SEPARATION AGREEMENT AND GENERAL RELEASE
EXHIBIT
99.1
THIS SEPARATION AGREEMENT AND GENERAL
RELEASE (this “Agreement”)
is hereby entered into by and between Xxxxxx Xxxxxx, an individual (the “Employee”),
and x.Xxxxxxx Corporation, a Delaware corporation (the “Company”).
RECITALS
A. The
Employee has been employed by the Company as Senior Vice President, Corporate
Secretary and Interim Chief Accounting Officer pursuant to an oral, at-will
employment agreement. Employee’s employment with the Company is being
terminated.
B. The
Employee and the Company wish to enter into this Agreement pertaining to the
termination of Employee’s employment with the Company.
AGREEMENT
NOW,
THEREFORE, in consideration of the mutual promises contained in this Agreement
and for other good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged, the parties hereby agree as follows:
1. Effective
Date. Except as otherwise provided in this Agreement, this
Agreement shall be effective on the date that it has been executed by both the
Employee and the Company, and if the Employee and the Company execute this
Agreement on different dates, the latter of such dates (the “Effective
Date”).
2. Termination
of Employment. The Employee acknowledges that his employment
with the Company and/or its subsidiary terminated effective as of the close of
business on December 15, 2010 (the “Termination
Date”) and concurrently submits his resignation from the Company’s Board
of Directors (as well as the Board of Director of its subsidiary).
3. Termination
of Benefits after the Termination Date. Except as expressly
provided herein or in the plan documents governing the Company’s employee
benefit plans, after the Termination Date, the Employee will no longer be
eligible for, receive, accrue, or participate in any benefits or benefit plans
provided by the Company, including, without limitation, medical, dental and life
insurance benefits, and the Company’s 401(k) retirement plan; provided, however,
that nothing in this Agreement shall waive the Employee’s right to any vested
amounts in the Company’s 401(k) retirement plan, any option plan or the 2005
Equity-Based Compensation Plan, which amounts shall be handled as provided in
such plans.
4. COBRA
Benefits. Nothing in this Agreement is intended to alter the
Employee’s ability to purchase continuation coverage under the terms of COBRA,
and the Employee shall retain all rights afforded under that
law.
5. Normal
Salary through Termination Date. Employee acknowledges that
the Company has paid to Employee all salary accrued through the Termination
Date, and Employee’s earned but unused vacation through the Termination Date
(less legally required deductions).
6. Acknowledgement
of Total Compensation and Indebtedness. The Employee
acknowledges and agrees that the cash payments under Section 5 of this
Agreement extinguish any and all obligations for monies, or other compensation
or benefits that the Employee claims or could claim to have earned or claims or
could claim is owed to him as a result of his employment by the Company through
the Termination Date.
7. Special
Payment. In return for Employee’s promises in this Agreement,
if Employee does not revoke this Agreement as provided in Section 11(c) below,
the Company will pay to Employee a special payment in the gross amount of
$42,500.00, less legally required deductions. The special payment
shall be paid by check to be picked up by Employee at the Company’s corporate
office on January 7, 2011.
8. Release
by the Employee. Except as otherwise expressly provided in
this Agreement, the Employee, for himself and his heirs, executors,
administrators, assigns, affiliates, successors and agents (collectively, the
“Employee’s
Affiliates”) hereby fully and without limitation releases and forever
discharges the Company and its parents, direct or indirect subsidiaries,
affiliates, divisions or related entities, and each of their respective agents,
representatives, shareholders, owners, officers, directors, employees,
consultants, attorneys, auditors, accountants, investigators, affiliates,
successors and assigns (collectively, the “Company
Releasees”), both individually and collectively, from any and all rights,
claims, demands, liabilities, actions, causes of action, damages, losses, costs,
expenses and compensation, of whatever nature whatsoever, known or unknown,
fixed or contingent, which the Employee or any of the Employee’s Affiliates has
or may have or may claim to have against the Company Releasees by reason of any
matter, cause, or thing whatsoever, from the beginning of time to the Effective
Date (“Claims”),
including, without limiting the generality of the foregoing, any Claims arising
out of, based upon, or relating to the recruitment, hiring, employment,
relocation, remuneration, investigation, or termination of the Employee by any
of the Company Releasees, the Employee’s tenure as an employee and/or an officer
of any of the Company Releasees, any agreement or compensation arrangement
between the Employee and any of the Company Releasees, or any act or occurrence
in connection with any actual, existing, proposed, prospective or claimed
ownership interest of any nature of the Employee in equity capital or rights in
equity capital or other securities of any of the Company Releasees (except as
expressly provided in Section 3) to the maximum extent permitted by law. The
Employee specifically and expressly releases any Claims arising out of or based
on: the California Fair Employment and Housing Act, as amended; Title VII of the
Civil Rights Act of 1964, as amended; the Americans With Disabilities Act; the
National Labor Relations Act, as amended; the Equal Pay Act; ERISA; any
provision of the California Labor Code; the California common law and each other
applicable state on fraud, misrepresentation, negligence, defamation, infliction
of emotional distress or other tort, breach of contract or covenant, violation
of public policy or wrongful termination; state or federal wage and hour laws;
or any other state or federal law, rule, or regulation dealing with the
employment relationship.
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9. Waiver of
Civil Code Section 1542.
(a) Release of Unknown
Claims. The Employee understands and agrees that the release
provided in this Agreement extends to all Claims released in Section 8 above and
Section 10
below whether known or unknown, suspected or unsuspected. The
Employee expressly waives and relinquishes any and all rights he may have under
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.”
(b) Waiver of Comparable
Provisions of Other Jurisdictions. The Employee expressly
waives and releases any rights and benefits which he has or may have under any
similar law or rule of any other jurisdiction. It is the intention of
each party through this Agreement and with the advice of counsel to fully,
finally and forever settle and release the Claims as set forth
above. In furtherance of such intention, the release given in this
Agreement shall be and remain in effect as a full and complete release of such
matters notwithstanding the discovery of any additional Claims or facts relating
thereto.
10. Release
of Federal Age Discrimination Claims by the Employee. The
Employee hereby knowingly and voluntarily waives and releases all rights and
claims, known or unknown, arising under the Age Discrimination In Employment Act
of 1967, as amended, which he might otherwise have had against the Company or
any of the Company Releasees regarding any actions which occurred prior to the
Effective Date.
11. Rights
under the Older Workers Benefit Protection Act. In accordance
with the Older Workers Benefit Protection Act of 1990, the Employee hereby is
advised of the following:
(a) The
Employee has the right to consult with an attorney before signing this Agreement
and is encouraged by the Company to do so;
(b) The
Employee has twenty-one (21) days from his receipt of this Agreement to consider
it; and
(c) The
Employee has seven (7) days after he signs it to revoke this Agreement (which
must be revoked, if at all, in its entirety), and this Agreement will not be
effective until that revocation period has expired without
exercise. The Employee agrees that in
order to exercise his right to revoke this Agreement within such seven (7) day
period, he must do so in a signed writing delivered to the Company’s President
before the close of business on the seventh calendar day after the date on which
Employee signs this Agreement.
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12. Confidentiality
of Agreement. After the execution of this Agreement by the
Employee, neither the Employee, his attorney, nor any person acting by, through,
under or in concert with them, shall disclose any of the terms of or amount paid
under this Agreement or the negotiation thereof to any individual or entity;
provided, however, that the foregoing shall not prevent such disclosures by
Employee to his attorney, tax advisors and/or immediate family members, or as
may be required by law.
13. No
Filings. The Employee represents that he has not filed any
lawsuits, claims, charges or complaints against the Company or the Company
Releasees with any local, state or federal agency or court from the beginning of
time to the date of execution of this Agreement; that he will not do so at any
time hereafter based upon events prior to the date of execution of this
Agreement; that he will not induce, encourage, solicit or assist any other
person or entity to file or pursue any proceeding of any kind against the
Company or the Company Releasees; and that, if any such agency or court ever
assumes jurisdiction over any such lawsuit, claim, charge or complaint and/or
purports to bring any legal proceeding, in whole or in part, on behalf of the
Employee based upon events occurring prior to the execution of this Agreement,
the Employee will request such agency or court to withdraw from and/or to
dismiss the lawsuit, claim, charge or complaint with prejudice.
14. Proprietary
Information; Return of Property. The Employee acknowledges
that certain information, observations and data obtained by him during the
course of or related to his employment with the Company (including, without
limitation, business plans, financial projections, financial information,
marketing plans or proposals, personnel information, customer lists, product
designs, and other customer information) are the sole property of the Company
and constitute confidential proprietary information and trade secrets of the
Company under applicable law. The Employee will, to the extent that
he has not previously done so, immediately return to the Company all (i)
proprietary information, trade secrets and other intangible property of the
Company, and all files, documents and other materials containing any proprietary
information, trade secrets and/or other intangible property of the Company,
without retaining copies thereof, and (ii) other items of tangible property of
the Company, that were in the Employee’s possession or control as of the
Termination Date.
15. Prohibition
on Solicitation of Employees. During the one year period
immediately following the Termination Date, Employee will not, directly or
indirectly, either on Employee’s own account or for any other person or entity,
solicit, interfere with, or endeavor to cause any employee of the Company to
leave his or her employment with the Company, or induce or attempt to induce any
such employee to accept employment with any other person or entity.
16. Equitable
Remedies. The Employee acknowledges that any unfair
competition or misuse of trade secrets or proprietary information belonging to
the Company, any violation of Section 14 of this
Agreement, or any violation of Section 15 of this
Agreement, will result in irreparable harm to the Company, and therefore, the
Company shall, in addition to any other remedies, be entitled to immediate
injunctive relief.
17. Covenant
Not to Xxx. As to any and all matters released in Sections 8 and 10 or waived in Section 9 above,
Employee, and Employee’s Affiliates, covenant not to initiate, prosecute or
(except as required by law) participate in any civil, criminal, administrative
or other proceeding in any court, agency or other forum, either affirmatively or
by way of cross-claim, defense or counterclaim, nor to attempt to initiate any
investigation by any government agency, against any of the individuals and
entities released hereunder.
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18. Non-Disparagement. The
parties agree not to disparage or otherwise publish or communicate derogatory
statements about each other, the Company’s management and/or services to any
third party.
19. Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California, without giving effect to
any choice of law doctrine that would cause the law of any other jurisdiction to
apply.
20. Venue. The
parties hereby agree that all actions or proceedings arising directly or
indirectly under this Agreement, whether instituted by the Employee or the
Company, shall be litigated in courts having situs within the State of
California, County of San Diego, and each of the parties hereby expressly
consents to the jurisdiction of any local, state or Federal court located within
said state and county, and consents that any service of process in such action
or proceeding may be made by personal service upon the parties wherever such
parties may be located, respectively, or by certified or registered mail
directed to the Employee at his last known address. The parties
hereby waive trial by jury in connection with any future dispute between them,
any objection based on forum non conveniens, and any objection to venue of any
action instituted hereunder.
21. Attorneys’
Fees. Except as otherwise provided in this Agreement, in any
action, litigation or proceeding between the parties arising out of or in
relation to this Agreement, including any purported breach of this Agreement,
each party shall bear his/her/its own costs and expenses, including his/her/its
attorneys’ fees.
22. Non-Admission
of Liability. The parties understand and agree that neither
the payment of any sum of money nor the execution of this Agreement by the
parties will constitute or be construed as an admission of any wrongdoing or
liability whatsoever by any party.
23. Severability. If
any one or more of the provisions contained in this Agreement (or parts
thereof), or the application thereof in any circumstances, is held invalid,
illegal or unenforceable in any respect for any reason, the validity and
enforceability of any such provision in every other respect and of the remaining
provisions hereof will not be in any way impaired or affected, it being intended
that all of the rights and privileges shall be enforceable to the fullest extent
permitted by law.
24. Entire
Agreement. This Agreement represents the sole and entire
agreement between the parties and, except as expressly stated in this Agreement,
supersedes all prior agreements, negotiations and discussions between the
parties with respect to the subject matters contained in this
Agreement.
25. Waiver. No
waiver by any party hereto at any time of any breach of, or compliance with, any
condition or provision of this Agreement to be performed by any other party
hereto shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same time or at any prior or subsequent time.
26. Amendment. This
Agreement may be modified or amended only if such modification or amendment is
agreed to in writing and signed by duly authorized representatives of the
parties hereto, which writing expressly states the intent of the parties to
modify this Agreement.
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27. Counterparts. This
Agreement may be executed in one or more counterparts, each of which will be
deemed to be an original as against any party that has signed it, but all of
which together will constitute one and the same instrument.
28. Assignment. This
Agreement inures to the benefit of and is binding upon the Company and its
successors and assigns, but the Employee’s rights under this Agreement are not
assignable, except to his estate.
29. Notice. All
notices, requests, demands, claims and other communications hereunder shall be
in writing and shall be deemed to have been duly given (a) if personally
delivered; or (b) if mailed by overnight or by first class, certified or
registered mail, postage prepaid, return receipt requested, and properly
addressed as follows:
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If
to the Employee:
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Xxxxxx
Xxxxxx
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X.X.
Xxx 0000
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Xxxxx,
XX 00000
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If
to the Company:
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x.Xxxxxxx
Corporation
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00000
Xxxx Xxxxxxxx Xxxxx
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Xxx
Xxxxx, XX 00000
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Attention: Chief
Executive Officer
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Such
addresses may be changed, from time to time, by means of a notice given in the
manner provided above. Notice will conclusively be deemed to have been given
when personally delivered (including, but not limited to, by messenger or
courier); or if given by mail, on the third day after being sent by first class,
certified or registered mail; or if given by Federal Express or other similar
overnight service, on the date of delivery.
30. Miscellaneous
Provisions.
(a) The
language in all parts of this Agreement must be in all cases construed simply
according to its fair meaning and not strictly for or against any
party. Whenever the context requires, all words used in the singular
must be construed to have been used in the plural, and vice versa, and each
gender must include any other gender. The captions of the Sections of
this Agreement are for convenience only and must not affect the construction or
interpretation of any of the provision in this Agreement. References
to the Company shall include the subsidiary unless the context clearly requires
otherwise.
(b) Each
provision of this Agreement to be performed by a party hereto is both a covenant
and condition, and is a material consideration for the other party’s performance
hereunder, and any breach thereof by the party will be a material default
hereunder. All rights, remedies, undertakings, obligations, options,
covenants, conditions and agreements contained in this Agreement are cumulative
and no one of them is exclusive of any other. Time is of the essence
in the performance of this Agreement.
(c) Each
party acknowledges that no representation, statement or promise made by any
other party, or by the agent or attorney of any other party, except for those in
this Agreement, has been relied on by him or it in entering into this
Agreement.
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(d) Each
party understands that the facts with respect to which this Agreement is entered
into may be materially different from those the parties now believe to be
true. Except in the case where the existence of any additional or
different facts constitutes the breach of a representation or warranty, each
party accepts and assumes this risk and agrees that this Agreement and the
releases in it shall remain in full force and effect, and legally binding,
notwithstanding the discovery or existence of any additional or different facts,
or of any claims with respect to those facts.
(e) Unless
expressly set forth otherwise, all references in this Agreement to a “day” are
deemed to be a reference to a calendar day. All references to
“business day” mean any day of the year other than a Saturday, Sunday or a
public or bank holiday in San Diego County, California. Unless
expressly stated otherwise, cross-references in this Agreement refer to
provisions within this Agreement and are not references to the overall
transaction or to any other document.
(f) Each
party to this Agreement will cooperate fully in the execution of any and all
other documents and in the completion of any additional actions that may be
necessary or appropriate to give full force and effect to the terms and intent
of this Agreement.
(g) EMPLOYEE REPRESENTS THAT HE HAS READ
THIS AGREEMENT AND FULLY UNDERSTAND ALL OF ITS TERMS; THAT HE HAS CONFERRED WITH
HIS ATTORNEY, OR HAS KNOWINGLY AND VOLUNTARILY CHOSEN NOT TO CONFER WITH HIS
ATTORNEY ABOUT THIS AGREEMENT; THAT HE HAS EXECUTED THIS AGREEMENT WITHOUT
COERCION OR DURESS OF ANY KIND; AND THAT HE UNDERSTANDS ANY RIGHTS THAT HE HAS
OR MAY HAVE AND SIGNS THIS AGREEMENT WITH FULL KNOWLEDGE OF ANY SUCH
RIGHTS.
EMPLOYEE
ACKNOWLEDGES THAT HE HAS READ THIS AGREEMENT, UNDERSTANDS IT AND IS VOLUNTARILY
ENTERING INTO IT, AND UNDERSTANDS THAT THIS AGREEMENT INCLUDES A RELEASE OF ALL
KNOWN AND UNKNOWN CLAIMS.
[Remainder of Page Intentionally Left
Blank - Signature Page Follows]
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IN
WITNESS WHEREOF, the parties hereto have executed this Agreement on the dates
indicated below.
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“EMPLOYEE”
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“COMPANY”
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XXXXXX
XXXXXX,
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X.XXXXXXX
CORPORATION
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an
individual
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By:
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/s/ XXXXXX X. XXXX
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/s/ XXXXXX XXXXXX
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Its:
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President and CEO
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Signature
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Dated: December
15, 2010
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Dated: December
15, 2010
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Signature
Page to Separation Agreement and General Release
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