EXHIBIT 10.1
SEPARATION AGREEMENT
This Separation Agreement (this "AGREEMENT") is made and entered into
as of this 30th day of April 2004, by and between Ironclad Performance Wear
Corporation, a California Corporation (the "COMPANY"), and Xxxxxx Xxxxxx
("EXECUTIVE").
RECITALS
A. The Company's Board of Directors (the "BOARD") has determined that
it is fair and reasonable as to the Company and its shareholders, and in the
best interests of the Company to properly compensate Executive in connection
with his employment, and for the execution, in April of 2004, of a bank loan
guarantee whereby Executive personally guaranteed the Company's obligations
under its existing bank loan.
B. In order to induce Executive to remain in its employ and to provide
the personal guarantee, the Company has entered into this Agreement with
Executive.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and Executive agree as
set forth below.
1. TERMINATION OF EXECUTIVE OTHER THAN FOR CAUSE. If the Company
terminates Executive's employment with the Company at any time other than for
Cause, then the Company shall pay Executive the following (the "TERMINATION
AMOUNTS"):
1.1 All accrued and unpaid salary and other compensation
payable to Executive by the Company for services rendered through the
termination date, payable in a lump sum payment on the termination date; and
1.2 A cash amount equal to Two Hundred Thousand Dollars
($200,000), payable in installments throughout the one (1) year period following
the termination date in the same manner as the Company pays salaries to its
other executive officers.
2. TERMINATION FOR CAUSE. For the purposes of this Agreement,
termination for "Cause" shall mean termination by reason of:
2.1 Any act or omission knowingly undertaken or omitted by
Executive with the intent of causing damage to the Company, its properties,
assets or business or its shareholders, officers, directors or employees;
2.2 Any improper act of Executive involving a material
personal profit to Executive, including, without limitation, any fraud,
misappropriation or embezzlement, involving properties, assets or funds of the
Company or any of its subsidiaries;
2.3 Executive's consistent failure to perform his normal
duties as directed by the Chairman of the Board, in the sole discretion of the
Board;
2.4 Conviction of, or pleading nolo contendere to, (A) any
crime or offense involving monies or other property of the Company; (B) any
felony offense; or (C) any crime of moral turpitude; or
2.5 The chronic or habitual use or consumption of drugs or
alcoholic beverages.
3. NO MITIGATION OR OFFSET. Payment of any sum under this Agreement
shall not be subject to any claim of mitigation nor shall the Company be
entitled to any right of offset with respect thereto.
4. GENERAL RELEASE AND NON-COMPETITION AGREEMENT. As a condition to the
payment of the Termination Amounts described above, Executive shall execute and
deliver a general release to the Company in the form attached hereto as EXHIBIT
A, and a Non-Competition Agreement in the form attached hereto as EXHIBIT B.
5. GENERAL PROVISIONS.
5.1 NOTICES. All notices, requirements, requests, demands,
claims or other communications hereunder shall be in writing. Any notice,
requirement, request, demand, claim or other communication hereunder shall be
deemed duly given (i) if personally delivered, when so delivered, (ii) if
mailed, two (2) business days after having been sent by registered or certified
mail, return-receipt requested, postage prepaid and addressed to the intended
recipient as set forth below, or (iii) if sent through an overnight delivery
service under circumstances by which such service guarantees next day delivery,
the date following the date so sent:
If to the Company, to: Ironclad Performance Wear Corporation
00000 Xxxxxxxx Xxxxxx
Xxxxx Xxxxx, Xxxxxxxxxx 00000
Attn: Board of Directors
If to Executive to: Xxxxxx Xxxxxx
Any party may change the address to which notices, requests, demands, claims and
other communications hereunder are to be delivered by giving the other party
notice in the manner herein set forth.
5.2 ASSIGNMENT. This Agreement and the benefits hereunder are
personal to Executive and are not assignable or transferable. The Company may
not assign this Agreement to any person, firm or company; provided however, that
this Agreement and the benefits hereunder may be assigned by the Company to any
corporation into which the Company may be merged or consolidated, and this
Agreement and the benefits hereunder will automatically be deemed assigned to
any such corporation.
5.3 ENTIRE AGREEMENT. This Agreement contains the entire
agreement among the parties hereto with respect to the subject matter hereof and
supersedes and cancels any and all previous written or oral negotiations,
commitments, understandings, agreements and any other writings or communications
in respect of such subject matter.
5.4 AMENDMENTS. This Agreement may be modified, amended,
superseded or terminated only by a writing duly signed by both parties.
5.5 SEVERABILITY. Any provision of this Agreement which is
invalid, illegal or unenforceable in any jurisdiction shall, as to that
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability, without affecting in any way the remaining provisions hereof
in such jurisdiction or rendering that or any other provision of this Agreement
invalid, illegal or unenforceable in any other jurisdiction.
5.6 NO WAIVER. Any waiver by either party of a breach of any
provisions of this Agreement shall not operate as or be construed to be a waiver
of any other breach of such provision or of any breach of any other provision of
this Agreement. The failure of either party to insist upon strict adherence to
any term of this Agreement on one or more occasions shall not be considered a
waiver or to deprive such party of the right thereafter to insist upon strict
adherence to that term or any other term of this Agreement.
5.7 BINDING EFFECT. Subject to the provisions of SECTION 5.2,
this Agreement shall be binding on, and shall inure to the benefit of, the
parties hereto and their permitted assigns, successors and legal
representatives.
5.8 COUNTERPARTS. This Agreement may be executed by the
parties hereto in separate counterparts, each of which when so executed shall be
deemed to be an original and all of which when taken together shall constitute
one and the same document.
5.9 GOVERNING LAW. This Agreement has been negotiated and
entered into in the State of California and shall be construed in accordance
with the laws of the State of California, without regard to conflicts of law
principles thereof.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed on its behalf by its duly authorized officer and Executive has executed
the same as of the day and year first above written.
THE COMPANY
IRONCLAD PERFORMANCE WEAR CORPORATION
/s/ Xxxx Xxxxxxx
By: ____________________________
Xxxx Xxxxxxx
Chairman
EXECUTIVE
/s/ Xxxxxx Xxxxxx
--------------------------------
Xxxxxx Xxxxxx
EXHIBIT A
FORM OF RELEASE
WAIVER UNDER SECTION 1542 OF THE CALIFORNIA CIVIL CODE. With regard to any
claims which may exist or arise out of the Executive's current or any prior
affiliation with the Company (the "Disputes"), Executive expressly waives all
claims against the Company, including, without limitation, any and all rights
under Section 1542 of the Civil Code of the State of California which provides
as follows:
A general release does not extend to claims which the creditor does not know or
suspect to exist in his favor at the time of executing the release, which if
known by him must have materially affected his settlement with the debtor.
Executive waives and releases any right or benefit that he has or may have under
any similar law or rule of any other jurisdiction pertaining to the Disputes. It
is the intention of Executive, through this Agreement, fully, finally, and
forever to settle and release all such matters and claims relative thereto which
have existed, do now exist or may exist between the parties arising out of or
related to the Disputes. In furtherance of such intention, the release herein
given shall be, and remain in effect as, a full and complete release of such
matters notwithstanding the discovery of the existence of any additional claims
or facts relating thereto.
