EXHIBIT 10.20
SEPARATION AGREEMENT
THIS SEPARATION AGREEMENT (this "Agreement") is made and entered
into on September 20, 2002 by and between Xxxx X. Xxxxxxxx, a California
resident ("Xxxxxxxx"), and Fair, Xxxxx and Company, Incorporated, a Delaware
corporation (the "Company").
BACKGROUND
X. Xxxxxxxx is employed by the Company as Vice President, Finance
and Chief Accounting Officer.
B. The parties have agreed that it is in their mutual interests
that Xxxxxxxx resign from his position as Vice President, Finance and Chief
Accounting Officer, effective January 1, 2003.
C. After such resignation, the Company desires to continue to
employ Xxxxxxxx through April 30, 2003 on a reduced basis to assist with the
performance of certain financial responsibilities for the Company and to
transition his responsibilities to other Company personnel.
D. The parties are concluding their employment relationship
amicably, but mutually recognize that such a transition and relationship may
give rise to potential claims or liabilities.
E. The parties expressly deny that they may be liable to each
other on any basis or that they have engaged in any unlawful or improper conduct
toward each other or treated each other unfairly.
F. The parties have agreed to a full settlement of all issues now
in dispute between them.
NOW THEREFORE, in consideration of the mutual promises and
provisions contained in this Agreement and in the Xxxxxxxx Release referred to
below, the parties, intending to be legally bound, agree as follows:
AGREEMENTS
1. RELEASE OF CLAIMS BY XXXXXXXX. At the same time Xxxxxxxx
executes this Agreement, he also will execute a Release, in the form attached to
this Agreement as Exhibit A (the "Xxxxxxxx Release"), in favor of the Company
and its affiliates, divisions, committees, directors, officers, employees,
agents, predecessors, successors, and assigns. This Agreement will not be
interpreted or construed to limit the Xxxxxxxx Release in any manner. The
existence of any dispute respecting the interpretation of this Agreement or the
alleged breach of this Agreement will not nullify or otherwise affect the
validity or enforceability of the Xxxxxxxx Release.
2. RESIGNATIONS. By executing this Agreement, Xxxxxxxx confirms
his resignation as an officer of the Company effective January 1, 2003. Xxxxxxxx
further confirms his resignation as an employee of the Company, effective as of
the end of the Transition Period (as defined below). The Company confirms its
acceptance of Evenhuis's resignations. At the same time he signs this Agreement,
Xxxxxxxx will also sign a letter affirming his resignation as an officer of the
Company and as an employee, in the form attached to this Agreement as Exhibit B.
3. TRANSITION PERIOD. Xxxxxxxx and the Company agree that
Evenhuis's employment as Vice President, Finance and Chief Accounting Officer,
will end on January 1, 2003. The Company will continue to employ Xxxxxxxx from
January 1, 2003 through April 30, 2003, or until such earlier date that
Evenhuis's employment ends pursuant to subparagraph 3.e.
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below (the "Transition Period"), only if: (i) Xxxxxxxx has not revoked this
Agreement or the Xxxxxxxx Release within the applicable revocation period set
forth in paragraph 21 below; (ii) Xxxxxxxx is in material compliance with the
terms of paragraph 14 of this Agreement, the Xxxxxxxx Release, the
Non-Disclosure Agreement between Xxxxxxxx and the Company dated October 20, 1999
(the "Non-Disclosure Agreement"), and the Customer Information Confidentiality
Agreement between Xxxxxxxx and the Company dated October 20, 1999 (the "Customer
Confidentiality Agreement").
4. DUTIES.
a. From the date hereof through December 31, 2002, the Company
will employ Xxxxxxxx and Xxxxxxxx will serve the Company in a transition role
which will include but not be limited to, providing assistance to the Company
for the preparation and filing of the Company annual report on Form 10-K for the
Company's 2002 fiscal year with the Securities and Exchange Commission on or
before the due date (the "Filing") and any certifications of the Filing required
by law. Such assistance will include but is not limited to, signing management
representation letters to outside auditors and internal company personnel; and
providing certifications and participating in reviews of past filings and all
other reviews deemed necessary by the Company to prepare the Filing so that it
complies with generally accepted accounting principles and meets the attestation
standards for certifications required by applicable law.
b. During the Transition Period, the Company will employ Xxxxxxxx
and Xxxxxxxx will serve the Company in a transition role assisting the Company
as requested in connection with the completion and transition of his
responsibilities as Vice President, Finance and Chief Accounting Officer for the
Company.
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c. From the date hereof through December 31, 2002, Xxxxxxxx will
be employed by the Company on a full-time basis. During the Transition Period,
Xxxxxxxx will be employed by the Company on a reduced time basis equal to ten
percent (10%) of a full-time position; and Evenhuis's duties and hours will be
as directed by the Company from time to time consistent with his reduced hours
and subparagraph 4.b above.
5. SALARY. While he is employed from the date hereof through
December 31, 2002, Xxxxxxxx will be paid a salary on a bi-weekly basis in
arrears based on an annual rate of $245,000; and while he is employed during the
Transition Period, will be paid on a bi-weekly basis in arrears based on an
annual rate of $24,500. Xxxxxxxx acknowledges that if Company's current payroll
practices change during the above-stated periods, his salary will be payable at
such other intervals and in such amounts in accordance with the then-customary
payroll practices of Company for the payment of its employees.
6. BONUS. Xxxxxxxx will not receive any bonus payment under the
Company's FY03 Management Incentive Plan for the first quarter of fiscal year
2003 or for any time worked during the Transition Period.
7. BENEFITS. While he is employed during the Transition Period,
Xxxxxxxx will receive such employee benefits as are made generally available to
other employees of the Company, subject to the eligibility requirements and
other terms and conditions of the applicable plans or programs. So long as
Xxxxxxxx remains a full-time employee of the Company, through December 31, 2002,
he will be eligible to continue his participation in the Company's group
medical, dental and life insurance plans. Thereafter, he will be eligible to
continue such group coverages at his own expense in accordance with the
applicable laws and plans. Xxxxxxxx will not be eligible for any benefit plans
or programs of the Company after December 31, 2002,
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except to the extent specifically permitted for part-time employees under the
terms and conditions of such plans or programs.
8. STOCK OPTIONS. Xxxxxxxx agrees and acknowledges that the
options listed in this paragraph below are his only options to purchase shares
of the Company's Common Stock and that such options are exercisable as of the
date of this Agreement in accordance with the terms of, and only to the extent
provided for, in the CFO Option Plan and the Company's 1992 Long-Term Incentive
Plan (the "Plans") and the applicable option agreements. Xxxxxxxx further agrees
and acknowledges that additional options may become exercisable during the
Transition Period if his employment continues through April 30, 2003, and that
his reduced-time status will not affect the vesting of options under the Plans
and the applicable option agreements. Xxxxxxxx further agrees and acknowledges
that all of his options to purchase the Company's Common Stock will lapse and
cease to be outstanding as of 90 days after the termination of his employment
with the Company, except as expressly provided in the Plans and the applicable
option agreements unless previously exercised in accordance with the terms of
the Plans and the applicable option agreements.
Date of Exercise Number of
Xxxxx Xxxxx Shares
---------------- ---------- ---------------
10/19/99 $14.5278 56,250
4/4/00 $16.3333 43,875
4/24/01 $27.1111 22,500
9. EARLY TERMINATION OF EMPLOYMENT. Xxxxxxxx and the Company
agree that Evenhuis's employment with the Company shall continue through April
30, 2003 in accordance with the terms and conditions of this Agreement, except
that such employment will end earlier if (i) Xxxxxxxx resigns or abandons his
employment, (ii) Xxxxxxxx dies, (iii) the
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Company notifies Xxxxxxxx of termination of Evenhuis's employment for material
breach by Xxxxxxxx of the terms of this Agreement, the Non-Disclosure Agreement,
or the Customer Confidentiality Agreement, (iv) the Company notifies Xxxxxxxx of
termination of Evenhuis's employment for willful refusal by Xxxxxxxx to perform
reasonable duties or responsibilities requested by the Company, or (v) the
Company notifies Xxxxxxxx of termination of Evenhuis's employment for unlawful
conduct or gross misconduct by Xxxxxxxx that is willful and deliberate on
Evenhuis's part and that, in either event, is materially injurious to the
reputation or financial interests of the Company.
10. RETIREMENT PLANS. To the extent that Xxxxxxxx is currently a
participant in any retirement, pension, or profit sharing plans of the Company,
Xxxxxxxx will be entitled to begin drawing his benefits at the times and under
the terms and conditions set forth in any such plan.
11. PAID TIME OFF. The Company will pay Xxxxxxxx for any earned
but unused paid time off as of December 31, 2002, in accordance with the
Company's regular policies and practices. Xxxxxxxx acknowledges that he will not
accrue any paid time off after December 31, 2002.
12. EXPENSE REIMBURSEMENT. The Company will reimburse Xxxxxxxx
for his regular and necessary business expenses incurred through the Transition
Period according to the Company's regular policies and practices. Xxxxxxxx will
submit all requests for reimbursement to the Company no later than May 15, 2003.
13. FUTURE REFERENCES. It is Evenhuis's responsibility to direct
or cause to be directed all future official requests for references concerning
him to the Vice President, Human Resources, of the Company, who will respond to
such requests by confirming the dates of
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Evenhuis's employment, identifying the position he held, describing his duties
and responsibilities, and, at his request, confirming his base salary.
14. NON-DISCLOSURE AND NON-SOLICITATION AGREEMENTS.
a. PROPRIETARY INFORMATION. During his employment with the
Company and after termination of such employment, Xxxxxxxx will not divulge,
furnish, or make accessible to anyone or use in any way (other than in the
ordinary course of the business of the Company) any Proprietary Information of
the Company that Xxxxxxxx has acquired during the period of his employment by
the Company, whether developed by himself or by others. "Proprietary
Information" means all things tangible and intangible in which the Company has
an actual or claimed property or other right and shall include, but not
necessarily be limited to, ideas, inventions, discoveries, computer languages,
computer programs, information of any type stored in computer usable form, any
data, information, program or materials input on a Company computer, records,
files, drawings, documents, equipment, lists of customers, either current, past
or prospective, mailing or address lists, financial data, strategic plans, or
marketing or sales plans, not otherwise known to the public, and irrespective of
whether any or all of these shall be protected by copyright, patent, or any
other process. Xxxxxxxx acknowledges that the above-described Proprietary
Information constitutes a unique and valuable asset of the Company and
represents a substantial investment of time and expense by the Company, and that
any disclosure or other use of such knowledge or information other than for the
sole benefit of the Company would be wrongful and would cause irreparable harm
to the Company. The foregoing obligations of confidentiality will not apply to
any knowledge or information that (i) is now or subsequently becomes generally
publicly known, other than as a direct or indirect result of the breach by
Xxxxxxxx of this Agreement or of the Non-Disclosure Agreement, (ii) is
independently
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made available to Xxxxxxxx in good faith by a third party who has not violated a
confidential relationship with the Company, or (iii) is required to be disclosed
by law or legal process. Xxxxxxxx further acknowledges and affirms his
continuing obligation to comply with the terms and conditions of the
Non-Disclosure Agreement. Xxxxxxxx understands and agrees that his obligations
under this paragraph to maintain the confidentiality of the Company's
Proprietary Information are in addition to any obligations he has under
applicable statutory or common law.
b. CUSTOMER INFORMATION. During his employment with the Company
and after termination of such employment, Xxxxxxxx will not divulge, furnish, or
make accessible to anyone or use in any way any data provided to the Company by
a customer of the Company. Xxxxxxxx further acknowledges and affirms his
continuing obligation to comply with the terms and conditions of the Customer
Confidentiality Agreement.
c. AGREEMENT NOT TO HIRE. For a period of 12 consecutive months
after Evenhuis's employment with the Company ends, Xxxxxxxx will not, directly
or indirectly, hire, engage, or solicit any person who is an employee of the
Company or who was an employee of the Company at any time during the 180-day
period immediately preceding the date Evenhuis's employment ends, in any manner
or capacity, including without limitation as a proprietor, principal, agent,
partner, officer, director, stockholder, employee, member of any association,
consultant, or otherwise.
d. ACKNOWLEDGMENT. Xxxxxxxx agrees that the restrictions and
agreements contained in this paragraph 14 are reasonable and necessary to
protect the legitimate interests of the Company and that any violation of this
paragraph 14 will cause substantial and irreparable harm to the Company that
would not be quantifiable and for which no adequate remedy would
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exist at law and accordingly injunctive relief will be available for any
violation of this paragraph 14.
e. BLUE PENCIL DOCTRINE. If the duration or geographical extent
of this paragraph 14 are in excess of what is valid and enforceable under
applicable law, such provision will be construed to cover only that duration,
geographical extent, or activities that are valid and enforceable. Xxxxxxxx
acknowledges the uncertainty of the law in this respect and expressly stipulates
that this paragraph 14 be given the construction which renders its provisions
valid and enforceable to the maximum extent (not exceeding its express terms)
possible under applicable laws.
15. MUTUAL CONFIDENTIALITY.
a. GENERAL STANDARD. It is the intent of the parties that the
terms of Evenhuis's separation from the Company, including the
provisions of this Agreement and the Xxxxxxxx Release (collectively
"Confidential Separation Information"), will be forever treated as
confidential. Accordingly, Xxxxxxxx will not disclose Confidential
Separation Information to anyone at any time, except as provided in
subparagraph 15.b. below.
b. EXCEPTIONS.
i. It will not be a violation of this Agreement for
Xxxxxxxx to disclose Confidential Separation Information
in reports to governmental agencies as required by law,
including, but not limited to, any federal or state tax
authority.
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ii. It will not be a violation of this Agreement for
Xxxxxxxx to disclose Confidential Separation Information
to his wife, his immediate family, his attorneys, his
accountants or tax advisors.
iii. It will not be a violation of this Agreement for
Xxxxxxxx to disclose to employers and/or prospective
employers that he is constrained from certain activities
as a result of the terms of subparagraphs 14.a., 14.b., or
14.c. Nor will it be a violation of this Agreement for
Xxxxxxxx to inform Company employees who ask him about
employment opportunities outside the Company that the
terms of paragraph 14.c. of this Agreement preclude him
from engaging in certain activities that could interfere
with their employment with the Company.
iv. It will not be a violation of this Agreement for
Xxxxxxxx to disclose Confidential Separation Information
in connection with any litigation involving the parties'
rights or obligations under this Agreement or the Xxxxxxxx
Release.
10. NON-DISPARAGEMENT. Xxxxxxxx will not at any time disparage,
defame, or besmirch the reputation, character, image, products, or services of
the Company, or the reputation or character of its directors, officers,
employees, or agents.
11. CLAIMS INVOLVING THE COMPANY. Xxxxxxxx will not recommend or
suggest to any potential claimants or plaintiffs or their attorneys or agents
that they initiate claims or lawsuits against the Company, any of its affiliates
or divisions, or any of its or their directors, officers, employees, or agents,
nor will Xxxxxxxx voluntarily aid, assist, or cooperate with any claimants or
plaintiffs or their attorneys or agents in any claims or lawsuits now pending or
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commenced in the future against the Company, any of its affiliates or divisions,
or any of its or their directors, officers, employees, or agents; provided,
however, that this Agreement will not be interpreted or construed to prevent
Xxxxxxxx from giving testimony in response to questions asked pursuant to a
legally enforceable subpoena, deposition notice, or other legal process, during
any legal proceedings or arbitrations involving the Company, any of its
affiliates or divisions, or any of its or their directors, officers, employees,
or agents.
12. RECORDS, DOCUMENTS, AND PROPERTY. Xxxxxxxx hereby represents
that, on or before the date his employment ends, he will deliver to the Company
any and all Company records and any and all Company property in his possession
or under his control, including without limitation manuals, books, blank forms,
documents, letters, memoranda, notes, notebooks, reports, printouts, computer
disks, computer tapes, source codes, data, tables, calculations, or copies
thereof, all trade secrets and confidential information of the Company,
including, but not limited to, all documents that in whole or in part contain
any trade secrets or confidential information of the Company, and all equipment,
vehicles, personal computers, laptops, printers, telephones, and pagers, which
in any of such cases are in his possession or under his control.
13. EVENHUIS'S REPRESENTATIONS. Xxxxxxxx hereby represents that,
during the entire period that he was an employee or officer of the Company, he
acted in good faith, had no reasonable cause to believe that his conduct was
unlawful, and reasonably believed that his conduct was in the best interests of
the Company. Xxxxxxxx represents and agrees that he will continue to carry out
his duties as an employee of the Company in good faith, using his best efforts
and abilities, and acting in the best interests of the Company.
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14. TIME TO CONSIDER AGREEMENT. Xxxxxxxx understands that he may
take at least 21 calendar days to decide whether to sign this Agreement and the
Xxxxxxxx Release, which 21-day period will commence on the day after the date on
which Xxxxxxxx first received copies of this Agreement and the Xxxxxxxx Release
for review. Xxxxxxxx represents that if he signs this Agreement and the Xxxxxxxx
Release before the expiration of the 21-day period, it is because he has decided
that he does not need any additional time to decide whether to sign this
Agreement and the Xxxxxxxx Release. Xxxxxxxx also acknowledges that any changes
made to this Agreement or the Xxxxxxxx Release before he executes either of
them, whether such changes are material or immaterial, will not cause the 21-day
period to commence again.
15. RIGHT TO RESCIND OR REVOKE. Xxxxxxxx understands that he has
the right to rescind or revoke this Agreement and the Xxxxxxxx Release for any
reason within seven (7) calendar days after he signs them. Xxxxxxxx understands
that this Agreement and the Xxxxxxxx Release will not become effective or
enforceable unless and until he has not revoked this Agreement and the Xxxxxxxx
Release and the revocation period has expired. Xxxxxxxx understands that if he
wishes to rescind, the revocation must be in writing and hand-delivered or
mailed to the Company. If hand-delivered, the revocation must be (a) addressed
to the Company, c/o Xxxxxxx Xxxx, Vice President, Human Resources, 0000
Xxxxxxxxx Xxxxxx Xxxxx, Xx. Xxxx, XX 00000-0000, and (b) delivered to Xxxxxxx
Xxxx within the seven-day period. If mailed, the revocation must be: (a)
postmarked within the seven-day period; and (b) addressed to Xxxxxxx Xxxx, Vice
President, Human Resources, 0000 Xxxxxxxxx Xxxxxx Xxxxx, Xx. Xxxx, XX
00000-0000.
16. FULL COMPENSATION. Xxxxxxxx understands that the continued
employment and other consideration provided by the Company under this Agreement
will fully
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compensate Xxxxxxxx for and extinguish any and all of the potential claims
Xxxxxxxx is releasing in the Xxxxxxxx Release, including, but not limited to,
his claims for attorneys' fees and costs and any and all claims for any type of
legal or equitable relief.
17. NO ADMISSION OF WRONGDOING. Xxxxxxxx understands that this
Agreement does not constitute an admission that the Company has violated any
local ordinance, state or federal statute, or principle of common law, that the
Company has engaged in any unlawful or improper conduct toward Xxxxxxxx, or that
the Company has treated Xxxxxxxx unfairly. Xxxxxxxx will not characterize this
Agreement or the payment of any money or other consideration in accordance with
this Agreement as an admission that the Company has engaged in any unlawful or
improper conduct toward him or treated him unfairly.
18. AUTHORITY. Xxxxxxxx represents and warrants that he has the
authority to enter into this Agreement and the Xxxxxxxx Release, and that no
causes of action, claims, or demands released pursuant to this Agreement and the
Xxxxxxxx Release have been assigned to any person or entity not a party to this
Agreement and the Xxxxxxxx Release.
19. REPRESENTATION. Xxxxxxxx hereby acknowledges that he has been
advised by the Company to consult with his own attorney before executing this
Agreement and the Xxxxxxxx Release, that he has had the opportunity to be
represented by his own attorney in this matter, that he has had a full
opportunity to consider this Agreement and the Xxxxxxxx Release, that he has had
a full opportunity to ask any questions that he may have concerning this
Agreement, the Xxxxxxxx Release, or the settlement of his potential claims
against the Company, and that he has not relied upon any statements or
representations made by the Company or its attorneys, written or oral, other
than the statements and representations that are explicitly set forth in this
Agreement, the CFO Plan, the 1992 Long-Term Incentive Plan, any written stock
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option agreement between Xxxxxxxx and the Company, and any other employee
benefit plans or programs sponsored by the Company in which Xxxxxxxx is a
participant.
20. SUCCESSORS AND ASSIGNS. This Agreement is binding on Xxxxxxxx
and on the Company and its successors and assigns. The rights and obligations of
the Company under this Agreement may be assigned to a successor, including, but
not limited to, a purchaser of substantially all the business or assets of the
Company. No rights or obligations of Xxxxxxxx hereunder may be assigned by
Xxxxxxxx to any other person or entity.
21. INVALIDITY. In the event that any provision of this Agreement
or the Xxxxxxxx Release is determined by a court of competent jurisdiction to be
invalid, illegal, or unenforceable in any respect, such a determination will not
affect the validity, legality, or enforceability of the remaining provisions of
this Agreement or the Xxxxxxxx Release, and the remaining provisions of this
Agreement and the Xxxxxxxx Release will continue to be valid and enforceable,
and any court of competent jurisdiction may modify the objectionable provision
so as to make it valid and enforceable.
22. ENTIRE AGREEMENT. Before signing this Agreement and the
Xxxxxxxx Release, the parties engaged in discussions and generated certain
documents, in which the parties considered the matters that are the subject of
this Agreement and the Xxxxxxxx Release. In such discussions and documents, the
parties may have expressed their judgments and beliefs concerning the
intentions, capabilities, and practices of the parties, and may have forecast
future events. The parties recognize, however, that all business transactions,
including the transactions upon which the parties' judgments, beliefs, and
forecasts are based, contain an element of risk, and that it is normal business
practice to limit the legal obligations of contracting parties only to those
promises and representations that are essential to the transaction so as to
provide certainty
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as to their respective future rights and remedies. Accordingly, this Agreement,
the Xxxxxxxx Release, the 1992 Long-Term Incentive Plan, any written stock
option agreement between Xxxxxxxx and the Company, the Non-Disclosure Agreement,
the Customer Confidentiality Agreement, and any employee benefit plans or
programs sponsored by the Company in which Xxxxxxxx is a participant are
intended to define the full extent of the legally enforceable contractual
undertakings of the parties, and no promises or representations, written or
oral, that are not set forth explicitly in this Agreement, the Xxxxxxxx Release,
the CFP Plan, the 1992 Long-Term Incentive Plan, any written stock option
agreement between Xxxxxxxx and the Company, the Non-Disclosure Agreement, the
Customer Confidentiality Agreement, or any employee benefit plans or programs
sponsored by the Company in which Xxxxxxxx is a participant are intended by
either party to be legally binding, and all other agreements and understandings
between the parties are hereby superseded.
23. REMEDIES. Xxxxxxxx acknowledges that it would be difficult to
fully compensate the Company for damages resulting from any breach by him of the
provisions of paragraph 14 of this Agreement. Accordingly, in the event of any
actual or threatened breach of such provisions, the Company will (in addition to
any other remedies it may have) be entitled to temporary and/or permanent
injunctive and other equitable relief to enforce such provisions, and such
relief may be granted without the necessity of proving actual damages.
24. AMENDMENTS. No amendment or modification of this Agreement
shall be deemed effective unless made in writing and signed by the parties
hereto.
25. NO WAIVER. No term or condition of this Agreement shall be
deemed to have been waived, except by a statement in writing signed by the party
against whom enforcement of the waiver is sought. Any written waiver shall not
be deemed a continuing
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waiver unless specifically stated, shall operate only as to the specific term or
condition waived and shall not constitute a waiver of such term or condition for
the future or as to any act other than that specifically waived.
26. HEADINGS. The descriptive headings of the paragraphs and
subparagraphs of this Agreement are inserted for convenience only and do not
constitute a part of this Agreement.
27. COUNTERPARTS. This Agreement may be executed simultaneously
in two or more counterparts, each of which will be deemed an original, but all
of which together will constitute one and the same instrument.
28. GOVERNING LAW. This Agreement and the Xxxxxxxx Release will
be interpreted and construed in accordance with, and any dispute or controversy
arising from any breach or asserted breach of this Agreement or the Xxxxxxxx
Release will be governed by, the laws of the State of California.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date stated above.
/s/ Xxxx X. Xxxxxxxx
----------------------------------------
XXXX X. XXXXXXXX
FAIR, XXXXX AND COMPANY, INCORPORATED
BY: /s/ Xxxxxxx X. Deal
------------------------------------
Its Vice President, Human Resources
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EXHIBIT A
RELEASE BY XXXX X. XXXXXXXX
DEFINITIONS. I intend all words used in this Release to have their plain
meanings in ordinary English. Specific terms that I use in this Release have the
following meanings:
A. I, me, and my include both me and anyone who has or obtains any
legal rights or claims through me.
B. FIC means Fair, Xxxxx and Company, Incorporated, any company
related to Fair, Xxxxx and Company, Incorporated in the present
or past (including without limitation, its predecessors, parents,
subsidiaries, affiliates, joint venture partners, and divisions),
and any successors of Fair, Xxxxx and Company, Incorporated.
C. Company means FIC; the present and past officers, directors,
committees, shareholders, and employees of FIC; any company
providing insurance to FIC in the present or past; the present
and past fiduciaries of any employee benefit plan sponsored or
maintained by FIC (other than multiemployer plans); and anyone
who acted on behalf of FIC or on instructions from FIC.
D. Agreement means the Separation Agreement between FIC and me that
I am executing on the same date on which I execute this Release,
including all of the documents attached to the Agreement.
E. My Claims mean all of my rights that I now have to any relief of
any kind from the Company, including without limitation:
1. all claims arising out of or relating to my employment
with FIC or the termination of that employment;
2. all claims arising out of or relating to the statements,
actions, or omissions of the Company;
3. all claims for any alleged unlawful discrimination,
harassment, retaliation or reprisal, or other alleged
unlawful practices arising under any federal, state, or
local statute, ordinance, or regulation, including without
limitation, claims under Title VII of the Civil Rights Act
of 1964, the Age Discrimination in Employment Act, the
Americans with Disabilities Act, 42 U.S.C. Section 1981,
the Employee Retirement Income Security Act, the Equal Pay
Act, the Worker Adjustment and Retraining Notification
Act, the Minnesota Human Rights Act, the California Fair
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Employment and Housing Act, the Fair Credit Reporting Act,
and workers' compensation non-interference or
non-retaliation statutes (such as Minn. Stat. Section
176.82);
4. all claims for alleged wrongful discharge; breach of
contract; breach of implied contract; failure to keep any
promise; breach of a covenant of good faith and fair
dealing; breach of fiduciary duty; estoppel; my
activities, if any, as a "whistleblower"; defamation;
infliction of emotional distress; fraud;
misrepresentation; negligence; harassment; retaliation or
reprisal; constructive discharge; assault; battery; false
imprisonment; invasion of privacy; interference with
contractual or business relationships; any other wrongful
employment practices; and violation of any other principle
of common law;
5. all claims for compensation of any kind, including without
limitation, bonuses, commissions, stock-based compensation
or stock options, vacation pay, and expense
reimbursements;
6. all claims for back pay, front pay, reinstatement, other
equitable relief, compensatory damages, damages for
alleged personal injury, liquidated damages, and punitive
damages;
7. all rights I have under California Civil Code section
1542, which states that: "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;" and
8. all claims for attorneys' fees, costs, and interest.
However, My Claims do not include any claims that the law does
not allow to be waived, any claims that may arise after the date
on which I sign this Release, or any claims for breach of the
Agreement.
AGREEMENT TO RELEASE MY CLAIMS. I will receive consideration from FIC as set
forth in the Agreement if I sign and do not rescind this Release as provided
below. I understand and acknowledge that that consideration is in addition to
anything of value that I would be entitled to receive from FIC if I did not sign
this Release or if I rescinded this Release. In exchange for that consideration
I give up and release all of My Claims including but not limited to my rights
under California Civil Code section 1542, which provide as follows:
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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.
I will not make any demands or claims against the Company for compensation or
damages relating to My Claims. The consideration that I am receiving is a fair
compromise for the release of My Claims.
ADDITIONAL AGREEMENTS AND UNDERSTANDINGS. Even though FIC will provide
consideration for me to settle and release My Claims, the Company does not admit
that it is responsible or legally obligated to me. In fact, the Company denies
that it is responsible or legally obligated to me for My Claims, denies that it
engaged in any unlawful or improper conduct toward me, and denies that it
treated me unfairly.
CONFIDENTIALITY. I understand that the terms of this Release are confidential
and that I may not disclose those terms to any person except under the
circumstances described in the Agreement.
ADVICE TO CONSULT WITH AN ATTORNEY. I understand and acknowledge that I am
hereby being advised by the Company to consult with an attorney prior to signing
this Release. My decision whether to sign this Release is my own voluntary
decision made with full knowledge that the Company has advised me to consult
with an attorney.
PERIOD TO CONSIDER THE RELEASE. I understand that I have 21 days from the day
that I receive this Release, not counting the day upon which I receive it, to
consider whether I wish to sign this Release. If I sign this Release before the
end of the 21-day period, it will be my voluntary decision to do so because I
have decided that I do not need any additional time to decide whether to sign
this Release. I also agree that any changes made to this Release or to the
Agreement before I sign it, whether material or immaterial, will not restart the
21-day period.
MY RIGHT TO RESCIND THIS RELEASE. I understand that I may rescind this Release
at any time within seven (7) days after I sign it, not counting the day upon
which I sign it. This Release will not become effective or enforceable unless
and until the 7-day rescission period has expired without my rescinding it.
PROCEDURE FOR ACCEPTING OR RESCINDING THE RELEASE. To accept the terms of this
Release, I must deliver the Release, after I have signed and dated it, to FIC by
hand or by mail within the 21-day period that I have to consider this Release.
To rescind my acceptance, I must deliver a written, signed statement that I
rescind my acceptance to FIC by hand or by mail within the 7-day rescission
period. All deliveries must be made to FIC at the following address:
19
Xxxxxxx Xxxx
Vice President, Human Resources
0000 Xxxxxxxxx Xxxxxx Xxxxx
Xx. Xxxx, XX 00000-0000
If I choose to deliver my acceptance or the rescission of my acceptance by mail,
it must be (1) postmarked within the period stated above and (2) properly
addressed to FIC at the address stated above.
INTERPRETATION OF THE RELEASE. This Release should be interpreted as broadly as
possible to achieve my intention to resolve all of My Claims against the
Company. If this Release is held by a court to be inadequate to release a
particular claim encompassed within My Claims, this Release will remain in full
force and effect with respect to all the rest of My Claims. This Agreement shall
be governed by, and interpreted under, the laws of the State of California
without regard to its choice of law principles. In the event that any part or
provision of this Agreement is determined to be unenforceable, all other parts
and provisions shall remain in full force and effect.
MY REPRESENTATIONS. I am legally able and entitled to receive the consideration
being provided to me in settlement of My Claims. I have not been involved in any
personal bankruptcy or other insolvency proceedings at any time since I began my
employment with FIC. No child support orders, garnishment orders, or other
orders requiring that money owed to me by FIC be paid to any other person are
now in effect.
I have read this Release carefully. I understand all of its terms. In signing
this Release, I have not relied on any statements or explanations made by the
Company except as specifically set forth in the Agreement. I am voluntarily
releasing My Claims against the Company. I intend this Release and the Agreement
to be legally binding.
Dated: 9/20/02 /s/ Xxxx X. Xxxxxxxx
------------------------------------
Xxxx X. Xxxxxxxx
20
EXHIBIT B
October 23, 2002
Xxxxxxx Xxxx
Vice President, Human Resources
Fair, Xxxxx and Company, Inc.
0000 Xxxxxxxxx Xxxxxx Xxxxx
Xx. Xxxx, XX 00000-0000
Dear Mr. Deal:
This will confirm my resignation, effective January 1, 2003, from my
position with Fair, Xxxxx and Company, Inc. as Vice President, Finance and Chief
Accounting Officer and as an officer of Fair, Xxxxx or any of its affiliates.
This also confirms my resignation as an employee of Fair, Xxxxx, effective as of
May 1, 2003.
Sincerely,
/s/ Xxxx X. Xxxxxxxx
-----------------------------------
Xxxx X. Xxxxxxxx
21
