Exhibit 10.1
SEPARATION AND RELEASE
AGREEMENT
This Separation and Release
Agreement (“Agreement”) is made by and between Bare
Escentuals Beauty, Inc. (“Company”) and Michael Dadario
(“Employee”). “Company” shall also include
all subsidiary, parent or related corporations of Bare Escentuals,
Inc.
WHEREAS, Employee was an at-will
employee of Company; and
WHEREAS, Employee tendered his
resignation from Company, which Company accepted, pursuant to the
terms of this Agreement;
NOW THEREFORE, in consideration of
the promises made herein, Company and Employee (collectively
referred to as the “Parties”) hereby agree as
follows:
1. Resignation.
Employee tendered, and Company
accepted, Employee’s resignation, effective as of
July 14, 2009, which was Employee’s last date of
employment with Company (the “Separation
Date”).
2. Waiver of Signing Bonus
Repayment. Company
agrees to waive its right to full repayment of Employee’s
hiring bonus of $120,000, to which Company is entitled under its
employment agreement with Employee dated May 18, 2008 (the
“Employment Agreement”). Employee agrees
Company’s waiver of repayment of the hiring bonus is in full
and fair consideration for the general release provided in this
Agreement, and represents full settlement of all claims that
Employee has made or could have made against Company.
3. No
Severance. Employee
acknowledges and agrees that he is not entitled to receive any
severance pursuant to the Employment Agreement or
otherwise.
4. Restricted Stock; Stock
Option. Employee
acknowledges that he currently holds 37,500 shares of
Company’s Common Stock (the “Stock”) pursuant to
a Restricted Stock Award Grant Notice, a Restricted Stock Award
Agreement (the “Stock Agreement”), and Company’s
2006 Equity Incentive Award Plan (the “Plan”). Employee
acknowledges further that all shares of the Stock remain subject to
Company’s Repurchase Option, as provided in the Stock
Agreement. Company hereby provides notice to Employee of its
exercise of the Repurchase Option as to all shares of the Stock,
pursuant to the terms of the Stock Agreement.
Employee acknowledges further that
he holds an option to purchase 80,000 shares of Company’s
Common Stock (the “Option”), pursuant to a Stock Option
Grant Notice, a Stock Option Agreement and the Plan. Employee
acknowledges and agrees that no shares of the Option will have
vested as of the Separation Date, and accordingly the Option will
terminate in full on such date.
5. Statement Regarding
Resignation. Employee
acknowledges that Company is obligated to report his resignation in
a Form 8-K filed with the United States Securities and Exchange
Commission (the “8-K”), within four business days after
the Separation Date. Employee agrees that the 8-K may contain a
statement substantially as follows (the “8-K
Statement”):
Bare Escentuals has accepted the
resignation of Michael Dadario, President Retail effective
July 14, 2009. Mr. Dadario submitted his resignation and
confirmed that despite briefly attending the State University of
New York, Brockport, he did not receive a degree from the State
University of New York, Brockport as he had previously represented.
Leslie Blodgett said, “After consulting with our Board of
Directors, the Company accepted Mr. Dadario’s
resignation. The Board and I wish to acknowledge
Mr. Dadario’s leadership of our Retail Division during
some challenging economic times and his efforts in positioning Bare
Escentuals for growth.”
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Ms. Blodgett concluded,
“While Michael will be missed, we are very fortunate to have
a strong retail team in place that is focused on the daily
operations and performance within each of our Retail
channels.”
6. Nondisparagement;
Liquidated Damages. Employee agrees that neither Employee nor anyone
acting by, through, under or in concert with Employee shall
disparage or otherwise communicate negative statements or opinions
about Company, its Board members, officers, employees or business.
Company (by its officers and directors) shall not disparage or
otherwise communicate negative statements or opinions about
Employee; provided, however, that neither Company’s
8-K filing, nor communication to any other person, of the 8-K
Statement shall constitute a violation of this Section 6.
Employee and Company agree that it would be impracticable and
extremely difficult to ascertain the amount of actual damages
caused by either party’s breach of the party’s
obligations under this Section 6. Therefore, each party agrees
that in the event of any such breach, the breaching party shall pay
the other party as the sole and exclusive measure of monetary
damages for such breach the amount of $65,000.
7. Reimbursement of
Expenses. Employee
shall be reimbursed for any outstanding expenses according to
Company’s ordinary expense reimbursement policies. Employee
must turn in any outstanding expenses not later than ten
(10) business days after the Effective Date. Any reimbursement
of undisputed expenses that are not reasonably subject to
calculation as of Effective Date will be paid by check sent
directly to Employee’s home.
8. Confidential
Information. Employee
acknowledges and agrees that Employee shall continue to maintain
the confidentiality of all Confidential Information of Company.
“Confidential Information” includes: all information,
regardless of its form, that: (a) was developed by or for
Company; (b) relates to Company’s business; and
(c) is not generally known to the public.
It is impossible to provide a
comprehensive list of all information that may constitute
Confidential Information. However, by way of example, the
definition includes, but is not limited to, information relating to
Company’s: products; trade secrets; research and development;
production and manufacture methods, strategies and plans; marketing
information, strategies and plans; merchandising information,
strategies and plans; pricing information, strategies and plans;
sales practices; employment and recruiting strategies and
processes; compensation information; employee and potential
employee information; customer and potential customer information;
supplier and potential supplier information, revenues and expenses;
investor information; technology and operations; and the identities
and roles of key employees of Company. The definition of
“Confidential Information” shall include both
“know-how” (i.e., information about what works well)
and “negative know-how” (i.e., information about what
does not work well).
Employee shall return all Company
property and Confidential Information in Employee’s
possession on or before the Effective Date. Employee hereby
expressly confirms Employee’s continuing obligations to
Company pursuant to any and all agreements regarding Confidential
Information entered into by Employee and attached hereto as
Exhibit A . Employee represents and warrants that
Employee always has complied, and despite Employee’s
departure from Company, will continue to comply, with all of the
obligations described in this Section 8. As part of
Employee’s obligations under this Section 8, Employee
represents and warrants that Employee will deliver to Company on or
before the Effective Date, all (whether electronic, hard copy or
otherwise) originals, copies and summaries of correspondence
(including but not limited to letters, memos, email messages,
instant messages or tweets), drawings, manuals, memos, notes,
notebooks, reports, programs, plans, proposals, financial
documents, or any other documents concerning Company’s
customers, business plans, marketing strategies, products,
processes, technology, operations or business of any kind and/or
which contain Confidential Information or trade secrets which are
in the possession or control of Employee or Employee’s agents
or representatives.
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Employee shall return to Company any and all
Company-issued computers and computer equipment and peripherals
(collectively, “Computer Equipment”) at the time and in
the manner directed by Company. Employee shall not copy, alter
or delete any documents or data stored on any Computer Equipment,
or any other Company-owned or operated systems or equipment
(collectively, “Company Systems”), except as expressly
directed or permitted by Company in writing.
In the event that Employee is ever
compelled under force of law to disclose any Confidential
Information, Employee will: (1) immediately notify
Company’s legal counsel of such request and provide
Company’s legal counsel with all material information
pertaining to such request; (2) actually refrain from
disclosing the Confidential Information pending Company’s
legal counsel’s review and action on the request; and
(3) take all steps reasonably necessary to prevent the
compelled disclosure of Confidential Information until such time as
Company has asserted objections to the disclosure of the
Confidential Information in a court of law.
9. General Release of Claims
by Employee. Employee, on behalf of Employee and
Employee’s executors, heirs, administrators, representatives
and assigns, hereby releases and forever discharges Company and all
predecessors, successors and affiliates and their respective parent
corporations, affiliates, related, and/or subsidiary entities, and
all of their past and present investors, directors, shareholders,
officers, general or limited partners, employees, attorneys, agents
and representatives, and employee benefit plans in which Employee
is or has been a participant by virtue of Employee’s
employment with Company, from any and all claims, debts, demands,
accounts, judgments, rights, causes of action, equitable relief,
damages, costs, charges, complaints, obligations, promises,
agreements, controversies, suits, expenses, compensation,
responsibility and liability of every kind and character whatsoever
(including attorneys’ fees, expenses and costs), whether in
law or equity, known or unknown, asserted or unasserted, suspected
or unsuspected (collectively, “Claims”), which Employee
has or may have had against such individuals or entities based on
any events or circumstances arising or occurring on or prior to the
date Employee signs this Agreement, arising directly or indirectly
out of, relating to, or in any other way involving in any manner
whatsoever Employee’s employment by Company or the separation
thereof, and any and all Claims arising under federal, state, or
local laws relating to employment, including without limitation
Claims of wrongful discharge, breach of express or implied
contract, fraud, misrepresentation, defamation, or other liability
in tort, Claims of any kind that may be brought in any court or
administrative agency, any claims arising under Title VII of the
Civil Rights Act of 1964, the Age Discrimination in Employment Act
(“ADEA”), the Older Workers Benefit Protection Act, the
Americans with Disabilities Act, the Fair Labor Standards Act, the
Employee Retirement Income Security Act, the Family and Medical
Leave Act, the California Family Rights Act, the California Fair
Employment and Housing Act, the California Labor Code and similar
federal, state or local statutes, ordinances, and
regulations.
This release does not extend to
claims that are non-waivable under the law, including but not
limited to claims to enforce Employee’s rights to
indemnification under any applicable law or contract. Employee
specifically acknowledges and agrees that Employee has been paid
all wages owed as of the date Employee signs this Agreement, and
that Employee has no claims for unpaid wages against
Company.
This release does not extend to any
claims based upon or relating to either Party’s breach of
this Agreement.
To the extent permitted by law,
Employee agrees that if a Claim is prosecuted in Employee’s
name before any court or administrative agency, that Employee
waives and agrees not to take any award of money or other damages
from such suit. Employee also agrees that if a claim is prosecuted
in Employee’s name that Employee will immediately request in
writing that the claim on Employee’s behalf be withdrawn or
dismissed.
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Employee specifically acknowledges
and agrees that Employee is waiving on behalf of Employee and
Employee’s attorneys’ all claims for attorneys fees and
expenses and court costs, except as provided in Section 18
below.
EMPLOYEE ACKNOWLEDGES THAT EMPLOYEE
HAS BEEN ADVISED OF AND IS FAMILIAR WITH THE PROVISIONS OF
CALIFORNIA CIVIL CODE SECTION 1542, WHICH PROVIDES AS
FOLLOWS:
“A GENERAL RELEASE DOES NOT
EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO
EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE,
WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR
HER SETTLEMENT WITH THE DEBTOR.”
BEING AWARE OF SAID CODE SECTION,
EMPLOYEE HEREBY EXPRESSLY WAIVES ANY RIGHTS EMPLOYEE MAY HAVE
THEREUNDER, AS WELL AS UNDER ANY OTHER STATUTES OR COMMON LAW
PRINCIPLES OF SIMILAR EFFECT.
10.
Acknowledgment. Employee acknowledges that Employee is knowingly
and voluntarily waiving and releasing any rights Employee may have
under the ADEA (the “ADEA Waiver”). Employee
acknowledges further that (a) Employee has been advised to
seek an attorney regarding the effect of this Agreement prior to
signing it; (b) Employee has twenty-one (21) days from
the date this offer is received to consider this Agreement before
signing it (although Employee may choose voluntarily to sign it
sooner); (c) the ADEA Waiver does not apply to any rights or
claims that arise after the date Employee signs this Agreement;
(d) Employee understands that Employee has seven (7) days
following the date Employee signs this Agreement to revoke
Employee’s acceptance of it; and (e) this Agreement will
not be effective until the date upon which the revocation period
has expired unexercised, which will be the eighth day after
Employee signs this Agreement (the “Effective
Date”).
11. Employee’s
Representations and Warranties. Employee represents and warrants that:
(a) during the course of Employee’s employment, Employee
did not sustain any on-the-job or work-related injuries or
illnesses for which Employee might be entitled to compensation
pursuant to California’s Workers Compensation law; and
(b) Employee has not initiated any adversarial proceedings of
any kind against Company or against any other person or entity
released herein, and will not initiate any such proceeding in the
future, except as specifically allowed by this
Agreement.
12. No
Representations. Neither Party has relied upon any
representations or statements made by the other Party hereto which
are not specifically set forth in this Agreement.
13. No
Admission. Nothing
contained in this Agreement shall constitute, be construed as, or
be deemed to be an admission of fault, liability or wrongdoing on
either Party’s part. Employee expressly denies any fault,
liability or wrongdoing on behalf of Company.
14. Entire
Agreement. This
Agreement, and the other agreements referenced herein, represent
the entire Agreement and understanding between Company and Employee
concerning Employee’s separation from Company, and (except as
provided herein) supersede and replace any and all prior agreements
and understandings concerning Employee’s relationship with
Company, whether written or verbal, including but not limited to
the Employment Agreement. To accept the Agreement, Employee must
date and sign this Agreement and return it to: Human Resources,
Attention Debbie Fletcher. (An extra copy for Employee’s
files is enclosed.)
15.
Counterparts. This
Agreement may be executed in counterparts, and each counterpart
shall have the same force and effect as an original and shall
constitute an effective, binding agreement on the part of each of
the undersigned.
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16. No Oral
Modification. This
Agreement may only be amended by a writing signed by Employee and
either the Chief Executive Officer, Vice President of Human
Resources or General Counsel of Company.
17.
Severability. If
any provision of this Agreement is found by a proper authority to
be unenforceable, that provision shall be severed and the remainder
of the Agreement will remain in full force and effect.
18. Dispute
Resolution. The
Parties agree that any and all disputes, claims, or causes of
action, in law or equity, arising from or relating to the
enforcement, breach, performance, or interpretation of this
Agreement shall be resolved, to the fullest extent permitted by
law, by final, binding and confidential arbitration in San
Francisco, California conducted by JAMS, Inc. (“JAMS”)
or its successor, under the laws of the State of California and
JAMS’ then applicable rules and procedures, and before a
single arbitrator mutually selected by the Parties. The Parties
acknowledge that by agreeing to this arbitration procedure, they
are waiving the right to resolve any such dispute through a trial
by jury or judge or administrative proceeding. The Parties will
have the right to be represented by legal counsel at any
arbitration proceeding. The arbitrator shall be authorized to award
all relief that the Parties would be entitled to seek in a court of
law. The arbitrator shall have the authority to determine which
Party in any such arbitration is the prevailing party, and to award
the prevailing party its reasonable attorneys’ fees, costs
and expenses incurred in connection with the
arbitration.
19. Voluntary Execution of
Agreement. This
Agreement is executed voluntarily and without any duress or undue
influence on the part or behalf of the Parties hereto. The Parties
acknowledge that: (a) they have read this Agreement;
(b) they have been represented in the preparation,
negotiation, and execution of this Agreement by legal counsel of
their own choice, or that they have voluntarily declined to seek
such counsel; (c) they understand the terms and consequences
of this Agreement and of the releases it contains; and
(d) they are fully aware of the legal and binding effect of
this Agreement.
IN WITNESS WHEREOF, the Parties have
executed this Agreeme
