SEPARATION AGREEMENT AND GENERAL RELEASE
This
Separation Agreement and General Release (hereinafter “Agreement”),
is
made and entered into as of the 24th
day of
April, 2008, by and between Xxxxxx Xxxxxxxxx, for himself and his heirs,
successors and assigns (“Executive”)
on the
one hand, and JDCO, Inc., a California corporation (“Company”)
on the
other hand, with reference to the following facts:
A. Executive
has been employed by the Company as President and Chief Operating Officer
pursuant to the terms of an Employment Agreement entered into between Company
and Executive effective November 27, 2006 (the “Employment
Agreement”).
B. Executive
has been on a personal leave of absence from his role with the Company since
November 20, 2007.
C. Executive
has decided to voluntarily terminate his employment with the Company effective
April 24, 2008, and the Company is willing to waive the required thirty (30)
day
voluntary termination written notice period set forth in Section 2.9 of the
Employment Agreement.
D. Executive
and Company (collectively the “Parties”)
each
desire to settle, compromise, and resolve fully and finally any and all claims
and disputes, whether known or unknown, which exist or could exist on
Executive’s behalf against Company, from the beginning of time to the date of
this Agreement.
NOW,
THEREFORE, in consideration of the covenants and promises contained herein,
the
Parties hereto agree as follows:
1. Termination
of Employment - Resignation.
Executive and Company mutually agree that Executive shall voluntarily resign
from employment effective on April 24, 2008 (the “Termination
Date”)
and
that the Employment Agreement between the Parties is hereby terminated as of
the
Termination Date and shall no longer be of any force or effect.
2. Agreement
by Executive.
Executive represents and agrees that he has been fully compensated for all
salary, wages and benefits that he has earned as of the Termination Date and
Executive acknowledges and agrees that Executive is not entitled to receive
and
will not claim any further compensation or benefits relating to his employment
with the Company. Executive further agrees to promptly submit a written letter
of resignation to the Company resigning from his positions of President and
Chief Operating Officer with the Company and from his positions as President
and
Chief Operating Officer with each of Java Detour, Inc., a Delaware corporation
and sole shareholder of the Company (“Java
Detour”),
and
Java Detour Franchise Corp., a California corporation and wholly-owned
subsidiary of the Company (“Java
Franchise”).
However, the Parties agree that Executive shall continue to serve on the Board
of Directors of the Company, Java Detour and Java Franchise pursuant to such
terms applicable to other Directors of the Company, Java Detour and Java
Franchise, respectively.
3. Non-Disparagement.
Executive agrees not to make any derogatory, defamatory, disparaging, or
detrimental remarks, statements, or communications about the Company (including
with respect to any employees, agents, clients, officers or owners of the
Company), to any person, entity or organization at any time, and Executive
agrees not to publicly criticize the Company unless compelled to do so by law
or
legal duty.
4. Release
of All Claims by Executive.
Executive, for himself and his heirs, successors, and assigns, does hereby
waive, release, acquit, and forever discharge Company, and Company’s parents,
subsidiaries, affiliates, and related entities or companies, and all past and
present officers, directors, shareholders, owners, managers, members,
executives, agents, partners, trustees, attorneys, heirs, successors, and
assigns, (hereinafter “Released Parties”)
from
any and all claims, actions, charges, complaints and causes of action
(hereinafter collectively referred to as “claims”),
of
whatever nature, whether known or unknown, which exist or may exist on
Executive’s behalf against Released Parties as of the date of this Agreement,
including but not limited to any and all tort claims, contract claims, wage
claims, bonus claims, overtime claims, penalty claims, wrongful termination
claims, public policy claims, retaliation claims, statutory claims, personal
injury claims, emotional distress claims, privacy claims, defamation claims,
fraud claims, and any and all claims arising under any federal, state or other
governmental statute, law, regulation or ordinance relating to employment,
including but not limited to Title VII of the Civil Rights Act of 1964, as
amended, the Americans with Disabilities Act, the Family and Medical Leave
Act,
the Employee Retirement Income Security Act, the California Labor Code, the
California Business & Professions Code, and the California Fair Employment
and Housing Act covering discrimination in employment, including race, color,
religious creed, national origin, ancestry, physical or mental disability,
medical condition, marital status, sex, sexual orientation, age, and harassment
or retaliation.
5. Waiver
of Unknown Claims.
Executive further understands and agrees that he hereby expressly waives and
relinquishes any and all claims, rights or benefits that he may have under
California Civil Code section 1542, which provides as follows:
“A
general release does not extend to claims which the creditor does not know
or
suspect to exist in his or her favor at the time of executing the release which
if known by him or her must have materially affected his or her settlement
with
the debtor.”
In
connection with such waiver and relinquishment, Executive acknowledges that
he
may hereafter discover claims or facts in addition to or different from those
which he now knows or believes to exist with respect to the matters released
herein, but that Executive expressly agrees to fully, finally, and forever
settle and release any and all claims, known or unknown, suspected or
unsuspected, which exist or may exist on his behalf against the Released Parties
at the time of execution of this Agreement, including, but not limited to,
any
and all claims relating to or arising from Executive’s employment with Company
or the termination of the employment relationship.
6. Return
of Company Property.
Executive agrees to immediately return to Company, if and when requested, all
Company property and equipment of any kind in his possession or control,
including all keys, phones, files and/or documents, books of account, and
records of any type or kind pertaining to the Company.
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7. Ownership
of Claims.
Executive represents and warrants that he is the sole and lawful owner of all
rights, title and interest in and to all released matters, claims and demands
as
herein contained and that there has been no assignment or other transfer of
any
interest of any claim or demand which he may have against Company.
8. Attorneys’
Fees and Costs.
If any
legal action is brought under this Agreement for an asserted breach or to
enforce any of its terms, the prevailing party shall be entitled to recover
costs and reasonable attorneys’ fees.
9. Confidentiality.
The
Parties understand and agree that the matters discussed in negotiating the
terms
of this Agreement are entirely confidential. It is therefore expressly
understood and agreed that Executive will not reveal, discuss, publish or in
any
way communicate any of the terms, amount or fact of this Agreement to any
person, organization, or other entity, except as may be required by law and
except to Executive’s immediate family members and professional representatives,
who shall be informed of and bound by this confidentiality clause.
10. Successors
and Assigns.
It is
expressly understood and agreed by the Parties that this Agreement and all
of
its terms shall be binding upon the Parties’ respective representatives, heirs,
executors, administrators, successors and assigns.
11. Integration.
This
Agreement constitutes a single, integrated, written contract, expressing the
entire agreement between the Parties. In this regard, the Parties represent
and
warrant that they are not relying on any promises or representations which
do
not appear written herein. The Parties further understand and agree that this
Agreement can be amended or modified only by a written agreement, signed by
all
of the Parties hereto.
12. Voluntary
Agreement.
Executive understands that he may be waiving significant legal rights by signing
this Agreement and Executive represents and agrees that he has entered into
this
Agreement voluntarily, with a full understanding of and in agreement with all
of
its terms. Executive is hereby advised to consult with an attorney prior to
signing this Agreement.
[Remainder
of Page Intentionally Left Blank]
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IN
WITNESS WHEREOF, the parties hereto have executed this Termination Agreement
and
General Release effective on the date indicated above.
| JDCO, INC. | ||
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| By: |
/s/
Xxxxxxx Xxxxxxxxx
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| Name: Xxxxxxx Xxxxxxxxx | ||
| Title: Chief Executive Officer | ||
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EXECUTIVE:
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| /s/ Xxxxxx Xxxxxxxxx | ||
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Xxxxxx
Xxxxxxxxx
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