EXECUTIVE SEVERANCE AGREEMENT AND RELEASE OF CLAIMS
Exhibit 10.6
EXECUTIVE SEVERANCE AGREEMENT AND RELEASE OF CLAIMS
This
Executive Severance Agreement and Release of Claims
(“Agreement”) is made by and between Command Center,
Inc. (the “Company”) and Xxxxxxx Xxxxxx
(“Executive”).
RECITALS
A.
Executive is voluntarily resigning from her 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 the employment
relationship.
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 hereby resigns from her employment with the Company and
as an officer of the Company effective as of the Effective Date (as
defined in Section 3). Executive acknowledges that her last day of
work for the Company was on July 14, 2017.
(b)
Executive agrees that she shall not apply in the future or
otherwise seek employment with the Company. In the event that
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 her regular base pay on a
bi-weekly basis until and through the Effective Date. Thereafter,
within ten days after the Effective Date, Executive shall receive
her base pay, prorated on a daily basis, from the Effective Date
through September 1, 2017. If Executive is presently a participant
in any of the health insurance plans offered by Company, unless
cancelled by Executive her participation shall continue through
July 31, 2017, 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, Company will pay to Executive the additional gross
amount of $100,000, less appropriate withholdings.
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(c)
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 her. The parties
agree that no additional vacation or sick leave time will accrue
after the date listed above as Executive’s last day of work
and that the specified payments to be made to Executive following
her last day of work 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 her. 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
Date. This Agreement
shall become effective on the tenth day following the day on which
this Agreement has been fully signed by both Company and Executive
(the “Effective Date”), unless sooner rescinded by
Executive as provided herein.
4.
Return
of Property.
Executive shall return all Company property and confidential and
proprietary information in her 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 date specified as
Executive’s last day of work, so that Executive will not have
in her possession any proprietary document of the Company in any
form. Executive acknowledges that following the date specified as
Executive’s last day of work, any items of personal property
belonging to her and located at the office of the Company, shall be
deemed to have been given and transferred by her to the Company.
Before her 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 she has used
and/or accessed during her employment, along with the user
identification, passwords and all other login credentials that may
be required to access such systems, sites and files.
5.
Release of Claims
by Company.
(a)
Company releases Executive and her 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 employment relationship 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.
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6.
Release
of Claims by Executive. Executive releases the Company and its
officers, directors, representatives and affiliated companies,
successors and assigns, on behalf of herself, and her respective
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
she may possess arising from any omissions, acts or facts, that
have occurred up until and including the Effective Date, including,
without limitation:
(a)
any and all claims relating to or arising from Executive’s
employment relationship with the Company and the termination of
that relationship;
(b)
any and 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)
any and 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;
(d)
any and all claims pursuant to any “whistleblower” law
or regulation, including laws or regulations administered by the
Occupational Safety and Health Administration;
(e)
any and all claims arising out of
any other laws and regulations relating to employment or employment
discrimination, harassment or retaliation; and
(f)
any and 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.
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7.
Acknowledgment of
Waiver of Claims under ADEA. Executive acknowledges that she is
waiving and releasing any rights she 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
Effective Date of this Agreement. 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 she has been advised
by this writing that (a) she should consult with an attorney prior
to executing this Agreement; (b) she has at least twenty-one (21)
days within which to consider this Agreement; (c) she has at least
seven (7) days following the execution of this Agreement by the
parties to revoke 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 she has no
lawsuits, claims, or actions pending in her 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 she
does not intend to bring any claims on her 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;
(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 her 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 her possession to Company not later
than the date specified to be the last day of her
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.
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10.
Nondisparagement.
(a)
From the Effective Date and for a period of 12 months thereafter,
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, Company agrees for a period of 12 months from
the Effective Date to refrain from making any public disparaging
statements concerning Executive.
(b)
Should any third parties, including prospective employers, inquire
as to the employment of Executive with Company, Company agrees that
nothing will be said or conveyed to any third party that could be
construed as damaging the name, character or employment of
Executive.
(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.
The Parties shall each bear their own costs, expert fees,
attorneys’ fees and other fees incurred in connection with
this Agreement.
12.
Arbitration.
The Parties agree that any and 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.
The Parties agree that the prevailing party in any arbitration
shall be awarded its reasonable attorney’s fees and costs.
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 she has the
capacity to act on her own behalf and on behalf of all who might
claim through her 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.
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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 any and 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;
(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.
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EXECUTIVE
/s/ Xxxxxxx Xxxxxx
Xxxxxxx
Xxxxxx
Date:
July 19, 2017
/s/ Xxxxxxxxx Xxxxxxxx
Xxxxxxxxx
X. Xxxxxxxx
Chief
Executive Officer
Date:
July 20, 2017
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