Exhibit 10.1
AGREEMENT AND RELEASE
Agreement and Release ("Agreement") executed this 31st day of
January, 2007, by and between Xxxxx Xxxxxx ("Employee") who resides at 00 Xxxxx
Xxxxx, Xxxxxxxx, Xxx Xxxx 00000, and Water Chef, Inc. located at 0000 Xxxx Xxxx
Xxxxxx, Xxxx Xxxx, XX 00000 ("the Company").
WHEREAS, Employee and Water Chef, Inc. entered into an Employment
Agreement dated January 1, 2004 ("Employment Agreement"), which Employment
Agreement is attached hereto as Exhibit "A;"
NOW, THEREFORE, in consideration of the mutual promises, covenants
and undertakings described below and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged by the parties, the
parties agree as follows:
1. Employee's employment with the Company shall continue in such
capacity, and for such duration, as management shall deem appropriate, and
employee, as of January 29, 2007, shall resign from his duties and
responsibilities of the office of Chief Executive Officer and Chairman of the
Board, and shall forfeit those titles as of this date.
2. (a) The Company shall accept Employee's resignation as Chief
Executive Officer and Chairman of the Board of Directors effective January 29,
2007, provided Employee submits to the Company a letter of resignation in the
form attached hereto as Exhibit B.
(b) The Company shall accept Employee's resignation as a Director
of Water Chef, Inc. as of January 29, 2007. As of that date his duties,
authority and responsibilities as a Director shall cease.
(c) Contemporaneously with the execution of this Agreement,
Employee waives any right, title or interest in and to the twenty million
(20,000,000) shares of common stock that he currently owns in Water Chef, Inc.
and returns to Xxxxxx Xxxxxxx the original certificate(s), endorsed in blank
with a medallion guaranteed signature.
(d) Employee waives any right, title and interest to any accrued
payroll, notes payable, stock appreciation rights previously granted to the
Employee and/or compensation in the form of severance payments pursuant to
Section 4 of the Employment Agreement.
3. Employee agrees and acknowledges that the benefits provided for
in paragraphs "2(a)," "2(b)" and "5(c)" herein exceed any benefits to which he
would otherwise be entitled under any policy, plan, and/or procedure of the
Company or any agreement with the Company. Employee acknowledges that he has
been fully compensated for work performed up to and including January 29, 2007,
and that his compensation for such new duties as will be assumed after January
30, 2007 shall be determined by management.
4. Employee shall have up to twenty-one (21) days from the date of
his receipt of this Agreement to consider the terms and conditions of the
Agreement. Employee may accept this Agreement by executing it at any time within
twenty-one (21) days, before a notary and returning it to Xxxxxx Xxxxxxx,
President, Water Chef, Inc., 0000 Xxxx Xxxx Xxxxxx, Xxxx Xxxx, XX 00000 , no
later than 5:00 p.m. on the twenty-first (21st) day after Employee's receipt of
this Agreement ("Agreement and Release Return Date"). The effective date of this
Agreement shall be the day following Employee's signing of this Agreement (the
"Release Effective Date"). In the event Employee does not accept this Agreement
as set forth above, this Agreement, including but not limited to the obligation
of the Company and its subsidiaries and affiliates to provide the benefits
referred to in paragraphs "2(a)," "2(b)" and "5(c)" herein, shall automatically
be deemed null and void.
5. (a) In consideration of the benefits referred to in paragraphs
"2(a)," "2(b)" and "5(c)" herein Employee for himself and for his heirs,
executors, and assigns (hereinafter collectively referred to as the
"Releasors"), forever releases and discharges the Company and any and all of
their parent corporations, subsidiaries, divisions, affiliated entities,
predecessors, successors and assigns, and any and all of its or their employee
benefit and/or pension plans or funds, and any of its or their past or present
officers, directors, stockholders, agents, trustees, administrators, employees
or assigns (whether acting as agents for such entities or in their individual
capacities), (hereinafter collectively referred to as "Releasees"), from any and
all claims, demands, causes of action, fees and liabilities of any kind
whatsoever (based upon any legal or equitable theory, whether contractual,
common-law, statutory, decisional, federal, state, local or otherwise), whether
known or unknown, which Releasors ever had, now have or may have against
Releasees by reason of any actual or alleged act, omission, transaction,
practice, conduct, occurrence, or other matter from the beginning of the world
up to and including the Release Effective Date.
(b) Without limiting the generality of the foregoing subparagraph
"(a)", this Agreement is intended to and shall release the Releasees from any
and all claims arising out of Employee's employment with Releasees and/or the
termination of Employee's employment, including but not limited to any claim(s)
under or arising out of (i) Title VII of the Civil Rights Act of 1964, as
amended; (ii) the Americans with Disabilities Act, as amended; (iii) the
Employee Retirement Income Security Act of 1974, as amended ("ERISA") (excluding
claims for accrued, vested benefits under any employee benefit plan of the
Company in accordance with the terms of such plan and applicable law); (iv) )
the Age Discrimination in Employment Act, as amended, or the Older Workers
Benefit Protection Act; (v) the New York State Human Rights Laws; (vi) alleged
discrimination or retaliation in employment (whether based on federal, state or
local law, statutory or decisional); (vii) the terms and conditions of
Employee's employment with the Company, the termination of such employment,
and/or any of the events relating directly or indirectly to or surrounding that
termination; and (viii) any law (statutory or decisional) providing for
attorneys' fees, costs, disbursements and/or the like.
(c) In consideration of the covenants contained herein, the
Company, for itself, its parent corporations, subsidiaries, divisions,
affiliated entities, predecessors, successors and assigns (hereinafter
collectively referred to as the "Company Releasors") forever releases and
discharges the Employee, his heirs, executors and assigns (hereinafter
collectively referred to as "Releasees"), from any and all claims, demands,
causes of action, fees and liabilities of any kind whatsoever (based upon any
legal or equitable theory, whether contractual, common-law, statutory,
decisional, federal, state, local or otherwise), whether known or unknown, which
the Company Releasors ever had, now have or may have against Releasees by reason
of any actual or alleged act, omission, transaction, practice, conduct,
occurrence, or other matter from the beginning of the world up to and including
the Release Effective Date. The releases set forth in this Agreement are not
intended to and do not release the Employee from any of his obligations under
this Agreement and do not release the Employee from any claims, demands or
causes of action for indemnity and/or contribution by the Company against the
Employee arising out of claims against the Company by third parties that arise
from the gross negligence or willful misconduct of the Employee during his
employment with the Company.
6. (a) Employee agrees that he has not and will not engage in any
conduct that is injurious to the Company's or Releasees' reputation or interest,
including but not limited to (i) divulging, communicating, or in any way making
use of any confidential or proprietary information acquired in the performance
of his duties at the Company; and (ii) publicly disparaging (or inducing or
encouraging others to publicly disparage) the Company or Releasees.
(b) Employee agrees to return to the Company any and all
originals and copies of documents, materials, records or other items in his
possession or control belonging to the Company or containing proprietary
information relating to the Company.
(c) Employee further agrees that he will maintain the
confidentiality of all client and Company confidential information until such
information is made public through no actions of Employee.
(d) Employee acknowledges that Sections 2.04, 2.05, 2.06 and 2.07
of the Employment Agreement dated January 1, 2004, are incorporated herein by
reference. Employee further agrees and acknowledges that he continues to be
bound by these terms.
7. (a) Employee will cooperate with the Company and/or its
subsidiaries and affiliates and its/their counsel in connection with any
investigation, administrative proceeding or litigation relating to any matter in
which Employee was involved or of which Employee has knowledge.
(b) Employee agrees that, in the event he is subpoenaed by any
person or entity (including, but not limited to, any government agency) to give
testimony (in a deposition, court proceeding or otherwise) which in any way
relates to Employee's employment with the Company, he will give prompt notice of
such request to Xxxxxx Xxxxxxx, President, or her successor, and will make no
disclosure until the Company has had a reasonable opportunity to contest the
right of the requesting person or entity to such disclosure.
8. The terms and conditions of this Agreement are and shall be
deemed to be confidential, and shall not be disclosed by Employee to any person
or entity without the prior written consent of Xxxxxx Xxxxxxx, or her successor,
except if required by law and to Employee's accountants, attorneys or spouse,
provided that they agree to maintain the confidentiality of this Agreement.
Employee further represents that he has not disclosed the terms and conditions
of this Agreement to anyone other than his attorneys, accountants and spouse.
9. The making of this Agreement is not intended, and shall not be
construed, as an admission that Releasees have violated any federal, state or
local law (statutory or decisional), ordinance or regulation, breached any
contract, or committed any wrong whatsoever against Employee.
10. The parties agree that this Agreement may not be used as
evidence in a subsequent proceeding except in a proceeding to enforce the terms
of this Agreement.
11. Employee acknowledges that: (a) he has carefully read this
Agreement in its entirety; (b) he has had an opportunity to consider fully the
terms of this Agreement; (c) he has been advised by the Company in writing to
consult with an attorney of his choosing in connection with this Agreement; (d)
he fully understands the significance of all of the terms and conditions of this
Agreement and he has discussed it with his independent legal counsel, or has had
a reasonable opportunity to do so; (e) he has had answered to his satisfaction
any questions he has asked with regard to the meaning and significance of any of
the provisions of this Agreement; and (f) he is signing this Agreement
voluntarily and of his own free will and assents to all the terms and conditions
contained herein.
12. This Agreement is binding upon, and shall inure to the benefit
of, the parties and their respective heirs, executors, administrators,
successors and assigns.
13. If any provision of this Agreement shall be held by a court of
competent jurisdiction to be illegal, void, or unenforceable, such provision
shall be of no force and effect. However, the illegality or unenforceability of
such provision shall have no effect upon, and shall not impair the
enforceability of, any other provision of this Agreement; provided, however,
that, upon any finding by a court of competent jurisdiction that the release and
covenants provided for by paragraph "5" of this Agreement is illegal, void, or
unenforceable, Employee agrees to execute a release, waiver and/or covenant that
is legal and enforceable. Finally, any breach of the terms of paragraphs "6,"
"7" and/or "8" shall constitute a material breach of this Agreement as to which
the Company may seek appropriate relief in a court of competent jurisdiction.
14. This Agreement shall be governed by, and construed and enforced
in accordance with, the laws of the State of New York, without regard to the
conflict of laws provisions thereof.
15. This Agreement constitutes the complete understanding between
the parties and supersedes any and all agreements, understandings, and
discussions, whether written or oral, between the parties. No other promises or
agreements shall be binding unless in writing and signed after the Agreement
Release and Return Date by the parties to be bound thereby.
Dated: January 30, 2007 /s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx
STATE OF NEW YORK )
:ss
COUNTY OF NASSAU )
On this 30th day of January, 2007, before me personally came Xxxxx
Xxxxxx to me known and known to me to be the person described in and who
executed the Agreement and Release, and he duly acknowledged to me that he
executed the same.
/s/ Xxxxxx X. Xxxxx
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Notary Public
WATER CHEF, INC.
By: /s/ Xxxxxx Xxxxxxx Date: January 31, 2007
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Xxxxxx Xxxxxxx
President
