WHEREAS, the Employee Was Employed by Employer; And
SEPARATION AGREEMENT
This Separation Agreement (“Agreement”) is made and entered into by and between Dai Alexander (“Employee”) and ReMark USA, Inc. (“Employer”).
WHEREAS, the Employee was employed by Employer; and
WHEREAS, the purpose of this Agreement is to set forth the terms and conditions under which Employee and Employer will sever their employment relationship and resolve all of Employee’s claims against Employer to date, asserted or unasserted.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged,
IT IS AGREED, by and between the undersigned, as follows:
1.Termination of Employment. The effective date of the termination of Employee’s employment with Employeris December 31, 2014, regardless of whether Employee executes this Agreement or not.
2.Continuation of Salary and Other Consideration. Commencing on the first regular pay dayon which it is practicable to do so following Employee’s execution of the Second Release of Claims and the expiration of the rescission periods described in the Second Release of Claims, Employer will pay Employee at Employee’s regular rate of salary for a three (3) month period, provided Employee has complied with the following conditions:
(a)Employee has returned to Employer all property as required in paragraph8;
(b)All applicable rescission periods have expired subsequent to Employee’s execution of this Agreement without Employee rescinding her release of claims; and
(c)Employee has fully complied with all other provisions of this Agreement.
Upon the expiration of all applicable rescission periods, the salary continuation will be paid on Employer’s regular semi-monthly payroll schedule. All payroll taxes and any amounts owed to Employer will be deducted from Employee’s severance checks.
Employee’s right to continue participation in Employer’s group insurance plans under federal law commences on January1, 2014. If Employee timely elects COBRA coverage, Employer will, for a period of nine (9) months (i.e., for the period commencing on January1, 2015 and ending on September30, 2015), pay the Employee’s COBRA premiums for health, dental, and life insurance[DA1].
3.Releaseand Covenant Not to Sue by Employee. In consideration of Employer’s promises herein, Employee on behalf of Employee and Employee’s heirs, executors, administrators, successors, agents, and assigns, unconditionally releases and forever discharges Employer and its agents, employees, directors, officers, consultants, insurers, representatives, lawyers, affiliates, predecessors, successors, assigns, employee welfare benefit plans and pension or deferred compensation plans under Sections 401 and 403 of the Internal Revenue Code of 1986, as amended, and their trustees, administrators and other fiduciaries, and all persons acting by, through, under or in concert with them, or any of them (collectively “Releasees”), both individually and collectively, from any and all rights, claims, demands, liabilities, actions, causes of action, damages, losses, costs, expenses and compensation, of whatever nature whatsoever, known or unknown, fixed or contingent (“Claims”), which Employee may have, or now claims to have against, or in the future claims from the Releasees by reason of any matter, cause, or thing whatsoever, from the beginning of time to the date hereof, including, without limiting the generality of the foregoing, any Claims arising out of, based upon, or relating to Employee’s recruitment, hire, employment, benefits (including vacation), remuneration by or separation fromEmployer, or any contract, agreement, or other arrangement between Employee and the Releasees, or any of them.
As part of this Agreement,by example and without limitation, Employee expressly waives any Claims arising out of any federal, state or other governmental statute, regulation or ordinance, including, without limitation: (1) Title VII of the Civil Rights Act of 1964, as amended; (2) the Family and Medical Leave Act of 1993; (3) the Fair Labor Standards Act, as amended; (4) the federal and state wage and hour laws; (5) the Americans With Disabilities Act, as amended; (6) Workers Adjustment and Retraining Notification Act and any similar law of any state; (7) Minnesota’s common law of fraud, misrepresentation, negligence, defamation, infliction of emotional distress, breach of contract, or wrongful termination; (8) the Minnesota Human Rights Act; (9) the Florida Civil Rights Act; (10) the Florida Whistleblower Protection Law; (11) the Florida Equal Pay Act; (12) the Age Discrimination in Employment Act; (13)retaliation under the Workers Compensation Act; (14) the Genetic Information Nondiscrimination Act; and/or (15) any other local, state or federal law, rule, or regulation governing employment, discrimination in employment or the payment of wages and benefits.
Employee further covenants and agrees not to sue or bring any action, whether federal, state, or local, judicial or administrative, now or at any future time, against the Releasees with respect to any Claim released hereby or arising out of Employee’s employment. Nevertheless, this Agreement does not limit any right Employee may have to file a charge under any civil rights statute or to participate in an investigation or proceeding conducted by the Equal Employment Opportunity Commission or other governmental investigatory agency. This Agreement does, however, waive and release any right to recover damages, of whatever kind and nature, under any civil rights statute.
4.Notification of Rescission Rights.
A.Minnesota Human Rights Act. Without limiting the generality of the foregoing, as to the rights and remedies secured by the Minnesota Human Rights Act, Minn. Stat. § 363A.01 et. seq. (“MHRA”), the release contained in paragraph 3 above only applies to claims arising out of acts or practices arising prior to or concurrent with the date of the execution of this Agreement. Employee understands that Employee may rescind her release contained within paragraph 3 of this Agreement to assertclaims for discrimination rights and remedies provided by the MHRA within fifteen (15) calendar days of its execution. To be effective, the rescission must be in writing and delivered to Karen Komp, ReMark USA, Inc., 3033 Campus Drive, Suite W205, Plymouth, Minnesota 55441, either by hand or postmarked by certified mail, return receipt requested, within the fifteen (15) day period. After the 15-day period, Employee’s release of MHRA claims shall be irrevocable.
B.Older Workers Benefit Protection Act. [DA2]Without limiting the generality of the foregoing, as to the rights and remedies secured by the Age Discrimination in Employment Act of 1967 (the “ADEA”), the release contained in paragraph 3 above only applies to claims arising out of acts or practices arising prior to or concurrent with the date of the execution of this Agreement. Employee further understands that the release contained in paragraph 3 releases all claims Employee may have under the ADEA, that employee has the right, for a period of at least seven (7) days following the execution of this Agreement, to rescind her release of ADEA claims contained within this Agreementto assert discrimination rights and remedies provided under the ADEA. To be effective, the rescission must be in writing and delivered to Karen Komp, ReMark USA, Inc., 3033 Campus Drive, Suite W205, Plymouth, Minnesota 55441, either by hand or postmarked by certified mail, return receipt requested, within the seven (7) day period. After the 7-day period, Employee’s release of ADEA claims shall be irrevocable.
5.Second Release of Claims.[DA3] Employee shall execute a Second Release of Claims on or before December31, 2014. Employer’s obligation to pay the various payments described in this Agreement are expressly conditioned upon Employee’s execution of the Second Release of Claims, and the expiration of all applicable rescission periods without Employee rescinding her Second Release of Claims. If Employee does not sign the Second Release of Claims or rescinds her execution of the Second Release of Claims, Employer shall have no further obligations under this Agreement. All other provisions of the Agreement shall continue in full force and effect.
6.Nondisparaging Remarks. Employee agrees that Employee shall not disparage or defame Employer or any of the Releasees in any respect or make any negative comments concerning their employment relationship. Employee agrees not to make any negative statements concerning Employee’s relationship with Employer, either in the employment or personal context. Employee further promises and agrees not to disclose, either directly or indirectly, in any manner whatsoever, any information of any kind regarding the substance or the existence of any belief Employee or any other person may have that Employerengaged in any unlawful, discriminatory, retaliatory or tortious conduct towards Employee, or the terms of the Agreement, to any person or organization, including, but not limited to, representatives of local, state or federal agencies (except as required by law), members of the press and media, employees, former employees, and other members of the public, except as required by subpoena or court order. This paragraph does not prohibit Employee from filing a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) or other governmental agency as provided in paragraph 3.
7.Opening of Mail. Employee consents to the opening of all mail sent to employee at Employer and not marked on the outside of the envelope in a manner clearly indicating that the mail is intended as personal or confidential mail for Employee. Employershall open and review all mail addressed to Employee (except mail which is clearly marked on the envelopes as personal or confidential to Employee), and shall promptly forward to Employee any unopened mail and any mail opened by Employer that does not pertain to Employer. Employee agrees that shewill promptly return any mail not opened by Employer if such mail is not of a personal nature.
8.Records, Documents and Property. Employee will provide Karen Kompwith all computer passwords necessary to access Employer’s computer system. Employee also promises and agrees to return all of Employer’s property, records, correspondence, and documents in Employee’s possession or under Employee’s control and will return any such documents acquired subsequent to termination, including (a) the portion of any personal files maintained by Employee which relates to the business of Employer, and (b) any software or software documentation, including program or data diskettes, which were purchased, licensed or otherwise acquired by Employee. Employee further agrees to erase or delete from any hard drive, diskettes, tapes, or other electronic storage media which Employee owns, any software, including backup copies, which were purchased, licensed, or otherwise acquired by Employer and any data files which relate to the business of Employer; provided, however, that prior to such erasure or deletion, Employee will provide Employerwith a list of such software and data files and permit Employer an opportunity to copy such materials.
9.Confidential Information. Employee has had access to Confidential Information which Employer desires to protect at all times. Therefore, Employee understands, acknowledges, and agrees that “Confidential Information” means any and all information relating to Employer, its affiliates, and their business which is not publicly available and includes, but is not limited to, copies, duplicates, reproductions or excerpts of internal communications, manuals, employee information, forecasts, strategic plans, planning documents and projections. Employee’s duties have involved the use of the Confidential Information. Employer has expended substantial sums of money, time, and effort in developing such Confidential Information. Employer will be substantially and irreparably harmed in the competitive marketplace if Confidential Information is used to its detriment or to the benefit of others. Employee agrees that she will not directly or indirectly use or disclose any Confidential Information to any other person, firm or company, entity or in any way use for her benefit, or to the detriment of Employer, any information or knowledge obtained during the course of her employment with Employer. All communications, memoranda, notes, records, papers, and other documents and all copies thereof relating to Employer’s operation of business and all objects related thereto are and remain the property of Employer; including, but not limited to, those developed, investigated, or considered by Employer. Employee will not copy or duplicate any of the aforementioned documents or objects nor use any information contained therewith.[DA4]
10.Confidentiality of Terms. The terms of this Agreement will be treated as confidential by Employee and Employee shall not disclose its terms to anyone except Employee may disclose the terms of this Agreement to Employee’s legal counsel, Department of Employment and Economic Development, professional accountant, tax or professional financial advisor, spouse or as may be required by law or court order. Employee also represents that no disclosures which would violate the terms of this provision have been made prior to its execution by Employee.
11.Injunctive Relief. Employee agrees that Employer will suffer irreparable injury if Employee breaches any portion of this Agreement. Therefore, Employee agrees that in addition to any legal action for money damages, an action for injunctive relief will be appropriate upon such a breach, and further agrees to reimburse Employer for its reasonable attorneys’ fees, costs, and expenses incurred in enforcing Employee’s obligations hereunder if Employer is successful, and further agrees to waive any requirement that Employer post a bond as a condition of injunctive relief.
12.No Admission of Liability. The signing of this Agreement does not constitute nor shall it be construed as an admission by Employer of any unlawful acts against Employee or any other person, nor of any liability or wrongful or unlawful conduct whatsoever, andEmployer specifically denies any liability to, or wrongful or unlawful conduct against Employee or any other person.
13.No Reapplication, Rehire or Recall. Employee agrees not to apply for or accept employment with Employer at any point in the future, unless this provision is waived by Employer. Employee further specifically agrees that this Agreement, and herpromises under this Agreement, constitute a legitimate, nondiscriminatory basis for Employer to: (1) refuse to accept an application for employment from Employee; (2) refuse to interview Employee; (3) refuse to hire or recall Employee; and (4) terminate Employee’s employment in the event she is somehow rehired in contravention to this Agreement.[DA5]
14.Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the employment, association and the termination of the Employee’s employment relationship with Employer, and the parties agree that there were no inducements or representations leading to the execution of this Agreement except as herein contained. This Agreement nullifies and supersedes any and all prior agreements between the parties.
15.Right to Consult with an Attorney.[DA6] Employee warrants that, by this Agreement,Employer has advised Employee in writing to consult an attorney before signing this Agreement, and that Employer has given Employee at least twenty-one (21) days in which to decide whether to sign this Agreement. This Agreement was furnished to Employee onSeptember 30, 2014. Employee acknowledges that if this Agreement is signed before the end of this twenty-one (21) day period, it was Employee’s personal voluntary decision to do so. Any changes made to this Agreement before Employee signs it, whether material or immaterial, will not restart the consideration period.
16.Voluntary and Knowing Action. Employee, by executing this Agreement, states that Employee has carefully read this Agreement and understands fully the contents thereof; that in executing this Agreement, Employee voluntarily accepts settlement of any and all claims Employee has or may have against ReMark on the terms described in this Agreement, in full settlement thereof, without duress, coercion, undue influence or otherwise, and that Employee intends to be legally bound thereby. Employee further acknowledges that she has the right to be represented by an attorney of her choice, and freely and voluntarily signs this Agreement.
Employee has read this Release carefully and understands all of its terms. In signing this Release, Employee has not relied on any statements or explanations made by ReMark except as specifically set forth in this Release. Employee voluntarily releases her Claims against the Releasees, and intends this Release to be legally binding.
17.Binding Effect. This Agreement and all covenants and releases set forth herein shall be binding upon and shall inure to the benefit of the respective parties hereto, their legal predecessors, successors, heirs, assigns, partners, representatives, parent companies, subsidiary companies, agents and attorneys. The terms of this Agreement constitute a binding contract.
18.Invalidity. In case any one or more of the provisions of this Agreement should be invalid, illegal or unenforceable in any respect, the validity, legality, and enforceability of the remaining provisions in this Agreement will not in any way be affected or impaired thereby, except that if the Release in paragraph 3 is held to be invalid, illegal or unenforceable, Employee will be obligated to return the salary continuation.
19.Captions. The captions contained in this Agreement are for convenience only and do not affect the meaning of any term or provision.
20.Signatures and Counterparts. This Agreement may be executed simultaneously in two or more counterparts, each of which will be deemed an original, but all of which together will constitute on and the same instrument. Fax/photocopy/email signatures shall be deemed the same as originals.
21.Waiver/Modification. This Agreement may not be modified except through a written instrument, signed by both parties. Any delay by Employer in enforcing any if its rights under this Agreement shall not be deemed a waiver of those rights.
IN WITNESS WHEREOF, the parties have hereunto set their hands on the dates by their signatures.
EMPLOYEE:
Date: ______
Dai Alexander
Date: ______REMARK USA, INC.
By: ______
Its: ______
4826-7693-2891, v. 1
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[DA1]My husband is in my plan – will he be included too or just me as the employee?
[DA2]I’m not familiar with this – what does this mean?
[DA3]What is this 2nd release of claims?
[DA4]I have produced presentations and creative materials over the 30 years, am I prohibited from using them as samples of my work? And is this in perpetuity?
[DA5]They are looking to work with me on a free lance basis as per the CMO – what does this imply?
[DA6]I would like to ensure that I am protected should I end up working for a ReMark competitor – is there a clause that can be added to that effect?