EXECUTIVE SEVERANCE AGREEMENT AND RELEASE OF CLAIMS
Exhibit 10.1
This
Executive Severance Agreement and Release of Claims
(“Agreement”) is made by and between Command Center,
Inc. (the “Company”) and Xxxxxxxxx Xxxxxxxx
(“Executive”).
RECITALS
A.
Executive is
voluntarily resigning from his employment with the
Company.
B.
The Company wishes
to provide for a severance payment to Executive and Executive
wishes to release Company from any and all claims arising from or
related to his employment relationship with the
Company.
AGREEMENT
NOW THEREFORE, in consideration of the
mutual promises made herein, the Company and Executive
(collectively referred to as the “Parties”) hereby
agree as follows:
1.
Resignation.
(a)
Executive
acknowledges that he submitted his resignation as an officer of the
Company on February 1, 2018 to be effective on April 1, 2018 in
accordance with his current employment agreement. Executive
acknowledges and agrees that his employment with the Company as the
President and Chief Executive Officer of the Company shall cease as
of 11:59 p.m., March 31, 2018 (the “Effective Date”),
and that he hereby resigns as a member of the Board of Directors of
the Company, and from all other positions with the Company,
effective as of the Effective Date. Notwithstanding the foregoing,
Executive shall continue to perform all of his duties as the
President and Chief Executive Officer of the Company through the
Effective Date, including those duties associated with the
Company’s compliance with all legal requirements, to the best
of Executive’s ability.
(b)
Executive agrees
that he shall not apply in the future or otherwise seek employment
with the Company. In the event Executive does apply or seek
employment, Company may disregard any such application. Given
Executive’s agreement herein, any action taken or not taken
by Company related to an application for employment by Executive
will not be and cannot be construed or alleged as adverse,
retaliatory, discriminatory or otherwise violative of any law or
regulation.
2.
Consideration.
(a)
Executive shall
continue to receive his regular base pay through the Effective
Date. If Executive is presently a participant in any of the health
insurance plans offered by Company, unless cancelled by Executive
his participation shall continue through the Effective Date,
subject to deduction from Executive’s pay for
Executive’s usual share of premiums.
(b)
As further
compensation, not later than ten days after the Effective Date,
provided Executive has not rescinded this Agreement in accordance
with Section 7 below, the Company will pay to Executive the
additional gross amount of $275,000, less appropriate
withholdings.
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(c)
Additionally, as
further consideration, not later than ten days after the Effective
Date, provided Executive has not rescinded this Agreement in
accordance with Section 7 below, the Company shall pay Executive an
amount equal to one hundred and five (105%) percent of the value of
Executive’s unexercised options to purchase the
Company’s stock, whether vested or not, and such options
shall then terminate and be of no further force or effect.
Executive shall return to the Company the originals of all Stock
Option Grant Agreements with respect to said terminated options.
For purposes of this paragraph, the term “value of
Executive’s unexercised options to purchase the
Company’s stock” shall be determined as follows: From
the average of the Bid and Asked prices of the Company’s
common stock quoted on the OTCOB system at the close of business on
March 29, 2018, subtract the option exercise price contained in the
relevant Stock Option Grant Agreements, then multiply the result
(not less than zero) by the number of unexercised option shares of
stock (whether vested or not) remaining under the relevant Stock
Option Grant Agreement.
(d)
Additionally, as
further consideration, not later than ten days after the Effective
Date, provided Executive has not rescinded this Agreement in
accordance with Section 7 below, the Company shall pay Executive an
amount for his attorney’s fees concerning termination of his
employment with the Company and negotiation, preparation and
execution of the Agreement in the amount of $25,000.
(e)
Payments to
Executive shall be subject to all the usual withholdings. Executive
acknowledges that except for the payments set forth in this Section
2, no other compensation or payments are due and that no additional
amounts will be paid to him. The parties agree that no additional
vacation or sick leave time will accrue after the Effective Date
and that the specified payments to be made to Executive following
the Effective Date include all accrued vacation time and other
compensation due. Executive further acknowledges that no stock,
stock options or other equity-based award or interest in the
Company is due or will be given to him. Executive will not assert
any claim for shares of stock, stock options or any other
equity-based interest or for additional compensation or payment,
whether claimed to be accrued vacation time, benefits, bonus,
relocation expense or other expense reimbursement or any other
category of compensation or payment.
3.
Effective Upon
Execution. This
Agreement shall become effective upon execution by both parties,
provided however, Executive shall have the right to rescind this
Agreement in accordance with Section 7 below within seven (7) days
following the date this Agreement is fully executed. In the event
Executive exercises his right to rescind this Agreement, all of the
provision hereof, including any compensation to be paid to
Executive in excess of the payments specified in Section 2.a above,
shall be null and void.
4.
Return of
Property. Executive
shall return all Company property and confidential and proprietary
information in his possession to the Company prior to
Executive’s final day of employment. Executive hereby
certifies that all proprietary documents of the Company, whether in
printed or electronic form, will be returned to the Company,
shredded or deleted not later than the Effective Date, so that
Executive will not have in his possession any proprietary document
of the Company in any form. Executive acknowledges that following
the Effective Date, any items of personal property belonging to him
and located at the office of the Company, shall be deemed to have
been given and transferred by him to the Company. Before his last
day of work, Executive shall also prepare and submit to Company a
complete and accurate listing of all password-protected systems,
websites and files that he has used and/or accessed during his
employment, along with the user identification, passwords and all
other login credentials that may be required to access such
systems, sites and files.
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5.
Release of Claims
by Company.
(a)
Company releases
Executive and his heirs, successors and assigns, from, and agrees
not to xxx concerning, any claim, duty, obligation or cause of
action, loss or expense of every kind and description, whether
presently known or unknown, suspected or unsuspected, that Company
may possess arising from any omissions, acts or facts, that have
occurred up until and including the Effective Date, including
without limitation, any and all claims relating to or arising from
Executive’s relationship or prior dealings with the Company,
including but not limited to Executive’s employment with the
Company, and excepting only claims for acts of theft, fraud or
embezzlement.
(b)
Any incentive-based
compensation, or any other compensation, paid to the Executive
pursuant to this Agreement or any other agreement or arrangement
with the Company which is subject to recovery under any law,
government regulation or stock exchange listing requirement, will
be subject to such deductions and clawback as may be required to be
made pursuant to such law, government regulation or stock exchange
listing requirement. Any determination for clawback or recovery
shall be made in accordance with any applicable law or
regulation.
6.
Release of Claims
by Executive.
Executive releases the Company and its officers, directors,
representatives and affiliated companies, successors and assigns,
on behalf of himself, and his heirs, family members,
representatives, successors and assigns, from, and agrees not to
xxx concerning, any claim, duty, obligation or cause of action,
loss or expense of every kind and description, whether presently
known or unknown, suspected or unsuspected, that he may possess
arising from any omissions, acts or facts, that have occurred up
until and including the Effective Date, including, without
limitation:
(a)
all claims relating
to or arising from Executive’s employment relationship with
the Company and the termination of that relationship;
(b)
all claims for
wrongful discharge of employment; termination in violation of
public policy; discrimination; harassment of any kind; retaliation;
constructive discharge; breach of contract, both express and
implied; breach of a covenant of good faith and fair dealing, both
express and implied; promissory estoppel; negligent or intentional
infliction of emotional distress; negligent or intentional
misrepresentation; negligent or intentional interference with
contract, business relationship or prospective economic advantage;
unfair business practices; defamation; libel; slander; negligence;
personal injury; assault; battery; invasion of privacy; false
imprisonment; conversion; and all other causes of
action;
(c)
all claims for
violation of any federal, state or municipal statute, ordinance,
rule or regulation, including, but not limited to, Title VII of the
Civil Rights Act of 1964, the Civil Rights Act of 1991, the Age
Discrimination in Employment Act of 1967, the Americans with
Disabilities Act of 1990, the Fair Labor Standards Act, the
Employee Retirement Income Security Act of 1974, and the Older
Workers Benefit Protection Act;
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(d)
all claims pursuant
to any “whistleblower” law or regulation;
(e)
all claims arising
out of any other laws and regulations relating to employment or
employment discrimination, harassment or retaliation;
and
(f)
all claims for
attorneys’ fees and costs.
The
Company and Executive agree that the release set forth in this
section shall be and remain in effect in all respects as a complete
general release as to all matters, except as otherwise specified.
This release does not extend to any obligations incurred under this
Agreement.
7.
Acknowledgment of
Waiver of Claims under ADEA. Executive acknowledges that he is
waiving and releasing any rights he may have under the Age
Discrimination in Employment Act of 1967 (“ADEA”) and
that this waiver and release is knowing and voluntary. Executive
and the Company agree that this waiver and release does not apply
to any rights or claims that may arise under ADEA after the date
this Agreement is signed by Executive. Executive acknowledges that
the consideration given for this waiver and release agreement is in
addition to anything of value to which Executive was already
entitled. Executive further acknowledges that he has been advised
by this writing that (a) he should consult with an attorney prior
to executing this Agreement; (b) he could have at least twenty-one
(21) days within which to consider this Agreement and that if he
voluntarily chooses not to utilize the full twenty-one (21)
calendar days, he has had a fully adequate opportunity to review
this Agreement before signing it; (c) he has at least seven (7)
days following the execution of this Agreement by the parties to
revoke or rescind the Agreement; and (d) this Agreement shall not
be effective until after the revocation period has
expired.
8.
No Pending or
Future Lawsuits.
Executive represents that he has no lawsuits, claims, or actions
pending in his name, or on behalf of any other person or entity,
against the Company or any other person or entity referred to
herein. Executive also represents that he does not intend to bring
any claims on his own behalf or on behalf of any other person or
entity against the Company or any other person or entity referred
to herein. If Executive has brought any administrative claims or
complaints with any governmental agency, against the Company and/or
any officer, director or employee of the Company, all such claims
are hereby fully settled and resolved.
9.
Confidential
Information.
(a)
For purposes of
this Agreement, the words “Confidential Information”
include all of the following:
(1)
The methods,
procedures, plans, techniques, systems, data, processes, formats
and designs utilized in Company’s operations;
(2)
The software
utilized by Company;
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(3)
All information
relating to Company’s financial conditionand operational and
financial plans and goals;
(4)
All information
pertaining to Company’s customers, aswell as prospective
customers, including customer lists and usagepatterns, pricing and
bidding practices, customer contact information, and marketing and
sales practices, methods and plans;
(5)
All business forms
and all operations, sales and training manuals; and
(6)
All other
information which by its nature would be reasonablyunderstood to be
confidential.
(b)
Executive agrees
not to disclose any Confidential Information to others, use any
Confidential Information for his own benefit or make copies of any
Confidential Information without Company’s written consent,
whether during or after Executive’s employment with Company.
Executive also agrees to return all Confidential Information in his
possession to Company not later than the date specified to be the
last day of Executive’s employment.
(c)
For purposes of
this Agreement the words “Confidential Information” do
not include any information that is or becomes generally available
to the public, other than as a result of disclosure in violation of
this agreement.
10.
Nondisparagement.
(a)
From the date of
execution of this Agreement, Executive shall (i) refrain from
making any public disparaging statements concerning Company, its
officers, directors, employees or representatives or its business
or operations and (ii) refrain from posting on any Internet site or
online message board, chat room or blog any statement concerning
Company, whether disparaging or not. Similarly, from the date of
execution of this Agreement, the Company agrees to refrain from
making or posting any disparaging statement about or concerning
Executive.
(b)
Should any third
parties, including prospective employers, inquire as to the
employment of Executive with Company, Company will confirm
Executive’s dates of employment, title, final rate of pay,
and separation via voluntary resignation.
(c)
This Section 10
shall not prohibit the Parties from disclosing any information in
response to a lawful subpoena or court order requiring disclosure
of information or otherwise as required by law. Similarly, this
section is not intended to prevent either party from providing
truthful testimony and information regarding the other party in any
administrative proceeding, when requested by a governmental agency
to do so, whether with or without a subpoena.
11.
Costs.
Except as otherwise specifically stated herein, the Parties shall
each bear their own costs, expert fees, attorneys’ fees and
other fees incurred in connection with this Agreement.
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12.
Arbitration.
The Parties agree that all disputes arising out of the terms of
this Agreement, their interpretation, and any of the matters herein
released, shall be subject to binding arbitration before the
American Arbitration Association, at its office located nearest the
Company’s corporate office in Denver, Colorado, under its
Employment Dispute Resolution Rules. The Parties agree that the
prevailing party in any arbitration shall be entitled to a
judgment, order and injunctive relief as may be appropriate in any
court of competent jurisdiction to enforce the arbitration award.
Nothing set forth in this section shall prevent either party from
seeking injunctive relief in a court of competent
jurisdiction.
13.
Authority.
The Company represents and warrants that the undersigned has the
authority to act on behalf of the Company and to bind the Company
and all who may claim through it to the terms and conditions of
this Agreement. Executive represents and warrants that he has the
capacity to act on his own behalf and on behalf of all who might
claim through him to bind them to the terms and conditions of this
Agreement. Each Party warrants and represents that there are no
liens or claims of lien or assignments in law or equity or
otherwise of or against any of the claims or causes of action
released herein.
14.
No
Representations. Each
party represents that it has had the opportunity to consult with an
attorney, and has carefully read and understands the scope and
effect of the provisions of this Agreement. Neither party has
relied upon any representations or statements made by the other
party hereto which are not specifically set forth in this
Agreement.
15.
Severability.
In the event that any provision hereof becomes or is declared by a
court of competent jurisdiction or arbitrator to be illegal,
unenforceable or void, that provision shall be modified so that it
is legal and enforceable and in a manner which most closely
reflects the intent of the Parties.
16.
Entire
Agreement. Except as
provided in the following sentence, this Agreement represents the
entire agreement and understanding between the Company and
Executive concerning Executive’s separation from the Company
and supersedes and replaces all prior agreements and
understandings. All of the covenants and other post-employment
provisions of any employment contract entered into between the
Parties, which are specified to survive termination of employment
or which by their nature apply following termination of employment,
shall remain in full force and effect.
17.
No Oral
Modification. This
Agreement may only be amended in writing signed by Executive and
the Company.
18.
Governing
Law. This Agreement
shall be governed by the laws of the State of
Colorado.
19.
Counterparts.
This Agreement may be executed in counterparts, and each
counterpart shall have the same force and effect as an original and
shall constitute an effective, binding agreement on the part of
each of the undersigned.
20.
Voluntary Execution
of Agreement. This
Agreement is executed voluntarily and without any duress or undue
influence on the part or behalf of the Parties hereto, with the
full intent of releasing all claims. The Parties acknowledge
that:
(a)
They
have read this Agreement;
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(b)
They
have been represented in the preparation, negotiation, and
execution of this Agreement by legal counsel of their own choice or
that they have voluntarily declined to seek such
counsel;
(c)
They
understand the terms and consequences of this Agreement and of the
releases it contains; and
(d)
They
are fully aware of the legal and binding effect of this
Agreement.
21.
Further
Assurances. Following
the effective date of this Agreement, Executive shall sign and
deliver such further documents and instruments as may be reasonably
requested by Company or its counsel, for purposes of carrying out
the intent of this Agreement.
IN WITNESS WHEREOF, the Parties have
executed this Agreement on the respective dates set forth
below.
EXECUTIVE
/s/ Xxxxxxxxx Xxxxxxxx
Xxxxxxxxx
Xxxxxxxx
Date:
March 28, 2018
/s/ Xxxxxxx Xxxxxxxx
Xxxxxxx
Xxxxxxxx
Secretary &
Associate General Counsel
Date:
March 28, 2018
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