SEPARATION AGREEMENT AND RELEASE
EXHIBIT
10.33
This
Separation Agreement and Release (the “Agreement”) is
entered into by Xxxxx X. Xxxxxx
(“Xxxxxx”) and Starbucks Corporation (“Starbucks”).
RECITALS
X. Xxxxxx has been employed by Starbucks as president, Starbucks Coffee
International. Xxxxxx’x employment at Starbucks will terminate on July 29, 2008 (the
“Separation Date”).
B. Starbucks and Xxxxxx enter this Agreement to clarify their respective rights
and responsibilities arising out of the conclusion of Xxxxxx’x employment relationship,
including Xxxxxx’x reaffirmation of post-separation commitments arising under the non-competition agreement between Starbucks and Xxxxxx (the “Non-Competition Agreement”)
and the confidentiality agreement set forth in Paragraph 7 (the “Confidentiality
Agreement”).
AGREEMENTS
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual promises
contained below, it is agreed as follows:
1. Separation Date and Responsibilities. Xxxxxx’x employment with Starbucks
will end on July 29, 2008. Xxxxxx thereafter will have no further duties or responsibilities
to
Starbucks.
2. Compensation. Except as may be expressly provided for in this Agreement,
Xxxxxx agrees and acknowledges that he is and shall be entitled to no further or additional
compensation of any kind after the Separation Date. If Xxxxxx signs this Agreement and does
not revoke it pursuant to Paragraph 18, Starbucks will pay Xxxxxx the equivalent of twelve
months of his base salary, payable in a lump sum within ten days following the revocation
period set forth in Paragraph 18, subject to customary tax and other withholdings.
Starbucks and Xxxxxx agree that these payments are expressly conditioned on his strict
compliance with the terms of this Agreement, the Non-Competition Agreement and the Confidentiality
Agreement. Any violation of any of these agreements, whether material or not, shall result in (a) a
forfeiture by Xxxxxx of any unpaid compensation that might otherwise be owing to Xxxxxx pursuant to
this Paragraph 2, and (b) an obligation by Xxxxxx to immediately repay to Starbucks any and all
compensation previously paid to Xxxxxx by Starbucks pursuant to this Paragraph 2. Starbucks may, in
addition, pursue whatever other rights or remedies it may have against Xxxxxx, including, without
limitation, enforcing this Agreement, the Non-Competition Agreement or the Confidentiality Agreement, through injunctive
relief and/or seeking an award of attorneys fees and costs.
3. Medical Coverage. Starbucks agrees to provide Xxxxxx with a lump sum
payment equal to the cost of COBRA continuation coverage under the applicable Starbucks
medical, dental and vision programs for a period of twelve months, less applicable
withholding taxes. This payment may be used by Xxxxxx at his discretion to pay for the post-
employment continuation of medical, dental and/or vision coverage pursuant to COBRA if
Xxxxxx properly elects such coverage. Xxxxxx agrees and acknowledges that he will be solely
responsible for remitting all COBRA payments, and will be solely responsible for the cost of
any additional COBRA coverage at the standard COBRA rate and in accordance with the
terms and conditions of COBRA and the Starbucks COBRA procedures.
4. Outplacement Services. Starbucks will provide Xxxxxx with twelve months
of outplacement services (until July 29, 2009) through the firm of Xxx Xxxxx Xxxxxxxx, up to
a maximum of $14,000. Such services shall commence as of the Separation Date.
5. Valid Consideration. Xxxxxx and Starbucks agree that the offer of
compensation by Starbucks to Xxxxxx described in Paragraph 2 is not required by Starbucks
policies or procedures or by any pre-existing contractual obligation of Starbucks or by any
statute, regulation or ordinance, and is offered by Starbucks solely as consideration for this
Agreement.
6. Stock Options and Other Compensation and Benefits. Xxxxxx
acknowledges and agrees that any vested options to acquire shares of Starbucks common
stock shall expire or be exercisable in accordance with the terms and conditions of the
applicable plan documents, program documents and grant agreements. Xxxxxx agrees that he
will conduct any and all market transactions involving Starbucks securities in compliance
with the Starbucks Xxxxxxx Xxxxxxx Policy and Blackout Procedures.
Xxxxxx’x participation in all equity compensation, incentive compensation and all other
compensation and benefits plans, programs and agreements shall terminate effective as of the
Separation Date. Xxxxxx acknowledges and agrees that he shall not be entitled to any compensation
and benefits after the Separation Date except as specified in this Agreement or by the terms of the
Starbucks 401(k) Plan or Management Deferred Compensation Plan.
7. Post-Separation Commitments. Xxxxxx expressly reaffirms his on-going
duties and responsibilities under the Non-Competition Agreement following the Separation
Date.
In addition, Xxxxxx agrees not to use, publish, misappropriate or disclose any Confidential
Information following the Separation Date, except as expressly
authorized in writing by Starbucks
Board of Directors. For this purpose “Confidential Information” shall have the meaning set forth in
the Non-Competition Agreement and incorporated herein by reference. If Xxxxxx violates the
agreement set forth in this Paragraph 7, Starbucks and its successors and assigns shall have (a)
the right or remedy, in the event of a breach or a
threatened breach, to have the provisions of this Agreement specifically enforced by any court
having jurisdiction, it being acknowledged and agreed that any such breach or threatened breach
will cause irreparable injury to Starbucks and that money damages will not provide an adequate
remedy, and (b) all other rights and remedies available at law or in equity. The agreement set
forth in this Paragraph 7 supplements Xxxxxx’x other confidentiality agreements with Starbucks,
including obligations imposed under all applicable Starbucks policies and procedures, as well as
those imposed by law.
8. Additional Confidentiality. Xxxxxx agrees to keep the fact, terms and amount
of this Agreement completely confidential and further agrees that disclosure to the public or
to any employee of Starbucks of the terms of this Agreement will constitute a material
breach. Xxxxxx will be permitted to provide information concerning this Agreement to
Xxxxxx’x attorneys, accountants, immediate family members, or to make other disclosures
which are required by law, but Xxxxxx must first inform any such person of this
confidentiality provision and instruct them that they are bound by it and have an obligation
to
abide by it.
9. General Release of Claims. Xxxxxx expressly waives any claims against
Starbucks, including its affiliates, subsidiaries, stockholders, directors, officers,
managers,
representatives, agents, and employees, past and present from any claims, whether known or
unknown, which existed or may have existed at any time up to the date of this Agreement,
including claims related in any way to Xxxxxx’x employment with Starbucks or the ending of
that relationship. This release includes, but is not limited to, any claims for wages,
bonuses,
employment benefits, stock options, 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 Starbucks right to terminate employees, or any federal, state, or
other
governmental statute, executive order, or ordinance.
This waiver and release shall be construed as broadly and comprehensively as applicable law
permits. However, it shall not be construed as releasing or waiving any right that, as a matter of
law, cannot be released or waived, including without limitation the right to file a charge or
participate in an investigation or proceeding conducted by the EEOC pursuant to the Age
Discrimination in Employment Act (“ADEA”); provided that Xxxxxx waives any right to recover
monetary remedies on Xxxxxx’x own behalf.
10. No Sale, Transfer or Assignment of Interest. Xxxxxx warrants and affirms
that he has not sold, transferred, or otherwise assigned all or any of his interest in any of
the
claims or causes of action released in this Agreement and that Xxxxxx is the only person
empowered to release such claims.
11. Nondisparagement. Xxxxxx agrees to refrain from making any derogatory or
disparaging comments to the press or any individual or entity
regarding Starbucks, its business or related activities, its shareholders, employees or agents or the relationship
between the parties.
12. Return
of Property. Xxxxxx confirms that he has or will immediately, upon
the Separation Date, return to Starbucks 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 Starbucks or any of
its current or former employees or generated by Xxxxxx in the course of employment.
13. Additional
Cooperation. Xxxxxx agrees to give Starbucks his full cooperation
in connection with any claims, lawsuits or proceedings that relate in any manner to Xxxxxx’x
conduct or duties at Starbucks or that are based on facts about which
Xxxxxx obtained
personal knowledge while employed at Starbucks. In return, Starbucks agrees to provide
legal counsel on Xxxxxx’x behalf and to reimburse Xxxxxx for his direct and reasonable out of
pocket expenses (including reasonable attorney’s fees) incurred with respect to rendering
such cooperation. Xxxxxx further agrees that he will not voluntarily become a party to, or
directly or indirectly aid or encourage any other party in connection with, any lawsuit,
claim,
demand, or adversarial or investigatory proceeding of any kind involving Starbucks or that
relates in any material way to Xxxxxx’x employment with Starbucks or that is based on facts
about which Xxxxxx obtained personal knowledge while employed with Starbucks. Xxxxxx’x
compliance with a subpoena or other legally compulsive process will not be a violation of
this provision.
14. Breach
or Default. Any party’s failure to enforce this Agreement in the event
of one or more events that violate this Agreement shall not constitute a waiver of any right
to
enforce this Agreement against subsequent violations.
15. Severability. The provisions of this Agreement are severable, and except for
Paragraph 9, if any part of them 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. Should Paragraph 9 be held unlawful or unenforceable,
Starbucks obligations to Xxxxxx under Paragraph 2 shall cease,
and Xxxxxx shall immediately
return to Starbucks any monetary payments Xxxxxx may have received pursuant to
Paragraph 2.
16. Entire Agreement. This Agreement sets forth the entire understanding
between Xxxxxx and Starbucks and supersedes any prior agreements or understandings,
express or implied, pertaining to the terms of Xxxxxx’x employment with Starbucks and the
employment relationship, with the exception of (a) the Non-Competition Agreement and
(b) the Confidentiality Agreement, both of which shall remain fully enforceable and which
are incorporated into this Agreement by reference. Xxxxxx acknowledges that in executing
this Agreement, Xxxxxx does not rely upon any representation or statement by any
representative of Starbucks 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 shall be effective unless evidenced in a writing signed by
both parties. This Agreement may be executed in one or more copies or counterparts and each such copy shall constitute
a duplicate original of this Agreement.
17. Governing Law; Attorney’s Fees. This Agreement will be governed by and
construed exclusively in accordance with the laws of the State of Washington without
reference to its choice of law principles. Any disputes arising under this Agreement, or the
Non-Competition Agreement, shall be brought in a court of competent jurisdiction in King
County, Washington. In any action brought to enforce any obligation arising out of this
Agreement, the substantially prevailing party shall be entitled to recover reasonable
attorney’s fees and costs.
18. Knowing and Voluntary Agreement. Xxxxxx agrees that he has carefully
read and fully understands all aspects of this Agreement including the fact that this
Agreement releases any claims that Xxxxxx might have against Starbucks. Xxxxxx agrees
that he has not relied upon any representations or statements not set forth herein or
made by Starbucks agents or representatives. Finally, Xxxxxx agrees that he has been
advised to consult with an attorney prior to executing the Agreement, and that Xxxxxx
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. Xxxxxx 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. Xxxxxx may revoke
this Agreement for a period of seven (7) days following the execution of this Agreement
by written notice timely delivered to the Executive Vice President, General Counsel and
Secretary of Starbucks. This Agreement shall become effective following expiration of
this seven (7) day period.
| STARBUCKS CORPORATION | XXXXX X. XXXXXX | |||||||
By:
|
/s/ Xxxx Xxxxxxxx | /s/ Xxxxx X. Xxxxxx | ||||||
Its:
|
evp Partner Resources | |||||||
Dated:
|
7/29 , 2008 | Dated: 7/29 , 2008 | ||||||
