SEPARATION AGREEMENT AND GENERAL RELEASE
Exhibit 10.56
SEPARATION AGREEMENT AND GENERAL RELEASE
This Separation Agreement and General Release (“Agreement”) is made and entered into by and
between Xxxxxxxx Xxxx (hereinafter referred to as “Employee”) and RedEnvelope Inc., its
predecessors, successors, subsidiaries, related companies and affiliates (hereinafter referred to
as the “Company”).
The Company and the Employee have agreed to terminate their employment relationship effective
January 23, 2006 (the “Separation Date”);
The Employee does not have pending against the Company or any employee, agent, official, or
director of the Company any claim, charge, or action in or with any federal, state, or local court
or administrative agency; and
The Employee wishes to receive the separation pay provided under this Agreement, receipt of
which is expressly conditioned upon execution of this Release.
NOW, THEREFORE, in consideration of the mutual covenants and promises contained in this
document, the payment of the separation pay under this Agreement, and in an effort to avoid
unnecessary lawsuits, it is hereby agreed by and between the parties as follows:
1. Separation Pay and Benefits. Provided the Employee signs and returns this Agreement AFTER
January 23, 2006, but in any event no later than January 31, 2006, the Company will provide the
Employee Separation pay and benefits as follows:
(a) $137,500, less required withholding and authorized deductions, representing six (6) months
salary to be paid in a lump sum within fourteen (14) days after the Employee signs and returns this
Agreement;
(b) provided the Employee is eligible for COBRA and makes a timely election of COBRA, the
Company will reimburse her for COBRA benefits until she obtains alternative employment, for a
period not to exceed six (6) months;
(c) the Employee may retain her Company-provided laptop and printer, and the Employee
acknowledges that she must make the laptop available to the Company before any payments will be
made under this Agreement;
(d) the Employee will be paid all accrued and unused PTO; in addition, the Employee will be
paid her unused personal days for 2006; and
(e) the Company agrees to recommend to the Compensation Committee that the Employee be given
one year from the date of her resignation to exercise her stock options.
The Employee agrees that the foregoing compensation and benefits constitutes the entire amount
of monetary consideration provided to the Employee under this Agreement and that the Employee will
not seek any further compensation for any other claimed damage, costs, or attorneys’ fees in
connection with the matters encompassed in this Agreement.
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2. Non-Admission. This Agreement and compliance with this Agreement shall not be construed as
an admission by the Company of any liability whatsoever, or as an admission by the Company of any
violation of the rights of Employee or any person, violation of any order, law, statute, duty, or
contract whatsoever against the Employee or any person. The Company specifically disclaims any
liability to the Employee or any other person for any alleged violation of the rights of the
Employee or any person, or for any alleged violation of any order, law, statute, duty, or contract
on the part of the Company, its employees or agents or related companies or their employees or
agents.
3. Compensation And Benefits. Employee acknowledges and agrees that she has received all
compensation, benefits, payments and reimbursements due to her by the Company, except for those
specifically provided for in this Agreement and yet to be paid as set forth above.
4. Employee’s Representations. The Employee represents that she has not filed any complaints,
claims, or actions against the Company, its officers, agents, directors, supervisors, employees, or
representatives with any state, federal, or local agency or court and that the Employee will not do
so at any time hereafter (either on her account or as a member of a class) and that if any agency
or court assumes jurisdiction of any complaint, claim, or action (including, without limitation,
any class action) against the Company or its affiliated companies or any of their officers, agents,
directors, supervisors, employees, or representatives on behalf of the Employee, the Employee will
direct that agency or court to withdraw from or dismiss with prejudice the matter as to any claim
made by her or on her behalf.
5. Cooperation. The Employee shall make herself available to the Company in order to respond
to reasonable requests for information pertaining to the Company. The Employee shall cooperate
fully in connection with any and all existing or future litigations or investigations brought by or
against the Company or any of its agents, officers, directors, or employees in which and to the
extent Employee’s cooperation is necessary. In the event that Employee is subpoenaed in connection
with any litigation or investigation, if legally permissible, Employee will promptly notify the
Company and shall give the Company an opportunity to respond to such notice before taking any
action or making any decision in connection with such subpoena. The Company will reimburse the
Employee for reasonable out-of-pocket expenses incurred as a result of such cooperation.
6. Waiver and Release. The Employee agrees that all rights under section 1542 of the Civil
Code of the State of California are waived by the Employee. Section 1542 provides 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.
Notwithstanding the provisions of section 1542 of the Civil Code of the State of California,
the Employee hereby irrevocably and unconditionally releases and forever discharges the Company and
all of its past, present and future shareholders, directors, officers, employees, independent
contractors, agents, divisions, subsidiaries, related companies, affiliates and assigns and all
persons acting by, through, under, or in concert with any of them from any and all charges,
complaints, claims, and liabilities of any kind or nature whatsoever, known or unknown,
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suspected or unsuspected (hereinafter referred to as “claim” or “claims”) which the Employee
at any time heretofore had or claimed to have or which the Employee may have or claim to have
regarding events that have occurred as of the date of this Agreement, including, without
limitation, any and all claims related or in any manner incidental to the Employee’s employment
with the Company or the separation therefrom.
The parties understand the word “claims” to include all actions, claims, and grievances,
whether actual or potential, known or unknown, and specifically but not exclusively all claims
arising out of the Employee’s employment with the Company and the Employee’s separation from the
Company. All such claims (including related attorneys’ fees and costs) are forever barred by this
Agreement regardless of whether those claims are based on any alleged breach of a duty arising in a
statute, contract, or tort; any alleged unlawful act, including, without limitation, discrimination
or harassment of any kind (including, without limitation: age, race, sex, national origin, marital
status, religion, sexual orientation or preference, veteran’s preference, disability); any other
claim or cause of action; and regardless of the forum in which it might be brought.
By signing this Separation Agreement and General Release, the Employee agrees that she will
not pursue any claim covered by this Release. If the Employee breaks this promise, the Employee
agrees to pay the Company’s costs and expenses (including reasonable attorneys’ fees) related to
the defense of any claims. The Employee should also understand that nothing in this release
prevents the Employee from filing a charge or complaint with, or from participating in an
investigation or proceeding conducted by the EEOC or any state or local agency which can act as a
referral agency for the EEOC.
7. Protective Agreements. The parties desire to provide for the protection of the business,
goodwill, confidential, trade secret and/or other proprietary information of the Company. The
Employee acknowledges that she will comply with the terms of her Confidential Information and
Invention Assignment Agreement, dated February 26, 1999, which is attached hereto and incorporated
herein by reference. Specifically, Employee agrees to the following:
(a) Property of the Company. The Employee shall return to the Company by close of
business no later than her Separation Date any and all Company property in her possession,
including but not limited to Company cell phone, PDA, keys, building passes, credit cards,
documents, files, and software, and all written information pertaining to the Company’s business.
The Employee represents and warrants that, other than her Company laptop and printer, she has not
and will not retain any property of the Company of any nature.
(b) Non-Disparagement. The Employee agrees that she shall not at any time engage in
any form of conduct, nor make any statements or representations, that disparage or otherwise impair
the reputation, goodwill or interests of the Company, its agents, officers, directors or employees.
All inquiries by potential future employers of Employee will be directed to the HR Director of the
Company. Upon inquiry, the Company shall only state the following: Employee’s last position and
dates of employment. Notwithstanding the foregoing, Employee shall be free to use any current or
former employee or Board member of the Company as a personal reference.
(c) Confidential Information. The Employee acknowledges that she has had access to
confidential and proprietary information. The Employee acknowledges and agrees that she will not,
at any time without the prior written authorization of the Chief Executive Officer of
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the Company, directly or indirectly use, divulge, furnish or make accessible to any person any
confidential or proprietary information, but instead shall keep all such information strictly and
absolutely confidential. Further, the Employee shall, by her Separation Date, return to the
Company all confidential and proprietary information in her possession. Nothing contained in this
paragraph shall be construed as a non-competition agreement; however, this confidentiality
agreement applies to any and all of the Employee’s activities with respect to prospective or actual
employers and in the case of self-employment.
8. Representations. The parties acknowledge that they do not rely and have not relied upon
any representation or statement made by any of the parties other than those specifically stated in
this written Agreement.
9. Successors. This Agreement shall be binding upon the parties hereto and upon their heirs,
administrators, representatives, executors, successors, and assigns, and shall inure to the benefit
of said parties and each of them and to their heirs, administrators, representatives, executors,
successors and assigns. The Employee expressly warrants that the Employee has not transferred to
any person or entity any rights, causes of action, or claims released in this Agreement.
10. Severability. Should any provision of this Agreement be declared or be determined by an
arbitrator or any court of competent jurisdiction to be wholly or partially illegal, invalid, or
unenforceable, the legality, validity, and enforceability of the remaining parts, terms, or
provisions shall not be affected thereby, and said illegal, unenforceable, or invalid part, term,
or provision shall be deemed not to be a part of this Agreement.
11. Entire Agreement. This Agreement sets forth the entire agreement between the parties
hereto and fully supersedes any and all prior agreements or understandings, written or oral,
between the parties hereto pertaining to the subject matter hereof.
12. Controlling Law. This Agreement shall in all respects be governed and construed in
accordance with the laws of the State of California.
13. Interpretation. This Agreement shall be interpreted in accordance with the plain meaning
of its terms and not strictly for or against any of the parties hereto.
14. Amendment. Any amendment to this Agreement shall be made in writing and signed by the
parties hereto. No oral amendment shall be enforceable by either party.
15. Waiver. No claim or right arising out of a breach or default under this Agreement can be
discharged by a waiver of that claim or right unless the waiver is in writing and signed by the
party hereto to be bound by such waiver. A waiver by either party hereto of a breach or default by
the other party of any provision of this Agreement shall not be deemed a waiver of future
compliance therewith and such Agreement in its entirety shall remain in full force and effect.
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16. Counterpart Execution. This Agreement may be executed in counterparts and such
counterparts when taken together shall constitute one agreement.
| EMPLOYEE | REDENVELOPE INC. | |||
| /s/ Xxxxxxxx Xxxx | By: /s/ Xxxxxx X. May | |||
| Xxxxxxxx Xxxx | ||||
Date:
|
1/23/06 | Date: January 23, 2006 | ||
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