AGREEMENT AND COMPLETE AND FULL GENERAL RELEASE
FULL
GENERAL RELEASE
Xxxxxxx
Xxxxx (“Executive”) and Ionatron, Inc., (the “Company”), have agreed to conclude
their employment relationship. The parties have agreed that, based upon
Executive’s past service to Company and the parties’ mutual desire to amicably
conclude the employment relationship, that Executive and Company enter into
this
Agreement and Complete and Full General Release (“Agreement”). In consideration
of the sum to be paid and other promises set out in this Agreement, the receipt
and sufficiency of which are hereby acknowledged, and intending to be legally
bound, the parties agree to the following terms:
1. Conclusion
of Employment.
Executive’s employment by Company will terminate on January 19, 2007
(“Separation Date”). Executive hereby terminates his position as Executive Vice
President - Operations and any other positions he holds with the Company or
any
subsidiary of the Company.
2. Payment
Upon Separation; Consideration for Executive’s Agreements.
Assuming
the Executive does not revoke this Agreement within the revocation period set
forth in Paragraph 6, below, in consideration for executing this Agreement
and
complying with its terms, Executive will receive a severance payment from the
Company in an amount not to exceed $92,579.33, less appropriate tax withholdings
and authorized deductions, commencing on the first Company pay date subsequent
to the expiration of the revocation period. Company agrees to pay the severance
payment to Executive in accordance with schedule 1, attached hereto. The Company
shall also pay base COBRA payments (equivalent to medical and dental elections
at termination) up and until the earlier of the following occurs: a) Executive
is eligible to receive benefits from any other source or provider (new employer,
consulting engagement, change of status, etc.) or b) a period of twelve months
from Separation Date. Executive shall promptly notify Company of any changes
in
benefit status subject to point a above. Executive is responsible for any and
all taxes, liabilities or expenses associated with COBRA payments. Executive
shall receive a 1099 at year end for such COBRA payments. Executive also
acknowledges that he received two-weeks of pay in lieu of notice.
In
addition to the consideration set forth above, Executive shall receive all
earned, but unused, vacation pay on the first Company pay date subsequent to
the
Separation Date.
3. Health
Insurance Transitional Support.
Company
will comply with its obligations and provide all required notices to Executive
of Executive’s rights under the Consolidated Omnibus Budget Reconciliation Act
("COBRA").
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4. Confidentiality.
Executive
agrees to keep the terms of this Agreement strictly confidential. Executive
may
only disclose the information in this Agreement to Executive’s immediate family,
attorney(s) and/or tax advisor(s) unless ordered to do so by a duly authorized
subpoena issued by an appropriate agency or court of law.
5. Confidential
Information. Executive
acknowledges that the information, observations and data obtained by Executive
while employed by the Company concerning the business or affairs of the Company
(“Confidential Information”) are the property of the Company. Therefore,
Executive agrees that Executive shall not disclose to any unauthorized person
or
use for Executive’s own purposes any Confidential Information without the prior
written consent of the Chief Executive Officer of Company, unless and to the
extent such information becomes generally known to and available for use by
the
public other than as a result of Executive’s acts or omissions. Executive
further acknowledges and agrees that the terms of the Confidentiality and
Assignment Acknowledgement and Agreement Executive signed by Executive while
he
was employed by Company survive the termination of Executive’s employment and
remain in full force and effect. Executive shall promptly deliver to the Company
all memoranda, notes, plans, records, reports, computer tapes, printouts and
software and other documents and data (and copies thereof) in any form or medium
relating to the Confidential Information or the business of the Company that
Executive may then possess or have under Executive’s Control. In addition,
Executive shall promptly return to Company all assets of the Company including,
but not limited to, computer equipment and cellular phones. Executive shall
not
disparage the commercial, business or financial reputation of the Company or
any
of its officers, directors or employees.
6. Waiver
of Claims.
Executive, individually and on behalf of Executive’s estate, heirs, personal
representatives, and assigns hereby release, remise and forever discharge the
Company of and from any and all actions, causes of action, claims, debts, dues,
accounts, accountings, losses, liabilities, contracts, commitments, rights,
obligations, damages, costs and expenses, including without limitation
litigation expenses and attorneys fees, of any nature whatsoever, whether known
or unknown, liquidated or contingent, whether now existing or hereafter arising,
(each individually a “Claim” and all of the foregoing collectively called
“Claims”), which Executive had, now has, or may in the future have, including
without limitation any Claims: (a) for libel, slander, defamation, or tortious
interference with actual or prospective business or contractual relations,
which
are based in whole or in part on any facts, circumstances or events which are
now existing or which occurred on or prior to the date hereof, or (b) for breach
of contract, wrongful discharge, non-payment of wages or other sums, with the
sole exception of Claims arising under the express provisions of this Agreement.
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Except
as
expressly provided to the contrary in the first paragraph of this Section 6,
the
Claims and rights being released in this section include, but are not limited
to: all Claims and rights arising from or in connection with any agreement
of
any kind Executive may have had with Company, or in connection with Executive’s
status or separation of employment from Company; all Claims and rights for
wrongful discharge (whether in common law or pursuant to the Arizona Employment
Protection Act), breach of contract, either express or implied, emotional
distress, back pay, front pay, benefits, fraud, or misrepresentation; all Claims
and rights, if any, arising under the Civil Rights Acts of 1964 and 1991, as
amended, (which prohibits the discrimination in employment based on race, color,
national origin, religion or sex), the Americans with Disabilities Act (ADA),
as
amended (which prohibits discrimination in employment based on disability),
the
Age Discrimination in Employment Act (ADEA), as amended (which prohibits age
discrimination in employment), the Employee Retirement Income Act of 1974
(ERISA), as amended, all other wage and hour/wage payment statutes and laws,
the
Arizona Civil Rights Act and all similar state or local fair employment
practices statutes and laws, and the Health Insurance Portability and
Accountability Act (HIPPA), to the extent such statutes and laws may be
applicable; and, any and all other Claims or rights whether arising under
federal, state, or local law, rule, regulation, constitution, ordinance or
public policy.
Executive
acknowledges that Executive is waiving any rights Executive may have under
the
Age Discrimination in Employment Act, that Executive was advised to review
this
Agreement with Executive’s legal counsel before signing the Agreement, that
Executive has been advised to carefully read the provisions of this release,
that Executive understands its contents, that Executive has twenty one (21)
days
from the date Executive received a copy of this release to consider entering
into this release and accepting the payments provided for herein, and that
if
Executive signs and returns this release before the end of the 21-day period,
Executive will have voluntarily waived Executive’s right to consider this
release for the full twenty one (21) days.
Executive
acknowledges that Executive may revoke this release within seven (7) days of
Executive’s execution of this Agreement by submitting written notice of
Executive’s revocation of this release and of this Agreement to the Chief
Executive Officer of the Company. Executive also understands that this release
and Agreement shall not become effective or enforceable until the expiration
of
that 7-day period without Executive having given such notice. If Executive
gives
such notice of revocation, then this Agreement will be null and void and of
no
further force and effect.
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Executive
agrees that if any provision of this release is or shall be declared invalid
or
unenforceable by a court of competent jurisdiction, then such provision will
be
modified only to the extent necessary to cure such invalidity and with a view
to
enforcing the parties’ intention as set forth in this release to the extent
permissible and the remaining provisions of this release shall not be affected
thereby and shall remain in full force and effect
7. No
Wrongdoing by Company. Executive
acknowledges and understands that by offering and/or executing this Agreement,
Company does not admit, and indeed expressly denies, that Company, its
employees, managers, agents, directors and officers have done anything improper
or violated any law. The signing of this Agreement is not an admission of
liability or wrongdoing by Company, its employees, managers, agents, directors
or officers.
8. Taxes.
Company
will withhold all appropriate taxes and issue to Executive an IRS Tax Form
W-2.
The parties acknowledge, however, that there may be tax consequences for
Executive in excess of the amounts withheld from the consideration described
in
Paragraphs 2 and 3 of this Agreement. It is expressly understood that Executive
is responsible for all taxes which Executive may owe as a result of Executive
receiving the consideration under this Agreement. Executive expressly
understands that if Executive or Executive’s family owe taxes, or additional
taxes, at any time as a result of the impact of this Agreement, that Executive
alone is responsible for making those payments and that Executive will not
seek
additional sums from Company to make those payments. Similarly, if Executive
seeks to recover certain portions of or all of the withheld amounts from the
appropriate taxation authorities, such a recovery would be a private matter
between Executive and the appropriate government agency or agencies. Company
will not provide Executive with, nor will Executive ask for, any
additional funds to offset the amount paid or owed in taxes, accrued interest,
penalties or for attorneys fees which Executive may incur in resolving
Executive’s claims with any government agency or agencies or courts of
law.
9. Executive’s
Coverage Under Directors and Officers Liability Policy. The
conclusion of Executive’s employment with Company does not affect Executive’s
coverage under Company’s Directors and Officers Liability Policy for acts or
omissions by Executive which occurred in the course of Executive’s performance
of Executive’s duties and responsibilities on behalf of Company. Executive will
not have coverage under Company’s Directors and Officers Liability Policy for
services, acts or omissions to act by Executive subsequent to the Separation
Date.
10. Complete
Integration.
The
terms contained in this Agreement are the only terms agreed upon by Executive
and Company. Notwithstanding any other statements, all benefits which Executive
had as a result of Executive’s employment, and which are not expressly listed in
this Agreement, terminate in accordance with Company’s benefit contracts, but in
no case later than the end of October, 2006. It is the express intent of the
parties that this Agreement fully integrates and expressly replaces any other
terms, conditions, conversations, discussions, or any other issues which were
discussed regarding Executive’s employment at Company, or for any and all
reasons based on conduct which has occurred through the date of executing this
Agreement. With the exception of the Confidentiality and Assignment
Acknowledgement and Agreement signed by Executive while employed by Company,
any
other conversations, promises or conditions which do not appear in this document
are waived or rejected by agreement of Executive and Company.
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11. Interpretation
and Enforcement.
Because
Executive has been advised to seek counsel prior to signing this Agreement,
the
parties agree that the general rule that the document shall be interpreted
against the party that drafted it shall not apply to any subsequent issue of
interpretation. In the event a dispute arises over the terms of this Agreement,
both Executive and Company are equal without regard to who authored this
document. All claims, disputes or issues of interpretation which arise, or
may
arise, out of this Agreement shall be resolved by an Arbitrator under the
American Arbitration Association’s Rules and Procedures for Employment Cases.
The Arbitrator shall have the power to order appropriate remedies for any proven
breaches of this Agreement. However, each side shall bear its own attorneys
fees. The decision and award of any Arbitrator shall be final and binding.
The
Parties agree to keep any Decision and Award confidential.
12. Counter-parts.
This
Agreement may be signed in separate counter-parts.
13. Signatures
| /s/ Xxxxxxx Xxxxx | 01/25/2007 | |
| Xxxxxxx Xxxxx | Date | |
| /s/ Xxxxxxx X. Xxxxxxx | 01/25/2007 | |
| Ionatron, Inc | Date | |
| By: Xxxxxxx X. Xxxxxxx | ||
| Authorized Agent of Company |
Presented
to Executive on: January 19, 2007 and finalized January 25, 2007.
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