December 21, 2000 Unico American Corporation,
a Nevada corporation
By: /s/ Xxxxx Cheldin
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Xxxxx Cheldin, Executive Vice President
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