Separation Agreement & General Release
CONFIDENTIAL
[Date]
[Name and Address]
Re: Separation Agreement and General
Release
Dear ______________________:
This letter proposes the following
Separation Agreement and General Release ("Agreement")
between you and ________________ ("Company") regarding
the terms of your separation from ________________.
I. Background
A. You were employed by the Company
as ____________. You and the Company have agreed to terminate
your employment relationship on an amicable basis.
B. On ________, your employment
with the Company terminated.
II. Terms of Agreement
In order to effect the termination
of your employment and to provide you with certain benefits
that you would not otherwise be entitled to, you and the Company
agree as follows:
1. This Agreement shall not be
in any way construed as an admission by the Company that it
has acted wrongfully with respect to you or any other person,
or that you have any rights whatsoever against the Company.
2. Even if you do not sign this
Agreement, the Company will pay you the compensation that you
have earned through the date of your termination, any accrued
vacation benefits, and [insert any appropriate profit sharing,
etc. plan name here] in accordance with the terms and conditions
of such plan. Similarly, even if you do not sign this Agreement,
you will be offered benefits to which you are entitled under
the Consolidated Omnibus Budget
Reconciliation Act of 1985 ("COBRA"),
and you retain all benefits under the Company's 401(k) Plan.
3. In exchange for the promises
contained in this Agreement and release of claims as set forth
below, and provided that you sign this agreement and return
it to me by ________ [21 days from date of letter], 20_____
and do not revoke this Agreement as set forth in Paragraph 13(d):
a. The Company will pay you a severance
allowance in the amount of your current base monthly salary
of $____________ beginning ________, and ending ________ to
be paid on a monthly basis and in accordance with the Company's
normal payroll process.
b. The Company will pay for your
medical coverage (i.e., COBRA benefits) under the ________________
[Group Health Insurance Plan, correct name].
c. If you wish, the Company will
pay for an outplacement service (to be selected by the Company)
for services rendered in assisting you in locating another job,
for a period of ____ months following the date of your termination
or until you begin working for another employer, whichever occurs
first. These payments are contingent upon your cooperation with
the outplacement service and upon active efforts by you to locate
another position.
4. In consideration of the promises
contained in this Agreement, you agree:
a. On behalf of yourself and anyone
claiming through you, irrevocably and unconditionally to release,
acquit and forever discharge the Company and/or its parent corporation,
subsidiaries, divisions, predecessors, successors and assigns,
as well as each's past and present officers, directors, employees,
shareholders, trustees, joint venturers, partners, and anyone
claiming through them (hereinafter "Releasees" collectively),
in each's individual and/or corporate capacities, from any and
all claims, liabilities, promises, actions, damages and the
like, known or unknown, which you ever had against any of the
Releasees arising out of or relating to your employment with
the Company and/or the termination of your employment with the
Company. Said claims include, but are not limited to: (1) employment
discrimination (including claims of sex discrimination and/or
sexual harassment) and retaliation under Title VII (42 U.S.C.A.
2000e etc.) and under 42 U.S.C.A. section 1981 and section 1983,
age discrimination under the Age Discrimination in Employment
Act (29 U.S.C.A. sections 621-634) as amended, under any relevant
state statutes or municipal ordinances; (2) disputed wages;
(3) wrongful discharge and/or breach of any alleged employment
contract; and (4) claims based on any tort, such as invasion
of privacy, defamation, fraud and infliction of emotional distress.
b. That you shall not bring any
legal action against any of the Releasees for any claim waived
and released under this Agreement and that you represent and
warrant that no such claim has been filed to date. You further
agree that should you bring any type of administrative or legal
action arising out of claims waived under this Agreement, you
will bear all legal fees and costs, including those of the Releasees.
5. You agree to refer any and all
reference checks to the ________ [insert name] and you know
that any such references will be limited to confirmation of
your dates of employment and last position held. The obligation
under this Paragraph is separable and any failure by the Company
to perform the obligation in this Paragraph will only give rise
to an action to enforce this Paragraph.
6. You agree that you will not,
directly or indirectly, disclose the fact of and terms of this
Agreement, including the severance benefits, to anyone other
than your attorney, except to the extent such disclosure may
be required for accounting or tax reporting purposes or as otherwise
required by law.
7. This agreement shall be binding
on the parties and upon their heirs, administrators, representatives,
executors, successors and assigns and shall inure to their benefit
and to that of their heirs, administrators, representatives,
executors, successors and assigns.
8. On or before ________ [date],
you will return to me all of the Company's property in your
possession including, but not limited to, [insert appropriate
materials, 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 the Company. You further represent and
warrant that you have not retained any copies, electronic or
otherwise, of such property.
9. You will cooperate fully with
the Company in its defense of or other participation in any
administrative, judicial or other proceeding arising from any
charge, complaint or other action which has been or may be filed.
10. You will continue to comply
with the terms of the Proprietary and Confidentiality Agreement
between you and the Company, executed on _______________, and
know and understand that the obligations contained in that agreement
survive execution of this Agreement and your termination of
employment. In particular, you shall not disclose any confidential
or proprietary information (specifically including pricing,
margins, key customer contacts and their profiles not generally
known to the public) which you acquired as an employee of the
Company to any other person or entity, or use such information
in any manner that is detrimental to the interest of the Company.
A copy of your Confidentiality Agreement is attached as Exhibit
1.
11. You agree that you will not
make any comments relating to the Company or its employees which
are critical, derogatory or which may tend to injure the business
of the Company.
12. In the event that you breach
any of your obligations under Paragraphs 8 through 11, any outstanding
obligations of the Company hereunder shall immediately terminate,
and any payments previously made to you pursuant to Paragraph
3 shall be returned to the Company.
13. You also acknowledge that you
have been informed pursuant to the federal Older Workers Benefit
Protection Act of 1990 that:
a. You have the right to consult
with an attorney before signing this Agreement;
b. You do not waive rights or claims
under the federal Age Discrimination in Employment Act that
may arise after the date this waiver is executed.
c. You have twenty-one (21) days
from the date of this letter to consider this Agreement;
d. You have seven (7) days after
signing this Agreement to revoke the Agreement, and the Agreement
will not be effective until that revocation period has expired.
14. The provisions of this Agreement
are severable. If any provision is held to be invalid or unenforceable,
it shall not affect the validity or enforceability of any other
provision.
15. This Agreement sets forth the
entire agreement between you and the Company and supersedes
any and all prior oral or written agreements or understandings
between you and the Company concerning the subject matter of
this Agreement. This Agreement may not be altered, amended or
modified, except by a further written document signed by you
and the Company.
16. [If appropriate, include arbitration
clause.]
17. You represent that you fully
understand your right to review all aspects of this Agreement
with an attorney of your choice, that you have had the opportunity
to consult with an attorney of your choice, that you have carefully
read and fully understand all the provisions of this Agreement
and that you are freely, knowingly and voluntarily entering
into this Separation Agreement and General Release.
If you are willing to enter into
this Agreement, please signify your acceptance in the space
indicated below, and return to me by ________ [21 days], 20____.
As I noted earlier, this Agreement will not become effective,
and none of the severance benefits in Paragraph 3 will be paid,
until seven (7) days after the date you sign this Agreement.
PLEASE READ CAREFULLY. YOU ARE
GIVING UP ANY LEGAL CLAIMS THAT YOU HAVE AGAINST THE COMPANY
BY SIGNING THIS AGREEMENT.
Very truly yours,
________________
Accepted and agreed to on this
____ day of ____________, 20_____.
I do or do not (circle one) elect
outplacement services pursuant to Paragraph 3(c).
_________________________
Employee signature
Witness:_________________________
Date:____________________
