SEPARATION AGREEMENT AND RELEASE
SEPARATION AGREEMENT AND RELEASE
This
Separation Agreement and Release (“Agreement”) is made by and between Xxxxx
Xxxxxx (“Employee”) and Plantronics, Inc. (the “Company”) (collectively referred
to as the “Parties” or individually referred to as a “Party”).
1. Consideration.
2. Stock.
3. Benefits. Employee’s
health insurance benefits shall cease as of December 31, 2009, subject to
Employee’s right to continue her health insurance under COBRA. Except as
expressly set forth in this Agreement, Employee’s participation in all benefits
and incidents of employment, including, but not limited to, vesting in stock
options, and the continuing accrual of bonuses, vacation, and paid time off,
ceased as of the Separation Date.
4. Payment of Salary and
Receipt of All Benefits. Employee acknowledges and represents
that, other than the consideration set forth in this Agreement, the Company has
paid or provided all salary, wages, bonuses for years prior to the Company’s
fiscal year 2010 accrued vacation/paid time off, premiums, leaves, housing
allowances, relocation costs, interest, severance, outplacement costs, fees,
reimbursable expenses, commissions, stock, stock options, vesting, and any and
all other benefits and compensation due to Employee. The parties agree that
bonuses for the Company’s fiscal year 2010 and a final determination of the
Xxxxx Xxxxxx “Turn Around” Incentive Plan are exempt from the representations in
this section and will be handled in accordance with section 1 b. of this
Agreement.
a. any
and all claims relating to or arising from Employee’s employment relationship
with the Company and the termination of that relationship;
b. any
and all claims relating to, or arising from, Employee’s right to purchase, or
actual purchase of shares of stock of the Company, including, without
limitation, any claims for fraud, misrepresentation, breach of fiduciary duty,
breach of duty under applicable state corporate law, and securities fraud under
any state or federal law;
c. any
and all claims for wrongful discharge of employment; termination in violation of
public policy; discrimination; harassment; retaliation; breach of contract, both
express and implied; breach of covenant of good faith and fair dealing, both
express and implied; promissory estoppel; negligent or intentional infliction of
emotional distress; fraud; negligent or intentional misrepresentation; negligent
or intentional interference with contract or prospective economic advantage;
unfair business practices; defamation; libel; slander; negligence; personal
injury; assault; battery; invasion of privacy; false imprisonment; conversion;
and disability benefits;
d. any
and all claims for violation of any federal, state, or municipal statute,
including, but not limited to, Title VII of the Civil Rights Act of 1964;
the Civil Rights Act of 1991; the Rehabilitation Act of 1973; the Americans with
Disabilities Act of 1990; the Equal Pay Act; the Fair Labor Standards Act; the
Fair Credit Reporting Act; the Age Discrimination in Employment Act of 1967; the
Older Workers Benefit Protection Act; the Employee Retirement
Income Security Act of 1974; the Worker Adjustment and Retraining Notification
Act; the Family and Medical Leave Act; the Xxxxxxxx-Xxxxx Act of 2002; the
California Family Rights Act; the California Labor Code; the California Workers’
Compensation Act; and the California Fair Employment and Housing
Act;
e. any
and all claims for violation of the federal or any state
constitution;
f. any
and all claims arising out of any other laws and regulations relating to
employment or employment discrimination;
g. any
claim for any loss, cost, damage, or expense arising out of any dispute over the
non-withholding or other tax treatment of any of the proceeds received by
Employee as a result of this Agreement; and
h. any
and all claims for attorneys’ fees and costs.
Notwithstanding
the foregoing, the parties agree that the Company will provide indemnification
to Employee for any third party claims made against the Employee from
occurrences that arose during Employee’s period as an employee of the
Company. The terms of the indemnification shall be the same as were
provided when Employee was employed by the Company. Further, notwithstanding the
foregoing, to the extent that Directors and Officers Liability insurance covers
Employee, it is not released herein and will be provided.
Further,
notwithstanding the foregoing, the Company acknowledges that Employee has vested
in 42,430 non-qualified stock options and 6,250 shares of restricted stock of
the Company for which the Company repurchase right was removed prior to the
acceleration of equity referenced above and the Company will not contest the
status of those shares as being vested and the Company’s repurchase right as
being removed. Further, notwithstanding the foregoing, Employee has a vested 401
K plan account with the Company and the Employee has full ownership of that
account. Claims regarding the vested stock options and restricted stock for
which the repurchase rights are removed are carved out of the release provided
in this section.
Employee
agrees that the release set forth in this section shall be and remain in effect
in all respects as a complete general release as to the matters
released. This release does not extend to any obligations incurred
under this Agreement. This release does not release claims that
cannot be released as a matter of law, including, but not limited to, Employee’s
right to file a charge with or participate in a charge by the Equal Employment
Opportunity Commission, or any other local, state, or federal administrative
body or government agency that is authorized to enforce or administer laws
related to employment, against the Company (with the understanding that any such
filing or participation does not give Employee the right to recover any monetary
damages against the Company; Employee’s release of claims herein bars Employee
from recovering such monetary relief from the Company). Employee
represents that she has made no assignment or transfer of any right, claim,
complaint, charge, duty, obligation, demand, cause of action, or other matter
waived or released by this Section.
Employee
acknowledges and understands that revocation must be accomplished by a written
notification to Xxxx Xxxxxxx at xxxx.xxxxxxx@xxxxxxxxxxx.xxx
or by fax at 000-000-0000 that is received prior to the Effective
Date.
8. California Civil Code
Section 1542. Employee acknowledges that she has been advised
to consult with legal counsel and is familiar with the provisions of California
Civil Code Section 1542, a statute that otherwise prohibits the release of
unknown claims, 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.
Employee,
being aware of said code section, agrees to expressly waive any rights she may
have thereunder, as well as under any other statute or common law principles of
similar effect.
Nondisparagement. Employee
agrees to refrain from any disparagement, defamation, libel, or slander of any
of the Releasees, and agrees to refrain from any tortious interference with the
contracts and relationships of any of the Releasees. Employee shall
direct any inquiries by potential future employers to the Company’s human
resources department, which shall use its best efforts to provide only the
Employee’s last position and dates of employment.
The
Company and Employee each agree that any and all disputes arising out of the
terms of this Agreement, Employee’s employment by the Company, Employee’s
service as an officer or director of the Company, or Employee’s compensation and
benefits, their interpretation and any of the matters herein
released, will be subject to binding arbitration under the
arbitration rules set forth in California Code of Civil Procedure Sections 1280
through 1294.2, including Section 1281.8 (the “Act”), and pursuant to California
law. Disputes that the Company and Employee agree to arbitrate, and
thereby agree to waive any right to a trial by jury, include any statutory
claims under local, state, or federal law, including, but not limited to, claims
under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities
Act of 1990, the Age Discrimination in Employment Act of 1967, the Older Workers
Benefit Protection Act, the Xxxxxxxx-Xxxxx Act, the Worker Adjustment and
Retraining Notification Act, the California Fair Employment and Housing Act, the
Family and Medical Leave Act, the California Family Rights Act, the California
Labor Code, claims of harassment, discrimination, and wrongful termination, and
any statutory or common law claims. The Company and Employee further
understand that this agreement to arbitrate also applies to any disputes that
the Company may have with Employee.
Procedure. The
Company and Employee agree that any arbitration will be administered by Judicial
Arbitration & Mediation Services, Inc. (“JAMS”), pursuant to its Employment
Arbitration Rules & Procedures (the “JAMS Rules”). The Arbitrator
will have the power to decide any motions brought by any party to the
arbitration, including motions for summary judgment and/or adjudication, motions
to dismiss and demurrers, and motions for class certification, prior to any
arbitration hearing. The Arbitrator will have the power to award any
remedies available under applicable law, and the Arbitrator will award
attorneys’ fees and costs to the prevailing party, except as prohibited by
law. The Company will pay for any administrative or hearing fees
charged by the Arbitrator or JAMS except that Employee will pay any filing fees
associated with any arbitration that Employee initiates, but only so much of the
filing fees as Employee would have instead paid had he or she filed a complaint
in a court of law. The Arbitrator will administer and conduct any
arbitration in accordance with California law, including the California Code of
Civil Procedure, and the Arbitrator will apply substantive and procedural
California law to any dispute or claim, without reference to rules of conflict
of law. To the extent that the JAMS Rules conflict with California
law, California law will take precedence. The decision of the
Arbitrator will be in writing. Any arbitration under this Agreement
will be conducted in Santa Xxxx County, California.
Remedy. Except
as provided by the Act and this Agreement, arbitration will be the sole,
exclusive, and final remedy for any dispute between Employee and the
Company. Accordingly, except as provided for by the Act and this
Agreement, neither Employee nor the Company will be permitted to pursue court
action regarding claims that are subject to arbitration.
Administrative
Relief. Employee understands that this Agreement does not
prohibit him or her from pursuing any administrative claim with a local, state,
or federal administrative body or government agency that is authorized to
enforce or administer laws related to employment, including, but not limited to,
the Department of Fair Employment and Housing, the Equal Employment Opportunity
Commission, the National Labor Relations Board, or the Workers’ Compensation
Board. This Agreement does, however, preclude Employee from pursuing
court action regarding any such claim, except as permitted by law.
Voluntary Nature of
Agreement. Each of the Company and Employee acknowledges and
agrees that such party is executing this Agreement voluntarily and without any
duress or undue influence by anyone. Employee further acknowledges
and agrees that he or she has carefully read this Agreement and has asked any
questions needed for him or her to understand the terms, consequences, and
binding effect of this Agreement and fully understand it, including that Employee is
waiving his or her right to a jury trial. Finally, Employee
agrees that he or she has been provided an opportunity to seek the advice of an
attorney of his or her choice before signing this Agreement.
a. Notwithstanding
anything to the contrary in this Agreement, if Employee is a “specified
employee” within the meaning of Section 409A of the Internal Revenue Code of
1986, as amended (the “Code”) and the final Treasury Regulations and any
guidance promulgated thereunder (“Section 409A”) at the time of Employee’s
termination of employment (other than due to death), and the severance payable
to Employee, if any, pursuant to this Agreement, when considered together with
any other severance payments or separation benefits that are considered deferred
compensation under Section 409A (together, the “Deferred Compensation Separation
Benefits”) that are payable within the first six (6) months following Employee’s
termination of employment, will become payable on the first payroll date that
occurs on or after the date six (6) months and one (1) day following the date of
Employee’s termination of employment. All subsequent Deferred
Compensation Separation Benefits, if any, will be payable in accordance with the
payment schedule applicable to each payment or
benefit. Notwithstanding anything herein to the contrary, if Employee
dies following Employee’s termination of employment but prior to the six (6)
month anniversary of Employee’s termination of employment, then any payments
delayed in accordance with this paragraph will be payable in a lump sum as soon
as administratively practicable after the date of Employee’s death and all other
Deferred Compensation Separation Benefits will be payable in accordance with the
payment schedule applicable to each payment or benefit. Each payment
and benefit payable under this Agreement is intended to constitute separate
payments for purposes of Section 1.409A-2(b)(2) of the Treasury
Regulations.
b. Any
amount paid under the Agreement that satisfies the requirements of the
“short-term deferral” rule set forth in Section 1.409A-1(b)(4) of the Treasury
Regulations will not constitute Deferred Compensation Separation Benefits for
purposes of this Agreement. Any amount paid under the Agreement that
qualifies as a payment made as a result of an involuntary separation from
service pursuant to Section 1.409A-1(b)(9)(iii) of the Treasury Regulations that
does not exceed the Section 409A Limit will not constitute Deferred Compensation
Separation Benefits for purposes of this Agreement. For this purpose,
“Section 409A Limit” means the lesser of two (2) times: (i) Employee’s
annualized compensation based upon the annual rate of pay paid to Employee
during the Company’s taxable year preceding the Company’s taxable year of
Employee’s termination of employment as determined under Treasury Regulation
1.409A-1(b)(9)(iii)(A)(1) and any Internal Revenue Service guidance issued with
respect thereto; or (ii) the maximum amount that may be taken into account under
a qualified plan pursuant to Section 401(a)(17) of the Code for the year in
which Employee’s employment is terminated.
c. The
foregoing provisions are intended to comply with the requirements of Section
409A so that none of the severance payments and benefits to be provided
hereunder will be subject to the additional tax imposed under Section 409A, and
any ambiguities herein will be interpreted to so comply. Employee and
the Company agree to work together in good faith to consider amendments to this
Agreement and to take such reasonable actions which are necessary, appropriate
or desirable to avoid imposition of any additional tax or income recognition
prior to actual payment to Employee under Section 409A.
a. she
has read this Agreement;
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b.
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she
has been represented in the preparation, negotiation, and execution of
this Agreement by legal counsel of her own choice or has elected not to
retain legal counsel;
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c.
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she
understands the terms and consequences of this Agreement and of the
releases it contains; and
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d. she
is fully aware of the legal and binding effect of this Agreement.
Xxxxx Xxxxxx, an
individual
Dated: February 21,
2010 /s/ Xxxxx
Xxxxxx
Xxxxx Xxxxxx
Plantronics, Inc.
Dated: _________,
2010
By: /s/ S. Xxxxxxx
Xxxxxxxxx
S.
Xxxxxxx Xxxxxxxxx
President
and CEO
Approved
as to Form:
Dated: _______________ By: __________________
Xxxxxxx
Xxxxxx
Sheppard, Mullin, Xxxxxxx &
Xxxxxxx
Counsel for Xxxxx
Xxxxxx