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EXHIBIT 10.52
SEPARATION AND RELEASE AGREEMENT
I, X. Xxxxxx Worth, elect to sever my employment relationship with
Gargoyles, Inc. (the "Company") under the terms below. I understand that by
signing this Separation and Release Agreement (this "Agreement"), I will receive
compensation and benefits from the Company in addition to what is ordinarily
offered to employees whose jobs have been eliminated or restructured.
RECITALS
A. On November 1, 1995, the Company and I entered into an Employment
Agreement, pursuant to which I became the Senior Vice President of the Company
(the "Employment Agreement").
B. I now desire to sever my employment relationship with the Company
and to resolve the terms of such severance and all differences between us.
AGREEMENT
1. Resignation of Employment. By signing this Agreement, I am resigning
my employment with the Company effective January 31, 1998 (the "Termination
Date"). I am also resigning all of my positions as an officer of the Company and
as an officer of any subsidiary of the Company. By signing this Agreement, the
Company is accepting my resignations.
2. Severance Benefits.
(a) Severance Pay. I understand that I will receive an amount
equal to three month's of my base pay (the "Severance Payment"), from which
normal and authorized withholdings and deductions will be made. I understand
that the Severance Payment will be paid to me in eight equal installments in
accordance with the Company's twice-monthly payroll schedule, less any amounts I
receive as compensation for employment from an employer other than the Company
during such period.
(b) Expense Reimbursement; Payment of Product Account; Return of
Cellular Phone. I will be reimbursed for any reasonable expenses incurred by me
prior to the Termination Date on behalf of the Company, subject to the receipt
by the Company of all supporting documentation. I understand that after the
Termination Date I am no longer authorized to incur expenses or to make
commitments on behalf of the Company. Any amounts remaining unpaid as of the
Termination Date on my account with the Company for the purchase of product
shall be deducted from my next paycheck. I will return to the Company, the
Company's cellular phone in my possession. If the phone is not returned, I
understand that its cost will be deduced from my next paycheck.
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(c) FTO. I understand that I will accrue no further Flexible Time
Off from and after the Termination Date. I will be paid for any earned but
unused Flexible Time Off benefits, less all required and authorized deductions,
with my next paycheck.
(d) Cobra; Life and Disability Insurance Policies. For a period of
three (3) months after the Termination Date, the Company will pay COBRA benefits
for me and my family. After that time I may elect to pay for COBRA medical and
dental plan continuation coverage for another fifteen months, until I am
entitled to Medicare, or until I am covered under other plans with no
pre-existing exclusion. The insurance provider, Washington Employers Trust, will
provide further information about my COBRA rights after the Termination Date.
The Company will also provide me with information on the potential for
continuation of the disability and life insurance coverage currently provided to
me through the Company if I pay the premiums for such coverages.
(e) Eligibility for Unemployment. I understand that while the
Company has no authority to determine unemployment benefits, the Company will
not attempt to interfere or deny such benefits if and when they should become
available to me.
3. Stock Options. As of the Termination Date, I am vested in 14,939
options to purchase the Company's common stock, at an exercise price of $3.48
per share. I further understand that the Plan Administrator will accelerate the
vesting of an additional 14,939 options to purchase the Company's common stock
at an exercise price of $3.48 per share. I understand that I will not continue
to vest in any more options, that any of my rights to unvested options shall
immediately terminate, and that the vested options will continue to be governed
by the Gargoyles, Inc. 1995 Stock Incentive Compensation Plan, as Amended and
Restated on July 22, 1996, except that the Plan Administrator will extend the
period for me to exercise my vested options to December 31, 1998.
4. Complete Release of Claims. By signing this Agreement, I agree not
to start any lawsuits, charges, or other legal action against the Company
relating to my employment with the Company or the benefits that I received or
should have received from the Company. In addition, I, for myself and for my
heirs, representatives, executors, and successors, waive any rights or claims I
may have against the Company, any employee benefit plans sponsored by the
Company in which I participate, and all of the Company's affiliated and related
entities, owners, shareholders, officers, directors, trustees, agents,
employees, employees' spouses, insurers, either past or present, and all of
their successors, agents or assigns (collectively "Releasees"). I hereby release
the Releasees from any and all claims, actions, causes of action, obligations,
costs, expenses, damages, losses, debts, and demands, including attorneys' fees
and costs actually incurred (collectively
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"Claims") of whatever kind, in law or in equity, known or unknown, suspected or
unsuspected, which arose prior to the Termination Date.
This release includes, but is not limited to: (i) any Claims under any
local, state or federal laws regulating employment, including without
limitation, the Civil Rights Acts, the Age Discrimination and Employment Act,
the Americans with Disabilities Act, the Workers' Adjustment and Retraining
Notification Act, and the Washington State Law Against Discrimination; (ii)
Claims under the Employee Retirement Income Security Act; (iii) Claims under any
local, state or federal wage and hour laws; or (iv) Claims alleging any legal
restriction on the Company's right to terminate their employees, or personal
injury claims, including without limitation wrongful termination,
discrimination, harassment, breach of contract, defamation, tortuous
interference with business expectancy, black listing, or infliction of emotional
distress, whether arising under statute or common law.
5. Cooperation with Company. During the next twelve months, I will
fully cooperate with, and from time to time make myself available at the
Company's request to consult with, the Company on matters in which I was
involved on behalf of the Company. Nothing in this section 5, however, shall
prevent me from taking on other employment.
6. Effect of Prior Agreements. I understand that as of the Termination
Date the Employment Agreement is terminated and is superseded by this Agreement,
and that I shall have no further rights or obligations under the Employment
Agreement except for the terms set forth in Sections 7 through 9 of the
Employment Agreement relating to "Intellectual Property; Nondisclosure of
Confidential Information; Covenant Not to Compete, Dispute Resolution, and
Enforcement", which shall remain in effect following the Termination Date in
accordance with their terms. The Company acknowledges and agrees that pursuant
to Section 7.5(b) of the Employment Agreement the term of my non-competition
period shall expire on July 31, 1998.
7. Nondisparagement; No Solicitation. The Company and I each hereby
pledge not to make statements in disparagement of the other which are intended
to damage the other's reputation. Prohibited actions would include, but not be
limited to, private or public comments, statements, or writings critical of the
other party or any of the Releases or complaints filed against the other party
or any of the Releasees with any regulatory agency. In addition, I agree not to
interfere with the working relationship between the Company and any of its
employees, and for a period of two (2) years after the Termination Date, I
specifically agree not to seek to hire or to hire any employee of the Company to
work for me or for my future employer(s) without the express written consent of
the Company.
8. Consultation with Legal Counsel. I have carefully read all of the
provisions of this Agreement. I further acknowledge that the Company has
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encouraged me to review and discuss all aspects of this Agreement with legal
counsel and that I have taken advantage of that opportunity to the full extent
that I deem appropriate.
9. Consideration Period; Revocation Period. I acknowledge that I have
been given 21 days to consider this Agreement, and that I was given the option
to sign the Agreement in fewer than twenty-one (21) days if I desired. I
understand that this Agreement will not be effective for seven (7) days after it
is signed by the Company and me, and that I can revoke this Agreement at any
time during that seven-day period. I understand that no payments will be made
until after the expiration of this seven-day period.
10. Voluntary Agreement. I understand and acknowledge the significance
and consequences of this Agreement, that it is voluntary, that it has not been
given as a result of any coercion, and expressly confirm that it is to be given
full force and effect according to all of its terms, including those relating to
unknown Claims.
11. Successors This Agreement shall be binding upon the parties hereto
and their heirs, representatives, executors, administrators, successors and
assigns, and shall inure to the benefit of each and all of the Releasees, and to
their heirs, representatives, executors, administrators, successors and assigns.
12. General Provisions
(a) Governing Law. This Agreement is made and entered into in the
state of Washington and shall in all respects be interpreted, enforced and
governed under the laws of the state of Washington. The language of all parts of
this Agreement shall in all cases by construed as a whole, according to its fair
meaning, and not strictly for or against either party.
(b) Invalidity. If any of the provisions of this Agreement are
held to be illegal or invalid, the remaining provisions shall not be affected
thereby, and the illegal or invalid provision shall be deemed not to be a part
of this Agreement. I understand, however, that if the "Complete Release of
Claims" section is held to be illegal or unenforceable in whole or in part, the
Company may elect to rescind this Agreement and demand reimbursement of all
consideration paid to me pursuant to the Agreement.
(c) Entire Agreement. Except for the provisions of the Employment
Agreement which survive the Termination Date, this Agreement represents and
contains the entire understanding between the Company and me in connection with
my separation from the Company. I acknowledge that I have not signed this
Agreement in reliance on any promise, representation, or statement not contained
herein.
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13. Non-Admission of Liability. This Agreement shall not be construed in
any way as an admission by the Company of any liability or wrongdoing
whatsoever. Likewise, this Agreement shall not be construed in any way as an
admission by me of any misconduct or impropriety.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
January 30, 1998.
GARGOYLES, INC.,
a Washington corporation
By /s/ XXXXXX X. XXXXX
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Xxxxxx X. Xxxxx, Chairman
/s/ X. XXXXXX WORTH
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X. Xxxxxx Worth
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