Exhibit 99.1
CONFIDENTIAL SEPARATION AGREEMENT
AND GENERAL RELEASE OF CLAIMS
1. Xxxx Xxxxxxxxx ("Employee") is employed by Fresh Choice, Inc. (the
"Company") as the Company's chief executive officer. The Company and Employee
agree that the employment relationship will terminate. Employee and Company
entered into an employment agreement, which was dated October 9, 2001 (the
"Employment Agreement"). Employee waives his right to any benefits or claims
that he may have under the Employment Agreement and the Employment Agreement is
superseded in full by this Agreement. It is the Company's desire to obtain the
continued benefit of Employee's services, provide for a seamless transition of
Employee's responsibilities and to resolve any claims that Employee has or may
have against the Company. Accordingly, Employee and the Company agree as set
forth below. This Agreement will become effective on the eighth day after it is
signed by Employee (the "Effective Date"), provided that Employee has not
revoked this Agreement (by written notice to Xxxx Xxxxxx at the Company) prior
to that date.
2. Company hereby terminates Employee's employment relationship with the
Company effective as of December 31, 2004 (the "Termination Date"). In addition
to the services Employee currently provides, Employee will transition all of his
responsibilities as chief executive officer. After August 20, 2004, although
Employee will not be required to report to the office, he will continue to work
on a regular full-time basis through the Termination Date.
3. Subject to Employee's compliance with the terms of this Agreement, the
Company shall provide Employee with the following benefits after this Agreement
becomes effective:
(a) Employee will continue to receive his regular base salary at
his final base pay rate (annualized at $290,000.00), less applicable withholding
through the Termination Date, payable at the same times as the Company's normal
payroll; however, if Employee breaches this Agreement, all such payments shall
cease immediately and his employment will be terminated as the date of such
breach. Employee also agrees that in the event he becomes employed by another
employer prior to the Termination Date, his employment will terminate as of the
date he provides notice of such and all payments under this paragraph 3(a) shall
cease; and
(b) Employee shall continue to receive all employment related
benefits except for his auto allowance that will cease as of August 20, 2004.
Employee acknowledges that as of the Termination Date, he will be entitled to be
paid and the Company agrees that it will have paid all wages that Employee
earned during his employment with the Company as of that date. With respect to
any earned but unused vacation as of the Termination Date, Employee will be
entitled to receive payment for the following: (i) all unused vacation earned
subsequent to July 12, 2004, and (ii) only that unused vacation earned within
the 90 days preceding July 12, 2004 in an amount not to exceed $4,925.00.
Employee understands and acknowledges that he shall not be entitled to any
payments or benefits from the Company other than those expressly set forth in
this paragraph 3.
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4. Employee and his successors and assigns release the Company and its
related entities, past and present affiliates, shareholders, investors,
directors, officers, employees, agents, attorneys, insurers, legal successors
and assigns of and from any and all claims, actions and causes of action,
whether now known or unknown, which Employee now has, or at any other time had,
or shall or may have against those released parties based upon or arising out of
any matter, cause, fact, thing, act or omission whatsoever occurring or existing
at any time up to and including the Effective Date of this Agreement, including,
but not limited to, any claims of breach of contract, wrongful termination,
retaliation, fraud, defamation, infliction of emotional distress or national
origin, race, age, sex, sexual orientation, disability or other discrimination
or harassment under the Civil Rights Act of 1964, the Age Discrimination In
Employment Act of 1967, the Americans with Disabilities Act, the Fair Employment
and Housing Act or any other applicable law.
5. Employee acknowledges that he has read section 1542 of the Civil Code of
the State of California, which states in full:
A general release does not extend to claims which the creditor
does not know or suspect 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.
Employee waives any rights that he has or may have under section 1542 to the
full extent that he may lawfully waive such rights pertaining to this general
release of claims, and affirms that he is releasing all known and unknown claims
that he has or may have against the parties listed above.
6. Employee acknowledges and agrees that he shall continue to be bound by
and comply with the terms of any proprietary rights, assignment of inventions
and/or confidentiality agreements between the Company and Employee. On or before
the Effective Date, Employee will return to the Company, in good working
condition, all Company property and equipment that is in Employee's possession
or control, including, but not limited to, any files, records, computers,
computer equipment, cell phones, credit cards, keys, programs, manuals, business
plans, financial records, and all documents (and any copies thereof) that
Employee prepared or received in the course of his employment with the Company.
7. Employee agrees that he shall not directly or indirectly disclose any of
the terms of this Agreement to anyone other than his immediate family or
counsel, except as such disclosure may be required for accounting or tax
reporting purposes or as otherwise may be required by law. Employee further
agrees that he will not, at any time in the future, make any critical or
disparaging statements about the Company, its products, services or its
employees, unless such statements are made truthfully in response to a subpoena
or other legal process.
8. Employee agrees that for a period of one (1) year following the
Resignation/Termination Date, he will not, on behalf of himself or any other
person or entity, directly or indirectly solicit any employee of the Company to
terminate his/her employment with the Company.
9. In the event of any legal action relating to or arising out of this
Agreement, the prevailing party shall be entitled to recover from the losing
party its attorneys' fees and costs incurred in that action.
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10. This Agreement constitutes the entire agreement between the parties
with respect to the subject matter hereof and supersedes all prior negotiations
and agreements, whether written or oral, with the exception of any agreements
described in paragraph 6. This Agreement may not be modified or amended except
by a document signed by an authorized officer of the Company and Employee.
EMPLOYEE UNDERSTANDS THAT HE SHOULD CONSULT WITH AN ATTORNEY PRIOR TO SIGNING
THIS AGREEMENT AND THAT HE IS GIVING UP ANY LEGAL CLAIMS HE HAS AGAINST THE
PARTIES RELEASED ABOVE BY SIGNING THIS AGREEMENT. EMPLOYEE FURTHER UNDERSTANDS
THAT HE MAY HAVE UP TO 21 DAYS TO CONSIDER THIS AGREEMENT, THAT HE MAY REVOKE IT
AT ANY TIME DURING THE 7 DAYS AFTER HE SIGNS IT, AND THAT IT SHALL NOT BECOME
EFFECTIVE UNTIL THAT 7-DAY PERIOD HAS PASSED. EMPLOYEE ACKNOWLEDGES THAT HE IS
SIGNING THIS AGREEMENT KNOWINGLY, WILLINGLY AND VOLUNTARILY IN EXCHANGE FOR THE
BENEFITS DESCRIBED IN PARAGRAPH 3.
Dated: September 13, 2004 /s/ Xxxxxxx X. Xxxxxxxxx
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Xxxxxxx X. ("Xxxx") Xxxxxxxxx
Fresh Choice, Inc.
Dated: August 31, 2004 By: /s/ Xxxxxxx X. Xxxxx
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