National Pen Co. LLC
Vince Glossip
Separation Agreement
This Separation Agreement and Release (hereinafter referred to as "Agreement") is made and effective as of the last date signed below by both parties, by and between National Pen Co. LLC (collectively "National Pen"), 12121 Scripps Summit Drive, San Diego, CA 92131 andVince Glossip(hereinafter referred to as "Employee").
Intending to be legally bound, and for good and valuable consideration, the parties hereto agree as follows:
1.RECITALS
A) Employee has been employed by National Pen sinceJuly 26, 1993; and
(B) National Pen and Employee wish to sever their ties as National Pen and employee respectively, on the terms and conditions hereafter set forth; and
(C) Employee acknowledges the Employee has been given at least 45 days fromDecember 14, 2012to review and reflect upon the terms of this Agreement (in addition to the 7-day rescission right set forth in Section 13(c) below)and to seek the advice of legal counsel of Employee’s choice, and that Employee is fully aware of the potential rights and remedies Employee may have as a result of his termination; and
(D) Employee and National Pen wish to memorialize herein the resolution and settlement of all their respective rights, remedies and obligations whatsoever, flowing from Employee's employment and relationships with the Company and the separation and termination of that employment and said relationships; and
2. TERMINATION OF EMPLOYMENT
(A) Effective Termination Date. Effective December 14, 2012 (the “Termination Date”), the employment relationship between National Pen and Employee shall be severed and terminated. Employee shall cease to act as an employee or in any other capacity on behalf of National Pen, and Employee shall sign no documents nor do anything that shall in any manner obligate National Pen.
(B) Reference Checks. Upon explicit written approval of employee, National Pen will release the following information to prospective employers:
(1) Beginning and ending dates of employment
(2) Job Title
(3) Compensation
(C) Insurance Coverage.
(1a) Health Insurance. Employee’s medical, dental and vision insurance, if applicable, will terminate on the last day of the calendar month in which employment ends.
(1b) Coverage Continuation. Pursuant to federal COBRA and state Cal-COBRA laws, effective as of the Termination Date and for eighteen (18) months thereafter, Employee may be eligible to purchase, at 102% (Cobra) and 110% (Cal-Cobra) of National Pen's cost, medical (Cobra & Cal Cobra) and dental (Cobra) benefits for Employee and Employee’s eligible dependents, subject to statutory limitations. Said benefits will be equivalent to those group health benefits provided to National Pen's regular, full-time employees.
(2) Life Insurance. Employee's life, accidental death & dismemberment, and long-term disability insurance will cease effective the Termination Date.
(D) 401(k) Plan. Employee's deductions will cease effective the Termination Date.
(E) Business Expenses Incurred. Any authorized business expenses incurred prior to this
Agreement must be submitted through company reimbursement procedures.
3. CONSIDERATION
(A) Upon execution of this Separation Agreement and Release National Pen shall pay Employee, as full, sufficient and complete consideration for Employee’s promises and releases contained herein, the consideration contained in Section 3. Employee hereby agrees to indemnify and hold National Pen harmless for any tax liability arising out of the payment(s) set forth in this Section.
(B)Separation Payments.
(1) Cash.
(a) Employee shall be paid $13,110.60,in severance at the conclusion of the 7-day rescission period,or the period referenced in Section 13(c) if applicable. So long as Employee has executed this Agreement, meets all the Agreement’s terms and conditions, and not exercised the rescission right, such payment to be subject to all required and voluntary withholdings.
(2) Employee understands and agrees that all moneys paid as separation payments are in excess of any earned wages, accrued vacation or any other amounts due and owing Employee by National Pen, and is good and valuable consideration in excess of and in addition to what Employee is already entitled to receive from National Pen.
(C) California Unemployment Insurance. National Pen is will not contestEmployee’s eligibility for unemployment benefits, so long as Employee has executed this Agreement in its entirety and not exercised rescission rights.
(D) Other Benefits. Except as specifically set forth within this Agreement, Employee shall be entitled to no other employee benefits, fringe benefits or other remuneration or compensation.
4.NON-RECRUITING Employee agrees that Employee will not, for two (2) years after the Termination Date, recruit directly or indirectly any employee of National Pen for employment with any other company or operation without the explicit written permission of the National Pen CEO.
5.GENERAL COOPERATION;SERVING AS A WITNESS Employee agrees to cooperate with regard to matters with which he is familiar during the time of his employment at National Pen. This shall include, but not be limited to, availability to testify on National Pen's behalf, if National Pen requests, without requiring a subpoena, in any and all lawsuits arising out of acts, occurrences, or decisions while Employee was employed at National Pen of which Employee has direct knowledge and to which National Pen or National Pen's attorneys believe Employee's testimony is necessary for the prosecution or defense of the claims. National Pen agrees to reimburse Employee for any reasonable out-of-pocket expenses Employee incurs as a result of such activities.
6.DETRIMENTAL LANGUAGE Employee agrees that Employee will not, at any time in the future, in any way disparage National Pen or its current and former officers, directors and employees, verbally or in writing, or make any statement to the press or to third parties that may be derogatory or detrimental to National Pen’s good name or business reputation. Likewise, National Pen will not make any disparaging statements about Employee. Nothing in this paragraph shall preclude either party from responding truthfully to inquiries made in connection with any legal or governmental proceeding pursuant to subpoena or other legal process.
7.PROPERTY Unless specifically stated to the contrary in Section 3 above, Employee shall immediately return to National Pen all of National Pen’s property that may be in Employee’s control.
8.CONFIDENTIALITY As a material inducement to the payment of the above-referenced separation monies, Employee acknowledges and agrees Employeeshall continue to be bound by and comply with each and every term and condition of the National Pen Employment, Confidential Information and Invention Assignment Agreement and any other proprietary or confidentiality agreement(s) between the Employee and National Pen. In addition, Employee agrees as follows:
(A) Separation Agreement. Employee will not disclose either the existence of, or the terms or conditions of, this Agreement or any of them, including without limitation, the payments hereunder, the detrimental language provisions hereunder or the benefits hereunder except as follows: (1) to Employee’s spouse, attorney, certified public accountant and financial and estate planning advisors needing to know thereof, provided any such thereof agrees to keep them confidential or (2) pursuant to a legally enforceable order, provided that Employee notifies National Pen of the proceeding and allows National Pen to oppose or contest the order on Employee’s behalf. Similarly, National Pen and its agents agree to keep the terms and conditions of this Agreement confidential except as follows: (1) to its attorneys, certified public accountants, auditors or others directly associated with its business or operations needing to know thereof, provided any such thereof agrees to keep them confidential or (2) pursuant to a legally enforceable order. Nothing contained in this Agreement is to be construed to be an admission of any liability by any National Pen party to Employee.
(B) Confidential or Proprietary Information. Employee recognizes and acknowledges that the confidential and proprietary information of various kinds including, but without limitation to, lists of National Pen's customers and employees, the ratings, performance appraisals and other employee data, the technical data, trade secrets or know-how, as well as National Pen's strategic plans, financial history and future financial plans and headcount plans and goals, as they may exist from time to time, are valuable, special and unique assets of the Company's business. Employee will not disclose, or cause or permit to be disclosed, any of such information or any other information National Pen treats as confidential, to any person, firm, corporation, association, or other entity for any reason or purpose whatsoever.
(C) Confidentiality Breach. In the event of a breach or threatened breach by Employee of the provisions of any of Sections 4, 6 or 8 of this Agreement, National Pen shall be entitled to an injunction restraining Employee from violating any of Sections 4, 6 or 8. Similarly, in the event of a breach or threatened breach by National Pen of the provisions of Section 6, of this Agreement, Employee shall be entitled to an injunction restraining National Pen from violating Section 6. Nothing in this Agreement shall be construed as prohibiting National Pen or Employee from pursuing any other remedy or remedies available thereto for such breach or threatened breach, including but without limitation to the recovery of damages, together with costs and attorney's fees, from or on account of the other.
9.TERMINATION OF PAYMENTS In the event Employee violates any covenant in this Agreement, including without limitation Sections 4, 6, or 8 hereof, National Pen shall be relieved of all liability and obligations to make any payments under this Agreement. Notwithstanding any termination of payments under this Section, the requirements of Sections 4, 6, and 8 hereof and the Release set forth in Section 10 hereof shall remain in full force and effect.
10.RELEASE FOR BENEFIT OF NATIONAL PEN
(A) In consideration of the delivery of the Separation Payment and related separation and other benefits described herein, and other good and valuable consideration, Employee unconditionally and irrevocably discharges, releases, and remises the Released Parties (as defined below), jointly and severally, of and from all claims, causes of action, suits, charges, debts, dues, sums of money, attorneys’ fees and costs, accounts, bills, covenants, contracts, torts, agreements, expenses, wages, compensation, promises, damages, judgments, rights, demands, or otherwise (“Claims”), known or unknown, in law or equity, accrued or unaccrued, contingent or noncontingent, arising at any time up to and including the date Employee executes this Agreement, whether or not capable of proof as of the effective date of this Agreement, whether common law or statutory, whether or not now recognized, that Employee, or anyone claiming by, through, or under him (including without limitation his heirs, executors, personal representatives, administrators, assigns, and spouse(s)) in any way might have, or could have, against any of the Released Parties.
The Claims enumerated above (“Released Claims”) shall include without limitation, and only by way of example: all Claims arising from or relating to Employee's employment with any of the Released Parties, or the termination thereof; all Claims for discrimination based on sex, race, age, disability status, national origin, or any other protected characteristic, including (without limitation) the California Labor Code, the California Fair Employment and Housing Act, Claims under Title VII, the Americans with Disabilities Act, the Civil Rights Act of 1866, the Civil Rights Act of 1991, the Age Discrimination in Employment Act, the Rehabilitation Act, the Family and Medical Leave Act, the Equal Pay Act, all state and local analogues of such statutes, and all common law Claims, including (without limitation) Claims for breach of contract, defamation, interference with contractual/prospective contractual relations, invasion of privacy, promissory estoppel, negligence, breach of the covenant of good faith and fair dealing, fraud, emotional distress, and any other common law Claims under the laws of any jurisdiction. It is the intention of the Parties that the language relating to the description of Claims in this Section shall be given the broadest possible interpretation permitted by law.
As used herein, “Released Parties” shall mean (1) Company; (2) all direct and indirect parents, subsidiaries, affiliates, units, divisions, direct or indirect owners, predecessors, and successors of Company (hereinafter “affiliated entity” or “affiliated entities”); (3) Company's and any affiliated entity’s past, current, and future employees, officers, directors, partners, agents, owners, shareholders, trustees, beneficiaries, attorneys, heirs, successors, assigns, predecessors, and legal representatives, in their individual and official capacities; (4) Company's and any affiliated entity’s insurers; (5) Company's and any affiliated entity’s past, present, and future employee benefit plans, as well as the administrators, fiduciaries, affiliates, insurers, and otherwise of all such employee benefit plans; and (6) all other persons, corporations, or other entities who/that might be claimed to be jointly or severally liable with any of the persons or entities named above and with respect to any of the “Claims” or “Released Claims” (as defined above).
California Civil Code Section1542 Waiver. Employee expressly acknowledges and agrees that all rights under Section1542 of the California Civil Code are expressly waived. That section provides:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS/HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM/HER MUST HAVE MATERIALLY AFFECTED HIS/HER SETTLEMENT WITH THE DEBTOR.
Employee understands that he/she is the creditor.
11.COVENANT NOT TO SUE:To the fullest extent permitted by applicable law, Employee agrees and covenants not to file, initiate, or join any lawsuit (either individually, with others, or as part of a class), in any court, whether state or federal, any claim or demand of any type related to any Claim(s) barred or released by this Agreement. If he does so, and the action is found to be barred in whole or in part by this Agreement, Employee agrees to pay the attorneys’ fees and costs, or the proportions thereof, incurred by the applicable Released Party in defending against those Claims that are found to be barred by this Agreement. Nothing in this Section precludes Employee from challenging the validity of the release in Section 10 under the requirements of the Age Discrimination in Employment Act, and Employee shall not be responsible for reimbursing the attorneys’ fees and costs of the Released Parties in connection with such a challenge to the validity of the release. However, Employee acknowledges that the release in Section 10 applies to all Claims that he/she has under the Age Discrimination in Employment Act, and that, unless the release is held to be invalid, all of Employee’s Claims under that Act shall be extinguished.
12.Employee represents and warrants that Employee has not suffered a work-related injury and has been paid all wages due Employee.
13.If Employee is forty (40) years of age or older at the time of the Employee's termination date as specified in Section 2(A) above, in accordance with the Older Workers Benefit Protection Act of 1990 (“OWBPA”), Employee expressly acknowledges Employee’s awareness and understanding of the following:
a.Employee has the right to and should consult with an attorney before signing this Agreement;
b.Employee has forty-five (45) days from the date on which Employee receives this Agreement to consider Employee’s release of Employee’s age discrimination claims and claims under the Older Workers Benefit Protection Act of 1990 (“Age Discrimination Claims”) ONLY. EMPLOYEE MAY NOT SIGN THIS AGREEMENT UNTIL ON OR AFTER THE LAST DAY OF EMPLOYMENT (December 13, 2012) AND THE AGREEMENT SHALL BE NULL AND VOID IF SIGNED EARLIER; and
c.Employee has seven (7) days after signing this Agreement to revoke Employee’s release of any Age Discrimination Claim. The revocation must be in writing, must specifically revoke the release of any Age Discrimination Claim, and must be received by National Pen prior to the eighth calendar day following the execution of this Agreement. The release of Age Discrimination Claims shall become effective, enforceable and irrevocable on the eighth calendar day following execution of this Agreement.
14.LAPSE OF AGREEMENT. This Agreement constitutes an offer to Employee, which must be accepted by Employee and returned to National Pen no later than January 28, 2013, after which date the offer made herein shall lapse and be of no further force or effect.
15.MISCELLANEOUS PROVISIONS
(A) This Agreement constitutes the entire Agreement and understanding between the parties with respect to the subject matter hereof and supersedes all previous understandings, agreements, and representations between the parties with respect to such subject matter. No amendment or variation of the terms of this Agreement shall be valid, unless made in writing and signed by the Employee and a duly authorized officer of National Pen.
(B) If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, the remaining provisions shall be unaffected thereby and shall remain in full force and effect. In lieu of the invalid provision there shall be added a provision as similar in terms as may be possible and be legal, valid and enforceable.