SEPARATION AGREEMENT AND RELEASE RECITALS
Exhibit 10.1
SEPARATION AGREEMENT AND RELEASE
RECITALS
RECITALS
This Separation Agreement and Release (“Agreement”) is made by and between Xxxxx
Xxxxx (“Employee”) and Xxxxxxxxxx, Inc. (“Xxxxxxxxxx” or the “Company”), collectively referred to
as the (“Parties”):
WHEREAS, Employee was employed by the Company as its Chief Financial Officer;
WHEREAS, Employee’s employment is terminated effective November 1, 2007;
WHEREAS, the Parties, and each of them, wish to resolve any and all disputes, claims,
complaints, grievances, charges, actions, petitions and demands that Employee may have against the
Company as defined herein, including, but not limited to, any and all claims arising or in any way
relating to Employee’s employment with, or separation from, the Company;
NOW THEREFORE, in consideration of the promises made herein, the Parties hereby agree as
follows:
COVENANTS
1. Consideration.
(a) Severance pay: The equivalent of Employee’s base salary ($225,500.00) as
currently in effect for a period of six (6) months following the date of termination (the
“Severance Period”), totaling $112,750.00, to be paid periodically (and with the requisite tax
withholdings) in accordance with the Company’s standard payroll practices;
(b) Benefits: Continuation of Company health and dental benefits through COBRA
premiums paid by the Company directly to the COBRA administrator during the Severance Period;
provided, however, that such premium payments shall cease prior to the end of the Severance Period
if Employee commences other employment with reasonably comparable or greater health and dental
benefits. Employee shall notify Company within 24 hours of commencing employment with reasonably
comparable or greater health and dental benefits. Company shall issue Employee a Form 1099 for the
amount of the COBRA premiums paid on her behalf;
(c) Bonus: Employee will not be eligible for any bonus, vesting of stock options or
other benefits or cash or equity compensation of any kind not described above, except as may be
required by law.
2. Confidential Information. Employee agrees to continue to maintain the
confidentiality of all confidential information of the Company, and shall continue to abide by the
terms of Proprietary Information and Inventions Agreement, which is incorporated herein by
reference (“Confidentiality Agreement”). Employee acknowledges that, as of the date of this
Agreement, she has not engaged in any conduct which violates the terms of the Confidentiality
Agreement. Employee further agrees to return (not delete or destroy), and not retain any hard or
electronic copies of, all Company property and data in her possession (including information stored
on home computers, other computer media such as USB storage devices, and in Web accounts) on or
before her final day of employment with the Company. By signing this Agreement and accepting the
benefits hereunder, Employee certifies that she is in compliance with her obligations under this
Provision, and understands that her compliance with this provision was a material inducement to the
Company providing her with the benefits described in this Agreement.
3. Payment of Sums Owed. Employee acknowledges and represents that the Company has
paid all salary, wages, bonuses, accrued vacation, commissions and any and all other benefits due
to her, once the aforementioned amounts are paid.
4. Release of Claims. Employee agrees that the foregoing consideration represents
settlement in full of all outstanding obligations owed to her by the Company. Employee, on her own
behalf, and on behalf of her respective heirs, family members, executors, and assigns, hereby fully
and forever releases the Company and its officers, directors, employees, attorneys, investors,
agents, shareholders, administrators, affiliates, divisions, subsidiaries, predecessor and
successor corporations, and assigns, from any claim, duty, obligation or cause of action relating
to any matters of any kind, whether presently known or unknown, suspected or unsuspected, that she
may possess arising from any omissions, acts or facts that have occurred up until and including the
Effective Date of this Agreement including, without limitation:
(a) any and all claims relating to or arising from her employment relationship with the
Company and the termination of that relationship;
(b) any and all claims under the law of any jurisdiction including, but not limited to,
wrongful discharge of employment, constructive discharge from employment, termination in violation
of public policy, discrimination (including age discrimination), retaliation, failure to
accommodate a disability, breach of contract, both express and implied, breach of a covenant of
good faith and fair dealing, both express and implied, promissory estoppel, negligent or
intentional infliction of emotional distress, negligent or intentional misrepresentation, negligent
or intentional interference with contract or prospective economic advantage, unfair business
practices, defamation, libel, slander, negligence, personal injury, assault, battery, invasion of
privacy, false imprisonment, and conversion;
(c) any and all claims for violation of any federal, state or municipal statute, including,
but not limited to, Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, the
Age Discrimination in Employment Act of 1967, the Americans with Disabilities Act of 1990, the Fair
Labor Standards Act, the Employee Retirement Income Security Act of 1974, the California Fair
Employment and Housing Act, and the California Labor Code;
(d) any and all claims for violation of the federal, or any state, constitution;
(e) any and all claims arising out of any other laws and regulations relating to employment or
employment discrimination;
(f) any claim for any loss, cost, damage, or expense arising out of any dispute over the
non-withholding or other tax treatment of any of the proceeds received by Employee as a result of
this Agreement; and
(g) any and all claims for attorneys’ fees and costs.
The Parties agree that the release set forth in this section shall be and remain in effect in
all respects as a complete general release as to the matters released. This release does not
extend to any obligations incurred under this Agreement.
5. Claims Not Released. This Agreement does not release any claims that the law does
not permit Employee to release.
6. Pursuit of Claims. Employee acknowledges that she has not filed, initiated, or
prosecuted (or caused to be filed, initiated, or prosecuted) any lawsuit, complaint, charge,
action, compliance review, investigation, or proceeding with respect to any claim this Release
purports to waive, and promises never to do so in the future, whether as a named plaintiff, class
member, or otherwise. However, the preceding sentence shall not preclude Employee from filing or
prosecuting a charge with any administrative agency with respect to any such claim as long as she
does not seek any damages, remedies, or other relief for herself personally, which Employee
promises not to do, and any right to which Employee hereby waives. If Employee is ever awarded or
recovers any amount as to a claim she has purported to waive in this Release, Employee agrees that
the amount of the award or recovery shall be reduced by the amounts she was paid under this Release
and the Supplemental Release attached hereto as Exhibit A, increased appropriately for the time
value of money, using an interest rate of 10 percent per annum. To the extent such a setoff is not
effected, Employee promises to pay, or assign to the Company her right to receive, the amount that
should have been set off.
7. Acknowledgement of Waiver of Claims Under ADEA. Employee acknowledges that she is
waiving and releasing any rights she may have under the Age Discrimination in Employment Act of
1967 (“ADEA”) and that this waiver and release is knowing and voluntary. Employee and the Company
agree that this waiver and release does not apply to any rights or claims that may arise under the
ADEA after the Effective Date of this Agreement. Employee acknowledges that the consideration
given for this waiver and release Agreement is in addition to anything of value to which she was
already entitled. Employee further acknowledges that she has been advised by this writing that:
(a) she should consult with an attorney prior to executing this Agreement;
(b) she has up to twenty-one (21) days within which to consider this Agreement;
(c) she has seven (7) days following her execution of this Agreement to revoke the Agreement,
and may do so by providing written notice to Xxxx Xxxxxxxx of the Company within the applicable
seven (7)-day period;
(d) this Agreement shall not be effective until the revocation period has expired; and
(e) nothing in this Agreement prevents or precludes Employee from challenging or seeking a
determination in good faith of the validity of this waiver under the ADEA, nor does it impose any
condition precedent, penalties or costs for doing so, unless specifically authorized by federal
law.
8. Civil Code Section 1542. Employee represents that she is not aware of any claim by
her other than the claims that are released by this Agreement. Employee acknowledges that she has
been advised by legal counsel and is familiar with the provisions of California Civil Code Section
1542, which provides as follows:
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, being aware of said Code section, agrees to expressly waive any rights she may have
thereunder, as well as under any other statute or common law principles of similar effect.
9. Confidentiality. The Parties acknowledge that Employee’s agreement to keep the
terms and conditions of this Agreement confidential was a material factor on which all Parties
relied in entering into this Agreement. Employee hereto agrees to use her best efforts to maintain
in confidence the existence of this Agreement, the contents and terms of this Agreement, the
consideration for this Agreement, and any allegations relating to the Company or her employment
with the Company except as otherwise provided for in this Agreement (hereinafter collectively
referred to as “Separation Information”). Employee agrees to take every reasonable precaution to
prevent disclosure of any Separation Information to third parties unless required by law, and
agrees that there will be no publicity, directly or indirectly, concerning any Separation
Information beyond what is included in public disclosures. Employee agrees to take every
precaution to disclose Separation Information only to those attorneys, accountants, governmental
entities, and family members who have a reasonable need to know of such Separation Information.
The Company also agrees to take every reasonable precaution to prevent disclosure of any Separation
Information to third parties, and agrees that there will be no publicity, directly or indirectly,
concerning any Separation Information (excluding public filings made with the SEC or other
government agencies). The Company further agrees to take every precaution to disclose Separation
Information only to those attorneys, accountants, analysts, shareholders, governmental entities,
and members of the Company’s management team who have a reasonable need to know of such Separation
Information.
10. No Cooperation. Employee agrees that she will not counsel or assist any attorneys
or their clients in the presentation or prosecution of any disputes, differences, grievances,
claims, charges, or complaints by any third party against the Company and/or any officer, director,
employee, agent, representative, shareholder or attorney of the Company, unless under a subpoena or
other court order to do so. Employee further agrees both to immediately notify the Company upon
receipt of any court order, subpoena, or any legal discovery device that seeks or might require the
disclosure or production of the existence or terms of this Agreement, and to furnish, within three
(3) business days of its receipt, a copy of such subpoena or legal discovery device to the Company.
11. Non-Disparagement. Employee agrees to refrain from any defamation, libel or
slander of the Company or tortious interference with the contracts and relationships of the
Company.
12. Tax Consequences. The Company makes no representations or warranties with respect
to the tax consequences of the payment of any sums to Employee under the terms of this Agreement.
Employee agrees and understands that she is responsible for payment, if any, of local, state and/or
federal taxes on the sums paid hereunder by the Company and any penalties or assessments thereon.
Employee further agrees to indemnify and hold the Company harmless from any claims, demands,
deficiencies, penalties, assessments, executions, judgments, or recoveries by any government agency
against the Company for any amounts claimed due on account of any failure to pay federal or state
taxes or damages sustained by the Company by reason of any such claims, including reasonable
attorneys’ fees.
13. No Admission of Liability. The Parties understand and acknowledge that this
Agreement constitutes a compromise and settlement of disputed claims. No action taken by the
Parties hereto, or either of them, either previously or in connection with this Agreement shall be
deemed or construed to be:
(a) an admission of the truth or falsity of any claims heretofore made; or
(b) an acknowledgment or admission by either party of any fault or liability whatsoever to the
other party or to any third party.
14. Costs. The Parties shall each bear their own costs, expert fees, attorneys’ fees
and other fees incurred in connection with this Agreement.
15. Indemnification.
Parties agree to indemnify and hold harmless the other from and
against any and all loss, costs, damages or expenses, including, without limitation, attorneys’
fees or expenses incurred by the Parties arising out of the breach of this Agreement by Employee or
Company, or from any false representation made herein by Employee or the Company. Parties further
agree that in any legal proceeding, this Agreement may be pled by either the Employee or the
Company as a complete defense (meaning that either Party may use this Agreement to demonstrate to a
judge, jury, or any other deciding authority that the other Party has waived and released any and
all claims they have against the other as of the Effective Date of this Agreement), or may be
asserted by way of counterclaim or cross-claim.
16. Authority. The Company represents and warrants that the undersigned has the
authority to act on behalf of the Company and to bind the Company and all who may claim through it
to the terms and conditions of this Agreement. Employee represents and warrants that she has the
capacity to act on her own behalf and on behalf of all who might claim through her to bind them to
the terms and conditions of this Agreement. Each party warrants and represents that there are no
liens or claims of lien or assignments in law or equity or otherwise of or against any of the
claims or causes of action released herein.
17. No Representations. Each Party represents that it has had the opportunity to
consult with an attorney, and has carefully read and understands the scope and effect of the
provisions of this Agreement. Neither Party has relied upon any representations or statements made
by the other party hereto which are not specifically set forth in this Agreement.
18. Severability. In the event that any provision hereof becomes or is declared by a
court of competent jurisdiction to be illegal, unenforceable or void, this Agreement shall continue
in full force and effect without said provision so long as the remaining provisions remain
intelligible and continue to reflect the original intent of the Parties.
19. Entire Agreement. This Agreement, and the Confidentiality Agreement between the
Company and Employee, constitute the entire agreement and understanding between the Parties
concerning the subject matter of this Agreement and all prior representations, understandings, and
agreements concerning the subject matter of this Agreement have been superseded by this Agreement.
20. No Waiver. The failure of any Party to insist upon the performance of any of the
terms and conditions in this Agreement, or the failure to prosecute any breach of any of the terms
and conditions of this Agreement, shall not be construed thereafter as a waiver of any such terms
or conditions. This entire Agreement shall remain in full force and effect as if no such
forbearance or failure of performance had occurred.
21. No Oral Modification. Any modification or amendment of this Agreement, or
additional obligation assumed by either party in connection with this Agreement, shall be effective
only if placed in writing and signed by both Parties or by authorized representatives of each
Party. No provision of this Agreement can be changed, altered, modified, or waived except by an
executed writing by the Parties.
22. Governing Law. This Agreement shall be deemed to have been executed and delivered
within the State of California, and it shall be construed, interpreted, governed, and enforced in
accordance with the laws of the State of California, without regard to conflict of law principles.
23. Attorneys’ Fees. In the event that either Party brings an action to enforce or
effect its rights under this Agreement, the prevailing party shall be entitled to recover its
reasonable attorneys’ fees and costs incurred in connection with such an action.
24. Effective Date. This Agreement is effective on the eighth (8th) day after it has
been executed by both parties, unless revoked by Employee in writing within seven (7) days of the
date she executes it. Should Employee elect to revoke this Agreement, she must provide written
notice to Xxxx Xxxxxxxx of the Company within the seven (7)-day period, and within five (5)
calendar days thereafter, return any consideration received under this Agreement.
25. Counterparts. This Agreement may be executed in counterparts, and each
counterpart shall have the same force and effect as an original and shall constitute an effective,
binding agreement on the part of each of the undersigned.
26. Voluntary Execution of Agreement. This Agreement is executed voluntarily and
without any duress or undue influence on the part or behalf of the Parties hereto, with the full
intent of releasing all claims. The Parties acknowledge that:
(a) They have read this Agreement;
(b) They have been represented in the preparation, negotiation, and execution of this
Agreement by legal counsel of their own choice or that they have voluntarily declined to seek such
counsel;
(c) They understand the terms and consequences of this Agreement and of the releases it
contains; and
(d) They are fully aware of the legal and binding effect of this Agreement.
IN WITNESS WHEREOF, the Parties have executed this Agreement on the respective dates set forth
below.
| Xxxxxxxxxx, Inc. |
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| Dated: November 2, 2007 | By: | /s/ Xxxx X. Page | ||
| Xxxx X. Page | ||||
| President & CEO | ||||
| Xxxxx Xxxxx, an individual |
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| Dated: November 4, 2007 | /s/ Xxxxx Xxxxx | |||
| Xxxxx Xxxxx | ||||
