SEPARATION AND INDEPENDENT CONTRACTOR AGREEMENT

Transcription

1 SEPARATION AND INDEPENDENT CONTRACTOR AGREEMENT This Separation and Independent Contractor Agreement (herein Agreement ), is entered into as of the dates written below by and between Jane Doe ( Ms. Doe ), who resides at 12 Any Road, Anytown, NY and the ACME Association ( ACME ), located at 123 Any Street, Anytown, NY 12345, who are collectively referred to herein as the Parties. WHEREAS, the Parties have agreed that Ms. Doe s employment with ACME shall end as of [date]; WHEREAS, ACME shall provide to Ms. Doe certain compensation and severance benefits as set forth herein; WHEREAS, ACME desires to retain Ms. Doe, and Ms. Doe desires to be retained, as an independent contractor, and not as an employee, by ACME following the termination of her employment upon the terms and conditions set forth herein. In consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows: 1. Termination of Employment. The Parties agrees that Ms. Doe s employment with ACME shall end as of [date]. While employed, Ms. Doe will continue to receive her regular base salary at a rate of [ ] Dollars ($ ) per annum, less all applicable deductions and withholdings, and will continue to receive all benefits on the same terms and conditions as existed prior to this Agreement. 2. Severance Payments and Benefits. a. Salary Continuation. For a period of ( ) months following the termination of Ms. Doe s employment, ACME shall continue to pay her salary at a rate of [ ] Dollars ($ ) per annum. Payments shall be made in accordance with ACME s regular payroll cycle and shall be subject to all applicable deductions and withholdings. The first salary continuation payment shall also include payment for Ms. Doe s accrued but unused vacation remaining on her last date of employment. b. Bonus. ACME shall pay to Ms. Doe s 100% of her Target Bonus as accrued through [date]. This target bonus represents % of Ms. Doe s annualized base pay rate of $ totaling $ ($ for the fiscal year ending [date] plus

2 $ for the month of [date]). The bonus shall be paid out on or about [date] and shall be subject to all applicable deductions and withholdings. c. Benefits. ACME shall provide Ms. Doe with continued health and dental insurance coverage, or the employer's and employee's share of COBRA premiums to continue same, until [date], or until Ms. Doe becomes eligible to receive similar benefits from a subsequent employer, whichever occurs earlier. ACME shall provide Ms Doe with continued life and disability insurance coverage through [date]. d. Career Transition Services. ACME will provide Ms. Doe with up to $ in career transition services with an outplacement agency selected by Ms. Doe. The outplacement agency will invoice ACME directly for these services. e. Ownership of Computers, Cell Phone, and Blackberry. The Parties agree that Ms. Doe will be entitled to take ownership of the ACME desktop and laptop computers, cell phone, and blackberry that she utilized while employed by ACME. Ms. Doe agrees that, prior to her taking ownership of these items, ACME shall have an opportunity to remove all ACME property from the same. 3. Engagement as Independent Contractor; Retainer and Rate Agreement. For the period beginning [date] and ending [date] (the "Consulting Period"), Ms. Doe agrees to provide fee-based consulting legal services ( Consulting Services ) for the ACME as an independent contractor upon request and at the general direction of ACME s President and CEO. Following the termination of her employment and in return for Ms. Doe s execution of the Amendment attached hereto, ACME agrees to provide to Ms. Doe a retainer payment of Dollars ($ ) (the Retainer ). The Retainer shall not be subject to deduction or withholding. For services provided to ACME, Ms. Doe shall bill at an hourly rate of $ per hour. The first forty (40) hours of Consulting Services shall be billed against the Retainer, and Ms. Doe shall submit a monthly report of hours worked and Retainer remaining. Once the Retainer is depleted, Ms. Doe shall invoice ACME on a monthly basis for hours worked performing Consulting Services. Ms. Doe shall bill to the nearest.25 hour for all time worked. Once the Consulting Period ends, Ms. Doe s obligation to provide Consulting Services will end. 4. No Right of Control. The Parties agree that neither the ACME, nor the ACME s agents, employees, or representatives, shall have any right to control or direct the details, manner or means by which Ms. Doe accomplishes the Consulting Services. Upon request by the ACME, during the Consulting Period Ms. Doe agrees to provide status meetings and reports concerning the status of Ms. Doe s performance of Consulting Services. 5. Independent Contractor Status During the Consulting Period. The Parties agree and acknowledge that, effective [date], Ms. Doe will be an independent contractor and not an employee of the ACME. From that time forward, Ms. Doe shall not have any authority to enter into agreements or contracts on behalf of the ACME, and shall not represent that she possesses any such authority. Nothing in this Agreement shall be construed in a manner which creates a partnership, joint venture or employment relationship between Ms. Doe and the ACME. Neither party shall be liable for the debts or obligations of the other. Ms. Doe shall not be deemed to be -2-

3 for any purpose, an employee of the ACME, and the ACME shall not in any way exercise domain or control over Ms. Doe s business. 6. No ACME Withholding or Responsibility for Taxes for Consulting Services. The ACME shall not withhold from Ms. Doe s Retainer or any hourly fees billed for Consulting Services any amount that would normally be withheld from an employee s pay, and Ms. Doe agrees to pay all federal, state and local taxes incurred and chargeable to her for fees paid for her rendering of Consulting Services. The ACME shall not be responsible to Ms. Doe, or any governing body, for any payroll-related taxes related to payments for Consulting Services. Ms. Doe further represents and warrants that she will file all required forms and necessary payments appropriate to Ms. Doe s tax status as an independent contractor and shall not claim any other status. Ms. Doe shall indemnify and hold the ACME harmless from all costs which the ACME may incur as a result of litigation determining a change of status, to the extent that Ms. Doe has receive financial benefit from such determination. In the event that Ms. Doe initiates a process to change her status for income tax purposes, Ms. Doe agrees to hold the ACME harmless from all costs, including legal fees, which the ACME may incur as a result of such change in status. 7. No Assignment. Ms. Doe may not assign this Agreement, and any assignment or attempted assignment of this Agreement (or any rights there under) by Ms. Doe shall be void and of no force and effect. 8. Termination of Engagement. The ACME and Ms. Doe agree that ACME may terminate the Consulting Period at any time, for any reason whatsoever, with or without cause, in ACME s sole discretion, on five (5) days written notice. It is expressly understood and agreed that regardless of the number of hours of Consulting Services performed or the date of termination thereof, Ms. Doe shall not be required to return any portion of the Retainer. a. In consideration of the Retainer and her engagement as an independent contractor, Ms. Doe hereby releases and discharges the ACME, all of its affiliates, members, successors and assigns, and all of its past and present officers, directors and employees (collectively, the Releasees ), from any and all claims, demands, damages, remedies, contracts (express or implied), causes of action, suits, fees, expenses and liabilities of any kind whatsoever, whether known or unknown, that Ms. Doe ever had or now has or may have against Releasees arising out of or resulting from Ms. Doe s employment or termination of employment with ACME or any of its affiliates or from any actual or alleged act or omission or other matter up to and including the date of this Agreement. This is a General Release. Ms. Doe expressly acknowledges that this General Release includes, but is not limited to, Ms. Doe s intent to release the ACME from any claim relating to her former employment at the ACME, including, but not limited to, tort and contract claims, statutory claims, compensation claims, and any claims under the Age Discrimination In Employment Act (29 U.S.C. 626 et seq., Title VII of the Civil Rights Acts of 1964 and 1991 as amended (42 U.S.C. 2000e et seq.), the Employee Retirement Income Security Act (29 U.S.C et seq.), the Americans With Disabilities Act (42 U.S.C et seq.), the Fair Labor Standards Act (29 U.S.C. 201 et seq.), the New York State Human Rights Law, the New York City Human Rights Law, the District of Release; Agreement Not to Sue.

4 Columbia Human Rights Act, or any other federal, state or local law or regulation pertaining to employment or pertaining to discrimination on the basis of age, alienage, race, color, creed, sex, national origin, religion, disability, marital status, citizenship, sexual orientation or any other protected category. b. Notwithstanding the foregoing, the general release of claims described above shall not apply to claims arising from: (i) Ms. Doe s rights to payments and benefits as described in this Agreement; or (ii) Ms. Doe s right to initiate an action against the ACME under the Older Workers Benefit Protection Act ( OWBPA ) challenging the release of her claims or her covenant not to file a claim or lawsuit under the ADEA. c. Ms. Doe represents and agrees that she has not instituted, prosecuted, filed, or processed any litigation or other claims or charges against the ACME or any other Releasee. Ms. Doe further agrees to refrain from instituting, prosecuting, filing, or processing or knowingly assisting with the instituting, prosecuting, filing, or processing of any litigation or other claims against the ACME or any other Releasee to the maximum extent permitted by law, in any way related to or arising out of any matter which arose on or before the date of this Agreement. Ms. Doe further covenants and agrees, to the maximum extent permitted by law, not to bring or cause to be brought any administrative proceeding, before any local, state or federal agency, in any arbitration and/or grievance proceeding, or any other forum, which is in any way related to her employment with or termination from the ACME or any other claim against ACME. The Parties agree that to the extent, if any, Ms. Doe may have a non-waivable right to file or participate in a claim or charge against the ACME, this Agreement shall not be intended to waive such a right. Ms. Doe agrees that she shall not obtain, and hereby waives her right to, any relief (legal, equitable, or other) from such a claim or charge whether the same be filed by her or on her behalf or by another. 10. Time for Consideration. Ms. Doe understands that she has twenty-one (21) days from her receipt of the Agreement to consider her decision to sign it. The signed Agreement should be returned to John Doe, Chief Financial Officer, 123 Any Street, Anytown, NY via facsimile ( ) or overnight mail. If Ms. Doe executes this Agreement before the expiration of the 21-day period, Ms. Doe waives the remainder of that period. Ms. Doe represents and agrees that she has been advised to consult with her own attorney before signing this Agreement and that she has been given an opportunity to do so. By signing this Agreement, Ms. Doe expressly acknowledges that her decision to sign the Agreement was of her own free will. 11. Revocation and Agreement s Effective Date. This Agreement may be revoked by Ms. Doe for up to and including seven (7) days from the date of her execution of this Agreement. Thus, the Effective Date of this Agreement shall be the eighth day after Ms. Doe has executed the same, and this Agreement shall not become enforceable until that time. Ms. Doe agrees that in the event of her revocation, she shall send a notice of revocation immediately by facsimile to (123) and certified mail to John Doe at the address identified in paragraph 10 above. 12. Cooperation with ACME. Ms. Doe will cooperate with ACME and/or its subsidiaries and affiliates and its/their counsel in connection with any investigation, -4-

5 administrative proceeding or litigation relating to any matter in which Ms. Doe s was involved or of which Ms. Doe has knowledge. Ms. Doe agrees that, in the event she is subpoenaed by any person or entity (including, but not limited to, any government agency) to give testimony (in a deposition, court proceeding or otherwise) which in any way relates to Ms. Doe employment with Releasees, to the extent permitted by law, she will give prompt notice of such request to John Doe, or his successor, and will make no disclosure until ACME has had a reasonable opportunity to contest the right of the requesting person or entity to such disclosure. 14. Non-Disparagement. Ms. Doe agrees that she shall make no negative or disparaging statements concerning, or take any action that derogates, ACME or the other Releasees identified in paragraph 9, their services, reputation, officers, staff, financial status or operations or that damages ACME or other Releasees professional or business relationships. ACME agrees that no ACME employee, who is a Vice President or above and/or an officer or Confidentiality. a. This Agreement. The terms and conditions of this Agreement are and shall be deemed to be confidential, and shall not be disclosed by Ms. Doe to any person or entity without the prior written consent of John Doe, or her successor, except if required by law or as necessary in an action to enforce this Agreement, or to Ms. Doe s accountants, attorneys or spouse, provided that they agree to maintain the confidentiality of this Agreement. Ms. Doe further represents that she has not disclosed the terms and conditions of this Agreement to anyone other than her spouse or to her attorneys or accountants for the purpose of attaining professional advice. b. ACME Information. Ms. Doe acknowledges and agrees that her prior employment has provided, and her subsequent engagement as an independent contractor will provide, access to and knowledge of non-public proprietary information ( Confidential Information ) of ACME, the ACME Board ( Board ), and members of ACME and/or Board. Ms. Doe agrees that she shall not, during the term of this Agreement or any time thereafter, directly or indirectly, on her own behalf or on behalf of any other person or entity, use for her own purpose or disclose or disseminate any Confidential Information, excepts as may be required by law or in the performance of her employment or the Consulting Services. Ms. Doe agrees that she will comply with any confidentiality obligations of ACME or Board to a third party, whether under agreement or otherwise. For purposes of this Agreement, Confidential Information is defined as all information relating to the business affairs of ACME or Board, its member organizations, information which relates to ACME, Board, and/or its members actual or anticipated products, software, research, inventions, processes, techniques, designs or other technical data; information regarding administrative, legal, financial or marketing activities of ACME, Board and/or its members; information received from ACME, Board and/or its members clients and other third parties; and any materials, documents or ACME software containing any of the above information. Notwithstanding the foregoing, Confidential Information shall be deemed not to include information which is or becomes generally available to the public other than a result of disclosure by Ms. Doe or any person who directly or indirectly receives the information from Ms. Doe or at her direction; or becomes available to Ms. Doe on a non-confidential basis from a source which is entitled to disclose it to Ms. Doe.

6 director, will make negative or disparaging statements concerning, or take any action that derogates, Ms. Doe or that damages her reputation or professional or business relationships. 15. Non-Compete/Conflict of Interest. Ms. Doe agrees that, before April 30, 2009, she shall not at any time, directly or indirectly, on her own behalf of on behalf of any other person or entity, (1) engage in or participate as an officer, employee, director, agent or consultant for any software association directly competitive with that of the ACME, (2) solicit ACME members for the purpose of providing products or services substantially similar to those provided by ACME, or (3) hire, as an employee of an other entity, any ACME employee or solicit, entice or persuade any ACME employee to terminate his or her employment with ACME. 16. Effect of Breach. Ms. Doe agrees that, in the event of her breach of her obligations set forth in paragraphs 13, 14 and 15 as determined by a court or arbitrator, ACME shall have no continuing obligations to make any payment pursuant to paragraph 2 and ACME shall have the right to recover any payments previously made thereunder. 17. Positive Reference. In the event a prospective employer contacts ACME regarding Ms. Doe, ACME will provide such employer with a general written letter of reference in the form of Exhibit A hereto. 18. No Admission of Liability. The making of this Agreement is not intended, and shall not be construed, as an admission that ACME or Releasees have violated any federal, state or local law (statutory or decisional), ordinance or regulation, breached any contract, or committed any wrong whatsoever against Ms. Doe, including for purposes of any award of attorneys fees. 19. Choice of Law. The Parties agree that this Agreement and the rights and obligations hereunder shall be governed by, and construed in accordance with, the laws of the District of Columbia regardless of any principles of conflicts of laws or choice of laws of any jurisdiction. 20. Severability. If any terms of the above provisions of this Agreement are found null, void or inoperative, for any reason, the remaining provisions will remain in full force and effect. The language of all parts of this Agreement shall in all cases be construed as a whole, according to its fair meaning, and not strictly for or against either of the Parties. 21. Entire Agreement. This Agreement supersedes all prior Agreements between the Parties concerning the subject matter hereof, including without limitation the Employment Agreement entered into between the Parties signed February 1, 2007, and this Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and all previous discussions, promises, representations, and understandings relating to the topics herein discussed are hereby merged into this Agreement. 22. Agreement Voluntarily Entered. Ms. Doe represents that she has read this Agreement, that she understands all of its terms, that she had the opportunity to discuss the terms of this Agreement with an attorney of her choice, that in executing this Agreement she does not -6-

7 rely and has not relied upon any representation or statements made by any of the ACME s agents, representatives, or attorneys with regard to the subject matter, basis, or effect of the Agreement, and that she enters into this Agreement voluntarily, of her own free will and with knowledge of its meaning and effect. IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the dates written below. Jane Doe Date For: ACME Association Date This document has been produced by the law firm of Venable LLP, 575 7th Street, N.W., Washington, D.C For more information, please contact Jeff Tenenbaum at jstenenbaum@venable.com or via telephone at

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