Exhibit 10.19
GENERAL RELEASE
This General Release (the "Agreement"), is entered into by Xxxxxxx Xxxxxxx
("EMPLOYEE") and West Marine Products, Inc. (the "COMPANY") and shall become
effective upon its signature by both parties and the expiration of the seven (7)
day revocation period referred to in Section 8 hereof (the "EFFECTIVE DATE").
WHEREAS, EMPLOYEE was employed by the COMPANY in Watsonville, Santa Xxxx
County, California, commencing July 13, 1999;
WHEREAS, certain disputes have arisen between EMPLOYEE and the COMPANY
concerning EMPLOYEE's employment and both EMPLOYEE and the COMPANY now desire to
settle, fully and finally, any and all disputes between them;
NOW, THEREFORE, in consideration of the mutual promises contained in this
Agreement, the COMPANY and EMPLOYEE agree as follows:
1. Consideration. In consideration of the execution of this
Agreement and the releases, promises, representations, and warranties included
herein, the parties agree as follows:
(a) EMPLOYEE shall resign his employment with the COMPANY
effective March 15, 2001. EMPLOYEE understands and agrees that all salary and
benefits will cease as of that date,
(b) The COMPANY shall pay to EMPLOYEE following the Effective Date
of this Agreement, and at the times of its regular payroll, an amount equivalent
to the salary EMPLOYEE received each pay period while employed at the COMPANY,
with appropriate federal and state withholding amounts deducted therefrom. In no
event shall EMPLOYEE receive more than twelve months salary equivalent, that is,
a gross maximum before withholding deductions of $305,000. Health insurance
benefits (medical, dental and mental health) and life insurance benefits with
the same coverage provided to EMPLOYEE prior to termination, and in all other
respects significantly comparable to those in place immediately prior to the
termination, will be provided at the Company's cost (less any portion of such
costs paid by EMPLOYEE immediately prior to termination) during the salary
payment period as defined above.
2. Payment of salary. The parties acknowledge and agree that at the
time of termination of EMPLOYEE's employment with the COMPANY, all salary and
accrued vacation will be paid to EMPLOYEE. In light of the payment by COMPANY
of all wages due, or to become due to EMPLOYEE, the parties acknowledge and
agree that California Labor Code section 206.5 is not applicable to the parties
here. Said section provides in pertinent part:
No employer shall require the execution of any release of any claim or
right on account of wages due, or to become due, or made as an advance
on wages to be earned, unless payment of such wages has been made.
3. General release. EMPLOYEE on behalf of his heirs, family members,
estate, executors, administrators, assigns, servants, employers, agents,
representatives, insurers, attorneys, predecessors, and successors hereby
forever releases and fully discharges the COMPANY and the COMPANY's servants,
stockholders, investors, principals, partners, employees, employers, directors,
officers, parents, subsidiaries, affiliates, agents, assigns, representatives,
insurers, attorneys, predecessors, and successors, and their heirs, estates,
executors, administrators, assigns, agents, representatives, insurers, and
attorneys, from any and all claims, actions, judgments, obligations, damages,
demands, debts,
liabilities, and causes of action relating to any matters of any kind, whether
presently known or unknown, suspected or unsuspected, that any of them 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 EMPLOYEE's
employment with the COMPANY, and the termination of that employment;
(b) any and all claims for wrongful termination, sexual
harassment, breach of contract, breach of the covenant of good faith and fair
dealing, breach of fiduciary duty, promissory estoppel, negligence,
misrepresentation, interference with contract or prospective economic advantage,
unfair business practices, defamation, invasion of privacy, personal injury,
assault, battery, infliction of emotional distress, termination in violation of
public policy, false imprisonment, and conversion;
(c) any and all claims for violation of any California or federal
equal employment opportunity laws or regulations, or federal and state labor
statutes and regulations, including but not limited to, California's Workers'
Compensation Act, the California Fair Employment and Housing Act, the Equal Pay
Act of 1963, California Labor Code Sections 201 et seq., 970 et seq., and
1197.5; Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1866,
the Age Discrimination in Employment Act of 1967, the Americans with
Disabilities Act, the Employee Retirement Income Security Act of 1974, the
Worker Adjustment and Retraining Notification Act, the Older Workers Benefit
Protection Act, the California Labor Code, and the Fair Labor Standards Act;
(d) any and all claims for violation of the federal or any state
constitution; and
(e) any and all claims for attorneys' fees and costs.
4. Waiver of Civil Code Section 1542. EMPLOYEE represents that he is
not aware of any claim by him other than the claims that are released by this
Agreement. EMPLOYEE waives any and all rights and benefits conferred by the
provisions of Section 1542 of the Civil Code of the State of California and any
similar law of any state or territory of the United States or other
jurisdiction. This section provides as follows:
"A general release does not extend to claims which the creditor does
not know or suspect to exist in his favor at the time of executing the
release, which if known by him must have materially affected his
settlement with the debtor."
EMPLOYEE understands and acknowledges that even if he should eventually
suffer additional damages arising out of the matters herein released, he
will not be able to make any claims for those damages.
5. No admissions. 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; (b) an
acknowledgment or admission by either party of any fault or liability whatsoever
to the other party or to any third party.
6. No prior assignment; indemnity. EMPLOYEE represents and warrants
that he has not heretofore assigned or transferred, or purported to assign or
transfer, to any person or entity any claim or other matter herein released. In
the event that he shall have assigned or transferred, or purported to assign or
transfer, any claim or the matter herein released, he shall indemnify the
COMPANY and hold it harmless from and against any loss, cost, claim or expense
including but not limited to all costs related to the defense of any action
including reasonable attorneys' fees based upon, arising out of or incurred as a
result of any such claim, assignment or transfer.
7. Confidentiality. The parties agree to maintain the fact of this
Agreement and its terms as confidential except as to EMPLOYEE's spouse and to
COMPANY's management; that they will respond to any inquiry about the terms of
EMPLOYEE's departure from the COMPANY by saying nothing more than "no comment";
and that they will not henceforth disclose these terms to anyone other than
their attorneys and their financial/tax assistants as necessary to report and
account properly for the payment provided for herein, or as required by law or
court process or to enforce this Agreement.
8. Acknowledgment of waiver of claims under ADEA. EMPLOYEE
acknowledges that he is waiving and releasing any rights he 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
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 Employee was already entitled. Employee further
acknowledges that he has been advised by this writing that (a) he should consult
with an attorney prior to executing this Agreement; (b) he has at least twenty-
-----
one (21) days within which to consider this Agreement before executing it; (c)
he has at least seven (7) days following the execution of this Agreement by the
Parties to revoke the Agreement; and (d) this Agreement shall not be effective
until the revocation period has expired.
9. Non-disparagement. EMPLOYEE agrees that he will not disparage the
COMPANY or its employees, officers or directors in their personal or business
reputations. The COMPANY agrees that it will not disparage EMPLOYEE in his
personal or business reputation.
10. Confidentiality obligations. EMPLOYEE acknowledges having had
access to trade secrets and proprietary and confidential information of the
COMPANY. EMPLOYEE certifies that he has complied with and will continue to
comply with all of the terms of the Employee Agreement Regarding Confidentiality
and Non-Competition which he signed with the COMPANY. EMPLOYEE agrees to
preserve as confidential all trade secret and proprietary and confidential
information pertaining to the COMPANY, as such obligations are described in the
Employee Agreement Regarding Confidentiality and Non-Competition.
11. Non-solicitation. EMPLOYEE agrees that for one year following
his employment with the COMPANY, he will not encourage or solicit any employee
or consultant of the COMPANY to terminate their relationship with the COMPANY
for any or no reason. Further, for that same period of one year after his
employment with the COMPANY, he will not solicit any "customer" or "candidate"
of the COMPANY to place their business with any competitor to the business of
the COMPANY, as such business existed at the time of EMPLOYEE's employment with
the COMPANY. "Candidate" as used in this paragraph is defined as candidates for
employment placement whose identity became known to EMPLOYEE while he was
employed with the COMPANY.
12. Return of COMPANY property. EMPLOYEE agrees that upon his
departure from the COMPANY he will have returned any documents containing or
disclosing the COMPANY's trade secrets or proprietary or confidential
information, and copies thereof, and all other materials, equipment or other
property belonging to the COMPANY.
13. Costs. The parties shall each bear their own costs, attorneys'
fees and other fees incurred in connection with this Agreement and in connection
with EMPLOYEE's claims.
14. 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 of this Agreement.
EMPLOYEE represents and warrants that he has the capacity to act on his own
behalf and on behalf of all who might claim through his to bind his to the terms
and conditions of this Agreement.
15. Entire agreement. This Agreement contains the entire agreement
between the parties pertaining to the subject matter contained in it and
supersedes any and all prior and/or
contemporaneous oral or written negotiations, agreements, representations, and
understandings. The parties, and each of them, understand that this Agreement is
made without reliance upon any inducement, statement, promise, or representation
other than those contained within this Agreement .
16. Attorneys' fees. If any legal or equitable action is necessary
to enforce the terms of this Agreement, the prevailing party shall be entitled
to a reasonable sum for attorneys' fees and costs which are reasonably incurred
and paid in addition to any other relief to which such party may be entitled.
17. Governing law. This Agreement shall be construed under and
governed by the laws of the State of California.
This Agreement shall be deemed to have been entered into in Santa Xxxx
County, California and all questions of validity, interpretation or performance
of any of its terms or of any rights or obligations of the parties to this
Agreement shall be governed by California law. If any legal or equitable action
is necessary to enforce the terms of this Agreement, such action shall be
brought in the State of California.
18. Severability. If any provisions of this Agreement or the
application thereof to any person, place or circumstance shall be held by a
court of competent jurisdiction to be invalid, unenforceable, or void, the
remainder of this Agreement and such provision as applied to other persons,
places, and circumstances shall remain in full force and effect.
19. 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 had a reasonable time within which to consider
whether to sign 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 have read and understand the terms and consequences of
this Agreement and of the releases it contains;
(d) They are fully aware of the legal and binding effect of this
Agreement.
DATED: January 22, 2001 /s/ Xxxxxxx Xxxxxxx
---------------------
West Marine Products, Inc.
DATED: January 22, 2001 /s/ Xxxx Xxxxxxxxx
--------------------
By: Xxxx Xxxxxxxxx
Its: CEO & President
