SEPARATION AND RELEASE
AGREEMENT
This confidential SEPARATION AND
RELEASE AGREEMENT (this “ Agreement ”) is
made and entered into effective July 17, 2009 by and between TERRI
FREY MAXWELL, an individual residing at 6850 Sonoma, Irving, TX
75039 (“ Ms. Maxwell ”),
and MANNATECH, INCORPORATED, a Texas corporation (the “
Company ”).
RECITALS:
WHEREAS , Ms. Maxwell and the Company are the parties to
an employment agreement dated August 28, 2008, as amended, whereby
Ms. Maxwell has been employed by the Company as its Senior Vice
President Global Brand Development and Chief Marketing Officer (the
“ Employment Agreement ”
);
WHEREAS , the Company and Ms. Maxwell have agreed not to
continue her employment with the Company;
WHEREAS , Ms. Maxwell’s last day of employment is
June 22, 2009;
WHEREAS , Ms. Maxwell and the Company desire to resolve
any and all potential disputes or claims arising from or in any way
connected with her employment with and separation from the Company;
and
WHEREAS , the Company and Ms. Maxwell have determined
that it is in their respective best interest to enter into this
Agreement on the terms and conditions set forth herein.
STATEMENT OF
AGREEMENT:
NOW, THEREFORE
, in consideration of the mutual
promises, agreements and valuable consideration contained herein,
the sufficiency of which is hereby acknowledged, it is agreed as
follows:
1.
Separation from Employment. Ms. Maxwell and the Company
mutually agree that her employment as Senior Vice President Global
Brand Development and Chief Marketing Officer, any and all other
employment positions she may have held with the Company or any of
its affiliates or subsidiaries, shall terminate effective June 22,
2009 (the “ Employment Termination Date
”). The parties agree and stipulate that their mutual
agreement to terminate the employment relationship and all other
terms agreed to herein do not breach or violate any provisions of
the Employment Agreement, including without limitation Section 2.1
("Term") or Section 9.3 ("Severance"). The Employment Agreement is
attached hereto as Exhibit "A."
2.
Separation Payments and Benefits . In exchange for execution
of this Agreement and Ms. Maxwell’s release of claims against
the Releasees (as defined in Paragraph 3) the parties agree as
follows:
(a)
Separation Payment . The Company will pay Ms. Maxwell a
separation payment in an amount equal to the continuation of her
base salary, less applicable taxes and withholding, commencing on
the Employment Termination Date and ending on August 27,
2010
( "Separation Pay
Period" ). This separation payment will be paid to Ms.
Maxwell in regular installments on the usual and customary pay
dates of the Company, provided that she has not revoked this
Agreement pursuant to Paragraph 21(b) below and is otherwise in
compliance with this Agreement.
(b)
Outplacement Assistance . The Company shall provide Ms.
Maxwell with outplacement assistance through the Drake, Beam and
Morin (“ DBM ”) Executive Program.
DBM’s fees will be paid directly to DBM by the
Company.
(c)
COBRA . Effective as of the Employment Termination Date, Ms.
Maxwell shall be considered to have elected to continue receiving
group medical insurance pursuant to the federal “COBRA”
law, 29 U.S.C. § 1161 et seq. During the Separation Pay
Period, the Company shall continue to pay the share of the premium
for such coverage that is paid by the Company for active and
similarly-situated employees who receive the same type of coverage;
provided, however, the Company will discontinue and no longer be
obligated to pay the share of such premium if Ms. Maxwell obtains
new employment before the end of the Separation Pay Period. The
remaining balance of any premium costs, and all premium costs after
the Separation Pay Period or after Ms. Maxwell obtains new
employment, whichever occurs first, shall be paid by Ms. Maxwell on
a monthly basis for as long as, and to the extent that, she remains
eligible for COBRA continuation. Ms. Maxwell will be provided
information on her COBRA rights by separate correspondence and
should consult those materials for details regarding her COBRA
benefits.
(d)
Company Car . On the Employment Termination Date Ms. Maxwell
shall return to the Company the leased vehicle, a 2008 Lexus RX,
provided for her use by the Company under the terms of her
Employment Agreement.
(e)
Reimbursement of Expenses . The Company shall reimburse Ms.
Maxwell for all reasonable and approved business expenses incurred,
but not yet paid, through the Employment Termination
Date.
(f)
Effect of Revocation, Noncompliance . The Company will have
no obligation to make the payment or to provide the assistance
described in Paragraphs 2(a)-(c) if Ms. Maxwell has revoked this
Agreement pursuant to Paragraph 21(b) below, or if Ms. Maxwell is
otherwise in non-compliance with this Agreement at the time the
payment and assistance are due.
(g)
Acknowledgments . Ms. Maxwell acknowledges that the
separation payment and assistance described in Paragraphs 2(a)-(c)
are good and valuable consideration for the release and other
covenants she is making in this Agreement and are in addition to
any consideration to which she may already be entitled. Ms. Maxwell
also acknowledges and agrees that neither the Company nor its
attorneys have made any representations regarding the tax
consequences, if any, of the separation payment and assistance
provided in Paragraphs 2(a)-(c).
(a)
General Release . As a material inducement for the Company
to enter this Agreement, Ms. Maxwell hereby GENERALLY RELEASES AND
FOREVER DISCHARGES
the Company, and all of its
respective current and former parent corporations, subsidiaries,
affiliates, predecessors, successors, divisions, other related
entities, assigns, agents, attorneys, officers, directors,
employees and all of their respective current and former parent
corporations, subsidiaries, affiliates, predecessors, successors,
divisions, other related entities, assigns, agents, attorneys,
officers, directors, employees, and heirs (referred to herein as
“ Releasees ”) from any and all claims,
complaints, liabilities or obligations of any kind whatsoever,
whether known or unknown, arising in tort or contract, which Ms.
Maxwell may have, now has, or has ever had arising from Ms.
Maxwell’s employment with the Company or the termination of
that employment, or any other matter or event which may have
occurred as of the date this Agreement is executed by the Company
and Ms. Maxwell (“ Released Claims ”).
Ms. Maxwell understands and agrees that the Released Claims
include, but are not limited to, any and all claims, complaints,
liabilities or obligations under applicable international, federal,
state or local law, including, but not limited to, Title VII of the
Civil Rights Act of 1964, as amended by the Civil Rights Act of
1991, the Americans With Disabilities Act, the Employee Retirement
Income Security Act, the Family and Medical Leave Act, the Age
Discrimination in Employment Act (“ ADEA
”), and the Older Worker Benefit Protection Act (“
OWBPA ”), and any federal, state, local, or
municipal whistleblower protection or anti-retaliation statute or
ordinance.
(b)
Waiver of Right to Bring Released Claims . Ms. Maxwell
further agrees not to bring any Released Claims against the
Releasees, either individually or collectively; provided ,
however , that Ms. Maxwell retains the right to challenge
the validity of the release of her ADEA claims under this
Agreement, including the knowing and voluntary nature of the ADEA
release under the OWBPA. Nothing in this Paragraph 3(b) shall
interfere with Ms. Maxwell’s right to file a charge with, or
cooperate or participate in an investigation or proceeding
conducted by, the Equal Employment Opportunity Commission (“
EEOC ”) or other federal or state regulatory or
law enforcement agency. However, the consideration provided to Ms.
Maxwell in this Agreement shall be the sole relief provided for the
Released Claims and Ms. Maxwell will not be entitled to recover and
Ms. Maxwell agrees to waive any monetary benefits or recovery
against the Releasees in connection with any such charge or
proceeding without regard to who has brought such charge or
proceeding.
(c)
Costs of Enforcement . Ms. Maxwell agrees that if she
breaches this Agreement and brings a Released Claim against any of
the Releasees or otherwise breaches this Agreement, Ms. Maxwell
shall be liable for any and all expenses incurred by the person or
entity who has to defend the action, including reasonable
attorney’s fees; provided , however , that this
Paragraph 3(c) shall not apply to charges filed by Ms. Maxwell with
the EEOC or other federal or state regulatory or law enforcement
agency, or to claims initiated by Ms. Maxwell, to challenge the
validity of the release of ADEA claims under this Agreement,
including the knowing and voluntary nature of the ADEA release
under the OWBPA.
4.
Communications with the Company . Ms. Maxwell agrees to
direct all communications with the Company concerning Company
business, marketing or information technology matters, Confidential
Information (as defined below), and/or Ms. Maxwell’s
employment and separation from the Company (referred to herein as
“ Company Business ”) to the Chief
Financial Officer (“CFO”) and not to communicate with
any Company employee, employee of an affiliate or subsidiary of
Company, Associate, or outside service provider concerning Company
Business for a period of two years from the Termination Date unless
Ms.
Maxwell is expressly directed to do
so by the CFO. By signing this Agreement, Ms. Maxwell represents
and warrants that she has not, since the Employment Termination
Date (June 22, 2009), communicated with anyone at the Company,
including any Company employee or Associate, or with any outside
service provider for the Company, other than the CFO, the General
Counsel, the Director-Global Human Resources, Staffing, and
Employee Relations, and/or as specifically directed by the one of
these officers, concerning Company Business, with the exception of
informing Company employees that her employment was terminated. If
Ms. Maxwell is contacted by any Company employee, employee of an
affiliate or subsidiary of Company, Associate, or outside service
provider for the Company, other than the CFO, the General Counsel,
the Director-Global Human Resources, Staffing, and Employee
Relations, or as specifically directed by one of these officers,
concerning Company Business for a period of two years from the
Termination Date, Ms. Maxwell agrees to immediately notify the CFO
via email to sfenstermacher@mannatech.com or as otherwise directed
by the CFO in writing. This Paragraph 4 does not apply to
communications unrelated to Company Business by Ms. Maxwell with
employees or Associates of the Company during their off-duty
time.
5.
Non-Disclosure of Confidential Information . Ms. Maxwell
represents that she has not disclosed and will not disclose the
Company’s Confidential Information as
