EXHIBIT 10.10
(CELEBRATE EXPRESS LOGO)
May 6, 2005
Allen McDowell
Dear Allen:
After much consideration, we regret that we must terminate your employment at
Celebrate Express, Inc. ("Celebrate Express, Inc." or the "Company").
Although Celebrate Express, Inc. has no obligation to provide you with any kind
of severance package, the Company is prepared to assist you with your transition
to new employment. This letter sets forth the terms of the Separation Agreement
(the "Agreement") that the Company is offering to you to aid in your employment
transition.
1. SEPARATION. Your last day of work with the Company and your
employment termination date will be May 6, 2005 (the "Separation Date").
2. ACCRUED SALARY AND PAID TIME OFF. On the Separation Date, the
Company will pay you all accrued salary, and all accrued and unused vacation
earned through the Separation Date, subject to standard payroll deductions and
withholdings. You are entitled to these payments regardless of whether or not
you sign this Agreement.
3. SEVERANCE BENEFITS. Although the Company has no policy or procedure
for providing severance benefits, the Company will pay you, as severance, the
equivalent of 6 weeks of your base salary in effect as of the Separation Date,
subject to standard payroll deductions and withholdings, in consideration for
your acceptance of this agreement. This amount will be paid in one (1) lump sum
within ten (10) days of the Effective Date as defined below.
4. HEALTH INSURANCE. To the extent provided by the federal COBRA law
or, if applicable, state insurance laws, and by the Company's current group
health insurance policies, you will be eligible to continue your group health
insurance benefits at your own expense. Later, you may be able to convert to an
individual policy through the provider of the Company's health insurance, if'
you wish.
Allen McDowell
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5. OTHER COMPENSATION OR BENEFITS. You acknowledge that, except as
expressly provided in this Agreement, you will not receive any additional
compensation, severance or benefits after the Separation Date.
6. EXPENSE REIMBURSEMENTS. You agree that, within ten (10) days of the
Separation Date, you will submit your final documented expense reimbursement
statement reflecting all business expenses you incurred through the Separation
Date, if any, for which you seek reimbursement. The Company will reimburse you
for these expenses pursuant to its regular business practice.
7. RETURN OF COMPANY PROPERTY. By the Separation Date, you agree to
return to the Company all Company documents (and all copies thereof) and other
Company property that you have had in your possession at any time, including,
but not limited to, Company files, notes, drawings, records, business plans and
forecasts, financial information, specifications, computer-recorded information,
tangible property (including, but not limited to, computers), credit cards,
entry cards, identification badges and keys; and, any materials of any kind that
contain or embody any proprietary or confidential information of the Company
(and all reproductions thereof).
8. PROPRIETARY INFORMATION OBLIGATIONS. Both during and after your
employment you acknowledge your continuing obligations under your Employee
Proprietary Information Agreement not to use or disclose any confidential or
proprietary information of the Company without prior written authorization from
a duly authorized representative of the Company. A copy of your Employee
Proprietary Information Agreement is attached hereto as Exhibit A.
9. CONFIDENTIALITY. The provisions of this Agreement will be held in
strictest confidence by you and the Company and will not be publicized or
disclosed in any manner whatsoever; provided, however, that: (a) you may
disclose this Agreement to your immediate family; (b) the parties may disclose
this Agreement in confidence to their respective attorneys, accountants,
auditors, tax preparers, and financial advisors; (c) the Company may disclose
this Agreement as necessary to fulfill standard or legally required corporate
reporting or disclosure requirements; and (d) the parties may disclose this
Agreement insofar as such disclosure may be necessary to enforce its terms or as
otherwise required by law. In particular, and without limitation, you agree not
to disclose the terms of this Agreement to any current or former Company
employee.
10. NONDISPARAGEMENT. Both you and the Company agree not to disparage
the other party, and the other party's officers, directors, employees,
shareholders and agents, in any manner likely to be harmful to them or their
business, business reputation or personal reputation; provided that both you and
the Company will respond accurately and fully to any question, inquiry or
request for information when required by legal process.
11. RELEASE OF ALL CLAIMS. Except as otherwise set forth in this
Agreement, you hereby release, acquit and forever discharge the Company, and its
subsidiaries and its and their officers, directors, agents, servants, employees,
attorneys, shareholders, successors, assigns and affiliates, of and from any and
all claims, liabilities, demands, causes of action, costs, expenses, attorneys'
fees, damages, indemnities and obligations of every kind and nature, in law,
equity, or
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Allen McDowell
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otherwise, known and unknown, suspected and unsuspected, disclosed and
undisclosed, arising out of or in any way related to agreements, events, acts or
conduct at any time prior to and including the execution date of this Agreement,
including but not limited to: all such claims and demands directly or indirectly
arising out of or in any way connected with your employment with the Company or
the termination of that employment; claims or demands related to salary,
bonuses, commissions, stock, stock options, or any other ownership interests in
the Company, personal leave pay, fringe benefits, expense reimbursements,
severance pay, or any other form of compensation; claims pursuant to any
federal, state or local law, statute, or cause of action including, but not
limited to, the Employee Retirement Income Security Act ("ERISA"), the federal
Civil Rights Act of 1964, as amended; the federal Americans with Disabilities
Act of 1990; the federal Age Discrimination in Employment Act of 1967, as
amended ("ADEA"); the Washington Law Against Discrimination in Employment, as
amended; tort law; contract law; wrongful discharge; retaliation,
discrimination; harassment; fraud; defamation; emotional distress; and breach of
the implied covenant of good faith and fair dealing.
12. ADEA WAIVER. You acknowledge that you are knowingly and voluntarily
waiving and releasing any rights you may have under the ADEA, as amended. You
also acknowledge that the consideration given for the waiver and release in the
preceding paragraph hereof is in addition to anything of value to which you were
already entitled. You further acknowledge that you have been advised by this
writing, as required by the ADEA, that: (a) your waiver and release do not apply
to any rights or claims that may arise after the execution date of this
Agreement; (b) you have been advised hereby that you have the right to consult
with an attorney prior to executing this Agreement; (c) you have twenty-one (21)
days to consider this Agreement (although you may choose to voluntarily execute
this Agreement earlier); (d) you have seven (7) days following the execution of
this Agreement by the parties to revoke the Agreement; and (c) this Agreement
will not be effective until the date upon which the revocation period has
expired, which will be the eighth day after this Agreement is executed by you,
provided that the Company has also executed this Agreement by that date
("Effective Date").
13. WAIVER. In granting the release herein, you understand that this
Agreement includes a release of all claims known or unknown. In giving this
release, which includes claims which may be unknown to you at present, you
hereby expressly waive and relinquish all rights and benefits under any law of
any jurisdiction with respect to your release of any unknown or unsuspected
claims you may have against the Company.
14. MISCELLANEOUS. This Agreement constitutes the complete, final and
exclusive embodiment of the entire agreement between you and the Company with
regard to this subject matter. It is entered into without reliance on any
promise or representation, written or oral, other than those expressly contained
herein, and it supersedes any other such promises, warranties or
representations. This Agreement may not be modified or amended except in a
writing signed by both you and a duly authorized officer of the Company. This
Agreement will bind the heirs, personal representatives, successors and assigns
of both you and the Company, and inure to the benefit of both you and the
Company, their heirs, successors and assigns. If any provision of this Agreement
is determined to be invalid or unenforceable, in whole or in part, this
determination will not affect any other provision of this Agreement and the
provision in question will be modified by the court so as to be rendered
enforceable. This Agreement will be deemed to have
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Allen McDowell
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been entered into and will be construed and enforced in accordance with the laws
of the state of Washington as applied to contracts made and to be performed
entirely within Washington.
15. KNOWING AND VOLUNTARY. This is a release. By signing it, you agree
to all the terms set forth above. You also acknowledge that your decision to
enter into the agreement is knowing and voluntary and that you have had the
opportunity to have the agreement translated into your native language, if other
than English.
If this Agreement is acceptable to you, please sign below and return the
original to me not later than 21 days from receipt of this letter at which time
this offer will expire.
I wish you good luck in your future endeavors.
Sincerely,
CELEBRATE EXPRESS, INC.
By: /S/ Michael K. Jewell
------------------------------------
Michael K. Jewel
CEO
Attachment:
Exhibit A - Employee Proprietary Information Agreement
AGREED:
/s/ Allen McDowell May 6, 2005
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Allen McDowell Date
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