SEPARATION AGREEMENT AND GENERAL RELEASE
SEPARATION
AGREEMENT AND GENERAL RELEASE
This
SEPARATION AGREEMENT is entered into by and between Xx. Xxxxxx X. Xxxxxxx of
000
Xxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxxxxx (“XXXXXXX”) and Xxxxxx Capital Corp., a
Nevada corporation (“XXXXXX”);
WHEREAS
XXXXXXX and XXXXXX both wish to end XXXXXXX’ employment agreement with XXXXXX
dated November 15, 2004, as amended May 6, 2005:
WHEREAS
XXXXXXX and XXXXXX both believe it to be in their mutual interest to set forth
in writing the terms and conditions of their mutual understanding; and agreement
concerning the terms of Xxxxxxx’ employment termination; and
WHEREAS,
this Agreement shall govern and control the aforementioned employment agreement
and the Employee Nonstatutory Stock Option Agreement dated November 15, 2004,
from the effective date hereof, and shall supersede all prior oral and written
agreements between XXXXXXX and XXXXXX, except as specifically set forth
below.
NOW
THEREFORE, in consideration of the mutual covenants set forth below, and of
other valuable consideration, the receipt and sufficiency of which are
acknowledged, the parties stipulate and agree as follows:
1. XXXXXX,
as used herein, shall at all times mean XXXXXX CAPITAL CORP., its predecessors,
parents, subsidiaries, divisions and affiliates, all the companies’ respective
successors and assigns; and their respective current, former or future officers,
directors, employees, agents, shareholders, insurers, or legal representatives,
whether in their individual, representative or official capacities.
2. Subject
to XXXXXX’X receipt of a fully executed copy of this Agreement, XXXXXX shall pay
XXXXXXX his base salary for the period February 16, 2006 through June 28, 2006,
inclusive, payable at the annual base salary rate set forth in paragraph 2
of
May 6, 2005 first amendment of his employment agreement (the “Base Salary”).
XXXXXX, at its option, may pay the Base Salary in a lump sum on February 16,
2006 or in bi-weekly installments after February 16, 2006 in accordance with
the
regular payroll practices of XXXXXX for its executives. The Base Salary shall
include paid holidays. All payments hereunder shall be subject to all applicable
federal, state or local tax withholding, F.I.C.A., and any other applicable
payroll deductions. In addition, XXXXXXX and his dependents shall continue
to be
eligible to participate in XXXXXX’X group medical and dental plans until August
31, 2006, with XXXXXX continuing to pay Eighty Percent (80%) of the premium
amounts for this coverage. XXXXXX agrees to pay any unreimbursed business
expenses to XXXXXXX and to pay XXXXXXX Two Thousand Dollars ($2,000) associated
with the settlement of the XXXXXX-funded dental plan by February 15, 2006.
XXXXXXX shall be entitled to no further compensation from XXXXXX in connection
with his employment or the termination thereof.
3. XXXXXXX
shall retain the option to purchase 1,000,000 shares granted to him under the
Employee Stock Option Agreement dated November 15, 2004, which remains in full
force and effect, except that: (a) the option period reflected in paragraph
4
and 7 shall remain ten (10) years from the grant date; (b) in the event of
XXXXXXX’X death, his options may be exercisable by his beneficiaries, or heirs
until the fifth anniversary of the option grant; and (c) XXXXXXX’X options shall
not expire as a result of him terminating his employment with XXXXXX.
4. XXXXXXX
shall on or before February 10, 2006 return the motor vehicle provided to him
by
XXXXXX. XXXXXX indemnifies and holds XXXXXXX harmless for any financial or
legal
obligation associated with this motor vehicle that arises after its return
to
XXXXXX and XXXXXX agrees to make any required lease payments.
5.
In
consideration of the mutual promises and covenants contained herein, the
consideration identified in Sections 2 and 3, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
XXXXXXX, for himself and his heirs, legal representatives, beneficiaries,
assigns and successors-in-interest, hereby releases and forever discharges
XXXXXX (the “XXXXXX
RELEASED
PARTIES”),
of
and from any and all actions or causes of action, suits, debts, claims,
complaints, contracts, controversies, agreements, promises, damages, claims
for
attorney’s fees, punitive damages and reinstatement, judgments, and demands
whatsoever, in law or in equity, he has, may have or ever had, whether known
or
unknown, suspected or unsuspected, anticipated or unanticipated, from the
beginning of the world to the date of this Agreement and General Release,
including, but without limiting the generality of the foregoing, any claim
alleging violation of the Connecticut General Statutes, § 46a-60, Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e
et
seq.;
the
Americans With Xxxxxxxxxxxx Xxx, 00 X.X.X. § 00000
et
seq.;
the
Family and Medical Leave Act, 29 U.S.C. § 2601 et
seq.;
the
Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C. § 1000
et
seq.;
any
other local, state or federal law, regulation or ordinance; or pursuant to
any
common law theory of tort or contract and any and all claims for unpaid wages,
compensation, bonus, severance pay, back pay, front pay, compensatory,
exemplary, punitive, multiple and liquidated damages, costs, interest, and
attorney’s fees (“XXXXXXX’X Released Claims”). XXXXXXX agrees and understands
that this release is a GENERAL RELEASE. XXXXXXX further acknowledges that this
Agreement and General Release shall not waive rights or claims that may arise
after the date this Agreement is executed. Further, the parties agree that
this
General Release does not affect XXXXXXX’X rights under the Employee Stock Option
Agreement dated November 15, 2004 or any rights he has to health insurance
continuation under the Consolidated Ominous Budget Reconciliation Xxx 0000.
6. XXXXXXX
acknowledges and agrees that he understands the meaning of this Agreement and
General Release and that he freely and voluntarily enters into it and the
General Release contained herein. XXXXXXX agrees that no fact, evidence, event,
or transaction currently known or unknown to him shall affect in any manner
the
final and unconditional nature of his agreements and releases.
7. XXXXXXX
shall not institute any charge, complaint, or lawsuit to challenge the validity
of the General Release or the circumstances surrounding its execution.
8. In
further exchange for the consideration provided pursuant to this Agreement,
to
the extent permitted by law, XXXXXXX specifically agrees not to commence any
legal action against the XXXXXX RELEASED PARTIES, arising out of or in
connection with XXXXXXX’X Released Claims. XXXXXXX expressly agrees, to the
extent permitted by law, that if he commences such an action in violation of
this Agreement, he shall indemnify the XXXXXX
RELEASED
PARTIES
for the
full and complete costs of defending such an action and enforcing this
Agreement, including reasonable attorneys’ fees (whether incurred in a third
party action or in an action to enforce this Agreement), court costs, and other
related expenses. XXXXXXX further agrees, to the extent permitted by law, that
if he commences such an action despite the provisions of this Agreement, he
shall, as a condition precedent to commencing such an action, return to XXXXXX
the entire amount of Base Salary paid to him, as set forth in Paragraph 2.
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9. XXXXXXX
agrees not to disclose, either directly or indirectly, the terms of this
Agreement, or the amounts of payments provided for in Paragraph 2, to any person
or organization, including but not limited to members of the press or media,
present and former officers, directors, employees, agents and representatives
of
XXXXXX, and other members of the public, expect an immediate family member,
financial consultant or attorney if XXXXXXX first obtains an agreement from
such
family member, financial consultant or attorney not to disclose the information.
If XXXXXXX violated this paragraph he forfeits all rights to the Base Salary
to
be paid to him under Paragraph 2 and must return to XXXXXX any such payments
already made to him, and he forfeits all stock options granted to him under
the
Employment Stock Option Agreement dated November 15, 2004.
10. XXXXXXX
agrees that he shall not make any statements or remarks, orally or in writing,
to anyone, which statements or remarks reasonably could be constructed to be
derogatory or disparaging to XXXXXX or which statements or remarks reasonably
could be anticipated to be damaging or injurious to the reputation or good
will
of the same. If XXXXXXX violated this paragraph he forfeits the right to the
Base Salary to be paid to him under Paragraph 2 and must return to XXXXXX any
such payments already made to him, and he forfeits all stock options granted
to
him under the Employee Stock Option Agreement dated November 15,
2004.
11. XXXXXXX
agrees that he shall return to XXXXXX by February 10, 2006 any and all XXXXXX
property in his possession or control.
12. This
Agreement and General Release may not be modified, altered or changed except
upon the express prior written consent of the parties.
13. This
Agreement and General Release and the attachments hereto contains all the terms
and conditions agreed upon by the parties hereto with reference to the subject
matters hereof. No other agreements, oral or otherwise, shall be deemed to
exist
or to bind either of the parties hereto.
14. This
Agreement and General Release may be executed in any number of counterparts,
each of which shall be deemed to be an original and all of which together shall
be deemed to be one and the same instrument.
15. This
Agreement and General Release shall in all respects be interpreted, enforced,
governed and construed by and under the laws of the State of
Connecticut.
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16. The
invalidity, illegality or unenforceability of any provision hereof or any
particular application thereof shall not be deemed to affect or impair in any
manner the validity, legality or enforceability of any other provision of this
Agreement and General Release, and this Agreement and General Release shall
continue in full force and effect and shall be interpreted so as to implement
as
nearly as possible the intention of the parties in the absence of such provision
or application.
IN
WITNESS WHEREOF, the parties have set their hands and seals on this
8th
day of
February, 2006.
| BY: | /s/: Xxxxxx Xxxxxxx | ||
|
Witness |
XXXXXX X. XXXXXXX |
||
| XXXXXX CAPITAL CORP. | |||
| /s/: Xxxxxxx Xxxxx | /s/: Xxxxx Xxxxx | ||
|
Witness |
BY:
ITS:
|
Xxxxx Xxxxx Executive Vice President |
|
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