SEPARATION AGREEMENT AND RELEASE
THIS
SEPARATION AGREEMENT AND RELEASE (the “Agreement”) is made and entered into by
and between Xxxxxxx Xxxxxx (“Employee”) and Davi Skin, Inc. on behalf of itself
and all of its subsidiaries, affiliates, divisions, predecessors, successors
and
assigns (hereinafter referred to collectively as the “Company””).
In
consideration of the premises and mutual promises herein contained, it is agreed
by and between Employee and the Company as follows:
1. Termination
Date and Resignation:
Employee agrees that his employment with the Company terminated as of March
17,
2006 (the “Effective Date”). In consideration of these premises, Employee agrees
that from and after the Effective Date, he will no longer be, nor hold himself
out as, an employee or agent of the Company. In addition, Employee resigns
as a
director of the Company effective immediately. Employee further agrees that
as
of this date, he is not owed any money from the Company other than provided
herein.
2. Consulting
Payment:
As and
for Employee’s continued consulting services over the next six months, the
Company shall pay to the Employee the total sum of $80,000.00 upon execution
of
this Agreement
in one
lump sum as an independent contractor to the Company providing on going advice
and support with investors on an as needed basis.
3. Insurance
Benefits:
Employee will be eligible pursuant to COBRA for continued health insurance
coverage at his own expense for up to eighteen (18) months following the
Effective Date. If Employee elects to continue his health insurance
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coverage
pursuant to COBRA, he must make appropriate payments to the Company for the
cost
of same in a timely manner so as to be received by the Company in sufficient
time so as to allow the Company to make the timely necessary payments to the
carrier.
4. Full
Discharge of Obligations:
Employee understands and agrees that he is not entitled to, and will not
receive, any payments or benefits of any kind from the Company other than those
set forth herein above. In addition, Employee understands and agrees that after
the Effective Date, he will not accrue any further benefits under any of the
Company’s applicable plans.
5.
Release:
In
consideration for all the covenants provided herein, Employee and the Company
hereby forever release and discharge each other and each of their predecessors,
successors, assigns, partners, members, officers, managers, employees,
representatives, attorneys, agents, divisions, subsidiaries, affiliates (and
past and present partners, members, shareholders, officers, managers, employees,
agents, representatives and attorneys of such divisions, subsidiaries, and
affiliates), and all persons acting by, through, under or in concert with any
of
them, from any and all charges, complaints, claims, liabilities, obligations,
promises, agreements, controversies, damages, actions, causes of action, suits,
rights, demands, costs, losses, debts and expenses (including attorneys’ fees
and costs actually incurred) of any nature whatsoever, in law or equity, known
or unknown, suspected or unsuspected, that either party, their successors,
agents, executors, administrators, or assigns, ever had, now has or hereafter
can, shall or may have, for, upon, or by reason of any matter, cause or thing
whatsoever through the date of this Agreement, including but not limited to,
any
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claims
arising out of Employee’s employment by the Company and the cessation of such
employment, including any claims for unpaid wages, back pay, commissions,
bonuses, incentive pay, vacation pay, legal fees, severance or other
compensation, or any claims arising under any contracts, express or implied,
or
any covenant of good faith and fair dealing, express or implied, or any tort,
including without limitation intentional infliction of emotional distress,
defamation, fraud and breach of duty, or any legal restrictions on the Company’s
right to terminate employees, and any federal, state or other governmental
statute, regulation, or ordinance, including without limitation: Title VII
of
the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967,
the New York State and New York City Human Rights Laws, the Americans With
Disabilities Act, the Equal Pay Act, the Employee Retirement Income Security
Act, and the Rehabilitation Act of 1973; provided, however, that the foregoing
does not affect any right to file an administrative charge with the Equal
Employment Opportunity Commission (“EEOC”), subject to the restriction that if
any such charge is filed, Employee agrees not to violate the
confidentiality provisions of this Agreement and Employee further agrees
and covenants that should he or any other person, organization, or other
entity file, charge, claim, xxx or cause or permit to be filed any charge with
the EEOC, civil action, suit or legal proceeding against the Company involving
any matter occurring at any time in the past, Employee will not seek or
accept any personal relief (including, but not limited to, monetary award,
recovery, relief or settlement) in such charge, civil action, suit or
proceeding.
6. No
Actions:
Employee, for himself, his issue, heirs, representatives,
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successors,
agents, executors, administrators or assigns, hereby covenants and represents
that he has not instituted, and will not institute, any complaints, claims,
charges or lawsuits, with any governmental agency or any court or other
tribunal, against the Company, by reason of any claim present or future, known
or unknown, arising from or related in any way to his employment with the
Company or the termination of such employment, or any relationship, association,
or transaction to date between the parties hereto or any of their predecessors
or their respective agents, employees or officers. The Company, for itself,
its
agents and management hereby covenants and represents that it has not
instituted, and will not institute, any complaints, claims, charges or lawsuits,
with any governmental agency or any court or other tribunal, against Employee,
by reason of any claim present or future, known or unknown, arising from or
related in any way to his employment with the Company or the termination of
such
employment, or any relationship, association, or transaction to date between
the
parties hereto or any of their predecessors or their respective agents,
employees or officers. This covenant shall not apply to actions for breach
of
this Agreement.
7. Confidentiality:
In
consideration of the above-described payments and benefits, Employee further
agrees to the following: Employee recognizes that any knowledge or information
of any type whatsoever of a confidential nature relating to the business of
the
Company or any of its subsidiaries, divisions or affiliates, including, without
limitation, all types of trade secrets, client lists or information, employee
lists or information, information regarding product development, marketing
plans, management
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organization,
operating policies or manuals, performance results, business plans, financial
records, or other financial, commercial, business or technical information
and
agreements (collectively “Confidential Information”), must be protected as
confidential, not copied, disclosed or used other than for the benefit of the
Company at any time unless and until such knowledge or information is in the
public domain through no wrongful act by Employee. Employee further agrees
not
to divulge to anyone (other than the Company), publish or make use of any such
Confidential Information without the prior written consent of the Company,
except by an order of a court having competent jurisdiction or under subpoena
from an appropriate government agency.
8. Return
of Company Property:
As of
the Effective Date, Employee will return to the Company all confidential
information, files, memoranda and records, cardkey passes, door and file keys,
computer access codes, software and other property, which he received, acquired
or prepared in connection with his employment with the Company, and Employee
will not retain any copies, duplicates, reproductions or excerpts thereof.
Employee will vacate the offices of the Company no later than 5:00 PM March
22,
2006, provided that the Company has arranged in writing to have Employee removed
from all liability under the existing lease of the Company’s premises, or
alternatively has deposited $33,333 with the Company’s securities counsel with
irrevocable instructions to hold the funds in trust until Employee is no longer
liable on the lease and then to return the funds to the Company as it directs;
or, in the event the Company defaults on the lease and Employee becomes liable
thereon, to use the funds to pay any such liability on Employee’s
behalf.
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9. Non-Disparagement:
Employee agrees not to disparage, or make any disparaging remark or send any
disparaging communications concerning, the Company, its reputation, its
business, and/or its directors, partners, members, officers, managers,
shareholders and employees, and likewise the Company’s senior management agrees
not to disparage, or make any disparaging remark or send any disparaging
communications concerning Employee his reputation and/or his business.
10.
Rule
of Ambiguities:
It is
agreed and understood that the general rule that ambiguities are to be construed
against the drafter shall not apply to this Agreement. In the event that any
language in this Agreement is found or claimed to be ambiguous, each party
shall
have the same opportunity to present evidence as to the actual intent of the
parties with respect to any such ambiguous language without any inference or
presumption being drawn against the drafter. In the event that one or more
of
the provisions of this Agreement shall become invalid, illegal or unenforceable
in any respect, the validity, legality and enforceability of the remaining
provisions contained herein shall not be affected thereby.
11. Non-Admission
of Liability:
This
Agreement is not, and shall not in any way be construed as, an admission by
the
Company that it has acted wrongfully with respect to Employee or any other
person, or that Employee has any rights whatsoever against the Company except
as
set forth herein, and the Company specifically disclaims any liability to or
wrongful acts against Employee or any other person, on the part of itself,
its
employees or its agents.
12. Representation:
Employee acknowledges that he was advised by the
6
Company
to consult with an attorney of his own choosing concerning the waivers contained
in this Agreement, and that the waivers Employee has made herein are knowing,
conscious and with full appreciation that Employee is forever foreclosed from
pursuing any of the rights so waived.
14. Choice
of Law:
This
Agreement shall be construed in accordance with the laws of the State of
California and Employee agrees to submit to the exclusive jurisdiction of the
state and/or federal courts located within the State of California for the
resolution of any dispute which may arise hereunder. The Company and Employee
each hereby waive, as against the other, trial by jury in any judicial
proceeding to which they are both parties involving, directly or indirectly,
any
matter in any way arising out of, related to or connected with this
Agreement.
15. Injunctive
Relief:
Employee agrees and acknowledges that the Company will be irreparably harmed
by
any breach, or threatened breach, by him of Paragraph 7 of this Agreement and
that monetary damages would be grossly inadequate. Accordingly, he agrees that
in the event of a breach, or threatened breach, by him of this Agreement the
Company shall be entitled to apply for immediate injunctive or other preliminary
or equitable relief, as appropriate, in addition to all other remedies available
at law and equity.
16. Non-Compete,
Non-Solicit: As
material inducement for the Company to
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enter
into this Agreement and to give Employee the payments and benefits described
above, Employee who is still a shareholder of the Company agrees that for the
either the period of the time he is a shareholder of the Company or two (2)
years from this Agreement, whichever period is longer (the "Restricted Period")
Employee will not i) either as a principal, director, employee or consultant
of
another entity compete with the Company, ii) will not solicit or attempt to
solicit from the Company any employee of the Company who was an employee during
this restricted period
17. No
Disclosure:
Employee agrees not to disclose to anyone, other than his immediate family,
accountant and attorney, the existence of this Agreement, the circumstances
surrounding it, its terms, conditions or negotiation, including the dollar
amounts set forth herein, and then only upon their express agreement not to
disclose such subject matter to another person, except as required by
law.
18. Entire
Agreement:
This
Agreement sets forth the entire agreement between the parties hereto, and fully
supersedes and replaces any and all prior agreements or understandings (whether
oral or written) between the parties hereto pertaining to the subject matter
hereof. Employee acknowledges and agrees that in signing this Agreement he
has
not relied upon any representation, promise or inducement that is not expressly
set forth in this Agreement.
19. Voluntary
Execution:
Employee hereby acknowledges that he has read and that he understands the
foregoing Agreement and that he has affixed his signature hereto voluntarily
and
without coercion.
20. Consultant
Services: Employee
shall upon the Company's request during
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the
2
months following the execution of this Agreement, assist and cooperate with
the
Company in regard to Employee's termination and transition of responsibilities
and projects. Employee will make himself reasonably available to the Company,
on
reasonable notice to the Employee for such services, for an amount of time
equal
up to no more than 20 hours per month over the 6 month period following the
Effective Date. Employee shall be compensated as provided above.
PLEASE
READ CAREFULLY. THIS SEPARATION AGREEMENT AND RELEASE INCLUDES A RELEASE OF
ALL
KNOWN AND UNKNOWN CLAIMS.
|
Executed,
this 21st day
of
March, 2006
|
/s/
Xxxxxxx Xxxxxx
XXXXXXX
XXXXXX
|
|
Executed,
this 23rd day
of
March, 2006
|
DAVI
SKIN INC.
By: /s/
Xxxxxx Xxxxxxxx
XXXXXX
XXXXXXXX
|
No:
1367551
