SEPARATION AGREEMENT AND RELEASE
Exhibit 10.57
This Separation Agreement and Release (hereafter "Agreement") is entered into between Xxxx X. Xxxxxx (hereafter "Xxxxxx") and Xxxxxxx International Inc., its parent, subsidiaries and affiliated companies (hereafter "Xxxxxxx").
A. RECITALS
WHEREAS, Xxxxxx has been employed with Xxxxxxx.
WHEREAS, Xxxxxx and Xxxxxxx wish to terminate their employment relationship amicably and to that end voluntarily enter into this Agreement.
NOW THEREFORE, in consideration of the covenants and promises contained herein, the receipt and sufficiency of which is hereby acknowledged, the parties agree to be legally bound by the following terms and conditions, which constitute full settlement of any and all issues between them.
X. XXXXXXX'X PROMISES TO XXXXXX
In consideration for the promises of Xxxxxx which are set forth below, Xxxxxxx promises as follows:
1. In connection with Xxxxxx'x separation from Xxxxxxx, which shall be effective as of November 9, 2012 (the "Effective Date"), Xxxxxxx will pay Xxxxxx xxxxxxxxx pay in the amount of $225,000, less required deductions for FICA and taxes. This amount shall be paid over a period of 52 weeks at a rate of $8,853.85 bi-weekly in accordance with the company's normal payroll procedures. In addition, Xxxxxxx will reimburse Xxxxxx $1,120 per month (or the premium for Employee + Spouse coverage in the event the premium amounts change during the separation payout period) in the event that Xxxxxx elects and remains covered by COBRA during that period. In the event that Xxxxxx becomes eligible for coverage under the benefits program of another employer prior to the end of the 52 week period, Xxxxxxx'x obligation to reimburse Xxxxxx for COBRA payments shall cease. Xxxxxxx'x obligations under this paragraph do not arise until seven (7) days of this Agreement becoming fully binding and effective upon the parties. (See section E5.) Should Xxxxxx violate any of the terms of section C3, C4, C5, and/or C6, of this Agreement, Xxxxxxx will no longer be obligated to make any further payments as provided under this section.
2. Xxxxxxx promises not to contest any claim Xxxxxx may bring for unemployment compensation benefits. However, Xxxxxxx cannot make any guarantees as to how a claim for benefits may be decided by the Employment Security Commission.
3. If Xxxxxxx'x Vice President of Human Resources receives any requests for references regarding Xxxxxx over the next two (2) years, she will respond by indicating that Xxxxxx left to pursue other interests, and confmn only dates of employment, positions held and last rate of pay.
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Xxxxxxx ___KD____ Xxxxxx ___HC____
4. Xxxxxxx agrees for a period of three (3) years from execution of this Agreement it will not, and shall cause its officers and directors to not, make any disparaging statement to any third party regarding Xxxxxx. A "disparaging statement" is defined for purposes of this Agreement as any communication, written or oral, including any posting to a website or Internet blog, which would reasonably cause an objective recipient to call into question the integrity, ethics, morals, professionalism, business acumen, business reputation, goodwill, or good character of the party being discussed; provided, however, that (i) nothing herein is intended to impede any member of the Xxxxxxx'x Board from faithfully performing his or her duties and obligations as a member of such board and any truthful statement in his or her capacity as such board member shall not be deemed to be a "disparaging statement" and (ii) nothing herein is intended to impede open communication between members of the Xxxxxxx'x Board or between members of the Xxxxxxx'x Board and senior executive officers of Xxxxxxx or its affiliates. Notwithstanding the foregoing provisions of this section to the contrary, nothing in this paragraph shall prevent any person from (i) responding publicly to incorrect, disparaging or derogatory public statements to the extent reasonably necessary to correct or refute such public statement or (ii) making any truthful statement to the extent necessary with respect to any litigation, arbitration, proceeding or investigation involving any agreement between or among the parties or required by law or by any court, arbitrator or administrative or legislative body (including any committee thereof) with apparent or actual jurisdiction to order such person to disclose or make accessible such information.
X. XXXXXX'X PROMISES TO XXXXXXX
In consideration for the promises of Xxxxxxx, which appear above, Xxxxxx promises as follows:
1. Xxxxxx, for himself, his heirs, executors, and assigns, releases, and forever discharges Xxxxxxx International Inc., Xxxxxxx Hygiene Inc., Xxxxxxx Hygiene USA, Inc., HB Services, LLC, and all of their subsidiaries and related corporations, including but not limited to their officers, directors, employees, shareholders, advisors, agents and assigns, from any and all claims, of whatever nature, legal, equitable, or administrative, including, but not limited to, claims arising out of his employment with, or separation from the company, arising before the date of execution. This Agreement specifically includes, but is not limited to, any and all claims arising under the Age Discrimination in Employment Act, as well as any other claims under federal, state, or local statutes, the common law, public policy, ordinances or equity, to include any claims under the North Carolina Wage and Hour Act. Xxxxxx agrees that this release includes any claim he may have, including claims of which he may not presently be aware. Xxxxxx further agrees that his/her violation of the terms of this section shall entitle the parties released to recover from Xxxxxx attorney fees and costs reasonably incurred in having to respond and defend against such claims and/or charges. Notwithstanding anything in this Agreement to the contrary, Xxxxxx does not release, discharge or waive any rights to (i) his vested equity compensation or any of his other equity interest in Xxxxxxx and its affiliates, with the exception that he waives rights to unvested stock options and unvested restricted stock units, (ii) benefit or ERISA claims under any employee benefit plans in which Xxxxxx was a participant by virtue of his prior employment with Xxxxxxx arising before the Effective Date, (iii) rights as a shareholder of Xxxxxxx Hygiene Inc., and (iv) rights to be indemnified and/or advanced expenses under any applicable corporate document of Xxxxxxx or its affiliates, any applicable agreement or pursuant to applicable law or to be covered under any applicable directors' and officers' liability insurance policies.
2. Xxxxxx waives any right to recover in any proceeding that results from a charge or action filed on his behalf by a state or federal administrative agency. Xxxxxx represents and warrants that no such claims or charges have been filed and/or initiated to date.
3. Except for a company issued Dell computer (the "Dell Computer") currently in Xxxxxx'x possession which Xxxxxxx has agreed that Xxxxxx may retain, Xxxxxx agrees to return any Xxxxxxx property that may still be in his possession at the time he returns the executed portion of this Agreement, or as soon thereafter as practical. Xxxxxx'x duty to return property includes but is not limited to security badges, computers and equipment, operations manual and all other materials relating to operation of the Xxxxxxx System (including but not limited to customer lists, correspondence, drawings, files, handbooks, invoices, plans, programs, records, samples, standards and specifications, and all copies thereof, records, such as customer lists, mailing lists, account information, samples, prototypes, price lists and pricing information, any phone cards, cellular phone, automobile and all of the tangible and intangible property belonging to the company and relating to your employment with Xxxxxxx, all of which are acknowledged to be Xxxxxxx'x or employer's property). Xxxxxx represents that he has moved all files related to Xxxxxxx (the "Laptop Files") from the Dell Computer to the following location on Xxxxxxx'x Servers: I I WEBSERV03 IData\HughCooperiHugh's laptop
Xxxxxxx acknowledges receipt of the Laptop Files. Xxxxxx further represents and warrants that he has not retained any copies, electronic or otherwise, of the foregoing Xxxxxxx property.
4. Xxxxxx agrees that he will not unlawfully disclose Xxxxxxx'x confidential information or trade secrets in any manner whatsoever, to include any manner in violation of the North Carolina Trade Secrets Protections Act, codified at N.C. Gen. Stat. §§ 66-152 through 66-162. Xxxxxx agrees he will not utilize or disclose information including, but not limited to, that derived from Xxxxxxx'x customer or client lists, contract prices, pricing and bidding formulas, and any other business or technical information, that Xxxxxx used or became aware of during the course of his employment with the company. Xxxxxx agrees that he will not contact Xxxxxxx'x clients, customers, prospective customers, or competitors in a manner that violates the Trade Secrets Protections Act or this paragraph. Xxxxxx further expressly acknowledges and recognizes that any prior contractual agreements between the parties related to confidentiality and/or restrictions on competition and/or solicitation remain in full force and effect and those agreements are incorporated herein by reference. It is further understood and agreed that the company does not waive any rights to bring an action against Xxxxxx for misappropriation of trade secrets, tortious interference with contract, conversion, tortious interference with prospective advantage, or the like in the event Xxxxxx engages in unlawful acts encompassed by said causes of action.
5. Xxxxxx agrees for a period of three (3) years from execution of this Agreement not to make any disparaging statement to any third party regarding Xxxxxxx and/or its employees.
6. Xxxxxx agrees to cooperate fully with the company in its defense of any legal and/or administrative claim.
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Xxxxxxx ___KD____ Xxxxxx ___HC____
D. MISCELLANEOUS TERMS AGREED TO BY THE PARTIES
In exchange for the promises made by and to Xxxxxxx and Xxxxxx, they mutually agree to the following terms:
1. Either party may enforce this Agreement in court if the other party breaches it. If a specific clause of this Agreement is found to be illegal or unenforceable, the remainder of this Agreement will not be affected by such ruling, and will remain in force. The parties agree that any action to enforce this Agreement will be filed in a Court of competent jurisdiction within Mecklenburg County, North Carolina.
2. The parties agree that execution of this Agreement by Xxxxxx fully resolves all wage, vacation pay, bonus, commission, premium payments of whatever nature, expense reimbursements, or any other sums concerning Xxxxxxx. The parties agree that no additional sums are owed by Xxxxxxx to Xxxxxx.
3. This Agreement is to be construed, interpreted, and enforced as a whole, in accordance with its fair meaning, and any rule requiring the construction of an agreement against its drafter shall not be applied in this case.
4. The terms contained in this Agreement constitute the entire agreement between the parties with respect to the subject matters hereof and supersede all prior negotiations and/or agreements relating thereto with the exception of any agreements concerning confidentiality, trade secrets, noncompetition, nonsolicitation, and/or binding arbitration, all of which such agreements shall remain in full force and effect and are hereby confirmed and ratified.
5. This Agreement may be entered into and executed in counterparts and when executed separately by each party shall be fully executed and binding as if each party had executed one agreement. Further, signatures may be by facsimile and such signatures are deemed to be original signatures.
X. XXXXXX'X CERTIFICATE
Because this is a legal document, Xxxxxxx wants to make sure that Xxxxxx is fully informed before entering into this Agreement. Xxxxxx, therefore, makes the following assurances to Xxxxxxx:
1. Xxxxxx has read this Agreement and understands all of its provisions.
2. Xxxxxx enters into this Agreement freely and voluntarily.
3. Xxxxxx has been given twenty-one (21) days to decide whether to enter into this Agreement. This has provided Xxxxxx with ample opportunity to reflect and seek the advice of his legal counsel, accountant, tax or financial advisors, family members and/or anyone else whose advice Xxxxxx values. The 21 day consideration period begins November 9, 2012.
4. Xxxxxxx has urged Xxxxxx to review this Agreement with a lawyer.
5. Xxxxxx has a period of seven (7) days to revoke this Agreement after signing it. Xxxxxx acknowledges that he can revoke the Agreement by notifying Xxxxxxx'x Vice President of Human Resources, in writing at the office address of 0000 Xxxxxxxx Xxx Xx., Xxxxx 000, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000. In fact, this Agreement does not become effective until eight days after it is signed.
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Xxxxxxx ___KD____ Xxxxxx ___HC____
THE PARTIES ACKNOWLEDGE AND AGREE THAT EACH HAS READ AND REVIEWED THE TERMS OF TIDS AGREEMENT, THAT THEY FULLY UNDERSTAND THIS AGREEMENT, AND THAT THEY SIGN TIDS AGREEMENT INTENDING TO BE LEGALLY BOUND.
| XXXXXXX INTERNATIONAL INC. | XXXX X. XXXXXX | ||||
| By: |
Xxx Xxxxx
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/s/ Xxxx X. Xxxxxx | |||
| Its: | Vice President - HR | ||||
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| Dated: |
November 15, 2012
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Dated: November 9, 2012
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Xxxxxxx ___KD____ Xxxxxx ___HC____
