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Exhibit 10.69
RESIGNATION AND RELEASE AGREEMENT
Xxxxxxx X. Xxxxx ("Xxxxx") and Ride, Inc. and its related entities
(collectively "Ride") wish to amicably terminate Xxxxx'x employment with Ride
and his status as a member of the Board of Directors of Ride, and to clearly
set forth the terms and conditions of Xxxxx'x departure from his employment and
Board membership. Therefore, in consideration of the mutual promises and
undertakings in this Resignation and Release Agreement ("Agreement"), Xxxxx and
Ride agree as follows:
1. RESIGNATION. Xxxxx resigns from his employment as Senior Vice
President, effective December 31, 1996 ("Date of Resignation"). Xxxxx further
resigns as a member of the Board of Directors of Ride and any Ride subsidiary
for which Xxxxx currently serves as a Director, effective immediately.
2. SEVERANCE PAYMENT. Commencing the Date of Resignation, Ride shall pay
Xxxxx'x current salary for a three (3) month period through and including March
31, 1997 (the "Severance Period"), less any lawful withholding. Such severance
shall be paid at normal bi-monthly payroll intervals or pursuant to a payment
schedule that is mutually agreeable to the parties. Xxxxx shall also be paid
any unused vacation pay accrued as of the Date of Resignation, as reflected in
Ride's records, to be paid at the end of the payroll period next following the
Date of Resignation, or pursuant to a payment schedule that is mutually
agreeable to the parties. Xxxxx shall not be entitled to vacation pay accrual
during the Severance Period.
3. EMPLOYEE PROGRAMS AND OTHER BENEFITS.
A. STOCK OPTIONS. All options granted to Xxxxx and his wife,
Xxxxxxxxx Xxxxx, under Ride's 1994 Stock Option Plan ("Plan") are hereby
amended insofar as such options are now fully vested and immediately
exercisable. Xxxxxxxxx Xxxxx'x options shall remain exercisable for a period
of ten (10) years from the date of grant. Xxxxx'x options shall remain
exercisable for a period of ten (10) years from the date of grant. The
remaining terms of the options shall be those set forth in the Plan.
B. STOCK PURCHASE PLAN. To the extent Xxxxx is participating in
the Ride Employee Stock Purchase Plan (" Stock Purchase Plan"), his
participation therein shall be terminated and all contributions by Xxxxx to the
Stock Purchase Plan as of the Date of Resignation shall be repaid to Xxxxx, all
in conformance with the terms and conditions of the Plan.
C. COBRA. At his election, Xxxxx may continue to participate in
Ride's medical and dental benefit plans governed by the Comprehensive Omnibus
Budget Reconciliation Act ("COBRA") for the time period provided in COBRA.
Ride will pay the cost of such coverage at the level in effect for Xxxxx as of
the Date of Resignation during the Severance Period. Xxxxx will pay the entire
cost of such coverage thereafter.
E. CHEVROLET SUBURBAN. On the Date of Resignation, Ride shall
transfer to Xxxxx clear title to the 1996 Chevrolet Suburban currently in
Xxxxx'x possession, VIN # _____________________________, together with such
documentation as may be required to effect such transfer.
F. PERSONAL PROPERTY. Upon Ride's prior consent, which Ride
shall not unreasonably withhold, Xxxxx may purchase such items of personal
property belonging to Ride currently in Xxxxx'x possession for the depreciated
cost of such property as reflected on the books of Ride as of the Date of
Resignation. Within 10 days from the date hereof, Xxxxx shall present to Ride
a schedule itemizing those items of personal property Xxxxx desires to
purchase. Ride shall have 10 days from receipt of such schedule to identify
those items of personal property, if any, that Ride does not consent to sell to
Xxxxx. Failure by Ride to timely object to any of such scheduled items shall
constitute Ride's acceptance of same. Xxxxx shall pay Ride for the agreed
items of personal property on or before the Date of Resignation. Upon
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payment, Ride shall execute such documentation, if any, required to effect
transfer of title in the property to Xxxxx. Xxxxx shall return to Ride within
10 days of the date hereof, or of the date Ride gives notice of its intention
not to sell a scheduled item of property, as the case may be, those items of
personal property belonging to Ride currently in Xxxxx'x possession that,
respectively, Xxxxx does not desire to purchase or Ride does not desire to
sell, all as provided herein.
G. EXPENSE REPORTS. Ride shall reimburse all expenses incurred
by Xxxxx on behalf of Ride through the Date of Resignation in accordance with
Ride's expense reimbursement policy.
4. TRANSITION. Xxxxx will work in good faith with Ride management
through the Date of Resignation to effect the orderly transition of his job
responsibilities to such individuals as Ride may designate. Xxxxx will not be
required to be regularly present in his headquarters office. Rather, Xxxxx
shall make himself available for consultation to Ride on an "as needed" basis.
Ride shall attempt in good faith to give Xxxxx 24-hour prior notice of any
required meeting or project, and seven (7) day prior notice of any required
travel. Xxxxx'x sole contact with Ride through the Date of Resignation shall
be Xxx Xxxx.
5. REFERENCES. Upon request, Xxx Xxxx on behalf of Ride will provide a
letter of recommendation for Xxxxx containing his dates of employment, pay
confirmation and general endorsement of his abilities. Unless authorized by
Xxxxx in writing, Ride's response to any inquiry from third parties shall be
limited to this same information.
6. NON-DISPARAGEMENT. For a three year period from the Date of
Resignation, Xxxxx agrees not to make any disparaging or derogatory remarks,
comments or statements about Ride and its subsidiaries, and their respective
officers, directors, shareholders, employees, products, business practices, or
any of them, at any time. For the same three year period, Ride agrees not to
make any disparaging or derogatory remarks, comments or statements about Xxxxx
at any time.
7. CONFIDENTIALITY AND NON-SOLICITATION.
A. NON-DISCLOSURE. Except as required by applicable law or
regulation and except as may be required to insure compliance with the terms of
this Agreement, Ride and Xxxxx agree to keep the terms of this Agreement
confidential; provided, that Xxxxx may share its provisions with his spouse,
and his attorneys and professional advisors, and Ride may share its provisions
with its senior management, attorneys, and professional advisors. Xxxxx agrees
not to use or disclose any non-public financial, technical, marketing,
operating, or other proprietary information of Ride and its subsidaries, or any
of them, which information Xxxxx acknowledges is the proprietary and
confidential property of Ride and constitutes Ride trade secret information.
Xxxxx further agrees to return all tangible items containing such confidential
information, wherever located and in whatever form, in addition to all other
property belonging to Ride, on or before the Date of Resignation; provided,
however, Xxxxx may retain the personal property in conformance with paragraph
3.f. hereof upon payment therefor. Xxxxx will transfer to Ride and delete from
electronic storage on any computer purchased from Ride any Ride confidential
information stored therein..
B. NON-COMPETITION; NON-SOLICITATION. Xxxxx and Ride shall
continue to be bound by the terms of the non-competition and non- solicitation
provisions of paragraph 6 of his Employment Agreement with Ride, dated January
1, 1995, which terms are incorporated herein by this reference as though fully
set forth. Nothing in this paragraph 7.b. shall prohibit Xxxxx and Ride from
engaging in such business transactions as the parties may agree.
8. VIOLATION. Xxxxx and Ride each acknowledges that their respective
nondisparagement, confidentiality, non-competition and non- solicitation
obligations under paragraphs 6 and 7 hereof are material inducements to Ride
and Xxxxx, respectively, in entering into this Agreement, that any violation
thereof shall constitute a material breach of this Agreement, and that any
statement, disclosure or action in violation of such paragraphs will cause
serious and irreparable injury to the other party for which there is
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no adequate remedy at law. If, upon investigation, a party reasonably
determines that the other party is in violation of paragraphs 6 or 7, as the
case may be, then such party may obtain immediate and permanent injunctive
relief without objection by the other party. The rights and remedies set forth
in this paragraph 8 are in addition to all other legal, equitable and
contractual rights and remedies available to the parties.
9. REPRESENTATIONS AND WARRANTIES.
A. BY XXXXX. Xxxxx represents and warrants as follows:
(i) That he has reviewed this Agreement with independent
legal counsel or has waived the opportunity to do so, that the terms of this
Agreement have been negotiated in good faith at arms length, that he has read
and understands the terms of this Agreement and the consequences thereof, and
that he enters in to this Agreement as his free, voluntary and independent act.
B. BY RIDE. Ride represents and warrants as follows:
(i) That it is a Washington corporation duly authorized,
validly existing and in good standing under the laws of the State of
Washington.
(ii) That this Agreement and the obligations and
undertakings arising hereunder constitute the valid, binding and enforceable
obligations of Ride.
10. RELEASE. In consideration of the benefits and payments provided to
Xxxxx in this Agreement, and as a material inducement to Ride to enter into
this Agreement, Xxxxx, individually and for his marital community, if any, and
his heirs, personal representatives, successors and assigns (collectively,
"Xxxxx Releasees") release and forever discharge Ride, including any and all
affiliates, shareholders, officers, directors, representatives, agents, and
employees, each of their successors and assigns, and each of them
(collectively, "Ride Releasees"), and the Ride Releasees release and forever
discharge the Xxxxx Releasees, from any and all claims, demands, charges,
liability, causes of action, and damages, including without limitation,
attorneys' fees and costs actually incurred, known or unknown, that either
party may have against the other as of the Date of Resignation; provided,
however, this release shall not apply to: (a) any rights created by this
Agreement; and (b) any right of indemnification or defense of Xxxxx under
Ride's Articles of Incorporation, Bylaws, and applicable policies of insurance.
11. TAX LIABILITY. Some or all of the payments and benefits which Xxxxx
may receive hereunder may be deemed income and taxable to Xxxxx under relevant
provisions of the Internal Revenue Code of 1986 , as amended, and other
federal, state, and local statutes and regulations (collectively, "Codes").
Xxxxx is advised that Ride does not "gross up" benefits paid to or on behalf of
its employees. Xxxxx shall have sole responsibility to determine and, to the
extent any withholdings made by Ride hereunder are insufficient, pay, and shall
indemnify and hold Ride harmless from, all taxes coming due under such Codes.
12. NONADMISSION CLAUSE. This Agreement shall not be construed as an
admission by either party of any liability to the other party, breach of any
agreement between the parties, or violation by either party of any statute,
law, rule or regulation.
13. SEVERABILITY AND SURVIVAL. If any of the provision of this Agreement
is held to be invalid or unenforceable, the remaining provisions shall
nevertheless continue to be valid and enforceable. The rights and obligations
under this Agreement that by their terms are continuing, generally, and of
paragraphs 6 through 10 hereof, specifically, shall survive termination of the
Severance Period.
14. ARBITRATION. Any controversy or claim arising out of this Agreement
shall be resolved by arbitration pursuant to this paragraph and the then
current rules of the American Arbitration Association; provided, however, that
the parties may obtain the relief set forth in paragraph 8 hereof pending
resolution of such claim or controversy by arbitration as provided herein. The
arbitration shall be held in Seattle,
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Washington before a single arbitrator who is knowledgeable about employment
issues, generally. The arbitrator's decision shall be final and binding and
may be entered in any court having jurisdiction.
15. COMPLETE AGREEMENT. This Agreement contains the entire understanding
and agreement between the parties in connection with its subject matter and
supersedes any and all other prior and contemporaneous oral or written
agreements, understandings, or representations between the parties pertaining
to same. This Agreement cannot be altered except in a writing signed by Xxxxx
and an authorized representative of Ride.
16. FURTHER ASSURANCES. The parties agree to execute any further
documents and instruments as may be reasonably necessary to fully carry out the
terms and conditions of this Agreement.
17. ENFORCEMENT. In the event either party hereto fails to perform any of
its obligations hereunder, or in the event a dispute arises concerning the
meaning or interpretation of any provision hereof, the defaulting or
non-prevailing party in such dispute, as the case may be, shall pay the costs
and expenses incurred by the other party in enforcing or establishing the
respective rights hereunder, including without limitation, costs and reasonable
attorneys' fees.
18. BINDING AGREEMENT. This Agreement shall bind and inure to the benefit
of the parties and their respective heirs, personal representatives, marital
communities, related entities, shareholders, officers, directors, employees,
agents, attorneys, successors and assigns.
19. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Washington, and venue for any
proceeding hereunder shall be in King County, Washington.
IN WITNESS WHEREOF, the parties execute this Agreement as of the____ day of
October, 1996.
RIDE, INC.
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Xxxxxxx X. Xxxxx Xxxxxx X. Xxxx, President and CEO
CONSENT OF SPOUSE
I, Xxxxxxxxx Xxxxx, have read the foregoing Agreement and agree to be bound by
its terms.
Date:
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Xxxxxxxxx Xxxxx
