Exhibit 10.4
COMPLETE AND PERMANENT WAIVER, RELEASE AND
SEVERANCE AGREEMENT
This Complete and Permanent Release and Severance Agreement
("Agreement") is entered into by and between INTREPID CAPITAL CORPORATION and
its parent(s), subsidiaries, affiliates, franchisees, related entities,
successors, and its past and present employees, directors, officers, attorneys,
executors, and assigns ("Intrepid Capital Corporation" or "COMPANY" or
"Released Parties") and XXXXXXX X. XXXXXXX on behalf of his/herself, his/her
spouse, heirs, successors, assigns, executors and representatives of any kind,
if any ("EMPLOYEE").
RECITALS
WHEREAS, EMPLOYEE was employed by COMPANY and
WHEREAS, EMPLOYEE resigns EMPLOYEE'S employment with COMPANY; and
WHEREAS, EMPLOYEE wishes to waive, release and settle any claims
related to or arising out of EMPLOYEE'S employment with COMPANY; and
WHEREAS, COMPANY denies any allegations of wrongful or illegal action
related to or arising out of EMPLOYEE'S employment with the COMPANY; and
WHEREAS, COMPANY and EMPLOYEE desire to sever and resolve their
relationship amicably, including but not limited to all disputed matters
arising during and out of EMPLOYEE'S employment with COMPANY;
NOW, THEREFORE, in consideration of the foregoing and of the terms,
conditions and agreements hereinafter set forth, COMPANY and EMPLOYEE agree as
follows:
1. Termination from Employment. EMPLOYEE and COMPANY acknowledge
that EMPLOYEE'S employment with COMPANY is, for purposes of this Agreement,
terminated effective June 6, 2003.
Consideration Paid to EMPLOYEE. After EMPLOYEE executes this Agreement, COMPANY
agrees and will pay to EMPLOYEE the amounts specified in this paragraph in
exchange for EMPLOYEE executing this Complete and Permanent Waiver, Release and
Severance Agreement and complying with the conditions set forth in this
Agreement. This CONSIDERATION shall be paid to EMPLOYEE, provided EMPLOYEE
executes and delivers this Agreement to COMPANY.
2. EMPLOYEE will be paid six months of income ($6,750 per month)
at her usual, yearly payment rate as consideration for EMPLOYEE executing this
Agreement. EMPLOYEE further acknowledges that COMPANY is not legally bound to
make this payment but for the execution of this Agreement. Outplacement
services up to $500.00 by Career Xxxxxxx.xxx of Jacksonville.
3. Consideration Provided by EMPLOYEE. In exchange for the
considerations provided in paragraph number "2" above, EMPLOYEE agrees to the
following:
i. EMPLOYEE affirmatively acknowledges that EMPLOYEE
remains bound by the terms of his/her
Confidentiality Agreement;
ii. Fulfill and honor all other promises, releases,
waivers and obligations to which EMPLOYEE binds
him/herself in this Agreement.
4. General Release of All Claims by EMPLOYEE. In exchange for
the extra consideration provided in paragraph number "2", EMPLOYEE hereby
waives, releases and forever discharges COMPANY from any and all claims,
demands, rights, liabilities
and causes of action of any kind or nature, known or unknown, arising prior to
or through the date this Agreement is executed. This waiver and release
includes but is not limited to any claims, demands, rights, liabilities and
causes of action arising out of or having any connection with EMPLOYEE'S
employment with COMPANY or separation therefrom. EMPLOYEE also releases and
waives any claim or right to further compensation, benefits, damages,
penalties, attorneys' fees, costs or expenses of any kind.
5. Specific Waiver and Release of All Claims by EMPLOYEE. The
waiver and release in this Agreement specifically includes, but is not limited
to, a release of any and all claims pursuant to any and all state and federal
laws regarding employment and the termination thereof; the Americans with
Disabilities Act, which prohibits discrimination against qualified individuals
with a disability; Title VII of the Civil Rights Act of 1964, which prohibits
discrimination and retaliation based on sex, race, color, national origin and
religion; Executive Order 11246, which prohibits discrimination based on race,
sex, and national origin; the Rehabilitation Act of 1973, which prohibits
discrimination based on disability; the Reconstruction Era Civil Rights Acts,
42 U.S.C. xx.xx. 1981-1988, which prohibits discrimination on a number of
bases, including race; the Civil Rights Act of 1991, which amended several of
the previously listed statutes; state and federal family and/or medical leave
acts, which provide for leaves of absences in certain circumstances; the
Consolidated Omnibus Budget Reconciliation Act of 1985, which provides the
opportunity for continuation of insurance in certain circumstances; the
Employee Retirement Income Security Act of 1974, which regulates employee
benefit plans; and any other federal, state or local laws or regulations of any
kind,
whether statutory or decisional. The specific release contained in this
Agreement also includes, but is not limited to, a release of all claims for any
unlawful discrimination, constructive discharge, wrongful termination, failure
to hire, retaliation, or any tort, breach of implied or express contract,
defamation, misrepresentation, violation of public policy or invasion of
privacy, and all claims that were raised or could have been raised arising from
EMPLOYEE'S employment with COMPANY or separation therefrom. This release covers
claims that EMPLOYEE knew about and those EMPLOYEE may not know about as well
as both liquidated and unliquidated claims that arose up to and including the
date this Agreement is executed. Notwithstanding the foregoing, this Agreement
does not prevent EMPLOYEE, and no penalty or claim for breach of this Agreement
can be made against EMPLOYEE, if EMPLOYEE files a charge or complaint,
including a challenge to the validity of this Agreement, with the Equal
Employment Opportunity Commission ("EEOC") or participates in any investigation
or proceeding conducted by the EEOC, although this Agreement may serve as a bar
preventing him from receiving further relief.
6. Release by COMPANY of Claims Against EMPLOYEE. COMPANY hereby
releases and forever discharges EMPLOYEE, EMPLOYEE'S attorneys, heirs and
spouse from any and all claims, demands, rights, liabilities and causes of
action of any nature, known or unknown arising prior to or through the date
COMPANY executes this Agreement, including, but not limited to any claims in
any way relating to EMPLOYEE'S employment with COMPANY.
7. Return of COMPANY Information and Property. EMPLOYEE agrees
that EMPLOYEE has returned or will immediately return to COMPANY all COMPANY
Information and/or property.
8. Confidentiality. EMPLOYEE agrees to keep the following
information confidential.
a. EMPLOYEE agrees that EMPLOYEE will not divulge or
give anyone or any entity any of the COMPANY'S Confidential Information
obtained by EMPLOYEE during EMPLOYEE'S employment with COMPANY. Confidential
Information means information, whether or not in written form, that (1) is not
generally made available by COMPANY or is not otherwise available to the
public; and (2) relates to COMPANY'S products, processes, or business.
Confidential Information includes matters involving COMPANY'S business and
affairs, including without limitation, information relating to COMPANY'S
licensing agreements; COMPANY'S suppliers and manufacturers; its research,
development, manufacturing, purchasing, distribution, sales and marketing;
COMPANY'S information regarding distributors, customers, and competitors; and
COMPANY'S business plans, pricing, other proprietary information, and trade
secrets. It is the intent of this Agreement to broadly define the protected
Confidential Information to include not only information normally referred to
as a trade secret, but also all other confidential information relevant to the
COMPANY'S business.
b. EMPLOYEE also agrees to keep this Agreement and its
terms confidential and not to reveal the fact of the Agreement or it contents
to anyone except EMPLOYEE'S spouse, attorney or financial consultant, taxing
authorities or as otherwise
required by law, except as necessary in an action against COMPANY to
enforce this Agreement.
9. No Disparagement. EMPLOYEE and COMPANY agree that they will
not criticize or denigrate the other to any person, business or entity. The
type of comments contemplated include, but are not limited to, any remark which
may cause or tend to cause an adverse impact on the reputation or character of
the other or cause a reasonable person in the community to negatively alter or
change their opinion of the other.
10. COBRA Right To Continue Health Benefits. EMPLOYEE
acknowledges that EMPLOYEE has the right to elect to continue EMPLOYEE'S health
insurance benefits under COBRA, and that if EMPLOYEE chooses to continue those
benefits EMPLOYEE will be solely responsible for paying the cost of such
benefits. Health coverage is covered for 6 months. After 6 months severance is
complete, COBRA is available.
11. No Lawsuits or Actions. EMPLOYEE represents and warrants that
no court actions, charges of discrimination, administrative actions or other
proceedings of any kind have been filed against COMPANY, or its past or present
employees, that are currently pending before any federal, state or local
administrative agency of any kind or court. EMPLOYEE agrees that EMPLOYEE will
not file any further complaints, cases or charges asserting any claims released
in this Agreement. EMPLOYEE further agrees that EMPLOYEE will reimburse and
indemnify COMPANY for any expenses and legal fees incurred in defending any
complaint, case or charge filed in violation of this paragraph or in an effort
to assert claims released in this Agreement.
12. No Assignment of Rights. EMPLOYEE represents that EMPLOYEE
has not assigned, given or sold any portion of any claim discussed in this
Agreement to anyone else.
13. Applicable Law. This Agreement shall be governed and
interpreted by Florida law. Any action to enforce this Agreement shall be
brought in the courts for the State of Florida.
14. Entire Agreement. This Agreement constitutes and contains the
entire agreement between the COMPANY and EMPLOYEE concerning the subject matter
of this Agreement and supersedes all prior negotiations, agreements or
understandings between them concerning any of the provisions of this Agreement.
15. Severability of Provisions. If any portion of this Agreement
is found to be unenforceable, the COMPANY and EMPLOYEE agree that all other
portions that can be separated from it, or appropriately limited in scope,
shall remain fully valid and enforceable.
16. Voluntary Waiver and Release. The COMPANY and EMPLOYEE
understand that this Agreement contains a final general release and that each
can make no further claims of any kind arising out of actions occurring through
the date each executes this Agreement.
IN WITNESS WHEREOF, the parties hereby have executed this
Agreement on the dates written below:
/s/ Xxxxxxx X. Xxxxxxx
----------------------------
Xxxxxxx X. Xxxxxxx (EMPLOYEE)
----------------------------
June 6, 2003
----------------------------
Date:
Intrepid Capital Corporation (Company)
/s/ Xxxx X. Xxxxxx
----------------------------
June 6, 2003
----------------------------
Date:
for Intrepid Capital Corporation (Company)
