SEPARATION AGREEMENT AND RELEASE
This
Separation Agreement and Release (“Agreement”)
is
entered into between Xxxx Xxxxxx ("Employee")
on the
one hand, and Surfect Technologies, Inc., together with each of its managers,
parents, successors, subsidiaries, affiliates, directors, officers, agents
and
employees (collectively the "Company")
on the
other hand. The Employee and Company are jointly referred to as the
“Parties."
WHEREAS,
Employee has been employed by the Company as the Company’s Chief Operating
Officer; and
WHEREAS,
the terms of Employee’s employment were set forth in the Offer Letter between
the Company and the Employee dated June 26, 2007 (the “Offer
Letter”);
WHEREAS,
the Parties have mutually agreed to end their employment relationship (the
"Separation");
and
WHEREAS,
the Parties desire to enter into this Agreement in order to set forth their
respective rights and obligations in connection with the
Separation.
NOW
THEREFORE, for and in consideration of the mutual agreements, representations,
covenants and warranties recited herein, the Parties agree as follows:
1. Separation.
The
Employee's employment with the Company shall end effective March 9, 2007 (the
"Separation
Date").
2. Severance
Payment.
The
Company agrees to pay Employee a one-month’s severance payment in an amount of
$12,500 less all authorized deductions and withholdings for applicable federal,
state and local taxes (the "Severance
Payment").
The
Severance Payment shall be paid within eight days from the execution of this
agreement by the parties, unless earlier revoked as allowed by paragraph 11
below (the "Effective
Date").
3.
Vacation
Pay.
Effective with the Separation Date, Employee will cease to accrue vacation
benefits. The Company will pay to Employee the value of accrued vacation
benefits, agreed to be $5,769.23, less statutory withholdings and deductions,
within eight days from the execution of this agreement by the parties, unless
earlier revoked as allowed by paragraph 11 below.
4. COBRA.
Effective as of and beginning on the Separation Date, as required by the
continuation coverage provisions of Section 4980B of the U.S. Internal Revenue
Code of 1986, as amended (the “Code”),
Employee shall be offered the opportunity to elect continuation coverage under
the group medical and dental benefit plans of the Company for Employee and
Employee's covered dependants (“COBRA
Coverage”).
As
per the terms of the Offer Letter, the Company shall make a payment of $1,090.64
(the “COBRA
Payment”)
to
Employee, which amount is equal to one-months COBRA Coverage for Employee
(without deductions made for applicable taxes) and Employee may apply such
amount to pay for COBRA Coverage. Except to the extent that the COBRA Payment
shall be used by the Employee to pay for Cobra Coverage, any COBRA Coverage
obtained by the Employee shall be at Employee's sole expense. The Employee
understands and agrees that the Company’s group medical and dental benefit plans
may change after the Separation Date, and that the existence and duration of
Employee’s rights and/or the COBRA rights of Employee’s eligible dependents may
also be limited by Section 4980 of the Code.
5.
Options.
Pursuant to an Incentive Stock Option Agreement between the Company and Employee
(the “Option Agreement”) entered into pursuant to the Surfect Holdings, Inc.
Incentive Stock Option Plan (the “Option Plan”), Employee has accrued a vested
option to purchase up to 42,585 shares of Surfect Holdings, Inc. common stock
at
an exercise price of $.30/share. As per the Company’s Option Plan, all unvested
Options shall automatically terminate and be cancelled (without any action
on
the part of the Company) as of the Effective Date and all options that have
vested prior to such date shall remain exercisable for a period of 30 days
following the Effective Date.
5. Consulting
Agreement.
In
partial consideration for Employee’s execution and delivery of this Agreement,
Employer agrees to enter into a consulting agreement with Employee for a term
of
two weeks (commencing on March 6, 2007 and ending on March 19, 2007).
Consideration paid to Employee under such consulting agreement shall be $6,250
(“Conusltant’s Fee”), such Consultant’s Fee to be paid in full within eight days
from the execution of this agreement by the parties, unless earlier revoked
as
allowed by paragraph 11 below.
No part
of Consultant's Fee will be subject to withholding for any federal, state,
social security, workers' compensation or other required taxes or payments.
The
Company shall report the payment of the Consultant’s Fee paid to Employee to the
Internal Revenue Service (and other taxing agencies) on Form 1099 or other
appropriate forms. Employee acknowledges and agrees that it shall be the
obligation of Employee to report the Consutant’s Fee as income, and pay all
taxes upon, the Consultant’s Fee pursuant to this Agreement.
6. Registration
Rights.
The
Company acknowledges that Employee has waived registration rights pertaining
to
76,612 shares of common stock in Surfect Holdings, Inc. currently held by
Employee pursuant to the Waiver of Registration Rights dated December 4, 2006.
Company acknowledges that as per the Board resolution dated December 4, 2006,
the Company’s Board authorized and approved the Company’s entering into a
registration rights agreement with each of the shareholders so waiving their
registration rights (including Employee) providing each of such holders with
rights to have their shares included in a registration statement filed with
the
Securities and Exchange Commission on the terms set forth in such registration
rights agreement.
6. Release
and Waiver.
The
Employee forever settles, releases, compromises, reaches accord and
satisfaction, waives, remises, discharges and acquits the Company, including
all
past and present directors, officers, agents (including, but not limited to
Administaff
Companies 11, L.P., its parent, subsidiaries, insurers, and agents) and
employees thereof (collectively the "Released
Entities")
on
each and every claim which exists as of the Effective Date of this Agreement,
whether known or unknown, as well as any claim which may hereafter arise against
the Released Entities, arising out of or relating to Employee's employment
with
the Company, the Employment Agreement, Separation from employment, or any
potential claim against any of the Released Entities. This Release specifically
includes, without limitation, claims for the following:
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a.
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Alleged
violation of the following laws: The Age Discrimination in Employment
Act
of 1967, 29 U.S.C. 621
et seq.,
as amended; The Older Workers Benefit Protection Act, Pub. Law 101-433,
104 Stat. 978 (1990); Title VII of the Civil Rights Act of 1964,
42 U.S.C.
§ 2000-e, as amended; the Americans with Disabilities Act; the Civil
Rights Acts of 1866, 1871, and 1991; the Family and Medical Leave
Act; the
Equal Pay Act of 1963; the Employee Retirement and Income Security
Act;
and any other federal, state, or local employment statute, law, or
ordinance, including any and all claims of employment discrimination
based
on race, color, creed, religion, national origin, sex, age, marital
status, disability, sexual orientation, lawful off-duty conduct,
or
retaliation;
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b.
|
any
and all common law claims such as wrongful discharge, violation of
public
policy, defamation, negligence, infliction of emotional distress,
any
intentional torts, outrageous conduct, interference with contract,
fraud,
misrepresentation, and invasion of privacy;
and
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|
c.
|
any
and all claims for any of the following: money damages, including
actual,
compensatory, liquidated or punitive damages, equitable relief such
as
reinstatement or injunctive relief, front or back pay, wages, benefits,
sick pay, vacation pay, liquidated damages, costs, interest, expenses,
attorneys’ fees, or any other
remedies.
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7. Successors
and Assigns.
Except
as otherwise provided herein, this Agreement shall bind and inure to the benefit
of and be enforceable by the Employee, the Company, each of the Party’s
respective successors and assigns, and the Released Entities.
8. Counterparts.
This
Agreement may be executed in separate counterparts, each of which is deemed
to
be an original and all of which taken together constitute one and the same
Agreement.
9. Confidentiality.
The
Employee agrees that neither Employee nor Employee's representatives will reveal
any confidential information relating to Employee's employment with or
separation from the Company, or the terms and conditions of this Agreement,
except that (1) Employee may disclose the terms and conditions of this Agreement
to Employee's spouse, provided she agrees to keep such terms and conditions
confidential, and (2) Employee may disclose the terms and conditions of this
Agreement to Employee's attorneys, accountants, tax consultants, and state
and
federal tax authorities.
10. Non-Disparagement.
The
Employee shall not disparage, orally or in writing, the Company, its officers,
directors, representatives, or employees, or any of the Released
Entities.
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11. Acknowledgment
under the ADEA.
This is an important legal document. Employee is advised to consult with an
attorney before signing this Agreement. Employee is advised that Employee has
twenty-one (21) days after receiving this Agreement to consider it. If Employee
chooses to agree to the terms of this Agreement, Employee must sign and return
this Agreement to the Company within twenty-one (21) days of Employee’s receipt
of this Agreement. If Employee signs this Agreement, Employee will then have
the
right to revoke this Agreement by delivering written notice of revocation to
the
Company, but such notice must be received by the Company within seven (7) days
after the date Employee signed this Agreement. The signed Agreement and/or
any
notice of revocation must be delivered to:
Xxxxxxx
Xxxxx
Xxxxxxxxxx
Xxxxx Xxxxxx Xxxxxxx, PC
000
Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxx
Xxx Xxxxxx 00000
If
this Agreement is not signed and delivered to the Company within the twenty-one
(21) day period, or if it is revoked within the seven (7) day period, neither
Employee nor the Company will have any rights or obligations under this
Agreement. This Agreement is binding upon and shall inure to the benefit of
Employee, the Company and the Company's successors and assigns. By signing
this
Agreement, the Parties represent that they have read and understand it, that
they have discussed it or had an opportunity to discuss it with their respective
attorneys, and that they enter into it knowingly and
voluntarily.
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WHEREFORE,
Employee and Company voluntarily enter into this Agreement by affixing their
signatures on the date set forth below.
/s/ Xxxx
Xxxxxx
Xxxx
Xxxxxx, Employee
Date:
3/16/07
Surfect
Technologies, Inc.
By:
/s/
Xxxxx
Xxxxxxxx
Xxxxx
Xxxxxxxx
President
& CEO
Date: 3/16/07
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