AGREEMENT AND GENERAL RELEASE
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Emeritus
Corporation, its successors and assigns ("Emeritus") and Xxxxx Xxxxx, his heirs,
executors, administrators, successors, and assigns (collectively referred to
throughout this Agreement as “Xxxxx”), agree that:
1. Resignation
as Officer.
Xxxxx
hereby resigns as an officer of Emeritus and Emeritus accepts Xxxxx'x
resignation effective December 31, 2006.
2. Consideration.
In
consideration for signing this Agreement and General Release ("Agreement")
and
compliance with the promises made herein, Emeritus agrees, subject to the change
of control provisions in Paragraph 2(k):
(a)
to
pay Xxxxx'x salary at its current rate ($170,000 per year) and to keep Xxxxx
and
his wife on the Executive benefit plan through June 30, 2007;
(b)
beginning on July 1, 2007 through December 31, 2012, to pay an annualized salary
of $117,500 (equal to 60% of base annual salary at time of retirement; Medicare
basic and supplemental plan premiums for Xxxxx at the annual rate in the year
in
which each payment is made (currently $7,000 annual payment); 5% additional
compensation to cover medical premiums for Xxxxx'x wife between group COBRA
and
reaching Medicare eligibility ($8,500)).
(c);
beginning July 1, 2007, assuming Xxxxx'x wife elects to continue insurance
coverage under COBRA, to pay the cost of providing said coverage for 36 months;
(d)
Beginning on January 1, 2013, through December 31, 2022, to pay a stipend of
$2,000.00 per month to help defray the cost of health insurance for Xxxxx and/or
his wife. In the event of Xxxxx'x death prior to January 1, 2013, Emeritus
will
not make the $2,000 monthly payment, but will pay Xxxxx'x wife $1,000 per month
from January 1, 2013 through December 31, 2022.
(e)
to
payout any bonus earned under the 2006 Executive Bonus plan; even if not earned,
if other senior executives receive bonuses on a discretionary basis, Xxxxx
will
be entitled to a discretionary amount on the same basis and in a proportionate
amount as he received in the past relative to other officers.
(f)
to
make matching contributions for the 2006 Top Hat Plan;
(g)
on
June 30, 2007, to vest 100% of Xxxxx'x outstanding stock options. As set forth
in the 2006 Equity Plan provisions, Xxxxx shall have one (1) year -- until
June
30, 2008 -- to exercise said options;
(h)
in
the event the Company offers a health insurance plan effective at any point
from
July 1, 2007 through December 31, 2012 that would have allowed the participation
of Xxxxx and/or his wife if it existed on June 30, 2007, the Company will
immediately notify him and/or her in writing of the plan. Subject to the
eligibility provisions of
said
plan, Xxxxx (or his wife, if he predeceases her) will have 60 days from the
date
of receipt of notice to elect to participate in the plan under its terms and
conditions with premiums paid for by the Company through December 31, 2012.
If
he/she so elects to participate, the provisions of 2 (b) will be changed to
provide for an annualized salary of $102,000.00 and the remainder of 2 (b)
is no
longer applicable;
(i)
to
allow Xxxxx to keep the 9400 Dell Computer and cell phone and transferring
cell
phone to Xxxxx’x personal account; and
(j)
that
Xxxxx may maintain his long term care insurance policy with Xxxxx responsible
for the premiums;
(k)
in
the event of a change of control as defined in the Company’s 2006 Stock Option
Plan or in the event of Xxxxx’x death, Emeritus will have the option of
calculating an equivalent lump sum amount to cover any remaining financial
obligations set forth in Paragraphs 2(a) - (j) and paying said lump sum to
Xxxxx
or his surviving spouse.
3. No
Consideration Absent Execution of this Agreement.
Xxxxx
understands and agrees that he would not receive the monies and/or benefits
specified in paragraph “2” above, except for his execution of this Agreement and
the fulfillment of the promises contained herein.
4. Revocation.
Xxxxx
may revoke this Agreement for a period of seven (7) calendar days following
the
day he executes this Agreement. Any revocation within this period must be
submitted, in writing, to Xxx Xxxx and state, "I hereby revoke my acceptance
of
our Agreement." The revocation must be personally delivered to Xxx Xxxx or
his
designee, or mailed to Xxx Xxxx and postmarked within seven (7) calendar days
of
execution of this Agreement. This Agreement shall not become effective or
enforceable until the revocation period has expired. If the last day of the
revocation period is a Saturday, Sunday, or legal holiday in the state in which
Xxxxx was employed at the time of his last day of employment, then the
revocation period shall not expire until the next following day which is not
a
Saturday, Sunday, or legal holiday.
5. General
Release of Claims.
(a)Xxxxx
knowingly and voluntarily releases and forever discharges Emeritus, its
affiliates, subsidiaries, divisions, successors and assigns and the current
and
former employees, officers, directors, members, managers and agents thereof
(collectively referred to throughout the remainder of this Agreement as
“Employer”), of and from any and all claims, known and unknown, Xxxxx has or may
have against Employer as of the date of execution of this Agreement, including,
but not limited to, any alleged violation of:
| · |
Title
VII of the Civil Rights Act of 1964, as
amended;
|
| · |
The
Civil Rights Act of 1991;
|
| · |
Sections
1981 through 1988 of Title 42 of the United States Code, as
amended;
|
| · |
The
Employee Retirement Income Security Act of 1974, as amended
("ERISA");
|
| · |
The
Immigration Reform and Control Act, as
amended;
|
| · |
The
Americans with Disabilities Act of 1990, as
amended;
|
| · |
The
Age Discrimination in Employment Act of 1967, as
amended;
|
| · |
The
Workers Adjustment and Retraining Notification Act, as
amended;
|
| · |
The
Occupational Safety and Health Act, as
amended;
|
| · |
Washington
Law Against Discrimination in Employment - Wash. Rev. Code Ch. 49.60.010
et seq.
|
| · |
Washington
State Civil Rights Act - Wash.
Rev. Code§49.60.400
|
| · |
Washington
Statutory Provisions Against Retaliation/Discrimination for Filing
a
Workers’ Compensation Claim - Wash. Rev. Code
§51.48.025
|
| · |
Washington
Age Discrimination Law - Wash. Rev. Code Title 49,
§49.44.090
|
| · |
Washington
Sex Discrimination Law - Wash. Rev. Code Ch. 49.12,
§200
|
| · |
Washington
Equal Pay Law - Wash. Rev. Code Title 49,
§49.12.175
|
| · |
Washington
Family Leave Act - Wash. Rev. Code §49.78.005 et seq. and §49.78.010 et
seq.
|
| · |
Washington
Wage Payment and Work Hour Laws
|
| · |
The
Washington Industrial Safety and Health Act - Wash. Rev. Code Ch.
49.17
|
| · |
Any
allegation for costs, fees, or other expenses including attorneys’ fees
incurred in these matters.
|
(b).
Emeritus knowingly and voluntarily releases and forever discharges Xxxxx, his
heirs and assigns, of and from any and all claims, known and unknown, Emeritus
has or may have against Xxxxx as of the date of execution of this Agreement.
6.
Affirmations.
(a)
Xxxxx affirms that he has not filed, caused to be filed, or presently is a
party
to any claim, complaint, or action against Employer in any forum or form.
(b)
Xxxxx
further affirms that he has been paid and/or has received all leave (paid or
unpaid), vacation and floating holiday pay, compensation, wages, bonuses,
commissions, and/or benefits (including any monies to which he is entitled
in
his section 401(k) plan) to which he may be entitled and that no other leave
(paid or unpaid), vacation and floating holiday pay, compensation, wages,
bonuses, commissions and/or benefits (including any monies to which he is
entitled in his section 401(k) plan) are due to him, except (1) any already
vested benefit under ERISA, and (2) as provided in this Agreement.
(c)
Xxxxx
furthermore affirms that he has no known workplace injuries or occupational
diseases and has been provided and/or has not been denied any leave requested
under the Family and Medical Leave Act.
(d)
Xxxxx
affirms that he has returned any and all of Employer's property in his
possession or control.
(e)
Xxxxx
further affirms that Xxxxx has not been retaliated against for reporting any
allegations of wrongdoing by Employer or its officers, including any allegations
of corporate fraud. Both Parties acknowledge that this Agreement does not limit
either party’s right, where applicable, to file or participate in an
investigative proceeding of any federal, state or local governmental agency.
To
the extent permitted by law, Xxxxx agrees that if such an administrative claim
is made, Xxxxx shall not be entitled to recover any individual monetary relief
or other individual remedies.
7.
Confidentiality.
Except
as required by law, Xxxxx agrees not to disclose any information regarding
the
existence or substance of this Agreement, except to his spouse, tax advisor,
and
an attorney with whom Xxxxx chooses to consult regarding his consideration
of
this Agreement. Employer also affirms he has not divulged any proprietary or
confidential information of Employer and will not divulge such information
at
anytime hereafter.
8. Non-disparagement.
The
parties hereto agree they have not made and will not make any statements
disparaging each other. The parties further specifically agrees not to speak
with the press or media about each other in a disparaging or negative
manner.
9. Governing
Law and Interpretation.
This
Agreement shall be governed and conformed in accordance with the laws of
Washington without regard to its conflict of laws provision. In the event the
Xxxxx breaches any provision of this Agreement, Xxxxx and Employer affirm that
either may institute an action to specifically enforce any term or terms of
this
Agreement. Should any provision of this Agreement be declared illegal or
unenforceable by any court of competent jurisdiction and cannot be modified
to
be enforceable, excluding the general release language, such provision shall
immediately become null and void, leaving the remainder of this Agreement in
full force and effect.
10.
Nonadmission
of Wrongdoing.
The
parties agree that neither this Agreement nor the furnishing of the
consideration for this Release shall be deemed or construed at anytime for
any
purpose as an admission by either party of any liability or unlawful conduct
of
any kind.
11.
Amendment.
This
Agreement may not be modified, altered or changed except upon express written
consent of both parties wherein specific reference is made to this
Agreement.
12. Entire
Agreement.
This
Agreement sets forth the entire agreement between the parties hereto, and fully
supersedes any prior agreements or understandings between the parties. Xxxxx
acknowledges that he has not relied on any representations, promises, or
agreements of any kind made to him in connection with his decision to accept
this Agreement, except for those set forth in this Agreement.
XXXXX
HAS BEEN ADVISED THAT HE HAS AT LEAST TWENTY-ONE (21) CALENDAR DAYS TO CONSIDER
THIS AGREEMENT AND HAS BEEN ADVISED IN WRITING TO CONSULT WITH AN ATTORNEY
PRIOR
TO EXECUTION OF THIS AGREEMENT.
XXXXX
AGREES THAT ANY MODIFICATIONS, MATERIAL OR OTHERWISE, MADE TO THIS AGREEMENT
DO
NOT RESTART OR AFFECT IN ANY MANNER THE ORIGINAL TWENTY-ONE (21) CALENDAR DAY
CONSIDERATION PERIOD.
HAVING
ELECTED TO EXECUTE THIS AGREEMENT, TO FULFILL THE PROMISES AND TO RECEIVE THE
SUMS AND BENEFITS IN PARAGRAPH “2” ABOVE, XXXXX AND EMERITUS FREELY AND
KNOWINGLY, AND AFTER DUE CONSIDERATION, ENTER INTO THIS AGREEMENT INTENDING
TO
WAIVE, SETTLE AND RELEASE ALL CLAIMS EACH HAS OR MIGHT HAVE AGAINST THE
OTHER.
IN
WITNESS WHEREOF, the parties hereto knowingly and voluntarily executed this
Agreement as of the date set forth below:
Emeritus
Corporation
__/s/
Xxxxx Ruffo__________
Xxxxx
Xxxxx
Date:12/27/06
By:/s/
Xxxxxx X. Xxxx
Xxxxxx
X.
Xxxx
Chief
Executive Officer
Date:
12/27/06
