SEPARATION AGREEMENT AND RELEASE
U.S. Home & Garden Inc. ("USHG") and Xxxxxxx X. Xxxxxxx ("you"), hereby
agree that:
1. You have resigned effective June 30, 2001 (the "Resignation Date"). You
agree that in addition to resigning your employment with U.S. Home & Garden Inc.
you also resign, effective June 30, 2001, from any other positions you hold as
officer, employee or otherwise of USHG or its subsidiaries, provided however
that you shall remain a director of USHG and Easy Gardener, Inc. until your
successors have been duly elected and you shall provide the consulting services
referred to in Section 4(b) below.
2. You will be paid your salary earned through the Resignation Date in
accordance with USHG's regular payroll cycle.
3. Under USHG's regular policies, you will be eligible to continue your
health insurance coverage, in accordance with COBRA, for a minimum of eighteen
(18) months from your Resignation Date. You will receive under separate cover
more detailed information regarding insurance benefits under COBRA. Nothing
contained in this Separation and Release Agreement (the "Agreement") is intended
to impair any of these rights. Your current coverage level will continue subject
to whatever changes or revisions are made to the USHG medical plan.
4. In consideration for signing this Agreement, and in lieu of any
severance to which you might otherwise be entitled under your Employment
Agreement dated April 1, 1996 between USHG and you, USHG will also provide you
with the following payments and benefits, which are conditioned upon you
remaining a director of USHG for not less than two years, provided you have been
nominated as such and elected thereto by the stockholders of USHG:
a. You will receive a total separation payment equal to $476,000,
payable as follows: (i) $250,000 on July 15, 2001, (ii) $67,800 on October
1, 2001, (iii) $67,800 on December 31, 2001, (iv) $45,200 on April 1, 2002
and (v) $45,200 on June 28, 2002. All of the foregoing amounts shall be
paid by USHG check payable to the order of "Xxxxxxx Xxxxxxx" and shall be
sent by overnight delivery to you at 0000 Xxxxxxxxx Xxxx, Xxxxxx, Xxxx
00000. In the event that all of the capital stock or all, or substantially
all, of the assets of USHG are sold (a "Sale"), then any unpaid amounts set
forth in this subsection 4(A) shall become immediately due and shall be
paid in one lump sum payment on or promptly after consummation of the Sale.
In the event of your death, the Company shall promptly pay to your executor
or other representative appointed by your estate, in one lump sum payment,
any unpaid amounts set forth in this subsection 4(A).
b. On the Resignation Date, you shall execute a consulting agreement
with USHG with a term of twenty-four months, in the form attached hereto as
Exhibit A (the "Consulting Agreement"). In no event shall the termination
of the Consulting Agreement relieve USHG from the prompt payment of all
amounts set forth in Section 4(a) hereinabove.
c. With respect to your outstanding stock options of USHG and its
subsidiaries, all of which are listed on Schedule A attached hereto and
made a part hereof, (collectively, the "Options") such Options shall
continue to be exercisable and shall expire at the
earlier of (i) expiration date set forth in each respective option
agreement, (ii) July 30, 2003 or (iii) thirty (30) days after the
expiration or termination of the Consulting Agreement.
d. USHG shall forgive and release you from your obligation to repay
the loan made by USHG in the principal amount of $151,000 including any
interest payable thereon.
e. USHG has agreed to pay your applicable health insurance premiums
under COBRA for the twelve (12) month period immediately following the
Resignation Date.
You understand and agree that you would not receive the monies and
other benefits specified in this section 4 except for your execution of
this Agreement and the fulfillment of the promises contained in this
Agreement.
5. You understand that USHG makes no representation as to the income tax
treatment of any payments hereunder and that any and all payments (and all
compensation, benefits and/or other payments previously made to you by USHG)
will be subject to such tax treatment and to such deductions, if any, as may be
required under applicable tax laws.
6. You agree that you will take no action which is intended to, or would
reasonably be expected to harm or disparage USHG, to impair USHG's reputation,
or to lead to unwanted or unfavorable publicity to USHG, nor will you disclose
any confidential or proprietary information obtained by you during the course of
your employment.
7. You agree to cooperate fully with USHG, specifically including any
attorney retained by USHG, in connection with any pending or future litigation,
business, or investigatory matter. The parties acknowledge and agree that such
cooperation may include, but shall in no way be limited to, your making yourself
available for interview by USHG, or any attorney retained by USHG, and providing
to USHG any documents in your possession or under your control relating to the
litigation, business or investigatory matter. USHG agrees to provide you with
reasonable notice of the need for assistance when feasible. USHG additionally
agrees to schedule such assistance in such a manner as not to interfere with any
alternative employment obtained by you when possible. If the request for
assistance occurs after the termination of the Consulting Agreement, you shall
be reimbursed for the reasonable cost of your time.
8. It is expressly understood and agreed that this Agreement and the
effectuation of its terms do not constitute an admission or statement by any
party that USHG has acted unlawfully or is otherwise liable in any respect. It
is further agreed that evidence of this Agreement, its terms or the
circumstances surrounding the parties entering into this Agreement, shall be
inadmissible in any action or lawsuit of any kind, except for an action for
alleged breach of this Agreement.
9. You agree not to disclose any information regarding the existence or
substance of this Agreement, except to an attorney, accountant, spouse or
financial advisor with whom you choose to consult regarding your consideration
of this Agreement. You specifically agree not to
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issue any public statement concerning your employment at USHG containing
information which would be inconsistent with the press release dated May 14,
2001.
10. You agree that for a period two (2) years after the Resignation Date,
you will not directly or indirectly (i) use, disclose or disseminate any
confidential information of USHG or any of its subsidiaries, (ii) engage, become
an employee or have an interest in or render any services to any business
competitive with the business activities of USHG and its subsidiaries or (iii)
hire, offer to hire, entice, solicit or offer employment to any USHG or USHG
subsidiary employee or offer employment to any USHG or USHG subsidiary
consultant without USHG's written authorization.
11. You knowingly and voluntarily release and forever discharge USHG, and
its current and former subsidiaries, affiliated and related corporations and
entities, their successors and assigns, and the current and former directors,
officers and/or employees of such corporations and entities, and their
affiliates, successors, assigns, heirs, executors and administrators (referred
to collectively throughout this Agreement as "USHG") from and against any and
all claims, actions, demands, contracts and causes of action, known and unknown,
which you or your heirs, executors, administrators, successors and assigns
(referred to collectively throughout this Agreement as "you") now or may have as
of the date of execution of this Agreement against USHG, including, but not
limited to, any alleged violation of:
o The National Labor Relations Act, as amended;
o Title VII of the Civil Rights Act of 1964, as amended;
o Sections 1981 through 1988 of Title 42 of the United States Code, as
amended;
o The Civil Rights Act of 1991;
o The Age Discrimination in Employment Act of 1967, as amended;
o The Employee Retirement Income Security Act of 1974, as amended;
o The Immigration Reform Control Act, as amended;
o The Americans with Disabilities Act of 1990, as amended;
o The Fair Labor Standards Act, as amended;
o The Occupational Safety and Health Act, as amended;
o The Family and Medical Leave Act of 1993;
o The New York Human Rights Act, as amended;
o The New York Minimum Wage Law, as amended;
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o Equal Pay Law for New York, as amended;
o any other federal, state or local civil or human rights law or any
other local, state or federal law, regulation or ordinance;
o any public policy, contract, tort, or common law; or
o any allegation for costs, fees, or other expenses including attorneys'
fees incurred in these matters.
12. You confirm and agree that, except for the purpose of seeking
enforcement of the terms of this Agreement, you have not and will not file or
institute any claims, charges, actions, complaints or any other proceedings
against USHG before any court, administrative agency or any other forum based
upon or arising out of any claims, actions, demands, contracts and causes of
action by or in respect of you against USHG. In the event that any such claim,
charge, action, complaint or other proceeding is filed, you shall not be
entitled to recover any relief or recovery therefrom, including costs and
attorneys' fees.
13. You understand that if this Agreement were not signed, you would have
the right to voluntarily assist other individuals or entities in bringing claims
against USHG. You hereby waive that right and you will not provide any such
assistance other than assistance in an investigation or proceeding conducted by
a government agency or as required by law.
14. You agree to return to USHG on the Resignation Date, your keys,
identification and any other equipment, data file (excluding personal files),
documents or materials belonging to USHG that you have in your possession.
15. In the event that you or your affiliates breach this Agreement, USHG
will be entitled to recover or withhold any payment and/or other benefits paid
or payable under this Agreement or the Consulting Agreement and to obtain all
other relief provided by law or equity. The prevailing party in any litigation
resulting from any such claim shall be entitled to recover reasonable attorneys'
fees and expenses of litigation from the losing party.
16. This Agreement shall be binding on both parties and their respective
heirs, successors and assigns.
17. This Agreement and the Consulting Agreement sets forth the entire
agreement between the parties and their affiliates with respect to the subject
matter herein and therein and fully supersedes any and all prior agreements or
understandings between them pursuant to such subject matter including the
Employment Agreement dated April 1, 1996, which is hereby terminated and of no
force and effect. You acknowledge that all amounts given under this Agreement
shall be in full satisfaction of any and all obligations of USHG under the
Employment Agreement.
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18. This Agreement may not be modified, altered or changed except upon
express written consent of both parties wherein specific reference is made to
this Agreement.
19. If any provision of this Agreement should be held invalid or
unenforceable by operation of law or by any tribunal of competent jurisdiction,
or if compliance with or enforcement of any provision is restrained by such
tribunal, the application of any and all provisions other than those which have
been held invalid or unenforceable shall not be affected.
20. This Agreement shall be governed and construed in accordance with the
laws of the State of California (without reference to its rules as to conflicts
of laws). Any dispute arising hereunder shall be brought before a court of
competent jurisdiction in the City, County and State of California.
21. You may revoke this Agreement for a period of seven (7) days following
the day you execute this Agreement. Any revocation within this period must be
submitted, in writing, to Xxxxxx Xxxxxx, President, and state, "I hereby revoke
my acceptance of our Separation Agreement and Release." The revocation must be
personally delivered to Xx. Xxxxxx or his designee, or mailed to Xx. Xxxxxx at
US Home & Garden Inc., 000 Xxxxxxxxxx Xxxxxx, Xxx Xxxxxxxxx, XX 00000 and
postmarked within seven (7) days of execution of this Agreement. This Agreement
shall not become effective or enforceable until the revocation period has
expired (the "Employee Irrevocability Date"). If the last day of the revocation
period is a Saturday, Sunday or legal holiday in California, then the revocation
period shall not expire until the next following day which is not a Saturday,
Sunday or legal holiday.
YOU ACKNOWLEDGE THAT YOU HAVE BEEN ADVISED IN WRITING THAT YOU HAVE
TWENTY-ONE (21) DAYS TO CONSIDER THIS AGREEMENT AND TO CONSULT WITH AN ATTORNEY
PRIOR TO EXECUTION OF THIS AGREEMENT. YOU AGREE THAT ANY MODIFICATIONS, MATERIAL
OR OTHERWISE, MADE TO THIS AGREEMENT DO NOT RESTART OR AFFECT IN ANY MANNER THE
ORIGINAL TWENTY-ONE (21) DAY CONSIDERATION PERIOD.
HAVING ELECTED TO EXECUTE THIS AGREEMENT, TO FULFILL THE PROMISES SET FORTH
HEREIN, AND TO RECEIVE THEREBY THE SUMS AND BENEFITS SET FORTH IN SECTION "4"
ABOVE, YOU FREELY AND KNOWINGLY, AND AFTER DUE CONSIDERATION, ENTER INTO THIS
AGREEMENT INTENDING TO FOREVER WAIVE, SETTLE AND RELEASE ALL CLAIMS YOU HAVE OR
MIGHT HAVE AGAINST USHG.
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IN WITNESS WHEREOF, the parties hereto knowingly and voluntarily execute
this Separation Agreement and Release as of the date set forth below:
/s/ Xxxxxxx X. Xxxxxxx
-------------------------------
Xxxxxxx Xxxxxxx
6/28/01
-------------------------------
Date
U.S. Home & Garden Inc.
By: /s/ Xxxxxx Xxxxxx
----------------------------
Xxxxxx Xxxxxx, Chief Executive
Officer and President
7/2/01
-------------------------------
Date
Sworn to before me this
__day of June 2001.
Bien Xxxxxxxx X. Xxxxxxxxx
-------------------------------
Notary Public
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EXHIBIT A
CONSULTING AGREEMENT
Agreement, dated as of June 30, 2001 by and between U.S. Home & Garden
Inc., a Delaware corporation, having an address at 000 Xxxxxxxxxx Xxxxxx, Xxx
Xxxxxxxxx, XX 00000 (the "Company"), and Xxxxxxx Xxxxxxx, having an address at
0000 Xxxxxxxxx Xxxx, Xxxxxx, Xxxx 00000 (the "Consultant").
WHEREAS, the Company wishes to retain the Consultant and the Consultant has
agreed to undertake and perform the obligations set forth in this Agreement,
subject to the terms hereof.
NOW, THEREFORE, in consideration of the promises, covenants and agreements
set forth in this Agreement, the parties agree as follows:
1. Engagement of Consultant; Duties. The Company hereby engages the
Consultant, and the Consultant agrees to be engaged, as a consultant on the
terms and conditions set forth below. The Consultant shall serve as an
independent contractor, as a consultant to the Company and its affiliates,
performing such services as are reasonably determined by the Company and in
connection with the business of the Company (the "Services").
2. Time. Consultant shall make himself available in person or by telephone
at such time as is reasonably required by the Company upon reasonable notice.
3. Term. The Consultant's engagement shall commence effective on the date
hereof and shall continue until June 30, 2003 (the "Term").
4. Compensation. As compensation to the Consultant for the Services, the
Company shall pay to the Consultant a consulting fee in the amount of $24,000,
payable in 24 equal monthly installments of $1,000, or at such other times as
may mutually be agreed upon between the Company and the Consultant (the
"Consulting Fee"). Notwithstanding the foregoing, in the event that all of the
capital stock or all, or substantially all, of the assets of USHG are sold (a
"Sale"), then any amounts of the Consulting Fee which remain outstanding upon
the consummation of such Sale shall become immediately due and paid in a lump
sum payment on or promptly after consummation of the Sale. In the event of the
death of Consultant, the Company shall promptly pay to the executor or other
representative appointed by Consultant's estate, in one lump sum payment, the
balance of all monthly payments remaining in the Term.
5. Confidentiality. The Consultant shall not divulge to anyone, either
during or at any time after the termination of this Agreement, any information
constituting a trade secret or other confidential information acquired by him
concerning the Company, its parent, affiliates or subsidiaries, except in the
performance of his duties hereunder, without the prior written consent of the
Company ("Confidential Information"). However, in the event Consultant is
required by
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law to disclose any Confidential Information, he shall first notify the Company
in order to allow the Company to obtain a judgment or order restraining for such
disclosure.
6. Severability. If any provision of this Agreement shall be held to be
invalid or unenforceable, such invalidity or unenforceability shall attach only
to such provision and shall not affect or render invalid or unenforceable any
other provision of this Agreement, and this Agreement shall be construed as if
such provision had been drawn so as not to be invalid or unenforceable.
7. Independent Contractor. It is expressly agreed that Consultant is acting
as an independent contractor in performing the Services hereunder.
8. Notices. Any notice or other communication required to or which may be
given to any party hereunder shall be in writing and shall be delivered
personally to such party (or the Secretary thereof in the case of the Company)
or if mailed, by registered or certified mail, postage prepaid, return receipt
requested, addressed to such other party at the address first set forth above
and shall be deemed delivered in all cases upon receipt. Any party may change
the address to which notices are to be sent by giving written notice of any
change in the manner provided herein.
9. Entire Agreement. This Agreement represents and expresses the entire
understanding and agreement between the parties with respect to the subject
matter hereof and may not be modified or terminated except by an agreement in
writing signed by both of the parties hereto.
10. Assignment. The provisions of this Agreement shall be binding upon and
shall inure to the benefit of the successors and assigns of the parties hereto.
This Agreement shall not be assigned by the Consultant without the prior written
consent of the Company. Any assignment in violation of this Agreement shall be
void and of no force and effect.
11. Governing Law; Submissions to Jurisdiction. This Agreement shall be
deemed to be a contract made under the laws of the State of California and for
all purposes shall be construed in accordance with the laws of said State. The
Company and Consultant hereby irrevocably and unconditionally consent to submit
to the exclusive jurisdiction of the California State Supreme Court, County of
San Francisco or the United States District Court for District of California for
any actions, suits or proceedings arising out of or relating to this letter and
the transactions contemplated hereby (and agree not to commence any action, suit
or proceeding relating thereto except in such courts), and further agree that
service of any process, summons, notice or document by registered mail to the
address set forth above shall be effective service of process for any action,
suit or proceeding brought against the Company or the Consultant, as the case
may be, in any such court. The Company and Consultant also hereby irrevocably
and unconditionally waive any objection to the laying of venue of any action,
suit or proceeding arising out of this letter or the transactions contemplated
hereby, in the California State Supreme Court or the United States District
Court for the District of California, and hereby further irrevocably and
unconditionally waive and agree not to plead to claim in any such court that any
such action, suit or proceeding brought in any such court has been brought in an
inconvenient forum.
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IN WITNESS WHEREOF, the parties hereto have set their hands as of the date
first written above.
U.S. HOME & GARDEN INC.
By: /s/ Xxxxxx Xxxxxx
--------------------------------
Name: Xxxxxx Xxxxxx
Title: Chief Executive Officer
and President
/s/ Xxxxxxx Xxxxxxx
-----------------------------------
Xxxxxxx Xxxxxxx
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