Exhibit 10.19
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SEPARATION AGREEMENT AND GENERAL RELEASE
THIS SEPARATION AGREEMENT AND GENERAL RELEASE ("Agreement") is entered
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into by and between Xxxx Xxxxxx ("Executive") and XxxxxxxxXxxxxx.xxx, Inc. (the
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"Company").
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Executive and the Company desire to settle fully any and all matters
between them, including, but not limited to, any matters relating to Executive's
employment with the Company, Executive's Employment, Confidentiality and
Non-Competition Agreement with the Company, dated as of April 22, 1998, a copy
of which is attached hereto and is hereby incorporated in part by reference
herein ("Employment Agreement") and Executive's Severance Agreement with the
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Company, dated as of April 22, 1998, a copy of which is attached hereto
("Severance Agreement"), and the termination of Executive's employment.
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Therefore, in consideration of the mutual promises set forth herein and other
good and valuable consideration, the receipt and sufficiency of which is
acknowledged, Executive and the Company agree as follows:
1. Termination of Employment. Executive's employment with the Company is
terminated effective December 31, 2001 ("Termination Date"). Executive further
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waives and releases any claim that she has or may have to reemployment with the
Company, or any of its subsidiary companies, affiliates, successors or assigns.
2. Employment Agreement. Per the terms of the Employment Agreement, for a period
of one year following the Termination Date (the "Payment Period"), the Company
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shall pay to Executive, in accordance with the Company's regular payroll
schedule, pro rata termination payments in the aggregate amount of $155,250,
less applicable taxes, deductions and withholdings, to be distributed
semi-monthly during the Payment Period, commencing as of the Termination Date.
Executive agrees to comply with all of her continuing obligations under the
Employment Agreement, including, without limitation, paragraphs 10, 11, 12 and
15 of the Employment Agreement; provided, however, that (a) each party hereto
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acknowledges that the business currently being conducted by The Geneva
Foundation shall not be deemed to be a Competing Enterprise for purposes of
paragraph 11 of the Employment Agreement, and (b) the provisions of paragraph
11(c) of the Employment Agreement shall not apply to Xx. Xxxx Xxxxx.
3. Benefits.
(a) Executive acknowledges that the Company's currently-existing 401(k)
Plan does not permit Executive to continue to making contributions into
such 401(k) Plan during the Payment Period. In lieu of matching
contributions that the Company would have made for Executive's account
during the Payment Period if Executive continued to participate in the
401(k) Plan during the Payment Period, the Company shall pay to Executive,
in the form of a check (which may be added to the amounts due under
paragraph 2 above) and at such time as it applies matching funds to the
accounts of other 401(k) Plan participants, an amount equal to such
matching amount, less applicable withholding taxes;
(b) Notwithstanding anything to the contrary in the Executive's stock
option agreement(s) or certificate(s) or in the stock option plan(s) under
which Executive's stock options were granted, all of Executive's stock
options that would have vested in the twenty-four (24) months following the
Termination Date if Executive had remained employed by the Company during
such period will automatically become fully vested and exercisable on the
date that is immediately prior to the Termination Date, and Executive shall
have the right to exercise any stock options that vested on or before the
Termination Date (including such accelerated options) at any time no later
than the date that is twenty-four (24) months after the Termination Date.
Executive agrees that any and all right to options rights are otherwise
governed by the stock option certificate(s) and related agreement(s).
(c) The Executive will be entitled to continuation coverage under COBRA and
the date of her qualifying event shall be the Termination Date.
(d) The Company shall pay Executive for up to 100 accrued but unused
vacation hours, to be determined as of the Termination Date, which vacation
hours shall be paid on a pro rata basis at 75% of Executive's annual base
salary of $155,250, and be payable in a lump sum to be added to Executive's
first paycheck received from the Company under Section 2 above.
The payments and benefits referred to above shall be in lieu of and discharge
any obligations of the Company to Executive for compensation, wages, benefits,
vacation, pain and suffering, or any other expectation of remuneration or
benefit on the part of Executive, set forth in the Employment Agreement or
otherwise. Other than the obligations set forth in paragraphs 2 and 3, Executive
acknowledges that the Company shall have no other obligations to Executive under
this Agreement, the Employment Agreement or the Severance Agreement. Executive
further agrees not to seek any further compensation or benefits from the
Company.
4. No Authority. Executive understands and agrees that effective on the
Termination Date, Executive is no longer authorized to incur any expenses,
obligations, or liabilities on behalf of the Company.
5. Return of Company Property. Executive agrees to immediately turn over to the
Company any and all files, computers, memoranda, notes, records, reports,
photographs, drawings, plans, papers, or other documents (whether paper or
electronic), intellectual property, physical or personal property, obtained by
Executive during the course of her employment with the Company, or any of its,
subsidiary companies, affiliates, successors or assigns, and that are the
property of the Company, or any of its, subsidiary companies, affiliates,
successors or assigns.
6. Complete Release. As a material inducement to the Company to enter into this
Agreement, and per the terms of paragraph 9(a) of the Employment Agreement, the
Executive hereby forever releases and discharges the Company, its subsidiaries,
owners, affiliates, divisions, stockholders, directors, officers, members,
agents, current and former employees, attorneys, related companies,
predecessors, successors and assigns (collectively "Released Parties"), and each
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of them, of and from any and all charges, complaints, claims, or liabilities
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(including attorneys' fees and costs actually incurred) of any nature
whatsoever, known or unknown, suspected or unsuspected, including, but not
limited to, rights arising out of alleged violations of any contracts, express
or implied, or any state law tort claim, or any federal, state, or other
governmental statute, regulation, or ordinance, including, but not limited to,
claims under Title VII of the Civil Rights Act of 1964 or the Age Discrimination
in Employment Act, 29 U.S.C. Sections.621-634, which Executive now has or claims
to have, or which Executive at any time heretofore had or claimed to have, or
which Executive at any time hereinafter may have or claim to have, against each
or any of the Released Parties; provided, however, that Executive specifically
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does not release any rights under the Age Discrimination in Employment Act
arising after the Effective Date of this Agreement, any claims to enforce this
Agreement, or any claims which Executive is precluded from waiving by operation
of law.
7. No Claims. Executive represents that Executive has not filed any complaints,
charges, or lawsuits with any local, state, or federal agency or court against
the Company or any of the Released Parties, that Executive will not do so at any
time based on any claim that arose on or before the execution of this Agreement,
and that if any such agency or court assumes jurisdiction of any such charge,
complaint, or lawsuit against the Company or any of the Released Parties on
behalf of Executive, Executive will request such agency or court to withdraw
from the matter.
8. Confidentiality. In addition to the obligations set forth in paragraph 10 of
her Employment Agreement, Executive agrees that Executive has maintained and
will continue to maintain as confidential (a) any and all proprietary,
confidential and trade secret information belonging to the Company, or any of
its parent companies, subsidiary companies, affiliates, successors or assigns,
including, but not limited to, any plans, strategies, marketing and sales
information, customer information, cost and pricing information, employee
information, financial information, designs, programs, or any other information
that may not be generally known in the industry, and (b) the terms and
conditions of this Agreement.
9. Consultation with Counsel. Executive agrees that Executive fully understands
Executive's right to discuss all aspects of this Agreement with Executive's
attorney, that Executive has carefully read and fully understands all the
provisions of this Agreement, and that Executive is knowingly and voluntarily
entering into this Agreement.
10. No Representations. Executive represents and acknowledges that, in signing
this Agreement, Executive does not rely, and has not relied, upon any
representation or statement made by any of the Released Parties or by any of the
Released Parties' agents, representatives, or attorneys with regard to the
subject matter, basis, or effect of this Agreement or otherwise.
11. Acceptance and Revocation. This Agreement was presented to Executive for
review and consideration on October 12, 2001 ("Review Date"). Executive
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understands that Executive has twenty-one (21) days from the Review Date within
which to decide whether to execute this Agreement and return it to the Company.
If Executive does not return this Agreement to the Company fully executed within
twenty-one (21) days of the Review Date, any offer implied by the representation
of this Agreement for Executive's review and consideration is withdrawn in its
entirety at that time. Executive further understands that Executive has seven
(7) days after execution of this Agreement within which to provide the Company
with written notice of revocation of this Agreement ("Revocation Period"). If
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said written notice of revocation is not
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received by the Company by the close of business on the seventh day following
Executive's signing of this Agreement, Executive agrees that this Agreement
shall be final, binding, and irrevocable. The executed copy of this Agreement
and/or any written notices should be provided to:
XxxxxxxxXxxxxx.xxx, Inc.
0000 Xxx-Xxxxx Xxxxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attn: Chief Executive Officer
12. Effective Date. This Agreement shall not become effective in any respect
until the Revocation Period has expired without notice of revocation. In the
absence of Executive's revocation of this Agreement, the eighth day after
Executive's signing of this Agreement shall be the "Effective Date" of this
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Agreement.
13. Non-Disparagement. Executive agrees not to make any disparaging or negative
comments to any third party regarding the Company or any of the Released
Parties.
14. No Admissions. This Agreement shall not in any way be construed as an
admission by the Company that it has acted wrongfully or breached any agreement
with respect to Executive or any other person, or an admission of any acts of
discrimination whatsoever against Executive, and the Company specifically
disclaims any liability to or discrimination against Executive, on the part of
itself, its employees, its agents or its affiliates.
15. Executive Breach. Subject to the provisions of Section 20 hereof, Executive
agrees that, in the event Executive breaches any material provision of this
Agreement, Executive agrees to indemnify the Company and the Released Parties
against all liability, costs and expenses and will reimburse the Company for all
payments and benefits paid to Executive pursuant to this Agreement.
16. Sole and Entire Agreement. The Agreement, including the Employment Agreement
and its obligations set forth in its Paragraphs 10, 11, 12 and 15, constitutes
the entire agreement of the parties, and fully supersedes any and all prior and
contemporaneous agreements or understandings between the parties. This Agreement
may be amended or modified only by an agreement in writing and signed by both
parties.
17. Governing Law. This Agreement shall be in all respects interpreted, enforced
and governed by and under the laws of the State of Illinois, without regard to
the principles of conflicts thereof.
18. Severability. The provisions of this Agreement are severable, and if any
part of it is found to be unenforceable, the other paragraphs shall remain fully
valid and enforceable.
19. Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall be deemed to be an original, and all of which together shall
constitute one and the same instrument.
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20. Attorneys' Fees. The parties hereto agree that in any action to enforce or
uphold this Agreement, including, without limitation, Executive's obligations
under paragraphs 10, 11, 12 and 15 of the Employment Agreement, the prevailing
party shall be entitled, in addition to any other relief awarded, to an award of
actual attorneys' fees and costs, unless the applicable tribunal hearing the
matter specifically finds that the fees and costs were grossly unreasonable in
amount.
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PLEASE READ AND CONSIDER THIS AGREEMENT CAREFULLY BEFORE SIGNING IT.
THIS SEPARATION AGREEMENT AND GENERAL RELEASE INCLUDES A RELEASE OF ALL KNOWN
AND UNKNOWN CLAIMS.
Signature: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
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Date: October 26, 2001
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Witnessed:
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Name:
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Date:
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XXXXXXXXXXXXXX.XXX, INC.
By: /s/ C. Xxx Xxxxx
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Name: C. Xxx Xxxxx
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Title: CEO
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Date: October 29, 2001
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