SETTLEMENT AGREEMENT AND
GENERAL RELEASE
This Settlement
Agreement and General Release (“ Release
Agreement ”) is made and entered into by and between
Carl J. Johnson (“ Executive ”) and Matrixx
Initiatives, Inc. and all of its affiliated companies and divisions
(collectively referred to as the “ Company ”),
and is intended by the parties hereto to settle and dispose of all
claims and liabilities that exist between Executive and Company.
All initially capitalized terms not otherwise defined herein will
have the meaning ascribed to them in the Amended and Restated
Employment Agreement, dated as of October 18, 2006, by and
between the Company and Executive (the “ Employment
Agreement ”).
A. Executive
retired as President and Chief Executive Officer of the Company,
effective October 31, 2008, but will remain a part-time
employee of the Company until March 31, 2009 pursuant to the
Separation Agreement, dated as of the date hereof (the “
Separation Agreement ”), between Company and
Executive. It is expressly understood by the parties that the
Company will not provide the Additional Benefits, as defined in the
Separation Agreement, until Executive signs this document and does
not revoke his signature within the allowed seven
(7) days.
C. By
entering into this Release Agreement, the parties mutually and
voluntarily agree to resolve all disputes between them and be
legally bound by the terms set forth below.
NOW, THEREFORE,
for valuable consideration, including the consideration provided in
the Separation Agreement, the parties agree as follows:
A. Executive, on
behalf of himself, his marital community, and his heirs or assigns,
expressly releases Company and its subsidiaries, affiliated
companies, directors, officers, all of their agents, employees, and
attorneys; and all their predecessors and successors (collectively
the “ Released Entities ”) from ANY AND ALL
RIGHTS, CLAIMS, DEMANDS, CAUSES OF ACTION, OBLIGATIONS, DAMAGES,
PENALTIES, FEES, COSTS, EXPENSES, AND LIABILITIES OF ANY NATURE
WHATSOEVER WHICH EXECUTIVE HAS, HAD, OR MAY HAVE HAD AGAINST
COMPANY OR ANY OR ALL OF THE RELEASED ENTITIES IN CONNECTION WITH
ANY CAUSE OR MATTER WHATSOEVER, WHETHER KNOWN OR UNKNOWN TO THE
PARTIES AT THE TIME OF EXECUTION OF THIS RELEASE AGREEMENT AND
EXISTING FROM THE BEGINNING OF TIME TO THE DATE OF THE EXECUTION OF
THIS RELEASE AGREEMENT AND INCLUDING, WITHOUT LIMITATION, ALL
MATTERS RELATED TO EXECUTIVE’S EMPLOYMENT WITH THE COMPANY,
THE EMPLOYMENT AGREEMENT AND THE TERMINATION OF HIS SERVICE AS
PRESIDENT AND CHIEF EXECUTIVE OFFICER OF THE
COMPANY.
By signing this
Release Agreement, Executive agrees to FULLY WAIVE AND RELEASE
ALL CLAIMS without limitation, such as attorneys’ fees,
and all rights and claims arising out of, or relating to, his
employment or termination of service as President and Chief
Executive Officer, with the Company including, BUT NOT LIMITED
TO , any claim or other proceeding arising under:
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The
Civil Rights Act of 1866
(“Section 1981”);
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Title VII of the Civil Rights Act of
1964 as amended by the Civil Rights Act of 1991;
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The
Americans with Disabilities Act (“ADA”);
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The
ADA Amendments Act of 2008;
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The
Age Discrimination in Employment Act
(“ADEA”);
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The
Labor Management Relations Act (“LMRA”);
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The
National Labor Relations Act (“NLRA”);
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The
Fair Labor Standards Act (“FLSA”);
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The
Family and Medical Leave Act (“FMLA”);
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The
Arizona Civil Rights Act;
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The
Arizona Employment Protection Act;
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The
Employee Retirement Income Security Act of 1974
(“ERISA”);
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The
Rehabilitation Act of 1973;
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The
Occupational Safety and Health Act; and/or
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Any
common law or statutory cause of action arising out of
Executive’s employment or termination of employment with the
Company.
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This Release
Agreement may be used to completely bar any action or suit before
any court, arbitral, or administrative body with respect to any
claim under federal, state, local or other law relating to this
Release Agreement or to Executive’s employment and/or
termination of service as President and Chief Executive Officer of
the Company or any other positions held with its subsidiaries,
affiliates, related entities, predecessors, parents or divisions.
Furthermore, Executive specifically agrees that he will not be
entitled to any further payment of any kind following any future
“Change of Control” as defined in the Employment
Agreement. Notwithstanding any provision hereof to the contrary,
however, Executive does not release his rights to indemnification
under provisions of the Company’s certificate of
incorporation, bylaws or applicable law, his rights under the
Separation Agreement or his rights with respect to any claims that
arise after the execution of this Release Agreement.
Executive shall
deliver to Company (a) any documents, materials, files, or
computer files, or copies, reproductions, duplicates,
transcriptions, or replicas thereof, relating to Company’s
business or affairs, which are in Executive’s possession or
control, or of which Executive is aware, and (b) any
documents, materials, files, computer files, or copies,
reproductions, duplicates, transcriptions or replicas thereof,
which are in Executive’s possession or control, or of which
Executive is aware, belonging to Company or any other affiliated
entities. Executive will make a diligent search for the
aforementioned items and will delete any such items that may be
stored in electronic or other form on any computer or other
electronic device in Executive’s possession or under his
control. Executive will deliver these items to Company by
December 19,
- 2 -
2008, along
with any other Company proper
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