SEPARATION AGREEMENT AND GENERAL RELEASE OF ALL CLAIMS
Exhibit 10.2
SEPARATION AGREEMENT AND
GENERAL RELEASE OF ALL CLAIMS
GENERAL RELEASE OF ALL CLAIMS
This Separation Agreement and General Release of all Claims (“Agreement”) is made by and
between Mathieu X. Xxxxxxx (“Employee”) and Xxxxx & Xxxxx Company (“Xxxxx & Xxxxx” or the
“Company”) (collectively, the “Parties”).
1. Separation From Employment. Notwithstanding Employee’s submission of a resignation
letter to the Company on June 6, 2011, as part of the Company and Employee negotiating the
Consulting Agreement (as defined below), the Company and Employee agree that Employee’s employment
as Executive Vice President, General Counsel and Corporate Secretary of the Company shall be
deemed terminated effective as of June 10, 2011 (the “Termination Date”). As of the Termination
Date, Employee also resigns as an officer and director of all subsidiaries of the Company. The
Company acknowledges that, as of the date Employee signs this Agreement, Employee has not received
Employee’s closing paycheck, including payment for all accrued and unused Paid Time Off (PTO), if
any. Notwithstanding Employee’s resignation, Employee agrees to provide certain consulting
services in accordance with the terms of the Consulting Agreement attached hereto as Exhibit
A (the “Consulting Agreement”).
2. Resolution of Disputes. The Parties have entered into this Agreement as a way of
severing the employment relationship between them and amicably settling any and all potential
claims or disputes (the “Disputes”) concerning Employee’s employment with Xxxxx & Xxxxx or
termination of employment from Xxxxx & Xxxxx. The Parties desire to resolve the above referenced
Disputes and all issues raised by the Disputes, without the further expenditure of time or the
expense of contested litigation. Additionally, the Parties desire to resolve any known or unknown
claims as more fully set forth below; provided that, notwithstanding the foregoing, Employee
represents and warrants to the Company that there are no third party claims threatened or pending
against the Company of which Employee is aware but of which the Company is unaware. For these
reasons, they have entered into this Agreement.
3. Termination of Employment Benefits. Employee represents, understands and agrees
that Employee’s active employment with Xxxxx & Xxxxx ended on the Termination Date as specified
above, that Employee will not otherwise demand further employment with Xxxxx & Xxxxx, and that
Employee will no longer be covered by or eligible for any benefits under any Xxxxx & Xxxxx employee
benefit plan in which employee currently participates, except as otherwise noted herein.
Employee’s health benefits coverage will continue through June 30, 2011 at which time Employee will
be eligible for continued coverage through the election of COBRA. Employee will receive by
separate cover information regarding Employee’s rights to health insurance continuation under COBRA
and any Xxxxx & Xxxxx 401(k) Plan benefits. As of the Termination Date, Employee shall not be
entitled to any of the rights and privileges established for Xxxxx & Xxxxx’x employees except as
otherwise provided in this Agreement.
4. Payment. In return for Employee’s execution of and compliance with this Agreement,
including the releases that form a material part of this Agreement, Xxxxx & Xxxxx shall provide
Employee with certain separation benefits (see below) to which Employee would not otherwise be
entitled:
x. Xxxxx & Xxxxx shall pay Employee $14,746.04 (Forteen Thousand Seven Hundred Fourty-Six
Dollars and Four cents), subject to deductions for state and federal withholding tax, social
security and other employee taxes and payroll deductions. This payment is equivalent to seven (7)
months of
Employee’s monthly benefits premiums including a gross up for taxes. This payment shall be
made within the next pay period after the Effective Date of this Agreement (as defined in paragraph
12). After Xxxxx & Xxxxx has completed processing its payroll for this calendar year, Xxxxx &
Xxxxx will issue to Employee an IRS Form W-2 which will include the payment.
5. General Release.
(a) Xxxxx & Xxxxx Release. In consideration of and in return for the promises and
covenants undertaken in each of this Agreement and in that certain Consulting Agreement of even
date hereof being entered into by and between Xxxxx & Xxxxx and Employee, and for other good and
valuable consideration, receipt of which is hereby acknowledged and except as noted below, Employee
does hereby acknowledge full and complete satisfaction of and does hereby unconditionally,
irrevocably and absolutely release, absolve and discharge Xxxxx & Xxxxx and each of Xxxxx & Xxxxx’x
predecessors, parents, subsidiaries, affiliates, associates, owners, divisions, related companies
and business concerns, past and present, and each of them, as well as each of their partners,
trustees, directors, officers, shareholders, agents, attorneys, servants and employees, past and
present, and each of them (collectively referred to as “Company Releasees”), from any and all
claims, demands, liens, agreements, contracts, covenants, actions, suits, causes of action,
grievances, wages, vacation or PTO payments, severance payments, obligations, commissions, overtime
payments, debts, profit sharing claims, expenses, damages, judgments, orders and liabilities of
whatever kind or nature in state or federal law, equity or otherwise, whether known or unknown to
Employee (collectively, the “Employee Claims”), which Employee now owns or holds or has at any time
owned or held as against Company Releasees, or any of them, including specifically but not
exclusively and without limiting the generality of the foregoing, any and all Employee Claims known
or unknown, suspected or unsuspected: (1) arising out of Employee’s employment with Xxxxx & Xxxxx
or termination of that employment; or (2) arising out of or in any way connected with any claim,
loss, damage or injury whatsoever, known or unknown, suspected or unsuspected, resulting from any
act or omission by or on the part of Company Releasees, or any of them, committed or omitted on or
before the date this Agreement is executed by Employee. Also, without limiting the generality of
the foregoing, Employee specifically releases Company Releasees from any claim for attorneys’ fees.
EMPLOYEE ALSO SPECIFICALLY AGREES AND ACKNOWLEDGES EMPLOYEE IS WAIVING ANY RIGHT TO RECOVERY BASED
ON STATE OR FEDERAL AGE, SEX, PREGNANCY, RACE, COLOR, NATIONAL ORIGIN, MARITAL STATUS, RELIGION,
VETERAN STATUS, DISABILITY, SEXUAL ORIENTATION, MEDICAL CONDITION OR OTHER ANTI-DISCRIMINATION
LAWS, INCLUDING, WITHOUT LIMITATION, TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, THE AGE
DISCRIMINATION IN EMPLOYMENT ACT, THE EQUAL PAY ACT, THE AMERICANS WITH DISABILITIES ACT, THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT, THE WORKER ADJUSTMENT RETRAINING AND NOTIFICATION ACT, THE
CALIFORNIA FAIR EMPLOYMENT AND HOUSING ACT, THE CALIFORNIA FAMILY RIGHTS ACT, THE CALIFORNIA LABOR
CODE, AND ALL OTHER STATE LAWS, ALL AS AMENDED, WHETHER SUCH CLAIM BE BASED UPON AN ACTION FILED BY
EMPLOYEE OR BY A GOVERNMENTAL AGENCY. Employee acknowledges and agrees that Employee has been
properly paid for all hours worked, that Employee has not suffered any on-the job injury for which
Employee has not already filed a claim, that Employee has been properly provided any leave of
absence because of Employee’s, or a family member’s, serious health condition, and that Employee
has not been subjected to any improper treatment, conduct or actions due to or related to
Employee’s request, if any, or Employee’s taking of, any leave of absence because of Employee’s
own, or a family member’s serious health condition.
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The foregoing release does not apply to any claim that, as a matter of law cannot be released,
including but not limited to claims for unemployment insurance benefits and/or workers’
compensation claims. The foregoing release also does not preclude Employee from filing suit to
challenge Xxxxx & Xxxxx’x compliance with the waiver requirements of the Age Discrimination in
Employment Act, as amended by the Older Workers Benefit Protection Act. This Agreement does not
include rights or claims that may arise after the date Employee executes this Agreement.
Except as described below, Employee agrees and covenants not to file any suit, charge, or
complaint against Company Releasees in any court or administrative agency, with regard to any
Employee Claim. Employee further represents that no claims, complaints, charges, or other
proceedings are pending in any court, administrative agency, commission or other forum relating
directly or indirectly to your employment with, or separation from, Xxxxx & Xxxxx. Nothing in this
Agreement shall be construed to prohibit Employee from filing a charge with the Equal Employment
Opportunity Commission (“Commission”) and/or National Labor Relations Board (“NLRB”) or other
federal, state, or local agency or participating in any investigation or proceeding conducted by
such administrative agencies. However, Employee is waiving any claim Employee may have to receive
monetary damages in connection with any Commission and/or NLRB or other agency proceeding
concerning matters covered by this Agreement.
(b) Employee Release. In consideration of and in return for the promises and
covenants undertaken in this Agreement, and for other good and valuable consideration, receipt of
which is hereby acknowledged, Xxxxx & Xxxxx does hereby unconditionally, irrevocably and absolutely
release, absolve and discharge Employee, from any and all claims, losses, liabilities, charges,
suits, damages, liabilities, demands and causes of action, known or unknown, suspected or
unsuspected, which Xxxxx & Xxxxx now owns or holds or has at any time owned or held against
Employee (collectively, the “Xxxxx & Xxxxx Claims” and, together with the Employee Claims, the
“Claims”) arising directly or indirectly out of or in any way connected with the transactions or
occurrences between Company and Employee to date and all actions taken by Employee on behalf of or
relating to Company, to the fullest extent permitted by law, including, but not limited to,
Employee’s employment with Company, the termination of Employee’s employment with Company,
Employee’s service as Executive Vice President, General Counsel and Corporate Secretary of the
Company and Employee’s service as an officer and/or director of any direct and indirect
subsidiaries of the Company. This release is intended to have the broadest possible application
and includes, but is not limited to, any tort, contract, common law, constitutional or other
statutory claims, and all claims for attorney’s fees, costs and expenses.
Except as described below, Xxxxx & Xxxxx agrees and covenants not to file any suit, charge, or
complaint against Employee in any court or administrative agency, with regard to any Xxxxx & Xxxxx
Claim. Xxxxx & Xxxxx further represents that no claims, complaints, charges, or other proceedings
are pending in any court, administrative agency, commission or other forum relating directly or
indirectly to your employment with, or separation from, Xxxxx & Xxxxx.
(c) The parties acknowledge that they may discover facts or law different from, or in addition
to, the facts or law that they know or believe to be true with respect to the Claims and agree,
nonetheless, that this Agreement and the releases contained in it shall be and remain effective in
all respects notwithstanding such different or additional facts or the discovery of them. The
parties declare and represent that they intend this Agreement to be complete and not be subject to
any claim of mistake, and that the releases herein express final, full and complete releases, and
regardless of the adequacy or inadequacy of the consideration, the parties intend the releases
herein to be final and complete. The parties execute these releases with the full knowledge that
these releases cover all possible claims between them to date, to the fullest extent permitted by
law.
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(d) Waiver of Civil Code Section 1542. It is the intention of the Parties in executing this
instrument that it shall be effective as a bar to each and every Xxxxx & Xxxxx Claim and Employee
Claim specified in this Agreement. In furtherance of this intention, the Parties hereby expressly
waive any and all rights and benefits conferred upon such Party by the provisions of Section 1542
of the California Civil Code, and expressly consent that this Agreement shall be given full force
and effect according to each and all of its express terms and provisions, including those relating
to unknown and unsuspected Claims, if any, as well as those relating to any other Claims
hereinabove specified. Section 1542 provides:
“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.”
Having been so apprised, each Party nevertheless hereby voluntarily elects to and does waive the
rights described in Civil Code Section 1542, and elects to assume all risks for Claims that now
exist in such Party’s favor, known or unknown.
/s/ TPD
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/s/ MS | |||
(e) Indemnification. Nothing in this Agreement is intended to or should be construed
to limit, modify or alter the terms of that certain Indemnification Agreement dated as of March 14,
2011 by and between the Company and Employee, or otherwise limit, modify or alter the
indemnification, hold harmless and similar protections afforded Employee pursuant to the Company’s
and its subsidiaries’ by-laws and other organizational documents and under California state law.
(f) The releases and other provisions contained in this Section 5 shall become effective
immediately upon execution of this Agreement by the Parties; provided, however, that to the extent
the release of Employee Claims relate to age discrimination under the ADEA they shall not be
effective until the Effective Date of this Agreement, as described in Section 11 below.
6. Non-Disparagement; Press Release. Employee agrees that Employee will not in any way
disparage the name or reputation of Xxxxx & Xxxxx, including: (1) Employee agrees not to make any
derogatory or negative remarks about Xxxxx & Xxxxx; (2) Employee agrees not to make any negative or
derogatory remarks about the Company Releasees; and (3) Employee agrees not to make any remarks
about any disputes Employee has had with Xxxxx & Xxxxx or Company Releasees. Xxxxx & Xxxxx agrees
that its corporate public statements, executive officers and directors will not in any way defame
or disparage the name or reputation of Employee. Employee shall have the right to review and
reasonably approve any press release issued by Company relating to Employee’s resignation and
departure from the Company.
7. Return of Xxxxx & Xxxxx Information/Documentation. Employee agrees that on the
Termination Date employee shall return all Xxxxx & Xxxxx information, including but not limited to
any confidential information, and all copies of such information to Xxxxx & Xxxxx, and Employee
shall destroy all extracts, memoranda, notes, spreadsheets and any other material prepared by
Employee or Xxxxx & Xxxxx based upon Xxxxx & Xxxxx confidential information. Xxxxx & Xxxxx
information includes, but is not limited to, all information, equipment, books, files, reports,
records, employee lists, correspondence, materials, and other documents including all
reproductions, that may be considered to be property of Xxxxx & Xxxxx or that contain proprietary
information, whether in paper, magnetic, electronic, or other form, that Employee has relating to
the Company’s
practices, procedures, trade secrets, financial and accounting information, client lists,
client information, client billing and payment information, or marketing of Xxxxx & Xxxxx’
services.
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8. Confidentiality.
Employee agrees: (1) the terms and conditions of this Agreement; and (2) any and all actions
taken by Company Releasees in accordance with this Agreement, are confidential, and shall not be
disclosed, discussed or revealed by any of them to any other person or entity except Employee’s
immediate family, attorney and/or accountant. Nothing in this paragraph is intended to restrict
either Party or his/her/its agents from disclosing any provision of this Agreement to any taxing
authority or to any tax advisor to such Party. Should Employee at any time be served with a
subpoena under which Employee would arguably be required to disclose any of the confidential
information covered by this Agreement, then Employee shall immediately contact Xxxxx & Xxxxx’x
Senior Vice President, Human Resources, so that Xxxxx & Xxxxx shall have adequate time to take
those steps necessary to prevent disclosure.
9. Trade Secrets and Confidential Information. Employee acknowledges that during
Employee’s employment, Employee may have had access to trade secrets and confidential information
about Xxxxx & Xxxxx, its products and services, its customers, and its methods of doing business,
including but not limited to files, customer lists, pricing lists, technical data, financial data
and business processes. Employee agrees that Employee shall not disclose any information relating
to the trade secrets or confidential information of Xxxxx & Xxxxx or its customers which has not
already been disclosed to the general public. Employee understands and acknowledges that
Employee’s obligations under prior agreements with Xxxxx & Xxxxx, if any, including but not limited
to, any Confidentiality, Intellectual Property, Trade Secrets, Non-Solicitation, Stock Options, and
Employee Stock Purchase Plan, will remain in full force following Employee’s termination of
employment and that Employee will continue to abide by any such prior agreements.
10. Twenty-One Days To Consider Agreement. Xxxxx & Xxxxx advises Employee to discuss
this Agreement with an attorney before executing it. Employee’s decision whether to sign this
Agreement is made with full knowledge that Xxxxx & Xxxxx has advised Employee to consult with an
attorney. Employee acknowledges Employee has been provided with at least 21 days within which to
review and consider this Agreement before signing it. Should Employee decide not to use the full
21 days, then Employee knowingly and voluntarily waives any claim that Employee was not in fact
given that period of time or did not use the entire 21 days to consult an attorney and/or consider
this Agreement. Employee acknowledges that Xxxxx & Xxxxx has not asked Employee to shorten the
21-day time period for consideration of whether to sign this Agreement. The Parties agree that any
changes, whether material or immaterial, to this Agreement, do not restart the running of the
21-day period.
11. Right of Revocation. Within three calendar days of signing and dating this
Agreement, Employee shall deliver the executed original of the Agreement to Xxxxxx Xxxxxxx, SVP,
Human Resources at 0000 X. Xxxxxx Xxxxx 000, Xxxxx Xxx, XX 00000. However, the Parties acknowledge
and agree that Employee may revoke this Agreement for up to seven (7) calendar days following
Employee’s execution of this Agreement and that it shall not become effective or enforceable
against Employee until the revocation period has expired. The Parties further acknowledge and
agree that such revocation must be in writing addressed to and received by Xxxxxx Xxxxxxx, SVP,
Human Resources at 0000 X. Xxxxxx Xxxxx 000, Xxxxx Xxx, XX 00000 not later than noon on the eighth
(8th) day following execution of this Agreement by Employee. If Employee revokes this
Agreement under this Paragraph, this Agreement shall not be effective or enforceable. The Company
shall have no similar right of revocation.
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12. Effective Date. If Employee does not revoke this Agreement in the time frame
specified in the preceding paragraph, the Agreement shall be effective at 12:00:01 p.m. on the
eighth (8th) day after it is signed by Employee (the “Effective Date”).
13. Choice of Law. This Agreement shall be construed in accordance with, and be deemed
governed by, the laws of the State of California without regard to its conflict of laws provisions.
14. Non-Admission. Even though consideration is acknowledged for the mutual release
of Claims, neither party admits that it engaged in any unlawful or improper conduct toward the
other party. This Agreement shall not be construed as an admission by either Xxxxx & Xxxxx or
Employee that it has violated any statute, law or regulation, breached any contract or agreement,
or engaged in any improper conduct.
15. General Terms And Conditions.
a. If any provision of this Agreement or any application of any provision of this Agreement is
held invalid, the invalidity shall not affect other provisions or applications of the Agreement
which can be given effect without the invalid provision or application. To this end, the provisions
of this Agreement are severable.
b. Employee represents and warrants that Employee has not heretofore assigned or transferred
or purported to assign or transfer to any person, firm or corporation any claim, demand, right,
damage, liability, debt, account, action, cause of action, or any other matter herein released.
Employee agrees to indemnify and hold Xxxxx & Xxxxx harmless against any claim, demand, right,
damage, debt, liability, account, action, cause of action, cost or expense, including attorneys’
fees or costs, actually paid or incurred, arising out of or in any way connected with any such
transfer or assignment or any such purported or claimed transfer or assignment.
c. This Agreement and all covenants and releases set forth herein shall be binding upon and
shall inure to the benefit of the respective Parties hereto, their legal successors, heirs,
assigns, partners, representatives, parent companies, subsidiary companies, agents, attorneys,
officers, employees, directors and shareholders.
d. The Parties acknowledge each has read this Agreement, that each fully understands
his/her/its rights, privileges and duties under the Agreement, and that each enters this Agreement
freely and voluntarily. The parties acknowledge that each has had the opportunity to consult with
an attorney of his/her/its choice to explain the terms of this Agreement and the consequences of
signing this Agreement.
e. This Agreement and the provisions contained herein shall not be construed or interpreted
for or against any Party hereto because that Party drafted or caused that Party’s legal
representative to draft any of its provisions.
f. The undersigned each acknowledge and represent that no promise or representation not
contained in this Agreement has been made to them and acknowledge and represent that this Agreement
contains the entire understanding between the Parties and contains all terms and conditions
pertaining to the compromise and settlement of the subjects referenced in this Agreement. Each
Party acknowledges that he/she/it has relied solely upon his/her/its own legal and tax advisors and
that the lawyers, accountants and advisors to the other Party have not given any legal or tax
advice to such Party in connection with this Agreement.
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g. Employee also agrees to cooperate with Xxxxx & Xxxxx regarding any pending or subsequently
filed litigation, claims, or other disputes involving Xxxxx & Xxxxx that relate to matters within
the knowledge or responsibility of Employee during his/her employment with Xxxxx & Xxxxx. Without
limiting the foregoing, Employee agrees (i) to meet with Xxxxx & Xxxxx representatives, its
counsel, or other designees at mutually convenient times and places with respect to any items with
the scope of this provision; (ii) to provide truthful testimony regarding same to any court,
agency, or other adjudicatory body; and (iii) to provide Xxxxx & Xxxxx with notice of contact by
any adverse party or such adverse party’s representative, except as may be required by law. Xxxxx
& Xxxxx will reimburse Employee for all reasonable expenses in connection with the cooperation
described in this paragraph.
h. Any modifications to this Agreement must be made in writing and signed by Employee and
Xxxxxx Xxxxxxx, SVP Human Resources or Xxx D’Arcy, CEO of Xxxxx & Xxxxx Company.
PLEASE READ CAREFULLY. THIS AGREEMENT CONTAINS A
GENERAL RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS.
GENERAL RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS.
EMPLOYEE ACKNOWLEDGES AND AGREES THAT HE/SHE HAS BEEN ADVISED THAT THIS AGREEMENT IS
A BINDING AND LEGAL DOCUMENT. EMPLOYEE FURTHER AGREES THAT S/HE HAS HAD AT LEAST
TWENTY-ONE (21) DAYS TO REVIEW THE PROVISIONS OF THIS AGREEMENT AND HAS BEEN ADVISED
TO SEEK LEGAL ADVICE REGARDING ALL ITS ASPECTS, AND THAT IN EXECUTING THIS AGREEMENT
EMPLOYEE HAS ACTED VOLUNTARILY AND HAS NOT RELIED UPON ANY REPRESENTATION MADE BY
XXXXX & XXXXX OR ANY OF ITS EMPLOYEES OR REPRESENTATIVES REGARDING THIS AGREEMENT’S
SUBJECT MATTER AND/OR EFFECT. EMPLOYEE HAS READ AND FULLY UNDERSTANDS THIS
AGREEMENT AND VOLUNTARILY AGREES TO ITS TERMS.
AGREED AND UNDERSTOOD:
Date: 6/10/11
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/s/ Xxxxxxx Xxxxxxx | |||||
| Date: 6/10/11 | XXXXX & XXXXX COMPANY | |||||
| By: | /s/ Xxxxxx D’Arcy | |||||
| Chief Executive Officer | ||||||
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