Separation Agreement and General Release

SEPARATION AGREEMENT AND GENERAL RELEASE

This Separation Agreement and General Release ("Agreement") is entered into between [Company Name], a [State of Incorporation or Location] [Type of Entity] [and its parent corporation, affiliates, and subsidiaries] (collectively, the "Company"), and [Employee Name] ("Employee") (the Company and Employee collectively referred to as the "Parties") as of [Date] (the "Effective Date").  The terms of this Agreement are the product of mutual negotiation and compromise between Company and Employee. 

1. Separation Date  

Employee’s last day of employment with Company is [Last Day of Employment] ("Separation Date").   

2. Final Payment of Wages  

Employee will receive all of Employee’s unpaid wages in accordance with [State] law, [including but not limited to __ days of accrued unused vacation days [PTO]], through the Separation Date.  All payments will be subject to applicable deductions and withholdings required by law and paid [Date and Method of Payment].         

3. Benefits and COBRA Coverage  

Employee’s [family medical, dental, and vision] insurance will terminate on [End Date of Coverage].  Except as otherwise set forth below, all other benefits from [Employer], including any [Life Insurance or Accidental Death and Dismemberment insurance], will cease on the Separation Date.  [Stock Options]

Employee will be provided with all requisite paperwork, pursuant to the Consolidated Omnibus Budget Reconciliation Act ("COBRA"), necessary to elect continued group health insurance coverage at Employee’s expense.  Employee’s eligibility for COBRA will begin on [COBRA Effective Date].    

4. Return of Property

By the Separation Date, Employee must return all [Company Name] property, including identification cards or badges, access codes or devices, keys, laptops, computers, telephones, mobile phones, hand-held electronic devices, credit cards, electronically stored documents or files, physical files and any other [Company Name] property and information in Employee’s possession or control, any other materials of any nature pertaining to Employee’s work, and any documents or data of any description (or any reproduction of any documents or data) containing or pertaining to any proprietary or confidential material of [Company Name]. [Employee hereby represents that he/she has, as of the date of this Agreement, returned all [Company Name] property identified above.]

5.  Separation/Severance Benefits

In consideration for the Employee's execution, non-revocation of, and compliance with this Agreement, including the waiver and release of claims in Section 6, Company agrees to provide the following benefits ("Separation Benefits") to Employee:

(a) [Dollar Amount], less applicable taxes and withholdings, which represents [_____ (_) weeks and __ days of base salary] ("Separation Payment").  The Separation Payment shall be paid to Employee within [Date and Method of Payment].

(b) [Other Benefits]

(c) [Other Benefits]

Employee agrees and understands that the Separation Benefits are in addition to those benefits to which Employee otherwise would be entitled to receive upon separation from employment, and that Company is not otherwise obligated to pay Employee the Separation Benefits but for Employee’s execution of, compliance with and non-revocation of any provisions of, this Agreement. Employee further acknowledges no entitlement to any additional payment or consideration not specifically referenced in this Agreement.

6. General Release of Claims.   

(a) General Release and Waiver of Claims. In consideration for the Separation Benefits provided in this Agreement, Employee releases and forever discharges Company and its affiliates, subsidiaries, parents, predecessors, successors,  assigns, and their current and former employees, officers, directors, shareholders, agents, attorneys, and insurers, both individually and in their business capacities, and their benefit plans and programs and their administrators and fiduciaries (collectively referred to throughout the remainder of this Agreement as "Releasees") of and from any and all claims, demands, and causes of action, obligations, judgments, rights, fees, damages, debts, obligations, liabilities, and expenses (inclusive of attorneys' fees) of any kind whatsoever (collectively, "Claims"), whether known or unknown, asserted or unasserted, which Employee has or may have against Releasees as of the date of Employee’s execution of this Agreement, including but not limited to, any alleged violation of:   

• Title VII of the Civil Rights Act of 1964; 
• Sections 1981 through 1988 of Title 42 of the United States Code; 
• The Employee Retirement Income Security Act of 1974 ("ERISA") (except for any vested benefits under any tax-qualified benefit plan); 
• The Immigration Reform and Control Act; 
• The Americans with Disabilities Act of 1990; 
• The Age Discrimination in Employment Act of 1967 ("ADEA") 
• The Worker Adjustment and Retraining Notification Act; 
• The Fair Credit Reporting Act; 
• The Family and Medical Leave Act; 
• The Equal Pay Act; 
• The Genetic Non-Discrimination Act of 2008; 
• [Applicable State laws] 
• Any other federal, state, or local law, rule, regulation, or ordinance that legally may be released; 
• Any public policy, contract (express and implied), tort, or common law, including but not limited to claims of breach of an expressed or implied contract, tortious interference with contract or prospective business advantage, breach of the covenant of good faith and fair dealing, promissory estoppel, detrimental reliance, invasion of privacy, nonphysical injury, personal injury or sickness or any other harm, wrongful or retaliatory discharge, fraud, defamation, slander, libel, false imprisonment, or negligent or intentional infliction of emotional distress; or 
• Any basis for recovering costs, fees, or other expenses including attorneys’ fees incurred in these matters. 

(b) Claims Not Released.  Employee is not waiving any rights Employee may have to: (a) Employee’s own vested accrued employee benefits under Company’s health, welfare, or retirement benefit plans as of the Separation Date; (b) benefits and/or the right to seek benefits under applicable workers’ compensation and/or unemployment compensation statutes; (c) pursue claims which by law cannot be waived by signing this Agreement; (d) enforce this Agreement; and/or (e) challenge the validity of this Agreement. 

(c) Governmental Agencies. Nothing in this Agreement prohibits or prevents Employee from filing a charge with or participating, testifying, or assisting in any investigation, hearing, or other proceeding before any federal, state, or local government agency.  However, to the maximum extent permitted by law, Employee agrees that if such an administrative claim is made, Employee shall not be entitled to recover any individual monetary relief or other individual remedies. 

(d) Collective/Class Action Waiver. If any claim is not subject to release, to the extent permitted by law, Employee waives any right or ability to be a class or collective action representative or to otherwise participate in any putative or certified class, collective, or multi-party action or proceeding based on such a claim in which a Company or any other Releasee identified in this Agreement is a party. 

[7. Release of ADEA Claims  

Employee acknowledges that Employee is waiving any and all claims Employee may have pursuant to the Age Discrimination in Employment Act ("ADEA") relating to Employee’s employment with Company.  Employee further acknowledges and agrees that Employee has at least twenty-one (21) days to consider whether Employee should agree to release claims, if any, under the ADEA.  Employee further understands that Employee may revoke his/her waiver of ADEA claims within seven (7) days following his/her execution of this Agreement.  Any revocation within this period must be submitted, in person or in writing, to [Contact Person and Contact information].  To be effective, the revocation must be personally delivered or postmarked within seven (7) calendar days after Employee signs this Agreement.  Employee also acknowledges that Employee has been advised to consult with counsel related to the waiver of claims pursuant to the ADEA and that Employee has consulted with counsel or has waived the right to do so.  Provided that Employee does not revoke this Agreement, it shall become effective and enforceable on the eighth (8th) day after Employee executes the Agreement.]       

[8. Unemployment Benefits And References] 

9. Continuing Obligations Under Prior Agreements. 

Employee has signed the attached [Confidentially and Proprietary Rights Agreement/Non-Compete Agreement/ etc.] (collectively, "Prior Agreements).  The Prior Agreements remain enforceable and binding and remain in full force and effect in accordance with their terms, and Employee agrees to comply with the terms of these Prior Agreements.  Breach of the Prior Agreements by Employee shall be considered a breach of this Agreement. 

10.  Non-Disparagement  

Employee promises and agrees that [he/she] shall not at any time make, publish, or communicate to any person or entity or in any public forum any defamatory or disparaging remarks, comments, or statements concerning the Company or its businesses, or any of its employees or officers. This section does not, in any way, restrict or impede Employee from exercising protected rights (for example, rights under the National Labor Relations Act (NLRA)) to the extent that such rights cannot be waived by agreement, or from complying with any applicable law or regulation or a valid order of a court of competent jurisdiction or an authorized government agency.

11.  Additional Terms

(a) Employee Representation.  Employee represents that (i) Employee has not filed, commenced, or in any other way participated in the bringing of an action, proceeding, or claim of any kind, judicial, administrative, or otherwise, against Releasees relating to Employee’s employment with Company, (ii) that Employee is not aware of any lawsuit, claim, or demand, or of any threat of a lawsuit, claim, or demand, or of any facts or circumstances that could give rise to a lawsuit, claim, or demand against Employee or Releasees arising from or relating to Employee’s actions or omissions during Employee’s employment at Company. 

(b) Employee Affirmation.  Employee affirms that Employee has been paid and/or has received all compensation, wages, bonuses, commissions, and/or benefits to which Employee may be entitled.  

(c) No Admission of Liability. Employee agrees that this Agreement shall not be deemed or construed at any time for any purpose as an admission by the Company of any liability, wrongdoing, or unlawful conduct of any kind.

(d) Attorney Consultation and Fees. Employee acknowledges and confirm that Company has encouraged Employee to consult an attorney, that Employee has had the opportunity to consult with an attorney prior to executing this Agreement, and that Employee either consulted with an attorney or waived the right to do so.  Employee further agrees that any fees and expenses of Employee’s attorney[s] will be Employee’s sole responsibility. 

(e) Time for Signing and Revocation of Agreement. [Employee confirms that it had the opportunity to consider this Agreement for a period of up to twenty-one (21) days.  Employee further understands that Employee may revoke this Agreement at any time during the seven (7) days following the date of Employee’s execution of this Agreement by giving written notice of revocation within this period, in person or in writing, to [Contact Person and Contact information].  Employee understands that this Agreement shall not become effective or enforceable until the seven (7) day revocation period has expired.  If Employee does not revoke this Agreement during the seven (7) day revocation period, the eighth (8th) day following the date of your execution of this Agreement shall be the date when this Agreement becomes effective and enforceable.]

(f) Acceptance. To constitute a legally binding acceptance of this Agreement by Employee, it must be executed by Employee on or after the Separation Date.

(g) Counterparts.  This Agreement may be executed in separate counterparts and by facsimile, and each such counterpart will be deemed an original with the same effect as if the Parties had signed the same document.

(h) Assignment of Rights.  Each of the Parties hereto represents and warrants that it has the power and authority to enter into this Agreement and that it has not assigned or otherwise conveyed, or attempted to convey, any of the rights released herein.  

(i) Successors.  This Agreement shall be binding upon and inure to the benefit of each Party to this instrument, and to all employees, agents, servants, insurers, legatees, attorneys, predecessors, successors, assigns heirs, executors, parents, officers, directors, shareholders, and joint venturers of each Party to this Agreement.  

(j) Agreement Not To Be Construed Against Any Party.  Each Party acknowledges that it has participated in the drafting and preparation of this Agreement, and hence no rule of construction may be used to construe this Agreement against any Party by virtue of that Party’s role in drafting this Agreement. 

(k) Captions and Headings. Captions and headings of the sections and paragraphs of this Agreement are intended solely for convenience, and no provision of this Agreement is to be construed by reference to the caption or heading of any section or paragraph.

(l) Consequences of Breach.  Employee and the Company agree that if either party breaches any provisions in this Agreement, the prevailing party will be entitled to recover its reasonable attorney’s fees and costs in any lawsuit or action brought to enforce this Agreement. 

(m) Governing Law/Severability.  This Agreement shall be governed and conformed in accordance with the laws of the State of [State] without regard to its conflict of laws provision.  In the event of a breach of any provision of this Agreement, either party may institute an action specifically to enforce any term or terms of this Agreement and/or to seek any damages for breach.  Should any provision of this Agreement be declared illegal or unenforceable by any court of competent jurisdiction and cannot be modified to be enforceable, excluding the general release language, such provision shall immediately become null and void, leaving the remainder of this Agreement in full force and effect.

[(n) Section 409A.] 

12.  Complete Agreement 

This Agreement contains the complete agreement of the Parties relating to the Employee’s separation from employment and the subject matter of this Agreement, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, between the Parties, except as provided in section [9] of this Agreement.  The Parties further understand and agree that this Agreement can be amended or modified only by a written agreement, duly signed and executed by both Parties.

13.  Employee Acknowledgment

EMPLOYEE IS ADVISED TO CONSULT WITH AN ATTORNEY PRIOR TO SIGNING THIS AGREEMENT. EMPLOYEE ACKNOWLEDGES AND AGREES THAT employee HAS FULLY READ and UNDERSTANDS the agreement’s binding legal effect.  EMPLOYEE further ACKNOWLEDGES AND AGREES THAT employee has had a reasonable period of time to consider all of the terms and provisions, and HAS HAD AN OPPORTUNITY TO ASK QUESTIONS AND CONSULT WITH AN ATTORNEY OF employee’s CHOICE BEFORE SIGNING THIS AGREEMENT.  EMPLOYEE FURTHER ACKNOWLEDGES that employee is signing this agreement freely and voluntarily and THAT employee’s SIGNATURE BELOW IS AN AGREEMENT TOWAIVE, SETTLE, AND RELEASE ALL CLAIMS EMPLOYEE HAS OR MIGHT HAVE AGAINST THE COMPANY AND THE RELEASEES, EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED in the agreement. 

[EMPLOYEE understands THAT EMPLOYEE HAS UP TO [TWENTY-ONE (21)] CALENDAR DAYS TO CONSIDER THIS AGREEMENT.  EMPLOYEE MAY REVOKE THIS AGREEMENT FOR A PERIOD OF SEVEN (7) CALENDAR DAYS FOLLOWING THE DAY EMPLOYEE SIGNS THIS AGREEMENT.  ANY REVOCATION WITHIN THIS PERIOD MUST BE SUBMITTED PURSUANT TO section 11(e) OF THis AGREEMENT.  EMPLOYEE AGREES THAT ANY MODIFICATIONS, MATERIAL OR OTHERWISE, MADE TO THIS AGREEMENT, DO NOT RESTART OR AFFECT IN ANY MANNER THE ORIGINAL UP TO TWENTY-ONE (21) CALENDAR DAY CONSIDERATION PERIOD.]  

AGREED:

This form has been prepared for general informational purposes only. It does not constitute legal advice, advertising, a solicitation, or tax advice. Transmission of this form and the information contained herein is not intended to create, and receipt thereof does not constitute formation of, an attorney-client relationship. You should not rely upon this document or information for any purpose without seeking legal advice from an appropriately licensed attorney including, without limitation, an attorney to review and provide advice on the terms of this form and other legal issues contemplated by this form or applicable law.