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Exhibit 10.38
SEPARATION AGREEMENT
This SEPARATION AGREEMENT (the "Agreement") is made and
entered into as of February 7, 1996, and is by and between REDDI BRAKE SUPPLY
CORPORATION, A NEVADA CORPORATION ("Company"), on the one hand, and XXXXXXX X.
XXXXXX ("Xxxxxx"), on the other. The Agreement is based upon the following
recitals of fact:
X. Xxxxxx is employed by Company as the Chief Executive
Officer and President.
X. Xxxxxx'x employment with the Company will be
terminated on February 7, 1996 (the "Termination Date") by mutual agreement of
Leider and the Company.
C. The Company has agreed to provide Leider with certain
separation benefits, and Leider has agreed to accept those benefits as provided
herein. Additionally, the parties have agreed to certain indemnifications and
releases, all as provided below.
NOW, THEREFORE, IN CONSIDERATION OF THE PREMISES AND COVENANTS
SET FORTH HEREIN, THE PARTIES HERETO MUTUALLY AGREE AS FOLLOWS:
1. PAYMENT OF ACCRUED BENEFIT.
Upon the execution of this Agreement, Company shall pay Leider
the full amount of any and all accrued and vested wages, vacation, bonuses and
benefits due and owing Leider through the Termination Date.
2. PAYMENT OF SEPARATION BENEFIT.
Commencing on the date of execution of this Agreement and
continuing for a period of six (6) months Leider shall receive from Company
severance pay at a monthly rate of $10,000. In addition, upon the execution of
this Agreement, the Company shall issue to Leider the following warrants: (i)
one five-year warrant to purchase 25,000 shares of the Company's common stock
at an exercise price of $3.00 per share, (ii) one five-year warrant to purchase
25,000 shares of the Company's common stock at an exercise price of $5.00 per
share, and (iii) one five- year warrant to purchase 25,000 shares of the
Company's common stock at an exercise price of $7.00 per share.
3. NO ADDITIONAL BENEFITS.
Leider agrees that upon receipt of the payments referred to in
Paragraphs 1 and 2 (collectively, the "Separation Benefit"), Leider shall not
be entitled to receive from the Company any other payments of any nature
whatsoever.
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4. TAX WITHHOLDING.
The Separation Benefit payments to Leider hereunder shall be
subject to income tax, social security, and similar withholding obligations as
required by law. The parties hereto acknowledge that there may be taxes due in
addition to any amounts withheld hereunder. The parties agree that any such
taxes that may be due and owing on the monetary payments made to Leider under
the terms of this Agreement shall be Leider's sole responsibility. Leider
hereby agrees to indemnify and hold Company harmless in the event that any such
taxes are not paid by Leider.
5. MUTUAL RELEASE.
(a) Except as expressly provided herein, Leider,
Company, and each of them, collectively and individually, on their own behalf
and on behalf of their heirs, officers, directors, partners, and agents, hereby
release and discharge each other and their respective heirs, officers,
directors, partners, and agents, individually and collectively, of and from any
and all known or unknown liabilities, claims, demands for damages, costs,
indemnification, contribution, or any other thing for which they or any of them
have or may have a known or unknown cause of action, claim, or demand for
damages, costs, indemnification, or contribution, whether certain or
speculative, which may have at any time prior hereto come into existence or
which may be brought in the future in connection with any acts or omissions
which have arisen at any time prior to the date of this Agreement, including,
but not limited to, any and all claims Leider has or may have relating to, or
arising out of the employment of Leider with Company, or any claim by Leider
for breach of employment contract or that Leider has been wrongfully terminated
by Company.
(b) The parties hereto acknowledge the existence
of and, with respect to the releases given in Paragraph 5(a), hereinabove,
expressly waive and relinquish any and all rights and benefits they have or may
have under California Civil Code, Section 1542, which provides:
A general release does not extend to claims which a
creditor does not know or expect 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.
Both parties hereto acknowledge that he/it is aware that both parties may
hereafter discover facts different from or in addition to those which he/it or
he/its attorneys now know or believe to be true with respect to the matters
released in Paragraph 5(a) hereinabove, and agree that the releases so given in
Paragraph 5(a) above, shall be and remain in effect as full and complete
releases of the respective claims, notwithstanding any such different or
additional facts.
(c) This mutual release shall not apply to the
rights (if any) that Company may have against Leider arising out of any
hereafter discovered intentional misconduct or fraudulent conduct by Leider
during the term of his employment with Company. Company
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shall retain all of its rights, including, but not limited to, its rights of
contribution and/or indemnification against Leider for any such actions.
6. TRADE SECRETS.
In accordance with Leider's existing and continuing
obligations to the Company, Leider has returned to the Company all Company
information, including files, records, computer access codes and instruction
manuals which Leider has in his possession. Leider further agrees not to keep
any copies of any Company information. Leider affirms his obligation to keep,
retain in confidence and not to divulge any proprietary, confidential or secret
information or trade secrets of the Company. Leider understands that the term
"Company information" means (a) confidential information, including information
received from third parties under confidential conditions and (b) other
technical, marketing, business or financial information, the use or disclosure
of which might reasonably be construed to be contrary to the interest of the
Company or its subsidiaries or affiliates. Leider further understands that
"confidential information" means information received by Leider in the course
of his employment at the Company which was (a) described to Leider as
confidential or (b) which Leider understood to be confidential. Leider
acknowledges that a breach by Leider of the covenants contained in this
Paragraph 6 may not be compensable by monetary damages and therefore that
Company may pursue all available equitable remedies, including injunctive
relief.
7. ENTIRE AGREEMENT.
This Agreement contains the sole and entire agreement and
understanding of the parties with respect to the entire subject matter hereof,
and supersedes any and all oral representations by any party or written
agreements between the parties, including the employment agreement between the
Company and Leider, which statements, representations and agreements shall be
deemed merged herein.
8. WAIVER, MODIFICATION AND AMENDMENT.
No provision hereof may be waived unless in writing signed by
both parties hereto. Waiver of any one provision herein shall not be deemed to
be a waiver of any other provision herein. This Agreement may be modified or
amended only by a written agreement executed by the parties affected thereby.
9. EXECUTION.
This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original but all of which, together, shall be
deemed to constitute a single document.
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10. SUCCESSORS AND ASSIGNS.
This Agreement shall inure to the benefit of and shall be
binding upon the predecessors, successors and assigns of the parties hereto,
and each of them. This Agreement is not intended to constitute a third-party
beneficiary contract.
11. ATTORNEYS' FEES.
The parties hereto agree to bear their own costs and
attorneys' fees incurred in the negotiation and drafting of this Agreement or
otherwise incurred prior to the date of execution hereof. In any arbitration,
quasi-judicial or administrative proceedings or any action in any court of
competent jurisdiction, brought by either party to enforce any covenant or any
of such party's rights or remedies under this Agreement, including any action
for declaratory relief, or any action to collect any payment under this
Agreement, the prevailing party shall be entitled to reasonable attorneys' fees
and all costs, expenses and disbursements in connection with such action,
including the costs of reasonable investigation, preparation, and professional
or expert consultation, which sums may be included in any judgment or decree
entered in such action in favor of the prevailing party.
12. SEVERABILITY.
In the event that any of the terms or provisions of this
Agreement are found to be legally unenforceable, then the remaining terms and
conditions shall nevertheless be fully enforceable without regard to any such
provision or terms that are found to be legally unenforceable.
13. NONADMISSION OF LIABILITY.
This Agreement, and its performance, does not constitute and
will not be construed as an admission by Company of the truth of any contested
matter, or of any liability, wrongful act, or omission.
14. CONFIDENTIALITY OF AGREEMENT.
The content of this Agreement, and of the parties' discussions
pertaining to it, are confidential, and Leider will not disclose or allow the
disclosure of any information concerning this Agreement and its performance to
anyone, except that the Agreement may be disclosed by Leider to Leider's
attorney(s) or accountant(s), Leider's children and, as required, to
governmental taxing authorities or to enforce the rights contained in this
Agreement in an appropriate legal proceeding.
15. NOTICE.
All notices, requests, demand and other communications
hereunder or under any instrument, document or agreement made under or in
connection with this Agreement shall be
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in writing (including such forms of written communication as telegram,
facsimile, reproduction and others) and shall be deemed to have been duly given
upon personal delivery or sending by telegraph, facsimile or other electronic
transmission, or three (3) business days after sending by first class certified
mail, return receipt requested, to such address as shall be given in writing by
either party to the other.
16. ARBITRATION.
Any controversy or claim arising out of or relating to this
Agreement, or any agreements or instruments relating hereto or delivered in
connection herewith, will at the request of any party be determined by
arbitration in accordance with California arbitration procedure under the rules
of the American Arbitration Association, provided that the arbitrator(s) will
be chosen from and the arbitration process will be administered by Judicial
Arbitration & Mediation Services, Inc. Judgment upon the award rendered by the
arbitrator(s) may be entered in any court having jurisdiction. The institution
and maintenance of an action for judicial relief or in pursuit of a provisional
or ancillary remedy shall not constitute a waiver of the right of any party,
including the plaintiff, to submit the controversy or claim to arbitration.
Dated: _______________, 1996
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XXXXXXX X. XXXXXX
Dated: _______________, 1996 REDDI BRAKE SUPPLY CORPORATION
By:
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Its:
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