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Exhibit 10.10
SETTLEMENT AGREEMENT
AND GENERAL RELEASE
This SETTLEMENT AGREEMENT AND GENERAL RELEASE of claims is entered
into by and between Xxxxxxxx-Sonoma, Inc., its predecessors, successors,
subsidiaries, officers, directors, agents, attorneys, employees and assigns,
(hereinafter collectively referred to as "Company"), on the one hand, and
Xxxxxx X. Xxxxxx (hereinafter "Individual"), on the other hand.
WITNESSETH:
WHEREAS, Individual began employment at Company on or about June 6,
1983;
WHEREAS, the parties mutually desire to terminate their employment
relationship; and
WHEREAS, the parties wish to preserve the good will which exists
between them and settle all disputes which may exist between them.
NOW, THEREFORE, in consideration of the mutual promises contained
herein, and for other good and sufficient consideration, receipt of which is
hereby acknowledged, the parties agree as follows:
A. Company agrees as follows:
1. That it fully and forever releases and discharges
Individual from any claims and damages and causes of action it may
have against him and covenants not to xxx or otherwise institute or
cause to be instituted or in any way participate in legal or
administrative proceedings against Individual with respect to any
matter arising out of or connected with Individual's employment with
Company or the termination of that employment, including any and all
liabilities, claims, demands, contracts, debts, obligations and causes
of action of every nature, kind and description, in law, equity, or
otherwise, whether or not now known or ascertained, which heretofore
do or may exist.
2. That upon the expiration of seven (7) days following the date
Individual executes this Agreement, Company promises to promptly pay
Individual as follows, less all applicable withholdings, a sum to
which Individual is not otherwise entitled:
(a) His normal base salary of $210,000 per year ($8,076.92
bi-weekly) through January 31, 1998;
(b) Continued group health insurance coverage through January
31, 1998;
(c) Continued Xxxxxxxx-Sonoma, Inc. Executive Medical
Supplement coverage for the same period as outlined above;
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(d) Continued automobile lease payment, the terms of which
are understood to include a contribution by Individual of
$590.00 per month. Individual may at his option purchase said
leased vehicle on February 1, 1998 at the leased vehicle's
then remaining value as determined by leasing company.
Insurance of above leased vehicle shall be individual's
responsibility; and, Individual agrees to purchase insurance
in and amount satisfactory to the Company;
(e) A 1996 bonus commensurate with Individual's performance
and that of his business unit as outlined in the Company's
Profit Improvement plan document;
(f) His country club dues through January 31, 1998. Said
amount shall be limited to the "dues" portion only. Other
club expenses are deemed to be the Individual's personal
responsibility.
B. Individual for himself, his heirs, executors, administrators,
assigns, and successors, agrees as follows:
1. To forever fully release, remise, acquit and discharge Company and
covenant not to xxx or otherwise institute or cause to be instituted or any way
participate in (except at the request of the Company) legal or administrative
proceedings against Company with respect to any matter arising out of or
connected with his employment with Company or the termination of that
employment, including any and all liabilities, claims, demands, contracts,
debts, obligations and causes of action of every nature, kind and description,
in law, equity, or otherwise, whether or not now known or ascertained, which
heretofore do or may exist.
2. That his employment with Company will terminate on January 31,
1998; that he shall have no right to employment with Company after that date;
and that he shall not apply for re-employment with Company after that date.
3. That upon January 31, 1998, he will receive full payment for all
vacation earned but unused while employed by Company. Individual further
agrees that prior to the execution of this Agreement he was not entitled to
receive any further monetary payments from Company and that the only payments
and benefits that he is entitled to receive from Company in the future are
those specified in this Agreement, which shall be promptly paid without
reduction or setoff, except as is set out above.
4. Vesting in any unvested stock options ceases upon Individual's
termination (January 31, 1998). Vested but not exercised options may be
exercised at any time during the period of ninety (90) days following date of
termination. Failure to exercise during the ninety (90) day period will result
in forfeiture of the un-exercised options.
5. Until January 31, 1998 or Individual's full time employment
(whichever comes first), he will remain bound by the Company Conflict of
Interest and Corporate Ethics Guidelines that was executed by him on February
2, 1996, a copy of which is attached hereto as Exhibit A, provided that the
time limits described in this paragraph
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shall not apply to the section of the Xxxxxxxx-Sonoma, Inc. Conflict of
Interest and Corporate Ethics Guidelines entitled "Confidential Information".
6. That he is waiving any rights he may have had, now has, or in the
future may have to pursue any and all remedies available to him under any
employment-related cause of action against Company, except for any breach by
the Company of this Agreement, including without limitation, claims of wrongful
discharge, emotional distress, defamation, breach of contract, breach of the
covenant of good faith and fair dealing, violation of the provisions of the
California Labor Code, the Employee Retirement Income Security Act, and any
other laws and regulations relating to employment. Individual further
acknowledges and expressly agrees that he is waiving any and all rights he may
have had, now has, or in the future may have to pursue any claim of
discrimination, including but not limited to, any claim of discrimination based
on sex, age, race, national origin, or on any other basis, under Title VII of
the Civil Rights Act of 1964, as amended, the California Fair Employment and
Housing Act, the California Constitution, the Equal Pay Act of 1963, the Age
Discrimination in Employment Act of 1967, the Civil Rights Act of 1866, and all
other laws and regulations relating to employment.
7. That Individual will not, except as may be mandated by statutory
or regulatory requirements or as may be required by legal process, disclose to
others the terms of this settlement, the amounts referred to in this Agreement,
or the fact of the payment of said amounts, except that he may disclose to his
attorneys, accountants or other professional advisors to whom the disclosure is
necessary to effectuate the purposes for which he has consulted with such
professional advisors. Individual understands that this covenant of
non-disclosure is a material inducement to Company for the making of this
settlement and that, for the breach thereof, Company will be entitled to pursue
its legal and equitable remedies, including, without limitation, the right to
seek injunctive relief. The Company shall likewise not disclose any reason for
the Individual's termination, except as may be mandated by statutory or
regulatory requirements or as may be required by the legal process.
C. Company and Individual, for himself, his heirs, executors,
administrators, assigns, and successors, jointly agree as follows:
1. That nothing contained in this Settlement Agreement or General
Release shall constitute or be treated as an admission by Company or Individual
of liability, of wrong doing, or of any violation of law.
2. That if any provision of this Settlement Agreement and General
Release is found to be unenforceable, it shall not affect the enforceability of
the remaining provisions and the Court shall enforce all remaining provisions
to the extent permitted by law.
3. That except as expressly provided herein, this Settlement
Agreement and General Release shall supersede and render null and void any and
all prior agreements between the parties.
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4. That this Agreement extends to all claims of every nature and
kind, known or unknown, suspected or unsuspected, past or present, arising from
or attributable to Individual's employment with Company or the termination of
that employment, and that any and all rights granted to Company and Individual
under Section 1542 of the California Civil Code or any analogous state law or
federal law or regulation are hereby expressly waived. Said Section 1542 of
the Civil Code of the Sate of California reads 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.
5. That this Settlement Agreement and General Release shall bind and
benefit Individual's heirs, executors, administrators, successors, assigns, and
each of them; it shall also bind and benefit Company and its successors and
assigns.
6. That this Settlement Agreement and General Release shall be deemed
to have been entered into in the Sate of California and shall be construed and
interpreted in accordance with the laws of that state.
7. That should there hereafter be any litigation between or among any
of the parties to this Agreement alleging a breach of the Agreement or seeking
enforcement of the Agreement, the prevailing party in such litigation shall be
entitled to recover his or its reasonable attorney's fees and costs of such
litigation from the other party.
8. That each party hereby agrees to accept and assume the risk that
any fact, with respect to any matter covered by this Agreement, may hereafter
be found to be other than or different from the facts it believes, at the time
of this Agreement, to be true, and agrees that this Agreement shall be and will
remain effective notwithstanding any such difference in fact.
9. That Individual hereby acknowledges and understands and Individual
agrees that:
(a) Individual may have, and has had, at least twenty-one (21) days
after receipt of the Agreement within which he may review and
consider, discuss with an attorney of his own choosing, and decide
to execute or not execute this Agreement;
(b) Individual has seven (7) days after the execution of this
Agreement within which he may revoke this Agreement;
(c) in order to revoke this Agreement, Individual must deliver to
the Company's Senior Vice-President Human Resources, Xxxx Xxxx, on
or
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before seven (7) days after the execution of this Agreement, a
letter stating that he is revoking this Agreement, and;
(d) that this Agreement shall not become effective or enforceable
until after the expiration of seven (7) days following the date
Individual executes this Agreement.
10. That they have read and understand the foregoing Settlement
Agreement and General Release, and that they affix their signatures hereto
voluntarily and without coercion. Individual further acknowledges that he has
been given an opportunity to consult with any attorney of his choosing
concerning the waivers contained in and the terms of this Agreement, and that
the waivers he has made and the terms he has agreed to herein are knowing,
conscious and with full appreciation that he is forever foreclosed from
pursuing any of the rights so waived.
Xxxxxxxx-Sonoma, Inc.
By: /s/ Xxxxxx Xxxxxxxxx
__________________________________
Xxxxxx Xxxxxxxxx
Its Executive Vice-President
2/20/97
Dated:____________________________
/s/ Xxxxxx X. Xxxxxx
__________________________________
Xxxxxx X. Xxxxxx
2/14/97
Dated:____________________________
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