Separation Agreement and General Release - RedEnvelope Inc. and John Roberts
May 20, 2005
1617 Belburn Drive
Belmont, CA 94002
Re: Separation Agreement and General Release
This letter, upon your signature, will constitute the agreement (hereafter "Agreement") between you and RedEnvelope, Inc. ("Company") on the terms of your separation from employment with the Company.
1. Your employment with the Company will end effective at the close of business on Wednesday, June 1, 2005 ("Separation Date"). Accordingly, as of that date, you will no longer represent to anyone that you are still an employee of the Company and will not say or do anything purporting to bind the Company.
2. On the Separation Date you will receive your final paycheck, including all salary and other compensation due through June 1, 2005 and a check for your accrued but unused PTO and Float Time.
3. You represent that you will have returned to the Company all Company property that was in your possession as of the Separation Date, including, without limitation, personal computer(s), keys, pager, cellular phone, phone card, credit card, electronic organizer, fax modem, printer, documents, files, records, data, confidential or proprietary information.
4. In consideration for your promises and covenants in this Agreement, the Company will pay you an amount of $50,000.00, equal to three months salary, less applicable tax withholding and all other required or authorized payroll deductions ("Severance Amount") in bi-weekly installments. Any tax obligations, if any, which may arise out of this payment are your sole responsibility and you agree to indemnify and defend the Company from and against any and all taxes, interest, penalties, claims or other liabilities of any kind arising from or related to the payment. You acknowledge and agree that you are not otherwise entitled to the Severance Amount being paid to you under this Agreement.
5. As of the Separation Date you will no longer be eligible to participate in any of the Company's benefits or compensation plans, except as provided by law, under the terms of the applicable plans, or as provided in this paragraph. Your existing coverage under the Company's group health insurance plan (and, if applicable, the existing group health coverage of your eligible dependents) will terminate on June 30, 2005. The Company will cover your COBRA costs for four (4) months. Attached is information regarding your rights to elect continuation of this health insurance coverage, at your own expense, under the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA"), provided you make a timely election to do so. Nothing in this Agreement will impair any rights you may have to elect continued health insurance coverage under COBRA.
6. All vesting of any existing grants to you of Company stock options will cease as of
May 20, 2005
the Separation Date. Any rights you may have to exercise any Company stock options that have vested as of the Separation Date, and the time periods and procedures for such exercise, are governed by the terms of: (1) any existing Notice of Stock Option Grants and Stock Option Agreements, signed by both you and the Company (collectively "Stock Agreements"); and (2) the Company's 1999 Stock Plan ("Stock Plan"). Nothing in this Separation Agreement will affect any existing, vested rights you may have under the Stock Agreements or Stock Plan. All vested shares not exercised by the end of the period specified in your Stock Agreements will be forfeited. All unvested shares will expire as of your Separation Date.
7. Except as otherwise provided in this Agreement, on behalf of yourself and your representatives, agents, heirs and assigns, you waive, release, discharge and promise never to assert any and all claims, liabilities or obligations of every kind and nature, whether known or unknown, suspected or unsuspected, claimed or unclaimed, that you ever had, now have or might have as of the date you sign this Agreement against the Company and/or any of its past or present officers, directors, employees, shareholders, parents, subsidiaries, affiliates, representatives, attorneys, fiduciaries, predecessors, successors, agents or assigns (collectively "Released Parties"). The released claims include, without limitation, any claims arising from or related in any way to your hiring, employment, compensation or separation from employment with the Company, any Company benefits or benefit plans, and/or the execution of this Agreement. The released claims also specifically include, without limitation, any claims arising under any federal, state and local statutory or common law, such as Title VII of the Civil Rights Act, the Family and Medical Leave Act, the California Fair Employment and Housing Act, the California Family Rights Act, the Americans With Disabilities Act, the Employee Retirement Income Security Act, the Fair Labor Standards Act, the California Labor Code (including section 132a claims), the California Government Code (all as amended), the law of contract and tort, and any claim for recovery of costs and/or attorney's fees. The released claims will not include any claims for state unemployment insurance, disability or workers' compensation benefits.
8. You also waive, release, discharge and promise never to assert any and all claims against any of the Released Parties, even if you do not now know or believe that you have any such claims. You therefore expressly waive the protection of California Civil Code section 1542, which provides that:
A general release does not extend the claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known to him must have materially affected his settlement with the debtor.
In short, you agree that you will not initiate any lawsuits, administrative proceedings or legal actions of any kind against the Company or any of the other Released Parties, except to enforce any provision of this Agreement, and will not accept the benefits of any lawsuits or claims of any kind brought on your behalf against the Company or any of the other Released Parties, except to enforce any provision of this Agreement.
9. Unless required by court order, you will keep the terms of this Agreement strictly confidential and will not disclose to anyone, without the prior written permission of the Chief Executive Officer of the Company, any information regarding the terms of this Agreement, the benefits provided to you under it, or the fact that a payment was made to you; provided, however, that you may disclose this information to your spouse or domestic partner, and to your attorneys, accountants or other professional advisors as necessary for them to render professional services to you. Before making any disclosure to
May 20, 2005
any person(s) permitted under this paragraph you will advise such person(s) of this confidentiality provision and require them to comply with it to the same extent as you must.
10. All applicable terms of the Confidential Information and Assignment Agreement that you signed with the Company on March 10, 2003 ("Confidentiality Agreement") will remain in full force and effect. A copy of the Confidentiality Agreement is attached hereto as Exhibit A and incorporated herein by reference.
11. You acknowledge and agree that, pursuant to the Older Workers Benefit Protection Act of 1990 ("OWBPA"), you have been provided with the following information:
(a) You have up to 21 days within which to consider this Agreement and Release before executing it and returning the executed original to me, although you may sign and return it at any time within this 21-day period;
(b) You are, through this Agreement and Release, knowingly and voluntarily waiving, releasing and discharging the Company from any and all claims of any kind that you have or may have against the Company, its subsidiaries, parents, predecessors, affiliates and related entities as of the Effective Date, including without limitation, any claims arising under the Age Discrimination in Employment Act of 1967 (as amended);
(c) You are not waiving any rights or claims that may arise after the date this Agreement and Release becomes effective;
(d) You have been advised and/or hereby are advised in writing to carefully consider the terms of this Agreement and Release and to consult with an attorney of your choice before executing this Agreement and Release; and
(e) You will have seven days after you execute this Agreement and Release to revoke it in writing by delivering written notice of revocation to me at 149 New Montgomery, San Francisco, California 94105. If you do not revoke it, the Agreement and Release will become effective on the eighth day after you sign it (the "Effective Date"). If you choose to revoke your acceptance of the Agreement and Release, you will not receive any benefits under this Agreement and Release.
12. Except as specified below, to the fullest extent allowed by law, any and all disputes, claims or controversies of any kind arising out of or related in any way to the interpretation or enforcement of this Agreement, or any other matter (including any statutory or common law claims against the Company or any of the other Released Parties) shall be fully and finally resolved through binding arbitration, before a neutral arbitrator, in San Francisco, California, in accordance with the then existing national rules of the American Arbitration Association for the resolution of employment disputes, as modified in any respect necessary to comply with the requirements of California law for enforcement of arbitration agreements regarding such disputes. You and the Company therefore specifically waive any right to a jury trial on any such disputes, claims or controversies. The prevailing party in any arbitration shall be entitled to an award of its costs and reasonable attorneys fees, in addition to any other relief to which it is entitled. This arbitration provision shall not apply to any claims for injunctive or other similar
May 20, 2005
13. This Agreement will in all respects be interpreted, enforced and governed under the laws of the State of California, without regard to the conflicts of laws rules thereof. In interpreting the language of this Separation Agreement, both parties shall be treated as having drafted the Agreement after meaningful negotiations. If any provision of this Agreement is held to be invalid, void or unenforceable, the remaining provisions shall remain in full force and effect to the fullest extent permitted by law. This Agreement will inure to the benefit of and be binding upon the heirs, representatives, successors and assigns of each of the parties
14 This Agreement (including any exhibits) constitutes the entire agreement between the parties as to matters discussed herein and supersedes any prior or contemporaneous negotiations, representations, promises, agreements, and/or understandings of the parties with respect to such matters, whether written or oral. The parties acknowledge that they have not relied on any promise, representation or warranty, expressed or implied, not contained in this Agreement. This Agreement may only be modified, or any specific requirements waived, in a writing signed by you and the Chief Executive Officer of the Company.
To accept the Agreement, please date and sign this letter and return it to me.
The Company wishes you success in your future endeavors.
||By: /s/ Edward M. Schmults|
By signing this letter, I acknowledge that I have read and had the opportunity to carefully review and consider this Separation Agreement (with an attorney of my choice if so desired); that I fully understand all of the terms in the Separation Agreement (and in the attached exhibit); that I am competent to enter into this Agreement; and that I voluntarily agree to each of the terms set forth above.
Date: May 20, 2005
|/s/ John Roberts