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CONFIDENTIAL SEPARATION AGREEMENT AND GENERAL RELEASE This Confidential Separation Agreement and General Release (Agreement) isentered into between Legalese, Inc., together with its existing and futuredirect
CONFIDENTIAL SEPARATION AGREEMENT AND GENERAL RELEASE
This Confidential Separation Agreement and General Release ("Agreement") isentered into between Legalese, Inc., together with its existing and futuredirect and indirect subsidiaries and controlled affiliates ("the Company"), andOutuva Job("Employee") (collectively, the "Parties").
The Parties agree as follows:
1. Separation of Employment. Employee hereby acknowledges thatEmployee's employment with the Company is terminated effectiveApril 15, 2020(the "Separation Date").The Company will pay Employee all accrued wages earned plus accrued but unused paid time off, through and including the Separation Date, less applicable holdings, in accordance with theCompany's regular payroll practices. Employee shall continue to receive suchcoverage through May 31, 2020. Except as expressly provided in this Agreement, Employee will not receive any additional compensation, bonus, severance, commissions, equity or other benefits after the Separation Date from the Company.
2. Consideration to Employee. Pursuant to this Agreement, Employee is receiving certain severance and other benefits to which Employee would not otherwise be entitled. In exchange for promises by Employee in this Agreement, including but not limited to a release of claims and promise of confidentiality, then Company shall provide to Employee:
a. Severance Payment. Employee shall receive Severance Pay in the total gross amount of $25,000(the "Severance Payment"), lessapplicable taxes and withholdings.
b. Other Compensation or Benefits. The Company will not oppose any application for unemployment insurance, although the Company will respond truthfully to any inquiries relating to such application.
3. Release. In exchange for the consideration described in Section 2 above,Employee and Employee's representatives, heirs, successors and assignscompletely release and forever discharge the Company and any present or past Company affiliates, and its and their present and former shareholders, officers, directors, members, agents, employees, attorneys, insurers, employee benefit plans and their administrators, successors, and assigns (collectively,"Released Parties") from all claims, rights, demands, actions, obligations, andliabilities of every kind, known or unknown, which Employee may now have
or has ever had up through the date Employee signs this Agreement. This release of claims includes, but is not limited to, all claims arising out ofEmployee's employment with the Company and the termination of thatemployment, whether based on tort, contract (expressed or implied), or anyfederal, state, or local law, regulation or ordinance (collectively, "ReleasedClaims"). By way of example only, Released Claims include any claims arisingunder Title VII of the Civil Rights Act of 1964, the Age Discrimination inEmployment Act ("ADEA"), the Family and Medical Leave Act, the Civil RightsAct of 1991, the Equal Pay Act, the Occupational Safety and Health Act, the Americans with Disabilities Act, the Uniformed Services Employment and Reemployment Rights Act, and any other federal, state or local statute, regulation or ordinance governing the employment relationship. This release further includes any claims asserting negligent or intentional infliction of emotional distress, negligent or intentional misrepresentation, negligent or intentional interference with contract or prospective economic advantage, fraud, defamation, invasion of privacy, claims related to disability, any and all claims for wages, commissions, compensation, reimbursement, disbursements, bonuses, benefits, vacation, penalties and any other claims arising under or related to employment laws or regulations.
4. Waiver of Unknown Claims. The Parties understand and agree the Release in Section 3 includes not only claims presently known to Employee, but also all unknown or unanticipated claims, rights, demands, actions, obligations, and liabilities of every kind that are covered by the Release. Employee understands that Employee may later discover facts different from what Employee now believes to be true, which, if known, couldhave materially affected Employee's decision to sign this Agreement, but Employee nevertheless waives any claims or rights based on such different or additional facts.
5. No Claims Filed; Covenant Not to Sue. Employee affirms that Employee has not filed nor caused to be filed, and is not presently a party to, any lawsuits or arbitrations against any Released Party in any forum. Employee also promises not to sue or participate in any lawsuit against the Company or any other Released Party, either individually or as a class member or a claimant in a collective action, alleging any claim covered by the Release in Section 3 above. However, nothing in this Section 5 prevents Employee from filing a suit to (i) enforce this agreement, and (ii) challenge its validity under the ADEA. Consequences of breaching this Section 5 are described below under Effect of Breach.
6. Release Exclusions and Additional Employee Protections. Released Claimsdo not include: Employee's rights to any vested retirement benefits or otheraccrued benefit to which Employee is already entitled; claims for workers' orunemployment compensation; claims that arise after the date Employee signs this Agreement; claims to enforce this Agreement; and any other claims that cannot lawfully be waived. In addition, nothing in any part of this Agreementlimits Employee's rights to: file a charge with, provide information to, orparticipate in an investigation or proceeding conducted by any federal, state or local government agency responsible for enforcing any law; report possible violations of any law or regulation to any such agency; or make other disclosures protected under whistleblower provisions of any law or regulation.
7. Employee Representations. Employee represents and warrants that s/he has: (i) been paid all compensation owed (including, but not limited to, overtime and bonus compensation) for all hours worked; (ii) received all the leave and leave benefits and protections for which Employee was eligible, under the Family and Medical Leave Act or otherwise; and (iii) not suffered any on-the-job injury for which Employee has not already filed a claim. In addition, it is Company policy to encourage reporting within the Company allpossible violations of any law, and no one has interfered with Employee'sreporting of any such violations.
8. Confidentiality. Employee agrees that this Agreement is confidential and shall never be disclosed by Employee to anyone except: (i) as may be requiredby law; and (ii) to Employee's spouse, attorney and/or tax and financialadvisors, provided any of them first agrees to keep this information confidential. Employee also agrees that a disclosure by any of them to anyone would be a disclosure by Employee. If Employee is compelled by subpoena or court order to disclose this Agreement or its contents, then before such disclosure Employee will immediately provide the Company a copy of such judicial order or subpoena, by overnight delivery and e-mail. Employee agrees to provide the Company 7 business days to intervene (to assert what rights it may have to prevent disclosure) before responding to the order or subpoena.
9. Cooperation. Employee shall cooperate fully with the Company in connection with: (a) any defense, prosecution, or investigation of claims or demands by or against third parties; or (b) other matters arising from orrelated to events during Employee's employment by the Company. Such
cooperation includes, without limitation, being available to the Company upon reasonable notice, without subpoena, to provide truthful and accurate information in witness interviews plus deposition and trial testimony.
10. Post-Employment Commitments.
a. Confidentiality Covenant. Employee will never, directly or indirectlyuse or disclose any Company Confidential Information. "Confidential Information" means allinformation, written (whether generated or stored on magnetic, digital, photographic or other media) or oral, notgenerally known, or proprietary to the Company about the Company'sbusinesses, affairs, operations, products, services, customer and carrier lists, pricing strategies, operating processes, business methods and procedures, information technology and information-gathering techniques and methods, business plans, financial affairs, and all other accumulated data, listings, or similar recorded matter useful in Company businesses, including by way of illustration only:
- information about the Company's business, affairs or operationdeveloped by Employee or furnished to Employee by the Companyduring Employee's employment, or about customers, carriers,vendors and others with whom the Company does business (e.g. customer, carrier or vendor lists, pricing, contracts, and activity records);
- operating instructions, training manuals, procedures, and similar information;
- information regarding the skills andcompensation of the Company'semployees or contractors;
- information about sales and marketing (e.g., plans and strategies);
- information about any other third parties the Company has a
- business relationship with or owes a duty of confidentiality; and
- all notes, observations, data, analyses, compilations, forecasts,
- studies or other documents prepared by Employee that contain or reflect any Confidential Information.
- However, the Company expressly acknowledges and agrees that"Confidential Information" excludes information which (A) is in the public domain or otherwise generally known to the trade, or (B) isdisclosed to third parties other than by reason of Employee's breach of this Agreement's confidentiality obligations, or (C) is learned of by theEmployee after the termination of Employee's employment from any
other party not then under an obligation of confidentiality to the Company.
b. Ownership of Intellectual Property. All "Work Product' (as that termis defined below) created in whole or in part by Employee whileemployed by the Company is the Company's exclusive property.Accordingly, all Work Product eligible for any form of copyright protection made or contributed to in whole or in part by Employeewithin the scope of Employee's employment while so employed shall bedeemed a "work made for hire" under the copyright laws and shall beowned by the Company, and that the Company may sell, use, copy, reproduce, display, perform or alter that work product as it sees fit, without any further right or claim by or remuneration to the Employee. To that end, Employee hereby assigns, transfers and conveys to theCompany, all of Employee's "Proprietary Rights" (as that term is defined in below) in all Work Product for the Company's exclusive ownershipand use, together with all rights to sue and recover for past and future infringement or misappropriation thereof. In addition, at theCompany's request, Employee shall promptly and fully assist theCompany in effecting the above assignment, including but not limited to further acts of executing any and all documents necessary for the Company to secure its Proprietary Rights in all such Work Product.
EMPLOYEE IS HEREBY ADVISED, HOWEVER, THAT THE ABOVE PROVISIONS DO NOT APPLY TO any invention (i) for which no Company equipment, supplies, facilities or Confidential Information were used,and (ii) developed entirely on Employee's own time, unless the invention relates to the Company's businesses or any actual ordemonstrably anticipated research or development, or results from anywork performed by Employee for the Company. "Proprietary Rights"means all right, title and interest regarding all inventions, ideas, improvements, designs, processes, trademarks, service marks, trade names, trade secrets, trade dress, data, discoveries, Work Product, andany other proprietary assets or rights. "Work Product' means all worksof authorship, research, discoveries, inventions and innovations (whether or not reduced to practice or documented), improvements, developments, methods, designs, analyses, drawings, reports and all similar or related information (whether patentable or un-patentable, and whether or not reduced to writing), trade secrets and Confidential Information, copyrightable works, and similar and related information
(in any form or medium). As examples, this definition applies toanything to do with the Company's actual or anticipated business,research and development or existing or future products or services. It applies to results from any work performed by Employee for the Company. It also applies to anything conceived, developed, made or contributed to in whole or in part by Employee while employed by the Company.
c. Covenant Not to Interfere WithCompany's Employees and Others. For two years after separation, Employee will not, in any way, directly or indirectly, solicit, recruit, hire or interfere with (or try to solicit, recruit, hire or interfere with) (i) any of its employees or (ii) any of its independent contractors
d.Covenant Not to Solicit Company's Restricted Customers and Carriers.
i. Agreement Not to Solicit. For two years after separation, Employee will not for any reason, either directly or indirectly, call on, contact, solicit or otherwise take away or disrupt, or attempt to call on, contact, solicit or otherwise take away or disrupt, theCompany's relationship with or business expectancy from anyCompany customer or carrier on whose account Employee worked or with whom Employee had regular contact.
ii.Employee's Acknowledgement of the Legitimacy, Reasonableness and Fairness of Employee's Non-Solicit Covenant To Company. Employee acknowledges that (i) in the course ofperforming Employee's duties as an employee, Employee hadaccess to, and was regularly exposed to, and in some cases generated and controlled, trade secrets and Confidential Information which are sensitive, and competitively valuable information about the Company; (ii) the Company has developed its trade secrets and Confidential Information throughconsiderable time, effort and expense; (iii) the Company'srelationships with its customers, carriers, vendors, suppliers, business partners and employees, as well its trade secrets and Confidential Information, constitute valuable and legitimateprotectable Company business interests; (iv) Employee's Non-
Solicit Covenant is reasonable and necessary to protect those interests, its trade secrets and Confidential Information and itsgoodwill; and (v) Employee's compliance with his/her Non-Solicit Covenant after Employee terminates will not prevent Employee from earning a livelihood in a business, but, in any event,Employee's experience and capabilities mean Employee will haveother opportunities to earn a livelihood and adequate means of support for Employee and his/her dependents.
e. Remedies; Injunctions for Breaches of this Section 10. Employee has considered all covenants in this Section 10 and stipulates that those covenants are reasonable and necessary to protect the Company and its trade secrets and Confidential Information, business strategies, employee and customer relationships and goodwill, now existing or to be developed in the future. Employee hereby agrees: (i) to comply with all Section 10 covenants, (ii) injunctive relief would be the most practical and efficient remedy for the Company in the event ofEmployee's breach; and (iii) the Company, without having to post bondor prove a lack of an adequate remedy at law, shall be entitled to injunctive relief against any Employee breach of this Section 10. TheCompany shall be entitled to its attorneys' fees and costs for any actions brought to enforce Employee's Section 10 covenant obligations.
11. Nondisparagement. Employee will not disparage the Company, or its officers, directors, employees, shareholders or agents, in any manner likely to be harmful to its or their business, business reputation, or personal reputation, whether orally, in writing, or through electronic means such as social media websites, blog posts or emails; provided, however, that Employee may respond accurately and fully to any inquiry or request for information when required by legal process.
12. Non-Admission. This Agreement is intended to facilitate an amicableseparation of Employee's employment with the Company and is not intended and shall not be construed as an admission of wrongdoing by either Party.
13. Effect of Breach; Forfeiture of Payments. If Employee breaches any provision of this Agreement, the Company's obligations to provide Employeethe Severance Payment above shall cease immediately, and Employee will be required to repay to the Company all of the Severance Payment received by Employee. Alternatively, the Company may at its option forego the remedy
above and instead require Employee to pay the Company $200 for each provable infraction.
14. Time to Consult, Consider and Revoke. By this Agreement, Employee has been advised to consult with an attorney before signing this Agreement. Employee has had the opportunity to consider this Agreement for at least twenty-one (21) days before signing this Agreement, although Employee may choose to sign it sooner. However, employee must not sign this agreement before his/her separation date.
Employee has seven (7) days in which to revoke the Agreement after signing it if Employee wishes
(the "Revocation Period"). This Agreement shall become enforceable on theeighth day after Employee signs and returns this Agreement, provided Employee does not revoke it (the "Effective Date").
15. Integration. Employee acknowledges that this Agreement constitutes the entire agreement between the Parties pertaining to the subject matter hereof, and supersedes any other agreements and understandings among Employee, the Company and any other Released Party, whether written or oral, expressor implied, regarding Employee's employment, termination and benefits.Employee has not relied on any statement or promises by anyone other than those contained in this Agreement and has entered into this Agreement knowingly without reliance upon any other representation, promise, or inducement not set forth herein.
16. Transfer of Claims. Employee has not assigned, transferred, or purported to assign or transfer to any person or entity any claims released under Section 3 above. Employee agrees to indemnify and hold the Released Parties harmless against all rights, claims, warranties, demands, debts, obligations,liabilities, costs, legal costs (including attorneys' fees) or judgments based on or arising out of any such assignment or transfer. Employee further warrants that nothing prohibits Employee from entering into this Agreement.
17. Binding Effect. This Agreement shall bind and inure to the benefit of theParties' representatives, agents, successors, assigns, heirs, attorneys, current and future affiliates, and predecessors, as well as any Released Party. This Agreement shall not benefit any other person or entity except as specified in this Agreement.
18. Severability. Should a court of competent jurisdiction hold that any specific provisions in this Agreement are invalid, void or unenforceable, the remaining provisions shall continue in full force.
HOWEVER, EMPLOYEE MUST NOT SIGN THIS
AGREEMENT BEFORE HIS/HER SEPARATION DATE.
19. Governing Law, Interpretation, Jurisdiction and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to its choice of law principles. This Agreement shall be construed as a whole, according to its fair meaning, and not in favor of or against any Party for any reason. Any and all disputes between the parties arising from or related to this Agreement shall be exclusively heard and determined before a federal or state court located in the state where Employee worked immediately before the Separation Date. The parties hereto acknowledge that such court has the jurisdiction to interpret and enforce the provisions of the Agreement and the parties waive any and all objections that they may have as to personal jurisdiction or venue in any of the above courts.
20. No Waiver. No waiver of any claim for breach or other rights for any provision of this Agreement shall be deemed a broader waiver as to any other provisions of this Agreement unless the broader waiver is acknowledged in a writing executed by the waiving Party.
21. Headings. Headings in this Agreement are for reference purposes only andshall not in any way affect the Agreement's meaning or interpretation.
Agreed:
Legalese, Inc. _______________________________________ Date __________________ Outuva Job _________________________________________ Date __________________
Questions:
- Who are the parties to this Agreement?
- Do you find the elements of a contract in this document? Be clear about what constitutes offer, acceptance and consideration here.
- Are there any issues with possible voidability that are addressed or anticipated in this contract? Think about the ones we have discussed.
- Do you see Assignment of Rights anywhere in this agreement, even if it's not specifically called that but has that same effect?
- Why does the Release language extend to all those individuals rather than just staying with the original two parties?
- Paragraph 6 - why is this language important? And does any of it provide a protection against being challenged as being void due to illegal provisions or for any other reason?
- Do you see Intellectual Property referenced in this agreement? If so, where?
- Specifically, where you see Trade Secrets referenced in this agreement, does the provision adequately protect against loss of any Trade Secrets?
- Where you see Copyright referenced, what is the purpose of the language of that provision?
- What is the importance of Paragraph 10e?
- Is Paragraph 11 ok even with Freedom of Speech rights? Why or why not?
- How can the company do what it says it will do in Paragraph 13 with regard to the Severance Payment? And if the company elects to have the Employee pay $200 for any violations of the promises under the agreement, what kind of damages would that money be?
- Why is there a recommendation to consult with an attorney in Paragraph 14 in terms of what we have studied under contracts law?
- Why is the highlighted language in Paragraph 14 important? (This is a hard one to figure out.)
- Why is Paragraph 15 important?
- Explain the importance of Paragraph 16.
- Why is Paragraph 18 important?
- Explain the importance of Paragraph 19 for enforcement of this Agreement.
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