SEPARATION AGREEMENT AND GENERAL RELEASE
SEPARATION AGREEMENT AND
GENERAL RELEASE
This
Separation Agreement and General Release (“Agreement”) is made and
entered into as of February 26, 2010 by and between Xxxxx X. Xxxxxxxxxxx, an
individual (“Xxxxxxxxxxx”), and Lenco
Mobile USA Inc., a Nevada corporation (“Lenco”), with respect to the
following facts:
X. Xxxxxxxxxxx
has served as an officer and employee of Lenco pursuant to the terms of an
Employment Agreement dated June 1, 2009 (the “Employment
Agreement”).
B. Lenco
and Xxxxxxxxxxx have agreed to terminate Xxxxxxxxxxx’x employment with Lenco
effective as of the date of this Agreement.
C. In
this Agreement, Xxxxxxxxxxx and Lenco desire to formally document the terms of
Xxxxxxxxxxx’x separation from Lenco and Xxxxxxxxxxx’x release of claims against
Lenco.
NOW,
THEREFORE, in consideration of the mutual covenants and obligations contained in
this Agreement, and intending to be legally bound, the parties hereto agree as
follows:
1. Resignation. Xxxxxxxxxxx
hereby resigns as an officer and employee of Lenco effective as of the date
hereof.
2. Impact on
Employment Agreement. Except as set forth herein, the parties
shall have no further duties, responsibilities, authority or obligations to one
another arising out of or relating to the Employment Agreement or Xxxxxxxxxxx’x
status as an officer or employee of Lenco.
3. Payment
of Wages and Other Compensation. Xxxxxxxxxxx
acknowledges that he has been paid for all of his wages, performance bonuses,
expenses and his accrued and unused vacation time through the date of this
Agreement, which is Xxxxxxxxxxx’x last day of work.
4. Severance
Payments. Lenco will make severance payments to Xxxxxxxxxxx in
the form of continuation of Xxxxxxxxxxx’x Base Salary as defined and outlined in
section 2.1 of the Employment Agreement through April 30, 2010 (the “Severance
Payments”). Severance Payments will be made on Lenco’s
ordinary payroll dates and will be subject to standard payroll deductions and
withholdings.
5. Continuation
of Medical Benefits. Assuming Xxxxxxxxxxx elects COBRA
continuation coverage, Lenco will pay all applicable premiums for Xxxxxxxxxxx to
continue receiving group health insurance provided to current employees through
COBRA continuation coverage beginning on the date of this Agreement through the
earlier of (i) December 31, 2010 or (ii) such time as Xxxxxxxxxxx is eligible
for coverage under the health insurance plan of another employer.
6. Representations
by Xxxxxxxxxxx. Xxxxxxxxxxx represents and warrants to Lenco
that Xxxxxxxxxxx (i) has disclosed to Lenco and Lenco’s parent all agreements,
arrangements and obligations with third parties that Xxxxxxxxxxx has made on
behalf of Lenco or its affiliates, and (ii) is not aware of any third party
claims or complaints that Xxxxxxxxxxx has not disclosed to Lenco and
Lenco’s parent.
7. General
Release. Lenco and
Xxxxxxxxxxx for themselves, their heirs, executors, administrators,
assigns and successors, current, former and future parents, subsidiaries,
related entities, fiduciaries, predecessors, successors, officers, directors,
shareholders, agents, employees and assigns fully and forever release and
discharge each other and their heirs, executors, administrators, assigns and
successors, current, former and future parents, affiliates, subsidiaries,
affiliates, related entities, employee benefit plans and their fiduciaries,
predecessors, successors, officers, directors, shareholders, agents, employees
and assigns (collectively, “Releasees”), with respect to
any and all claims, liabilities and causes of action, of every nature, kind and
description, in law, equity or otherwise, which have arisen, occurred or existed
at any time prior to the signing of this Agreement, including, without
limitation, any and all claims, liabilities and causes of action arising out of
or relating to Xxxxxxxxxxx’x employment with Lenco prior to the date of this
Agreement.
8. Knowing
Waiver of Employment-Related Claims. Xxxxxxxxxxx
understands and agrees that, with the exception of potential employment-related
claims identified below, he is waiving any and all rights he may have had, now
has, or in the future may have, to pursue against any of the Releasees any and
all remedies available to him under any employment-related causes of action,
including without limitation, claims of wrongful discharge, breach of contract,
breach of the covenant of good faith and fair dealing, fraud, violation of
public policy, defamation, discrimination, personal injury, physical injury,
emotional distress, claims under Title VII of the Civil Rights Act of 1964, as
amended, the Americans With Disabilities Act, the Federal Rehabilitation Act,
the California Fair Employment and Housing Act, the California Family Rights
Act, the Equal Pay Act of 1963, the provisions of the California Labor Code and
any other federal, state or local laws and regulations relating to employment,
conditions of employment (including wage and hour laws), perquisites of
employment (including but not limited to claims relating to stock and/or stock
options) and/or employment discrimination. Claims not covered by the
release provisions of this Agreement are (i) claims for unemployment insurance
benefits; (ii) claims under the California Workers’ Compensation Act; (iii)
claims for indemnity under the California Labor Code; (iv) claims arising from
Lenco’s nonperformance under this Agreement; (v) claims for defense and
indemnification relating to any claims brought against Xxxxxxxxxxx arising out
of his employment with Lenco; and (vi) any challenge to the validity of
Xxxxxxxxxxx’x release of claims under the Age Discrimination in Employment Act
of 1967, as amended (“ADEA”), as set forth in
paragraph 8 below. Xxxxxxxxxxx expressly
waives any right to recovery of any type, including damages and reinstatement,
in any administrative or court action, whether state or federal, and whether
brought by him or on his behalf, related in any way to the matters released
herein. Lenco agrees that it will not challenge Xxxxxxxxxxx’x
application for unemployment benefits.
9. Knowing
Waiver of ADEA Claims. Xxxxxxxxxxx
acknowledges that he is knowingly and voluntarily waiving and releasing any
rights he may have under the federal Age Discrimination in Employment Act of
1967, as amended. He also acknowledges that the consideration given
for this waiver and release is in addition to anything of value to which he
already was entitled. Xxxxxxxxxxx further acknowledges that he has
been advised by this writing, as required by law, that (i) his waiver and
release specified in this paragraph do not apply to any rights or claims that
may arise after the date he signs this Agreement or to any challenge to the
validity of this waiver of ADEA claims; (ii) he has the right to consult with an
attorney prior to executing this Agreement; (iii) he has twenty one (21) days to
consider this Agreement (although he may choose to voluntarily execute this
Agreement earlier); (iv) he has seven (7) days following his execution of this
Agreement to revoke the Agreement (in writing); and (v) this Agreement will not
be effective until the date upon which the revocation period has expired, which
will be the eighth (8th) day after this Agreement is executed by
Xxxxxxxxxxx.
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10. Waiver of
Civil Code § 1542. Xxxxxxxxxxx
expressly waives any and all rights and benefits conferred upon him by Section
1542 of the Civil Code of the State of California, which states 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.”
Xxxxxxxxxxx
expressly agrees and understands that the release given by him pursuant to this
Agreement applies to all unknown, unsuspected and unanticipated claims,
liabilities and causes of action which he may have against any of the other
Releasees.
11. Severability
of Release Provisions. Xxxxxxxxxxx and
Lenco agree that if any provision of the release given under this Agreement is
found to be unenforceable, it will not affect the enforceability of the
remaining provisions and the courts may enforce all remaining provisions to the
extent permitted by law.
12. Representation
Regarding Legal Actions. Xxxxxxxxxxx
represents that, as of the date of this Agreement, he has not filed any
lawsuits, charges, complaints, petitions, claims or other accusatory pleadings
against the Releasees in any court or with any governmental
agency. Except for claims preserved by law or expressly by this
Agreement, Xxxxxxxxxxx promises never to xxx any of the Releasees, or otherwise
institute or participate in any legal or administrative proceedings against any
of the Releasees, with respect to any claim covered by the release provisions of
this Agreement, unless he is compelled by legal process to do
so. Xxxxxxxxxxx promises and agrees that he shall not advocate or
incite the institution of, or assist or participate in, any suit, complaint,
charge or administrative proceeding by any other person against any of the
Releasees, unless compelled by legal process to do so.
13. Promise
to Maintain Confidentiality of Lenco’s Confidential Information. Xxxxxxxxxxx
acknowledges that due to the position he has occupied and the responsibilities
he has had at Lenco, he has received confidential information concerning Lenco’s
products, procedures, customers, sales, prices, contracts, and the
like. Xxxxxxxxxxx hereby promises and agrees that, unless compelled
by legal process, he will not disclose to others and will keep confidential all
information he has received while employed by Lenco concerning Lenco’s products
and procedures, the confidential purchasing information relating to Lenco’s
customers, Lenco’s sales, Lenco’s prices, the terms of any of Lenco’s contracts
with third parties, and the like to the extent such information is not otherwise
accessible by the public. Xxxxxxxxxxx agrees that a violation by him
of the foregoing obligation to maintain the confidentiality of Lenco’s
confidential information will constitute a material breach of this
Agreement.
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14. Entire
Agreement. This Agreement
constitutes the entire agreement between the parties and supersedes all prior
discussion, negotiations or agreements, written or oral, with respect to it
subject matter. No promises or representations were made to either
party which do not appear written herein.
15. Waiver,
Amendment and Modification of Agreement. The parties agree
that no waiver, amendment or modification of any of the terms of this Agreement
shall be effective unless in writing and signed by all parties affected by the
waiver, amendment or modification. No waiver of any term, condition
or default of any term of this Agreement shall be construed as a waiver of any
other term, condition or default.
16. Representation
by Counsel. The parties
acknowledge that they have had the opportunity to be represented in negotiations
for the preparation of this Agreement by counsel of their own choosing, and that
they have entered into this Agreement voluntarily, without
coercion. This Agreement shall be construed without regard to the
drafter of the same and shall be construed as though each party to this
Agreement participated equally in the preparation and drafting of this
Agreement.
17. California
Law. The parties agree
that this Agreement and its terms shall be construed under California law,
without regard to any choice of law rules of any state, federal or other body of
law.
18. Counterparts. This Agreement
may be signed in counterparts and delivered by facsimile or electronic mail in
portable document format or other means intended to preserve the original
graphic content of a signature. Each such counterpart shall be deemed
an original, but all of which taken together shall constitute one and the same
instrument.
19. Period to
Consider Terms of Agreement. Xxxxxxxxxxx
acknowledges that this Agreement was presented to him on February 23, 2010 and
that he is entitled to have up to twenty-one (21) days to consider the terms of
this Agreement. Xxxxxxxxxxx acknowledges that he has obtained the
advice and counsel from the legal representative of his choice and executes this
Agreement having had sufficient time within which to consider its
terms. Xxxxxxxxxxx represents that if he executes this Agreement
before 21 days have elapsed, he does so voluntarily, upon the advice and with
the approval of his legal counsel, and that he voluntarily waives any remaining
consideration period. Xxxxxxxxxxx understands that if not
executed on or before March 16, 2010 that this Agreement shall expire and may
not be executed thereafter.
20. Revocation
of Agreement. Xxxxxxxxxxx
understands that after executing this Agreement that he has the right to revoke
this Agreement within seven (7) days after his execution of
it. Xxxxxxxxxxx understands that this Agreement will not become
effective and enforceable unless the seven-day revocation period passes and
Xxxxxxxxxxx does not revoke the Agreement in writing. Xxxxxxxxxxx
understands that this Agreement may not be revoked after the seven-day
revocation period has passed. Xxxxxxxxxxx understands that any
revocation of this Agreement must be made in writing and delivered to Xxxxxxx
Xxxxxxxxx, Lenco’s CEO, within the seven-day period.
21. Effective
Date. This Agreement
shall become effective and binding upon the parties eight (8) days after
Xxxxxxxxxxx’x execution thereof, so long as he has not revoked it within the
time period and in the manner specified in paragraph 19, above.
[SIGNATURES
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IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
written above.
| /s/ Xxxxx Xxxxxxxxxxx | |||
|
Xxxxx
Xxxxxxxxxxx
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Lenco
Mobile USA Inc.
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By:
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/s/ Xxxxxxx Xxxxxxxxx | |
| Xxxxxxx Xxxxxxxxx | |||
| Chief Executive Officer | |||
[SIGNATURE
PAGE TO XXXXXXXXXXX SEPARATION AGREEMENT]
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