Retirement Agreement - Template, Sample Form Online Pro · US-law
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RETIREMENT AND SEPARATION AGREEMENT AND GENERAL RELEASE
State of ________
RECITALS
A. This Retirement and Separation Agreement and General Release (the "Agreement") is made and entered into effective as of ________, by and between the following employee (the "Employee"):
________
of
________
and the following employer (the "Employer"):
________
of
________
The Employee and the Employer are each referred to herein as a "Party" and collectively as the "Parties."
B. WHEREAS, the Employee currently holds the following position: ________, and has been employed by the Employer for a period of ________ in the following capacity:
________
C. WHEREAS, the Parties acknowledge that it is in their individual and mutual best interests for the Employee to retire from employment with the Employer effective ________;
D. WHEREAS, the Parties wish to define the terms and conditions of the Employee's retirement and separation from employment with the Employer, and to fully and finally resolve any and all matters between them.
NOW, THEREFORE, in consideration of the mutual covenants, promises, and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned Parties, intending to be legally bound, hereby agree as follows:
§ I. RETIREMENT.
1. The Employee agrees to retire from, and thereby terminate, the Employee's employment with the Employer effective ________ (the "Retirement Date").
2. As of the Retirement Date, the Employee's employment with the Employer and all further compensation, remuneration, and eligibility of the Employee under the Employer's benefit plans shall terminate, except as otherwise expressly provided in this Agreement or as required by applicable law.
3. Until the Retirement Date, the Employee shall continue to be employed by the Employer in the position of ________ and shall continue to perform the Employee's duties in good faith.
§ II. SEVERANCE BENEFITS.
4. In consideration of the Employee's execution of (and non-revocation of) this Agreement and the general release set forth herein, the Employer shall pay to the Employee a severance amount of $________ (________) (the "Severance").
5. The Severance shall be paid in the form of one lump-sum payment, less all applicable federal, state, and local payroll deductions and withholdings, due within ________ days following the later of the Retirement Date or the date this Agreement becomes effective and irrevocable, and the Employee's ceasing to be an officer or employee of the Employer or any of its affiliates in any capacity.
6. The Employee acknowledges that the Severance constitutes consideration to which the Employee is not otherwise entitled and is being provided in exchange for the promises and releases contained in this Agreement.
§ III. COBRA BENEFITS.
7. To the extent the Employee is eligible and timely elects continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended ("COBRA"), the Employer agrees to reimburse the Employee's cost of continuing group medical and dental insurance benefits for the Employee and the Employee's eligible dependents, if any, for so long as the Employee remains eligible for and elects such continuation of coverage under COBRA, up to a maximum period of ________ following the Retirement Date.
8. The Employer shall have no obligation to assume the Employee's payments for any type of insurance coverage or COBRA benefit other than those described above.
9. The Employee acknowledges that the Employer has no preexisting duty to pay any portion of the Employee's COBRA premiums.
10. The Employee acknowledges that the Employee shall cease to be eligible for the reimbursement of COBRA benefits described herein upon becoming eligible for coverage under another group health plan, whether through reemployment or otherwise. The Employee agrees to promptly notify the Employer of any such eligibility.
§ IV. ACCRUED VACATION AND FINAL WAGES.
11. The Employer shall pay the Employee a total amount of $________ (________) (the "Vacation Reimbursement") as compensation for ________ days of accrued but unused vacation and/or paid time off, to the extent payable under applicable law and the Employer's policies.
12. The Vacation Reimbursement, together with all final wages and other amounts owed to the Employee through the Retirement Date, shall be paid in accordance with applicable state wage-payment law, less all applicable deductions and withholdings, and in any event no later than the time required by such law. The payment of final wages owed by law is not contingent upon the Employee's execution of this Agreement.
§ V. ADDITIONAL RETIREMENT BENEFITS.
13. The Employee shall be entitled to receive the following additional retirement benefits under this Agreement:
________
14. The Employee acknowledges that the Employee's rights to vested benefits, if any, under any qualified retirement, pension, or 401(k) plan shall be governed by the terms of the applicable plan documents and applicable law, including the Employee Retirement Income Security Act of 1974, as amended ("ERISA").
§ VI. RETURN OF PROPERTY.
15. Within a reasonable time following the Retirement Date, the Employee shall return to the Employer all property belonging to the Employer that the Employee has obtained in the course of the employment relationship, including, but not limited to, personal computers and all software, security keys and badges, price lists, supplier and customer lists, files, reports, internal and external correspondence, business plans, budgets, designs, and any and all other property of the Employer, and shall delete any such information from any personal devices or accounts.
§ VII. INTELLECTUAL PROPERTY AND TRADE SECRETS.
16. The Employee hereby covenants and agrees, after the Retirement Date, not to use, release, or otherwise disclose any Trade Secret Information, as hereinafter defined, that the Employee may have received in the course of the employment. "Trade Secret Information" includes, but is not limited to, any formula, process, method, pattern, design, compilation, program, device, technique, or other information that derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and that is the subject of reasonable efforts to maintain its secrecy, consistent with applicable state trade secret law and the federal Defend Trade Secrets Act of 2016, 18 U.S.C. § 1836 et seq.
17. With respect to any Confidential Information, as hereinafter defined, not subject to trade secret protection, the Employee shall maintain the secrecy of such information for a period of three (3) years after the Retirement Date. "Confidential Information" shall be defined as any information which is confidential and commercially valuable to the Employer, in any form, including documents, techniques, methods, practices, tools, specifications, inventions, equipment, algorithms, models, samples, software, drawings, sketches, plans, programs, or other oral or written knowledge, and may pertain to, but is not limited to, the fields of research and development, forecasting, marketing, personnel, customers, suppliers, intellectual property, and finance. Confidential Information shall not include any information which:
a. is known or available to the public at the time of disclosure or became known or available after disclosure through no fault of the Employee;
b. is already known, through legal means, to the Employee;
c. is given by the Employer to third parties, other than the Employee, without any restrictions;
d. is given to the Employee by any third party who legally had the Confidential Information and the right to disclose it; or
e. is developed independently by the Employee, where the Employee can demonstrate such independent development.
18. Defend Trade Secrets Act Notice. Pursuant to 18 U.S.C. § 1833(b), the Employee shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that is made (i) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney, solely for the purpose of reporting or investigating a suspected violation of law, or (ii) in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
§ VIII. PROTECTED RIGHTS.
§ IX. NON-SOLICITATION.
20. For a period of one (1) year following the Retirement Date (the "No-Raid Period"), the Employee shall not, either directly or indirectly, alone or in conjunction with another party, intentionally interfere with or harm, or intentionally attempt to interfere with or harm, the relationship of the Employer, its subsidiaries, and/or affiliates with any person or entity who at any time during the final year of the Employee's employment was an employee, customer, or supplier of the Employer, its subsidiaries, and/or affiliates, or otherwise had a business relationship with the Employer, its subsidiaries, and/or affiliates.
21. During the No-Raid Period, the Employee shall not knowingly solicit, recruit, or hire, or cause to be solicited, recruited, or hired, any person then employed by the Employer, without the Employer's prior written consent.
§ X. NON-COMPETITION.
22. To the extent permitted by, and only to the extent enforceable under, the applicable law of the State of ________, the Employee agrees that, for a period of ________ following the Retirement Date, the Employee shall not engage, directly or indirectly, as proprietor, partner, officer, employee, or otherwise, in the same or substantially similar activities as were performed for the Employer in any competing business within the following geographic area: ________. The Parties acknowledge that this covenant is intended to protect the Employer's legitimate business interests and is subject to the reasonableness limitations and reformation provisions of § XII below. This covenant shall be void and of no effect to the extent prohibited by applicable law.
§ XI. CONFIDENTIALITY OF AGREEMENT TERMS.
23. To the extent permitted by applicable law, the Employee shall not disclose the terms of this Agreement, including any payment made under this Agreement, to any person, except, subject to the understandings herein, the following:
a. to the Employee's spouse or attorneys;
b. to the Employee's accountants and tax preparers, to the extent necessary to prepare the Employee's income tax returns; and
c. to the extent disclosure is compelled by law or legal process or as otherwise permitted under § VIII above.
24. Before disclosing any terms of this Agreement to a permitted recipient, the Employee shall obtain the agreement of any such person to keep such information confidential under the same terms outlined in this section.
§ XII. NON-DISPARAGEMENT.
25. The Employee agrees that the Employee shall not, at any time following the Retirement Date, make any statements, whether oral or written, that disparage, defame, or otherwise reflect negatively upon the Employer or any of its agents, parents, subsidiaries, affiliates, officers, directors, or employees, or that are injurious to the reputation, business, or goodwill of the Employer.
26. The Employer agrees that it shall direct its officers and directors not to make any statements, whether oral or written, that disparage, defame, or otherwise reflect negatively upon the Employee.
27. Nothing in this section shall prohibit either Party from making truthful statements when required to do so by law, subpoena, court order, or other legal process, or from exercising the protected rights described in § VIII above.
§ XIII. REMEDIES AND REASONABLENESS.
28. The Employee agrees that any breach of the restrictive covenants set forth in this Agreement would result in irreparable injury and damage to the Employer for which the Employer would have no adequate remedy at law, and that the Employer shall therefore be entitled to seek injunctive relief, without the necessity of posting a bond, in addition to any other remedies available at law or in equity.
29. In the event the Employee materially violates any term of this Agreement, the Employer shall, in addition to its other remedies, be entitled to cease further payments or provision of benefits to the Employee under this Agreement, provided that such cessation shall not affect the validity or enforceability of the releases granted herein.
30. The Employee and the Employer agree that the covenants not to solicit and not to compete are reasonable in scope, duration, and geographic area, and that the Employer would not have entered into this Agreement but for the inclusion of such covenants herein.
31. Should a court or arbitrator of competent jurisdiction determine that any provision of the covenants is unreasonable or unenforceable, whether in period of time, geographical area, or otherwise, the Parties agree that the covenant shall be interpreted, reformed, and enforced to the maximum extent which such court or arbitrator deems reasonable and enforceable.
§ XIV. GENERAL RELEASE OF ALL CLAIMS.
32. In consideration of the payments and covenants stated herein, the Employee, on behalf of the Employee and the Employee's heirs, administrators, executors, agents, and assigns, hereby forever releases, acquits, and discharges the Employer and its agents, parents, subsidiaries, affiliates, officers, directors, employees, predecessors, successors, and assigns (the "Released Parties") from any and all charges, claims, demands, judgments, actions, causes of action, damages, expenses, costs, attorneys' fees, and liabilities of any kind whatsoever, whether known or unknown, vested or contingent, in law, equity, or otherwise, which the Employee ever had, now has, or may hereafter have against the Released Parties for or on account of any matter, cause, or thing whatsoever which has occurred up to and including the date the Employee signs this Agreement.
§ XV. ADEA / OLDER WORKERS BENEFIT PROTECTION ACT.
34. The Employee acknowledges and agrees that this Agreement includes a knowing and voluntary waiver and release of any and all rights and claims that the Employee may have under the Age Discrimination in Employment Act of 1967, as amended ("ADEA"), and the Older Workers Benefit Protection Act ("OWBPA"), arising on or before the date the Employee signs this Agreement. In accordance with such laws, the Employee specifically acknowledges that:
a. the Employee has been advised in writing to consult with an attorney before signing this Agreement;
b. the Employee has been given a period of ________ days within which to consider this Agreement, and if the Employee signs before the expiration of such period, the Employee does so knowingly and voluntarily;
c. the Employee has a period of seven (7) days following the Employee's signing of this Agreement within which to revoke it, and this Agreement shall not become effective or enforceable until the eighth (8th) day after the Employee signs it (the "Effective Date"), provided the Employee has not revoked it; and
d. any revocation must be in writing and delivered to ________ before the expiration of the revocation period.
35. This waiver does not apply to any rights or claims under the ADEA that arise after the date the Employee signs this Agreement.
§ XVI. ARBITRATION.
36. Should any dispute arise between the Employer and the Employee regarding this Agreement or the former employment relationship in general, the Parties shall confer in good faith and attempt to resolve such dispute.
37. If the Parties are unable to resolve the dispute, then, except for claims for injunctive or equitable relief to enforce the restrictive covenants herein and except for any claim that may not lawfully be subject to mandatory arbitration, any such dispute shall be submitted to final and binding arbitration administered in accordance with the Employment Arbitration Rules of the American Arbitration Association, pursuant to and enforceable under the Federal Arbitration Act, 9 U.S.C. § 1 et seq.
38. The arbitration shall be held in the State of ________, in ________, and shall be conducted by a single impartial arbitrator. Judgment upon the award rendered may be entered in any court having jurisdiction.
39. The arbitration and the award shall remain confidential to the extent permitted by law. Each Party shall bear its own attorneys' fees and costs except as otherwise required by applicable law or awarded by the arbitrator.
§ XVII. ADVICE OF COUNSEL.
40. The Employee acknowledges that the Employer has provided the Employee with a reasonable and sufficient opportunity to obtain independent legal advice regarding this Agreement.
41. The Employee covenants that the Employee has either received such independent legal advice prior to executing this Agreement or has knowingly and voluntarily chosen not to obtain such advice and is executing this Agreement without doing so.
§ XVIII. NOTICES.
42. Any notice, request, demand, or other communication required or permitted under this Agreement shall be in writing and may be delivered in person, by nationally recognized overnight courier, or by certified mail, return receipt requested, to the address of the respective Party first indicated above or as may be updated in writing by either Party. Notice shall be deemed given upon receipt or refusal of receipt.
§ XIX. ENTIRE AGREEMENT.
43. This Agreement contains the entire agreement of the Parties, and there are no other promises, representations, or conditions, whether oral or written, concerning the subject matter of this Agreement.
44. This Agreement supersedes any prior written or oral agreements between the Parties concerning the subject matter hereof, except for any surviving obligations under any prior valid confidentiality, invention-assignment, or restrictive-covenant agreement to the extent not inconsistent herewith.
§ XX. SEVERABILITY.
45. If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable.
46. If a court or arbitrator finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited.
§ XXI. AMENDMENT.
47. This Agreement may be modified or amended only in a writing signed by both Parties.
§ XXII. GOVERNING LAW.
48. This Agreement shall be governed by and construed in accordance with the laws of the State of ________, without regard to its conflict-of-laws principles, except to the extent governed by applicable federal law.
§ XXIII. WAIVER.
49. The failure of either Party to enforce any provision of this Agreement shall not be construed as a waiver or limitation of that Party's right to subsequently enforce and compel strict compliance with every provision of this Agreement.
§ XXIV. VOLUNTARY AGREEMENT.
50. The Employee acknowledges that the Employee has read this Agreement in its entirety, understands its terms, and is entering into it knowingly and voluntarily, without coercion or duress, and intends to be legally bound by it.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the dates set forth below.
_________________________________
________, Employee
_________________
Date: ________
_________________________________
________, Employer
By: ________
Title: ________
_________________
Date: ________
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