Fill and Sign the Executive Employee Form

Settlement, Release, Covenant Not to Sue, Covenant Not to Compete, Waiver and Nondisclosure Agreement of Executive Employee upon Termination by Employer Agreement made on __________________ (date), between __________________ of _____________________________________________ (street address, city, county, state, zip code) , referred to herein as Doe, and __________________ , referred to herein as Acme, Inc., a corporation organized and existing under the laws of the state of __________________ (name of state) , with its principal office located at _____________________________________________ (street address, city, county, state, zip code) , referred to herein as Acme. Whereas, Doe and Acme have reached an agreement with respect to all matters arising out of Doe’s employment with Acme and the termination thereof; Now, therefore, for and in consideration of the mutual covenants contained in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: I. Termination of Employment. By mutual agreement between the parties, Doe’s employment with Acme shall terminate on __________________ (date), the Termination Date. Through the Termination Date, Acme will continue to pay Doe at his current base salary of $ __________________ per annum, with continuation of Acme’s benefit programs through such date. II. Separation Payments and Benefits. Acme will pay Doe the amounts described below, subject to the provisions of this Agreement. The payments to be provided by this paragraph are in place of, and not in addition to, payments Doe would otherwise be entitled to pursuant to any policy or practice of Acme. All payments made pursuant to this paragraph will be reduced by any and all applicable payroll deductions including, but not limited to, federal, state and local tax withholdings. Doe will be entitled to receive severance payments for an __________________ (number) month period (the Severance Period ) at the rate of $ __________________ per annum from the Termination Date through __________________ (date). During the Severance Period, Doe will be eligible to continue his current health and dental coverage for himself and his family, but will not be eligible for life insurance, 401(k) contributions, long-term disability insurance or any other perquisites or benefits. III. Return of Acme Property. Doe agrees to return to Acme by no later than the Termination Date, any and all property (including but not limited to files, records, computer software, computer access codes, home computers, laptop computers, pagers, fax machines, business credit cards, proprietary and confidential information) which belongs to Acme, and shall not retain any copies, duplicates or excerpts thereof. IV. Outplacement Services. At the request of Doe, Acme will make available executive outplacement services to Doe, to be provided by an outplacement firm to be selected by Acme, for a period of up to __________________ (number) months. V. Acme Options. Doe agrees that any options awarded to him under Acme’s Stock Option Plan (the Option Plan ) will be treated as provided in the Option Plan VI. Full Satisfaction . Doe, by entering into this Agreement, accepts the benefits to be conferred on him hereunder in full and complete satisfaction of any and all asserted and unasserted claims of any kind or description against Acme as of the date of this Agreement, including, but not limited to, claims arising under any federal, state and local fair employment practice law, workers’ compensation law, and any other Employee relations statute, executive order, law and ordinance, including, but not limited to, Title VII of the Civil Rights Act of 1964, as amended, the Age Discrimination in Employment Act of 1967, as amended, the Rehabilitation Act of 1973, as amended, the Family and Medical Leave Act, the Americans With Disabilities Act of 1990, as amended, the Civil Rights Acts of 1866 and 1871, and, except as otherwise expressly set forth herein, of any other duty and/or other employment related obligation (all of which are hereinafter referred to as employment relations laws ) as well as any claims arising from tort, tortious course of conduct, contract (including without limitation any claims arising under Doe’s Employment Agreement dated __________________ (date), any offer letter, obligations of good faith, public policy, statute, common law, equity, and all claims for wages and benefits, monetary and equitable relief, punitive and compensatory relief, and attorneys’ fees and costs. VII. Releases. A. In consideration of the covenants and undertakings above, Doe releases and discharges Acme from any and all liability, and waives any and all rights of any kind and description that he has or may have against Acme as of the date of this Agreement, including, but not limited to, any asserted and unasserted claims arising from any employment relations laws, tort, tortious course of conduct, contract [including without limitation any claims arising under Doe’s Employment Agreement dated __________________ (date), any offer letter, public policy, statute, common law, and equity, and claims for wages and benefits, monetary and equitable relief, punitive and compensatory relief, and attorneys’ fees and costs. The foregoing notwithstanding, Doe’s release and waiver do not apply to: 1. His rights arising out of this Agreement; 2. Any rights that Doe and any covered dependents may have to purchase health benefit continuation coverage under federal law commonly known as COBRA; 3. Any accrued and vested payouts or benefits under Acme qualified benefit plans; or 4. Any rights that Doe may have to indemnification under Acme’s general corporate indemnity for acts undertaken by Doe within the scope of his duties while employed at Acme. B. Acme releases and discharges Doe from any and all liability, and waives any and all rights of any kind and description that it has or may have against Doe as of the date of this Agreement, regarding which Acme has actual knowledge or should have had knowledge, other than rights under this Agreement or arising as a result of any criminal act of Doe. VIII. Covenant Not to Compete. F or a period of __________________ (number) years after the Termination Date , Doe will not directly or indirectly: A. Recruit, solicit, induce, or attempt to induce any of the employees or customers of Acme to terminate their employment or contractual relationship with Acme. B. Solicit, divert, take away, or attempt to divert or take away, from the Acme any of its business or the patronage of its customers, clients, accounts, vendors or suppliers for products or services sold by the Acme, and Doe shall not assist any other person to do so. C. If any restriction set forth in this Section VIII is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only over the maximum period of time, range of activities or geographic area as to which it may be enforceable. D. The restrictions contained in this Section VIII are necessary for the protection of the business and goodwill of the Acme and are considered by Doe to be reasonable for such purpose. Doe agrees that any breach of this Section VIII will cause the Acme substantial and irrevocable damage and therefore, in the event of any such breach, in addition to such other remedies which may be available, the Acme shall have the right to seek specific performance and injunctive relief. IX. Non-Disparagement. Doe and Acme each agree that except, for truthful statements in any proceeding to enforce this Agreement or pursuant to a valid subpoena or court order, neither will make or publish any statement (orally or in writing) that becomes or reasonably could be expected to become publicly known, or instigate, assist or participate in the making or publication of any such statement, which would libel, slander or disparage (whether or not such disparagement legally constitutes libel or slander) the other or, with respect to Acme, any of its affiliates or any other entity or person within Acme or its affiliates, any of their affairs or operations, or the reputations of any of their past or present officers, directors, agents, representatives and employees. X. Unauthorized Disclosure. Without the prior written consent of Acme, except to the extent required by an order of a court having jurisdiction or under subpoena from an appropriate government agency, in which event, Doe shall use his best efforts to consult with Acme prior to responding to any such order or subpoena, Doe shall not disclose any confidential or proprietary trade secrets, customer lists, drawings, designs, programs, software, protocols, information regarding product development, marketing plans, sales plans, manufacturing plans, management organization information, operating policies or manuals, business plans, financial records, packaging design or other financial, commercial, business or technical information (i) relating to Acme or any of its Affiliates or (ii) that Acme or any of its Affiliates may receive belonging to suppliers, customers or others who do business with Acme or any of its Affiliates (collectively, Confidential Information ) to any third person unless such Confidential Information has been previously disclosed to the public or is in the public domain (other than by reason of Doe’s breach of this Section). The parties further agree that the terms of this Agreement, and the negotiations leading up to it shall not be disclosed by the parties to any person, other than in a proceeding to enforce the terms of this Agreement or pursuant to valid subpoena or court order, with the exception of the parties’ lawyers, accountants, tax preparers and, with respect to Doe, his immediate family, provided that the parties inform any such persons that they must not disclose the same to any person and they agree to that condition. In response to any inquiry from third parties, the parties and their attorneys may state only that the parties have resolved the matter. XI. Rights to Intellectual Property. Doe acknowledges and agrees that Acme is the sole and exclusive owner of all right, title and interest in and to all trademarks, copyrights and all other rights in and to all software, computer programs, works of authorship, writings (whether or not copyrightable), inventions (whether or not patentable), discoveries, methods, improvements, processes, ideas, systems, know- how, data, and any other intellectual creations of any nature whatsoever that Doe developed, or assisted in the development of, in the course of his employment by Acme (collectively, the Acme Intellectual Property ). All Acme Intellectual Property is deemed to be work made for hire pursuant to the United States Copyright Act of 1976 (the Act) and Acme thereby owns all right, title and interest in all Acme Intellectual Property. To the extent that the Acme Intellectual Property or any part thereof is deemed by any court of competent jurisdiction or any governmental or regulatory agency not to be a work made for hire within the meaning of the Act, the provisions of this section will still control and, for the consideration set forth herein, Doe hereby irrevocably and absolutely assigns, sets over and grants to Acme the Acme Intellectual Property and all of his rights therein. Doe further agrees to deliver or execute such documents and to do or refrain from doing such acts as Acme or its nominee may reasonably request to protect its rights in the Acme Intellectual Property. XII. Reemployment or Reinstatement. Doe agrees not to seek reinstatement or reemployment with Acme, and hereby waives any rights that may accrue to his from any rejection of any application for employment with Acme that he may make. XIII. No Admission of Liability. By entering into this Agreement, the parties do not admit to any liability, wrongdoing, breach of any contract, commission of any tort or the violation of any statute or law alleged by the other to have been violated or otherwise. XIV. Injunctive Relief. Doe acknowledges that a violation on Doe’s part of this Agreement, would cause irreparable damage to Acme. Accordingly, Doe agrees that Acme is entitled to injunctive relief from any court of competent jurisdiction for any actual or threatened violation of this Agreement in addition to any other remedies it may have. XV. Breach of Agreement. Doe agrees that, without limiting Acme’s remedies, should he commence, continue, join in, or in any other manner attempt to assert any claim released in connection herewith, or otherwise violate in a material fashion any of the terms of this Agreement, Acme shall not be required to make any further payments to Doe pursuant to this Agreement and that Acme shall be entitled to recover all payments already made by it (including interest thereon), in addition to all damages, attorney’s fees and costs, Acme incurs in connection with the Doe’s proven breach of this Agreement. Doe further agrees that Acme shall be entitled to the repayments and recovery of damages described above without waiver of or prejudice to the release granted by him in connection with this Agreement, and that his proven violation or breach of any provision of this Agreement shall forever release and discharge Acme from the performance of its obligations arising from the Agreement. XVI. Execution. A. Doe acknowledges that he has had up to forty-five (45) days from his receipt of this document to review it. Upon execution, Doe or his attorney must promptly send this document by overnight mail to the General Counsel at Acme. A copy may be retained by Doe. B. Following his signing of the Agreement, Doe has the right to revoke the Agreement at any time within seven (7) calendar days of his signing it, not including the date of his signing (the Revocation Period ). Notice of Revocation shall be given in writing and sent by overnight mail no later than the seventh day following the date Doe signs this Agreement to General Counsel, Acme, Inc., _____________________________________________ (street address, city, county, state, zip code). If Doe does not revoke the Agreement, this Agreement shall be deemed to be effective and to be enforceable as of the date of the execution of this Agreement. If Doe gives Notice of Revocation during the Revocation Period in the manner specified above, this Agreement shall become null and void and all rights and claims of the parties which would have existed, but for the execution of this Agreement shall be restored. STATEMENT BY DOE WHO IS SIGNING BELOW: ACME HAS ADVISED ME IN WRITING TO CONSULT WITH AN ATTORNEY PRIOR TO EXECUTING THIS RELEASE. I HAVE CAREFULLY READ AND FULLY UNDERSTAND THE PROVISIONS OF THIS RELEASE AND HAVE HAD SUFFICIENT TIME AND OPPORTUNITY TO CONSULT WITH MY PERSONAL TAX, FINANCIAL AND LEGAL ADVISORS PRIOR TO EXECUTING THIS DOCUMENT, AND I INTEND TO BE LEGALLY BOUND BY ITS TERMS. I UNDERSTAND THAT I MAY REVOKE THIS RELEASE WITHIN SEVEN (7) DAYS FOLLOWING MY SIGNING, AND THIS RELEASE WILL NOT BECOME ENFORCEABLE OR EFFECTIVE UNTIL THAT SEVEN (7) DAY PERIOD HAS EXPIRED. XVII . Severability. The invalidity of any portion of this Agreement will not and shall not be deemed to affect the validity of any other provision. If any provision of this Agreement is held to be invalid, the parties agree that the remaining provisions shall be deemed to be in full force and effect as if they had been executed by both parties subsequent to the expungement of the invalid provision. XVIII. No Waiver. The failure of either party to this Agreement to insist upon the performance of any of the terms and conditions of this Agreement, or the waiver of any breach of any of the terms and conditions of this Agreement, shall not be construed as subsequently waiving any such terms and conditions, but the same shall continue and remain in full force and effect as if no such forbearance or waiver had occurred. XIX. Governing Law. This Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of __________________ (name of state). XX. Notices. Unless provided herein to the contrary, any notice provided for or concerning this Agreement shall be in writing and shall be deemed sufficiently given when sent by certified or registered mail if sent to the respective address of each party as set forth at the beginning of this Agreement. XXI. Mandatory Arbitration . Any dispute under this Agreement shall be required to be resolved by binding arbitration of the parties hereto. If the parties cannot agree on an arbitrator, each party shall select one arbitrator and both arbitrators shall then select a third. The third arbitrator so selected shall arbitrate said dispute. The arbitration shall be governed by the rules of the American Arbitration Association then in force and effect. XXI. Entire Agreement . This Agreement shall constitute the entire agreement between the parties and any prior understanding or representation of any kind preceding the date of this Agreement shall not be binding upon either party except to the extent incorporated in this Agreement. XXII. Modification of Agreement. Any modification of this Agreement or additional obligation assumed by either party in connection with this Agreement shall be binding only if placed in writing and signed by each party or an authorized representative of each party. XXIII. Assignment of Rights. The rights of each party under this Agreement are personal to that party and may not be assigned or transferred to any other person, firm, corporation, or other entity without the prior, express, and written consent of the other party. XXIV. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which together shall constitute but one and the same instrument. XXV. Compliance with Laws. In performing under this Agreement, all applicable governmental laws, regulations, orders, and other rules of duly-constituted authority will be followed and complied with in all respects by both parties. WITNESS our signatures as of the day and date first above stated. _____________________________ ACME, INC. ______________________ By__________________________ _____________________________ (Signature of Officer) _____________________________ (Name and Office in Corporation)