Exhibit 10.36
SEPARATION AGREEMENT
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AND GENERAL RELEASE OF CLAIMS
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1. Xxxxxx Xxxxx ("Employee") is concluding his employment relationship with
Salon Media Group, Inc. (the "Company"). It is the Company's desire to provide
Employee with certain severance benefits that he would not otherwise be entitled
to receive upon his separation and to resolve any claims that Employee has or
may have against the Company. Accordingly, Employee and the Company agree as set
forth below (the "Agreement"). The benefits provided under this Agreement do not
reflect a permanent policy or practice and will only be made available to
Employee if he signs and returns (and does not revoke) this Agreement by January
30, 2008. This Agreement will become effective on the eighth day after it is
signed by Employee (the "Effective Date"), provided that Employee has not
revoked this Agreement by written notice to Xxxxx Xxxxxxx prior to that date.
2. In exchange for and conditioned upon fulfillment of Employee's promises
herein, the Company will provide Employee with the following severance benefits:
(a) Employee's last day of employment with the Company will be
February 8, 2008 (the "Separation Date"), on which date Employee will be
paid for all unused vacation accrued through the Separation Date. The
period between January 7, 2008 and the Separation Date will be referred to
as the "Transition Period." During the Transition Period, Employee will
continue to receive his regular pay and benefits and vest in any applicable
stock options through the Separation Date. Employee will be entitled to
take one week of sick leave for a medical procedure during the Transition
Period.
(b) During the Transition Period, Employee shall cooperate in the
orderly transition of his duties and perform such other duties as requested
by the Company's CEO to attain minimal business disruption in the
transition. If requested, Employee will resign as an officer (and all other
positions that he holds) of the Company. If Employee satisfactorily
cooperates in such transition during the Transition Period, then the
Company will provide Employee with the following additional benefits:
(i) the Company will pay Employee an amount equivalent to two
months of Employee's salary at Employee's current base salary rate,
less applicable withholding, in accordance with the Company's standard
payroll timing and practices.
(ii) Employee's group health insurance coverage under the
Company's health plan will continue through February 28, 2008.
Thereafter Employee may elect to purchase continued group health
insurance coverage at his own expense in accordance with federal and
state law ("COBRA"). If Employee is qualified for and timely elects
continued COBRA coverage, then the Company will pay the premium to
continue Employee's COBRA coverage for five months. Any additional
coverage will be at Employee's own expense.
(iii) The Company will pay directly, or reimburse employee upon
presentation of appropriate supporting documentation, for outplacement
services of Employee's choice during the Transition Period and for a
period of two months after the Separation Date, up to a maximum of
$5,000 total. Employee may elect to receive a cash payment of $5,000
(less any applicable withholding) in lieu of the reimbursement for
outplacement services.
(iv) That portion of any previously granted option(s) to purchase
shares of Company common stock in which Employee would have vested,
had he remained employed by the Company through the quarter ending
March 31, 2008, will become immediately vested and exercisable. In
addition, Employee's deadline to exercise all vested options he holds
will be extended to the date one year after the Separation Date. Apart
from the exceptions outlined herein, all options held by Employee will
remain subject to the terms and conditions of the Company's stock
option plan and grant documents.
(v) In the event that the Company's Form 10-Q is timely filed
with the SEC on or before February 14, 2008 with Employee's
assistance, then Employee will receive a bonus of $15,000, less
applicable withholding, within two weeks after such timely filing.
Employee should direct any potential employers to contact the Company's Human
Resources Manager for employment verification information. In the event that the
Company receives any inquiry about Employee from a prospective employer or
employment agency, the Company shall provide only Employee's title(s) and dates
of employment with the Company. Company will endeavor to obtain a mutually
acceptable letter of recommendation for Employee from Xxxxxxxxx Xxxxxxxxx by the
Separation Date.
3. With the exception of Employee's final paycheck (including accrued,
unused vacation), which shall be paid on the Separation Date, Employee affirms
that he has been paid for all, will not make a claim for, and will not receive
any further, salary, commissions, bonuses or other wages, including any accrued,
unused vacation, that he earned during his employment with the Company. Employee
agrees to submit any outstanding Company business expenses for reimbursement
within 10 days of the Effective Date, and such expenses will be reimbursed
pursuant to standard Company policy. Employee understands and acknowledges that
he will not be entitled to any payments or benefits from the Company other than
those expressly set forth above in paragraph 2 or required by law.
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4. Except with respect to the obligations herein, in exchange for the
benefits described above, Employee and his successors and assigns irrevocably
and absolutely release and discharge the Company and its parents, subsidiaries,
affiliates, shareholders, investors, directors, officers, employees, agents,
attorneys, insurers, legal predecessors, successors and assigns (collectively,
the "Released Parties") of and from any and all claims, actions and causes of
action, whether now known or unknown, which Employee now has, or at any other
time had, or shall or may have against the Released Parties relating to or
arising out of the transactions and occurrences between them to date, including,
but not limited to, their employment relationship, the termination of their
employment relationship, the Employee's purchase or right to purchase shares of
the Company's stock, if any, or any other matter, cause, fact, thing, act or
omission whatsoever occurring or existing at any time up to and including the
date of execution of this Agreement by Employee. This release includes, but is
not limited to, any tort, contract, common law, statutory or constitutional
claims, including but not limited to claims of breach of contract, wrongful
termination, retaliation, negligence, fraud, misrepresentation, unfair business
practices, breach of fiduciary duty, defamation, infliction of emotional
distress, invasion of privacy, personal injury, attorneys' fees, costs or
penalties, or national origin, race, age, sex, sexual orientation, religious
creed, disability, or other discrimination, harassment retaliation or other
prohibited conduct under the Civil Rights Act of 1964, the Age Discrimination In
Employment Act of 1967 (including the Older Workers' Benefit Protection Act),
the Americans with Disabilities Act, the Fair Labor Standards Act, the Worker
Adjustment and Retraining Notification Act, the California Fair Employment and
Housing Act, the California Labor Code, the California Unfair Practices Act, the
Xxxxxxxx-Xxxxx Act of 2002, state and federal securities laws and rules
promulgated thereunder, and any other applicable laws, all as they have been or
may be amended. However, this release is not intended to bar any claims that, by
statute, may not be waived. To the fullest extent permitted by law, Employee
agrees not to file any claim, action or demand based on any of the matters
released above.
5. Employee acknowledges that he has read section 1542 of the Civil Code of
the State of California, which states in full:
A general release does not extend to claims which the
creditor does not know or suspect to exist in his or her
favor at the time of executing the release, which if known
by him or her must have materially affected his or her
settlement with the debtor.
Employee waives any rights that he has or may have under section 1542 to the
full extent that he may lawfully waive such rights pertaining to this general
release of claims, and affirms that he is releasing all known and unknown claims
that he has or may have against the Released Parties. Employee acknowledges that
he may discover facts or law different from, or in addition to, the facts or law
that he now knows or believes to be true with respect to the claims released in
this Agreement and agrees, nonetheless, that this
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Agreement and the release contained in it shall be and remain effective in all
respects notwithstanding such different or additional facts or the discovery of
them.
6. Employee acknowledges and agrees that he shall continue to be bound by
and comply with the terms of any non-disclosure and proprietary rights and
assignment agreements between the Company and Employee. As a condition of
receiving the benefits under this Agreement, Employee agrees to return all
Company property by the Separation Date, including, but not limited to, all
equipment, documents and computer files related to the Company's business.
Employee will cooperate with any reasonable requests for the transition of his
former responsibilities and information to designated Company personnel.
7. Employee agrees to keep the terms of this Agreement, as well as the
discussions that led up to it, strictly confidential and shall not directly or
indirectly disclose any of the terms of this Agreement to anyone other than his
immediate family or counsel, except as such disclosure may be required for
accounting, financial or tax reporting purposes or as otherwise may be required
by law.
8. Employee further agrees that he will not, at any time in the future,
make any critical or disparaging statements about the Company, its services, its
directors or its employees unless such statements are made truthfully in
response to a subpoena or other legal process. The Company agrees that it will
not, through its officers or directors, make any critical or disparaging
statements about Employee unless such statements are truthful and are required
for a legitimate business purposes, including a response to a subpoena or other
legal process.
9. Employee agrees to provide reasonable cooperation to the Company should
his knowledge or testimony be deemed useful by the Company in pursuing or
defending any pending or future legal claims involving the Company or any of its
officers, director or affiliated entities and any third party. Examples of such
cooperation may include speaking with individuals at the Company or its outside
counsel, assisting in locating documents or other evidence and providing
truthful testimony. If Employee is requested in writing by the Company to
provide such assistance after the conclusion of the period in which Employee is
receiving severance payments under Paragraph 2(b)(i) above, then Employee shall
be reimbursed for his time at $200 per hour, unless the assistance is reasonably
required to assist with a claim: (a) in which Employee is a party and/or (b)
that involves alleged misconduct by Employee. Employee shall provide an invoice
with proper supporting documentation for any expenses and time spent and the
Company will reimburse him within 30 days of such submission.
10. This Agreement is intended to satisfy the requirements of the Older
Workers' Benefit Protection Act, 29 U.S.C. section 626(f).
10.1 Employee acknowledges and agrees that (a) Employee has read and
understands the terms of this Agreement; (b) Employee has been advised in
writing to consult with an attorney before executing this Agreement; (c)
Employee has obtained and
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considered such legal counsel as Employee deems necessary; (d) Employee has been
given twenty-one (21) days to consider whether or not to enter into this
Agreement (although Employee may elect not to use the full 21-day period at
Employee's option); and (e) by signing this Agreement, Employee acknowledges
that Employee does so freely, knowingly, and voluntarily.
10.2 This Agreement shall not become effective or enforceable until
the eighth day after Employee signs this Agreement. Employee may revoke
Employee's acceptance of this Agreement within seven (7) days after the date
Employee signs it. Employee's revocation must be in writing and received by
Xxxxx Xxxxxxx by 5:00 p.m. Pacific Time on the seventh day in order to be
effective. If Employee does not revoke acceptance within the seven (7) day
period, Employee's acceptance of this Agreement shall become binding and
enforceable on the eighth day. If Employee revokes his acceptance of this
agreement, then he will not be entitled to the benefits described in paragraph
2.
10.3 This Agreement does not waive or release any rights or claims
that Employee may have under the Age Discrimination in Employment Act that arise
after the execution of this Agreement. In addition, this Agreement does not
prohibit Employee from challenging the validity of this Agreement's waiver and
release of claims under the Age Discrimination in Employment Act of 1967, as
amended.
11. This Agreement shall be governed by and construed in accordance with
the laws of the State of California applicable to instruments, persons and
transactions that have legal contacts and relationships solely within the state
of California.
12. If any provision of this Agreement is for any reason found by an
arbitrator or a court of competent jurisdiction to be invalid or unenforceable,
then such invalid or unenforceable term shall be deemed amended, limited,
modified or otherwise conformed to the relevant law to the degree necessary to
permit the maximum enforceability or validation of the term(s), or, only if the
term cannot be so modified, then stricken, and the remaining portions of this
Agreement shall continue to be valid and construed to preserve to the maximum
permissible extent the intent and purposes of this Agreement.
13. This Agreement shall be binding on, and inure to the benefit of, each
of the parties to this Agreement and each's heirs, estates, administrators,
representatives, executors, successors and assigns.
14. This Agreement may be executed in two or more counterparts, and by
facsimile or PDF and, as executed, shall constitute one Agreement binding on all
the parties hereto, notwithstanding that all the parties are not signatories to
the original or the same counterparts.
15. In connection with this Agreement and all acts contemplated thereby,
each party agrees without further consideration to execute and deliver such
additional documents and to perform such additional acts as may be necessary to
carry out and
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perform all of the terms and conditions of this Agreement and all transactions
contemplated hereby.
16. This Agreement constitutes the entire agreement between the parties
with respect to the subject matter hereof and supersedes all prior negotiations
and agreements, whether written or oral, with the exception of any agreements
described in paragraph 6. In executing this Agreement, Employee has not relied
upon any representations on behalf of the Company that are not explicitly set
forth herein. This Agreement may not be modified or amended except by a document
signed by an authorized officer of the Company and Employee.
EMPLOYEE UNDERSTANDS THAT HE IS GIVING UP ANY LEGAL CLAIMS HE HAS OR MAY HAVE
AGAINST THE RELEASED PARTIES BY SIGNING THIS AGREEMENT. EMPLOYEE ACKNOWLEDGES
THAT HE IS SIGNING THIS AGREEMENT KNOWINGLY, WILLINGLY AND VOLUNTARILY IN
EXCHANGE FOR THE CONSIDERATION DESCRIBED HEREIN.
Dated: January 9, 2008 s/s Xxxxxx Xxxxx
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Xxxxxx Xxxxx
Dated: January 9, 2008 Salon Media Group, Inc.
By: s/s Xxxxxxxxxxx Xxxxxxx
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Title: Chief Executive Officer
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