Exhibit 10.68
SEVERANCE AND RELEASE AGREEMENT
On this 21st day of February, 2007, the parties (hereinafter referred to as
"Party" or "Parties") to this Severance and Release Agreement (hereinafter
referred to as "Agreement"), Xxxxxxxx X. Xxxxxxx (hereinafter referred to as
"Xxxxxxx") and Arcadia Resources, Inc. f/k/a Critical Home Care, Inc., a Nevada
corporation (hereinafter referred to as "Arcadia") have entered this Agreement.
RECITALS:
X. Xxxxxxx'x employment under the Employment Agreement (see attached
Exhibit C) dated May 7, 2004 (the "Employment Agreement"), has terminated and
Xxxxxxx'x last day of providing employment services, including, but not limited
to employment services as President, an Officer and COO of Arcadia will be the
last day of the Revocation Period as hereinafter defined. Certain provisions of
Xxxxxxx'x Employment Agreement shall remain in effect as provided herein.
X. Xxxxxxx'x Stock Option Agreement (see attached Exhibit D) dated May 7,
2004 (the "Stock Option Agreement") shall remain in full force and effect,
subject to the terms, conditions, covenants, and the like as provided herein or
as amended herein.
X. Xxxxxxx'x Escrow Agreement (see attached Exhibit E) dated May 7, 2004
(the "Escrow Agreement") shall remain in full force and effect, subject to the
terms, conditions, covenants and the like as provided herein.
D. Arcadia will under no circumstances have any liability or obligation
whatsoever, to Xxxxxxx or his personal representatives, estate, heirs,
beneficiaries, claiming by or through Xxxxxxx, except for those payments,
benefits, obligations and reimbursable expenses described in this Agreement.
X. Xxxxxxx agrees that the payments, benefits, obligations and reimbursable
expenses to be made to him or for his benefit pursuant to this Agreement will be
his full severance, liquidated damages and settlement due Xxxxxxx arising out of
the termination of his Employment Agreement that Xxxxxxx may have or had with
Arcadia ("Release of Claims").
In exchange for good and valuable consideration, the receipt of which is
hereby acknowledged, and in order to set forth the terms of Xxxxxxx'x Release of
Claims, Xxxxxxx and Arcadia agree as follows:
1. EMPLOYMENT AGREEMENT.
(a) Xxxxxxx will receive as provided in Paragraph 4 of his Employment
Agreement his compensation and benefits except for bonus, vacation and sick
time through the end of the Retention Period as hereinafter defined.
(b) Pursuant to Paragraph 6(C) of Xxxxxxx'x Employment Agreement,
Xxxxxxx shall receive the payments required thereunder. The initial payment
of One
Hundred Forty-Three Thousand Two Hundred Eighty and 00/100 ($143,280.00)
Dollars, which is twenty-five (25%) percent of the severance amount
provided for in Paragraph 6(C) of the Employment Agreement will be paid on
September 1, 2007. The remaining balance shall be paid in seven (7) equal
installments of Sixty-One Thousand Four Hundred Five and 71/100
($61,405.71) Dollars commencing on September 1, 2007 with subsequent
payments due on the 1st of each successive month until Four Hundred Twenty
Nine Thousand Eight Hundred Forty and 00/100 ($429,840.00) Dollars has been
paid in full. All payments pursuant to Paragraph 6(C) shall be less
applicable withholdings. Upon Xxxxxxx'x request, the Parties shall
cooperate to arrange for wire transfers of all payments under this
Agreement.
(c) The Parties acknowledge that Paragraph 8 of Xxxxxxx'x Employment
Agreement shall remain in effect and Xxxxxxx shall be subject to the
inventions provisions as provided therein.
(d) The Parties acknowledge that Paragraph 9 of Xxxxxxx'x Employment
Agreement is hereby amended and restated in its entirely as set forth on
Exhibit A to this Agreement, and as so amended and restated shall remain in
effect as provided therein and Xxxxxxx shall be subject to the
confidentiality provisions as provided therein.
(e) The Parties acknowledge that Paragraph 10 of Xxxxxxx'x Employment
Agreement is hereby amended and restated in its entirely as set forth on
Exhibit B to this Agreement, and as so amended and restated shall remain in
effect as provided therein and Xxxxxxx shall be subject to the
covenant-not-to-compete provisions as provided therein.
(f) The Parties acknowledge that Paragraph 11 of Xxxxxxx'x Employment
Agreement shall remain in effect and Xxxxxxx and Arcadia shall be subject
to the enforceability provisions as provided therein.
(g) In consideration of the Release of Claims by Xxxxxxx set forth in
Paragraph 7, Xxxxxxx shall be paid One Hundred Sixty Thousand and 00/100
($160,000.00) Dollars on September 1, 2007 by wire transfer.
(h) If prior to February 29, 2008, there shall occur a "Change in
Control" of Arcadia (as that term is defined in the Employment Agreement),
then in addition to the payments due under other provisions of this
Agreement, Arcadia shall also pay to Xxxxxxx Two Hundred Eighty-Six
Thousand Five Hundred Sixty and 00/100 ($286,560.00) Dollars in a lump sum
within ten (10) days after the occurrence of the Change in Control.
(i) The Parties agree that the termination hereunder is "other than
for cause" within the meaning of Paragraph 6(C) of the Employment
Agreement.
(j) In all other respects, the Xxxxxxx Employment Agreement is
terminated and of no effect as of the date of this Agreement.
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2. STOCK OPTION AGREEMENT.
(a) The Options (as defined in the Stock Option Agreement ) #3, #4, #5
and #6 pursuant to Paragraph 3 of the Stock Option Agreement and totaling
three million (3,000,000) option shares of Arcadia Voting Common Stock
shall vest as of the expiration of the Revocation Period as defined in
Paragraph 9 below. No other Options shall vest and Options #1 and #2 are
terminated and will never vest. The exercise price under each Option shall
be twenty-five ($.25) cents per Option share. Xxxxxxx may exercise any or
all of the vested Options at any time commencing September 1, 2007 and
ending February 29, 2008. Arcadia shall exercise its best efforts to issue
the stock to Xxxxxxx pursuant to an exercised Option within three (3) days
of exercise.
(b) The Stock Options may be exercised in whole or in part at
Xxxxxxx'x option by means of a cashless exercise through the surrender and
cancellation of a portion of shares of Arcadia common stock then held by
Xxxxxxx or issuable on exercise of the options, Arcadia being deemed to
have received cash consideration as payment in full of the exercise price
based on the day of exercise upon the difference between the exercise price
of $.25 per share and the closing price of Arcadia stock on the American
Stock Exchange as of such date, being treated as cash consideration for the
exercise of any option shares so designated by Xxxxxxx.
(c) Any changes or modifications made in this Agreement to the Stock
Option Agreement shall be treated as amendments to the Stock Option
Agreement. Subject to any such amendments provided for in this Agreement,
the Stock Option Agreement shall remain in full force and effect.
(d) Arcadia covenants and agrees to use its commercially reasonable
best efforts to maintain the effectiveness of Arcadia's registration
statement with the SEC covering the option shares that may be issued under
the Stock Option Agreement for a period of not less than two years from the
date of termination of Xxxxxxx'x employment.
(e) The Parties agree that through and including the date of this
Agreement there has not been a breach or default under the Stock Option
Agreement by either Party.
(f) To the best of Arcadia's knowledge, Arcadia represents and
warrants that the Options satisfy the applicable conditions of Rule 16b-3
under the Securities Exchange Act of 1934 (the "Exchange Act") and that
transactions between Arcadia and Xxxxxxx involving the Options will qualify
for the exemption from Section 16(b) provided under Rule 16b-3(a) under the
Exchange Act.
(g) Arcadia represents and warrants that, with respect to the grant of
the Options under the Stock Option Agreement, Arcadia has "timely reported
all financial expenses due to the issuance of the Options on financial
statements or reports for the period in which the related expense should
have been reported under generally accepted accounting principles," as such
terminology is used in IRS Notice 2006-79.
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3. ESCROW AGREEMENT. The Parties agree that the Escrow Agreement shall
remain in full force and effect and that through and including the date of this
Agreement there has not been a breach or default under the Escrow Agreement by
either Party.
4. RETURN OF EMPLOYER PROPERTY. On the date Xxxxxxx signs this Agreement,
Xxxxxxx will immediately turn over to Arcadia all of Arcadia property which he
has in his possession or control, including any Arcadia records, files, computer
disks, software, printers, cellular phones and PDA's issued by Arcadia, and
documents, regardless of the media in which such documents are stored, and
including any keys or Arcadia credit cards, which Xxxxxxx agrees to immediately
cease using. However, Xxxxxxx may purchase his computers and his office
furniture for book value. In the event that Xxxxxxx exercises his option to
purchase the computer(s) he currently uses, Arcadia reserves the right to
inspect such computer(s), or other equipment, prior to purchase by Xxxxxxx and
to delete, at its option, any data Arcadia deems proprietary or confidential in
nature. Xxxxxxx agrees that should a dispute arise between Xxxxxxx and Arcadia
regarding the deletion of data on equipment to be purchased by Xxxxxxx, then
Arcadia may, at its discretion, withdraw the option to purchase said computer(s)
or equipment.
5. FULL PAYMENT. Xxxxxxx agrees that the consideration to be paid to him
described above in Paragraphs 1, 2, and 3 shall constitute full and final
payment for all services he has rendered or will render to Arcadia and for such
promises made by Xxxxxxx in this Agreement and that such payments are in lieu of
any other compensation, bonus, severance pay, vacation pay, incentive
compensation pay, or employee benefits.
6. REIMBURSEMENT OF EXPENSES. Arcadia shall reimburse Xxxxxxx for any and
all business expenses for which he is entitled to reimbursement under Arcadia's
reimbursement policies and procedures in effect on the date hereof. All expenses
for reimbursement shall be submitted within thirty (30) days from the date of
this Agreement. Any expenses submitted after this thirty day period will not be
reimbursed. Arcadia shall make reimbursement payments promptly and in any event
no later than seven days after submission.
7. RELEASE OF CLAIMS - XXXXXXX. Except for a breach by Arcadia of this
Agreement, the Stock Option Agreement including the amendments in Paragraph 2
above, portions of the Employment Agreement addressed in this Agreement or the
Escrow Agreement (none of which are the subject of any release hereunder), from
the date of this Agreement forward, Xxxxxxx hereby forever releases and
discharges Arcadia and each of Arcadia's past or present owners, members,
shareholders, predecessors, successors, assigns, agents, directors, officers,
employees, representatives, attorneys, insurers, employee benefit programs, the
trustees, administrators, fiduciaries, and insurers of such programs, parent
companies, divisions, subsidiaries, affiliates (and any past or present agents,
directors, officers, employees, representatives, attorneys, insurers, and
employee benefit programs of such parent companies, divisions, subsidiaries, and
affiliates), and all persons acting by, through, under, or in concert with any
of them (collectively "Releasees"), from any and all claims, demands, rights,
charges, actions, interests, debts, liabilities, damages, costs and expenses, or
causes of action of whatever type or nature, whether legal or equitable, whether
in tort or in contract, which Xxxxxxx may now have against them, either
individually, jointly or severally, before any municipal, state or federal court
or administrative agency, based upon acts which have occurred from the beginning
of time to the date of this Agreement, and especially from any and all claims,
demands, or causes of action
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arising out of, either directly or indirectly, Xxxxxxx'x employment or
separation of employment with Arcadia, including, but not limited to, any rights
or causes of action Xxxxxxx may have under the Age Discrimination in Employment
Act, as amended, 29 U.S.C. Section 621, et. seq. ("ADEA"), Title VII of the
Civil Rights Act of 1964, 42 U.S.C. Section 2000 et. seq., and the Florida Civil
Rights Act (Chapter 760, Florida Statutes), the Florida Public Whistleblower Act
(Fla. Stat. 112.3187, et. seq.), the Florida Equal Pay Act, and waivable rights
under the Florida Constitution, the Americans With Disabilities Act, and the
Persons With Disabilities Civil Rights Act, the Employee Retirement Income
Security Act of 1974, the Family and Medical Leave Act of 1993, and the
Xxxxxxxx-Xxxxx Act of 2002, including any claim for or right to attorney fees,
costs and expenses thereunder. Xxxxxxx does not intend to waive and does not
waive any claims that may arise under the ADEA after the date on which he signs
this Agreement. Xxxxxxx understands that this Agreement may not affect the
rights and responsibilities of the Equal Employment Opportunity Commission
("EEOC") to enforce the ADEA and that this Agreement may not be used to justify
interfering with the protected right of employees, including Xxxxxxx, to file a
charge or participate in an investigation or proceeding conducted by the EEOC
under the ADEA. Notwithstanding anything in this Agreement to the contrary, the
release of any claim shall not apply and have no effect to the extent the claim
is based upon any fraudulent act or omission of Arcadia, unless Arcadia's
fraudulent act or omission is a direct result of the fraudulent act or omission
of Xxxxxxx.
8. KNOWING AND VOLUNTARY RELEASE. Xxxxxxx acknowledges and agrees that:
(a) He is the sole owner of the claims that are released in this
Agreement and that he has the full right and power to grant, execute and
deliver the releases and promises in this Agreement;
(b) This Agreement covers all claims arising out of his employment,
including those that he knows about;
(c) This Agreement is written in a manner that Xxxxxxx understands;
(d) Xxxxxxx is waiving claims under the foregoing laws, including
specifically the Age Discrimination in Employment Act, as amended, 29
U.S.C. 621, et. seq.;
(e) Except as otherwise provided in this Agreement, Xxxxxxx is waiving
and releasing only those claims based on acts or omissions or transactions
and dealings that arose prior to the execution of this Agreement;
(f) That no representations of any kind have been made by Arcadia to
induce Xxxxxxx to execute this Agreement, and that the only representations
made to Xxxxxxx in order to obtain his consent to this Agreement are as
stated herein;
(g) That he is entering into this Agreement of his own free will and
without coercion, intimidation or threat of retaliation. He acknowledges
and agrees that Arcadia has not exerted undue pressure or influence in this
regard;
(h) That a portion of the consideration offered herein is accepted by
him as being in full accord, satisfaction, compromise and settlement of any
and all claims or
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potential claims and that he expressly agrees that he is not entitled to
and shall not receive any further recovery of any kind from Arcadia or its
affiliates and that in the event of any further action, charge, complaint,
arbitration or proceeding of any kind in any court, or before any
administrative or investigative body or agency (whether public,
quasi-public or private) against Arcadia arising out of any act, omission,
transaction or occurrence up to and including the effective date, except
claims to enforce this Agreement, Arcadia shall have no further monetary or
other obligation of any kind to him, including any obligation for any
costs, expenses and attorneys' fees incurred by him or on his behalf or on
behalf of any other person or entity and/or on behalf of or as a member of
any alleged class of persons;
(i) Xxxxxxx has been advised to consult with an attorney and to have
an attorney review this Agreement; and
(j) Xxxxxxx has been offered a period of at least twenty-one (21) days
within which to consider this Agreement and that if he requires additional
time to review the provisions herein, Arcadia will consider granting a
reasonable extension of time;
9. REVOCATION PERIOD. For a period of seven (7) days following Xxxxxxx'x
execution of this Agreement ("Revocation Period") Xxxxxxx may revoke this
Agreement and this Agreement shall not become effective or enforceable until the
Revocation Period has expired. In the event that Xxxxxxx shall revoke this
Agreement, Xxxxxxx and Arcadia shall have no obligations under this Agreement.
10. COVENANT-NOT-TO-XXX. Xxxxxxx further agrees that he will not file a
lawsuit against the Releasees and will not file a charge of discrimination with
any state or federal administrative agency against the Releasees based upon any
acts or omissions which have occurred prior to the date of this Agreement.
Xxxxxxx also understands and agrees that by signing this Agreement, Xxxxxxx is
agreeing not to xxx the Releasees for any claims covered by the releases
included in Paragraphs 7 and 8. Xxxxxxx represents and warrants that neither he
nor any person, organization or entity acting on his behalf has filed or
initiated any complaint, charge, claim or proceeding against Arcadia or its
affiliate entities before any court or other body relating to his employment or
the termination thereof, nor does he have actual knowledge of, or reasonable
cause to believe that there may exist now or hereafter, any claims asserted or
assertable against Arcadia by other persons based on his acts or omissions
through the date of the execution of this Agreement. Xxxxxxx acknowledges that
he waives any right he may have to benefit in any manner from any relief,
monetary or otherwise, arising out of any past, present or future proceeding.
The foregoing waiver does not apply to Xxxxxxx'x rights under this Agreement and
from the date of this Agreement forward under the other agreements that remain
in effect as provided elsewhere in this Agreement.
11. RELEASE OF CLAIMS - ARCADIA. Except for a breach, from the date of this
Agreement forward, by Xxxxxxx of this Agreement, the Stock Option Agreement
including the amendments in Paragraph 2 above, portions of the Employment
Agreement addressed in this Agreement or Escrow Agreement, Arcadia and all their
parent companies, shareholders and affiliates, hereby forever release and
discharge Xxxxxxx and his successors, heirs, assigns, representatives, attorney
and all persons acting by, through or in concert with him (collectively
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"Xxxxxxx Releasees"), from any and all claims, demands, rights, charges,
actions, interests, debts, liabilities, damages, costs and expenses, or causes
of action of whatever type or nature, whether legal or equitable, whether in
tort or in contract, which Arcadia may now have against him, either
individually, jointly or severally, before any municipal, state or federal court
or administrative agency, based upon acts which have occurred from the beginning
of time to the date of this Agreement. Notwithstanding anything in this
Agreement to the contrary, the release of any claim shall not apply and have no
effect to the extent the claim is based upon any fraudulent act or omission of
Xxxxxxx.
12. COVENANT-NOT-TO-XXX - ARCADIA. Except for a breach by Xxxxxxx of this
Agreement, the Stock Option Agreement including the amendments in Paragraph 2
above, portions of the Employment Agreement addressed in this Agreement, the
Escrow Agreement and except for matters excluded from the scope of the release
given by Arcadia in Paragraph 11 hereunder, Arcadia further agrees it will not
file a lawsuit against the Xxxxxxx Releasees.
13. ENTIRE AGREEMENT. This Agreement sets forth the entire agreement
between Xxxxxxx and Arcadia, and supersedes any and all other previous or
contemporaneous communication, representations, understandings, assignments,
negotiations and discussions, either oral or written between the Parties with
respect to the subject matter of this Agreement. Notwithstanding the above
sentence, portions of the Employment Agreement addressed in this Agreement, the
Stock Option Agreement including the amendments in Paragraph 2 above, and the
Escrow Agreement shall remain in full force and effect, subject to any
modifications made in this Agreement. This Agreement may not be modified in any
manner except by the mutual written agreement of the Parties hereto. Xxxxxxx
acknowledges that Arcadia has made no representations or promises to him (such
as that Xxxxxxx'x former position will remain vacant), other than those in this
Agreement. If any provision of this Agreement is found to be unenforceable, all
other provisions will remain enforceable.
14. ARCADIA REPRESENTATIONS, ETC. Arcadia represents and warrants, as
follows:
(a) The execution, delivery and performance of this Agreement by
Arcadia has been duly approved by Arcadia's Board of Directors and no
further corporate or other action, consent or waiver is necessary or
appropriate as a precondition to making this Agreement the valid and
binding agreement of Arcadia enforceable against Arcadia in accordance with
its terms.
(b) To the best of Arcadia's knowledge other than knowledge derived
from Xxxxxxx, within the past twelve (12) months Xxxxxxx has not engaged in
any purchase, sale or other transactions in any of Arcardia's equity
securities that are required to be reported under Section 16(a) of the
Exchange Act.
(c) To the best of Arcadia's knowledge, as of the date of this
Agreement, Xxxxxxx is the "beneficial owner" (as that term is defined under
Rule 16a-1 under the Exchange Act) of less than 10% of any class of equity
security of Arcadia and would also be the owner of less than 10% of any
such class even if solely for purposes of this calculation the Options were
deemed to be immediately convertible into Arcadia stock.
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15. XXXXXXX REPRESENTATIONS, ETC. Xxxxxxx represents and warrants that to
the best of Xxxxxxx'x knowledge, neither Xxxxxxx nor his spouse, directly or
indirectly, has within the past twelve (12) months engaged in any purchase, sale
or other transactions in which any of Arcadia's equity securities are required
to be reported under Section 16(a) of the Exchange Act.
16. SUCCESSORS; OBLIGATIONS TO XXXXXXX'X ESTATE. This Agreement binds
Xxxxxxx'x heirs, administrators, representatives, executors, successors, and
assigns and will inure to the benefit of all Releasees and their respective
heirs, administrators, representatives, executors, successors and assigns. If
Xxxxxxx should become disabled or die prior to the payment of all amounts due
under this Agreement, Arcadia shall continue to make the payments called for
under this Agreement to Xxxxxxx or to Xxxxxxx'x estate, as the case may be.
17. CONFIDENTIALITY; PRESS RELEASE. Xxxxxxx agrees to keep the financial
terms of this Agreement strictly confidential; provided that it shall not be a
breach of this provision for Xxxxxxx to discuss this Agreement with his spouse,
attorney, or financial advisor, all of whom shall be subject to the requirement
of strict confidentiality, or to make disclosure pursuant to a validly issued
subpoena or court order from a court or agency of competent jurisdiction. The
foregoing covenants shall terminate immediately and be void and of no force or
effect if at any time Arcadia files this Agreement (or a form of this Agreement)
with the SEC or otherwise makes public disclosure of the general terms of this
Agreement. Within a reasonable time prior to any press release or other public
disclosure of the termination of Xxxxxxx'x employment and other relationships
with Arcadia, Xxxxxxx shall be given a copy of the proposed press release and
other public disclosure and an opportunity to provide his comments and input
with respect thereto.
18. COOPERATION IN DISCLOSURE OF CONFIDENTIAL INFORMATION. Xxxxxxx agrees
that in the event that he is required to make disclosure of confidential or
proprietary information or materials relating to his employment by Arcadia under
any court order, subpoena, or other judicial process, he will cooperate with
Arcadia and provide Arcadia with prompt written notice, take all commercial
reasonable steps reasonably requested by Arcadia to defend against the
compulsory disclosure and permit Arcadia to participate with counsel of its
choice in any proceeding relating to the compulsory disclosure. Arcadia shall
promptly pay for or reimburse Xxxxxxx for his reasonable out of pocket expenses
(including the expense of counsel of Xxxxxxx'x own choosing) incurred in
connection with any of the activities referred to in this Paragraph 18.
19. INDEMNIFICATION, ETC. If Xxxxxxx is made a party to or a witness in or
is otherwise involved in any action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of, arising out of or
relating to (A) Xxxxxxx'x service as an employee, officer or director of Arcadia
or any of Arcadia's subsidiaries or affiliates or (B) at the request of Arcadia
or for the benefit of Arcadia Xxxxxxx'x service as a trustee or in any fiduciary
or similar capacity for or in connection with any employee benefit plan
maintained by Arcadia or for the benefit of any of the employees of Arcadia or
any of its affiliates, or service on any trade association, civic, religious,
educational or charitable boards or committees, Arcadia hereby agrees, in each
instance, to the same extent and on a basis no less favorable than it does for
Arcadia' directors and senior executive officers (i) to indemnify Xxxxxxx and
hold Xxxxxxx harmless from any and all cost, expense and damages by reason of in
each instance, and (ii) to
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promptly pay as incurred all Xxxxxxx'x expenses (including fees and expenses of
counsel of Xxxxxxx'x choosing) incurred in any matter as to which Xxxxxxx is
entitled to be indemnified under this Agreement or, if more favorable to
Xxxxxxx, otherwise to the same extent and on a basis no less favorable than it
does for Arcadia's directors and senior executive officers, and (iii) so long as
Arcadia maintains any policy of directors and officers' liability insurance (or
any similar or successor policy), for a period of three years after the
termination of Xxxxxxx'x employment, to include Xxxxxxx as a named insured on
each such policy with coverage and benefits no less favorable than those
provided to then current officers and directors. Arcadia has furnished or will
promptly furnish to Xxxxxxx a copy of any documents regarding indemnification of
officers and directors and any related policies of insurance as the same may be
updated from time to time for a period of three years after the termination of
Xxxxxxx'x employment.
20. COST OF ENFORCEMENT; INTEREST. The prevailing party in any action
brought under this Agreement shall be entitled to recover all reasonable costs
and expenses (including reasonable attorneys' fees before and at trial and in
appellate proceedings). If any monies shall be due either of the Parties to this
Agreement hereunder and shall not be paid within ten (10) days from the date of
written request for payment, interest shall accrue on such unpaid amount at the
rate of eighteen (18%) percent per annum, or any lower rate as may be required
to comply with applicable law.
21. INDEMNIFICATION BY ARCADIA AND XXXXXXX. The Parties understand that the
Parties have relied upon each other's representations and warranties and
covenants and agreements in entering into this Agreement and that but for the
Parties' willingness to make such representations and warranties and covenants
and agreements, the Parties would not have been willing to enter into this
Agreement. Accordingly, in addition to any other obligations the Parties have to
each other under this Agreement, each Party shall also indemnify the other Party
and its respective heirs, administrators, representatives, executors,
successors, and assigns (collectively, the "Indemnified Parties") and save and
hold each of the Indemnified Parties harmless against and pay on behalf of or
reimburse such Indemnified Parties as and when incurred for any loss, liability,
demand, claim, action, cause of action, cost, damage, deficiency, tax, penalty,
fine or expense, whether or not arising out of third-party claims (including
interest, penalties, reasonable attorneys' fees and expenses and all amounts
paid in investigation, defense or settlement of any of the foregoing), which any
such Indemnified Party may suffer, sustain or become subject to, as a result of,
in connection with, relating or incidental to or by virtue of: (i) any breach by
a Party of any representation or warranty made by such Party in this Agreement
or any of the Exhibits attached hereto, or in any other instruments or documents
furnished by such other Party pursuant to this Agreement; or (ii) any
nonfulfillment or breach of any covenant, agreement or other provision by a
Party under this Agreement or any of the Exhibits attached hereto.
22. NONDISPARAGEMENT. Xxxxxxx agrees not to disparage Arcadia, all its
parent companies and affiliates, its operations, products, shareholders,
employees, officers or directors. Arcadia, all its parent companies and
affiliates, its shareholders, employees, officers and directors agree not to
disparage Xxxxxxx.
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23. FUTURE EMPLOYMENT. Except as otherwise provided in this Agreement,
Xxxxxxx further acknowledges that his employment, including, but not limited to
his status as President, an Officer and COO with Arcadia has been ended or will
end forever on the day after the expiration of the Revocation Period, and it
will not be resumed again at any time in the future, and Xxxxxxx agrees not to
seek such employment from Arcadia at a later time. Xxxxxxx agrees not to bring
any claim or cause of action against Arcadia or any of its respective affiliated
entities for failing or refusing to hire him.
24. NON-ADMISSION. This Agreement is not and shall not be deemed or
construed to be an admission by Arcadia or by Xxxxxxx of any wrongdoing of any
kind or of any breach of any contract, obligation, policy, or procedure of any
kind or nature.
25. VALIDITY. Each of the paragraphs of this Agreement shall stand
independently and severally, and the invalidity of any one paragraph or portion
shall not affect the validity of any other provision. In the event any provision
shall be construed to be invalid, no other provision of this Agreement shall be
affected.
26. GOVERNING LAW. This Agreement shall be governed and construed in
accordance with the laws of the State of Florida, including its choice of laws,
statutes, and common law, notwithstanding the fact that a Party is or may
hereafter become domiciled or located in a different state.
27. COBRA. Xxxxxxx acknowledges that he, his spouse and dependent children
(collectively, "qualified beneficiaries") may elect COBRA (Consolidated Omnibus
Budget Reconciliation Act of 1985) continuation of medical and/or dental
coverage for the maximum coverage period up to eighteen months at a monthly
premium equal to 102% of actual plan cost, effective as of the termination date.
If a qualified beneficiary elects to continue this coverage under the provisions
of COBRA, he/she will be permitted to continue participation in Arcadia's group
medical and/or dental benefit plans for the maximum coverage period at the
contribution level in effect for active employees until the earlier of (i)
termination due to lack of timely monthly premium payment by Xxxxxxx, (ii) the
date the qualified beneficiary becomes entitled to and is covered by Medicare,
or (iii) the date the qualified beneficiary becomes covered under medical and/or
dental insurance benefit plans of another employer; provided, however, if the
other group health plan's preexisting condition exclusion or limitation applies
to a condition of the qualified beneficiary, COBRA coverage can be terminated
early only after the other plan's exclusion or limitation is satisfied. Specific
costs and details will be provided by Arcadia to Xxxxxxx on a timely basis as
required by COBRA.
28. WAIVER OF BREACH. The waiver of breach of any provision of this
Agreement shall not operate or be construed as a waiver of any subsequent
breach. Each and every right, remedy and power hereby granted to any Party or
allowed it by law shall be cumulative and not exclusive of any other.
29. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by facsimile, each which shall be deemed an original, and all
of which shall be deemed to be one and the same document when taken together.
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30. ARBITRATION. Notwithstanding anything in this Agreement, the Employment
Agreement and the Stock Option Agreement to the contrary, except as provided in
Paragraph 1(f) of this Agreement, any dispute, controversy or claim arising out
of or relating to this Agreement, the Employment Agreement and the Stock Option
Agreement, whether arising in contract, tort or otherwise shall be resolved at
arbitration in accordance with the rules of the American Arbitration
Association, except for any equitable or injunctive relief sought under this
Agreement. The parties agree that any arbitration award rendered on any claim
submitted to arbitration shall be final and binding upon the parties and not
subject to appeal and that judgment may be entered upon any arbitration award by
any circuit court located in Florida or by any other court of competent
jurisdiction.
31. NOTICES. All notices, requests, demands, claims, and other
communications hereunder will be in writing. Any notice, request, demand, claim,
or other communication hereunder shall be deemed duly given if (and then two
business days after) it is sent by registered or certified mail, return receipt
requested, postage prepaid, and addressed to the intended recipient as set forth
below:
IF TO ARCADIA: Arcadia Resources, Inc.
000 Xxxxx Xxxxxx X.
Xxxxx 0
Xxxxxx, XX 00000
Attn: Chairman
WITH A COPY TO: Xxxxxx X. Xxxxxxxxxx, Esquire
XXXXXXXXXX, XXXXXX & XXXXXXXX
000 Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxx Xxxxxx, XX 00000
IF TO XXXXXXX: Xxxxxxxx X. Xxxxxxx
0000 Xxxxxx Xxx
Xxxxxx, XX 00000
WITH A COPY TO: Xxxxxxx X. Xxxxxxx, Esquire
TRENAM XXXXXX
000 Xxxx Xxxxxxx Xxxxxxxxx
Xxxxx, XX 00000
xxxxxxxxx@xxxxxx.xxx
Any Party may send any notice, request, demand, claim, or other communication
hereunder to the intended recipient at the address set forth above using any
other means (including personal delivery, expedited courier, messenger service,
telecopy, telex, ordinary mail, or electronic mail), but no such notice,
request, demand, claim, or other communication shall be deemed to have been duly
given unless and until it actually is received by the intended recipient. Any
Party may change the address to which notices, requests, demands, claims, and
other communications hereunder are to be delivered by giving the other Parties
notice in the manner herein set forth.
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IN WITNESS WHEREOF, this Agreement is entered into and shall be effective
as of the date first written above.
Date: February 21, 2007
----------------------------------------
Xxxxxxxx X. Xxxxxxx
Witnessed by a Notary Public:
Date: February 21, 2007 Subscribed and sworn to before me this
21st day of February, 2007.
________________________________________
_________________________, Notary Public
____________________________, County, MI
My Commission Expires:__________________
Acting in ________________County, ______
Received By:
Date: February 21, 2007 ARCADIA RESOURCES, INC., a Nevada
corporation
By:
------------------------------------
Xxxx X. Xxxxxxx, XX
Its: Chairman and CEO
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EXHIBIT A
9. CONFIDENTIALITY. Executive acknowledges and agrees that at all times
during his employment by Corporation and for a period of one (1) year following
the termination of his employment with Corporation under any circumstances, he
shall not use or disclose (i) any confidential information, knowledge or data
relating in any way to the business, financial condition, sales, public and
private sources of financing, customers, operations, suppliers, products,
services, Inventions, business relationships, technologies or services of
Corporation, or (ii) any other proprietary or confidential information,
knowledge, data or details of the past, present or future business affairs or
practices of Corporation (items (i) and (ii) are hereafter referred to as
"Confidential Information," except Executive may use any such Confidential
Information provided to him as necessary during the term of this Agreement for
purposes of carrying out his/her duties hereunder for Corporation's benefit
provided adequate measures are taken to protect the confidentiality thereof.
Executive covenants and agrees that (i) the use and disclosure restrictions
applicable to Confidential Information shall also apply to all documents or
other materials containing any Confidential Information ("Confidential
Materials"), (ii) all Confidential Materials are and shall remain at all times
the sole exclusive property of Corporation, and (iii) upon termination of
employment, Executive shall promptly return all Confidential Materials, and all
copies and extracts thereof, to Corporation and at no time shall any
Confidential Materials be used, copied, published, circulated or disclosed, in
any manner whatsoever, except as specifically authorized in writing by
Corporation. For purposes of the foregoing restrictive covenants, "Confidential
Information" and "Confidential Materials" do not include (and the restrictive
covenants do not apply to) information which in accordance with applicable law
(a) is or becomes generally available to the public other than as a result of a
disclosure in violation of this Agreement, (b) was available on a
nonconfidential basis prior to its disclosure, (c) becomes available on a
nonconfidential basis from a person other than Executive, (d) was independently
and lawfully developed by Executive other than in the course of Executive's
employment by Corporation, or (e) was independently and lawfully developed by a
third party.
EXHIBIT B
10. COVENANT-NOT-TO-COMPETE. Executive covenants and agrees that for the
one (1) year period following the date of this Agreement ("Restricted Period"),
Executive shall not within North America ("Restricted Area"), directly or
indirectly, through intermediaries or other persons or entities, either as
owner, shareholder, director, officer, agent, consultant, representative,
investor, partner, executive, or on behalf of any other person or entity, or in
any other capacity whatsoever (i) engage in, assist or provide services to any
business or enterprise that is competitive with any business conducted by the
Corporation or its affiliates, (ii) contact for any business purpose, solicit or
attempt to solicit any supplier, customer, agent, representative or executive of
the Corporation or its affiliates for the purpose of disrupting any relationship
or agreement between the Corporation or its affiliates and any of its customers,
executives, agents, representatives or others doing business with the
Corporation or its affiliates, or (iii) compete with the Corporation or its
affiliates. In addition, notwithstanding the foregoing, Executive shall be
permitted to own, directly or indirectly, up to five percent (5%) of the issued
and outstanding voting securities of any class of any publicly traded
corporation even if such companies conduct businesses that are in competition
with the Corporation's business.
