SEPARATION AGREEMENT AND RELEASE

Exhibit 10.2

THIS SEPARATION AGREEMENT AND RELEASE (this “Agreement”) is made and entered into by and between Xxxxx Mart, Inc., a Florida corporation, including its officers, directors, owners, employees, agents, representatives, subsidiaries, affiliates, successors and assigns (hereinafter, jointly and severally, “Xxxxx Mart”) and Xxxxxxx X. Xxxxxx (“Xxxxxx”), a Florida resident. The effective date of this Agreement shall be August 27, 2007 (the “Effective Date”).

RECITALS

X. Xxxxx Mart employed Xxxxxx pursuant to that certain Xxxxx Mart, Inc. Employment Agreement dated July 8, 2005 and as amended in December, 2005 (the “EA”). A copy of the EA is attached as Exhibit “A” to this Agreement.

X. Xxxxxx’x last date of employment with Xxxxx Mart and membership on the Board of Directors was August 27, 2007.

C. In association with Xxxxxx’x separation from employment, Xxxxx Mart and Xxxxxx desire to resolve all differences between them, if any, arising from the date Xxxxxx was employed by Xxxxx Mart through the Effective Date.

D. This Agreement sets forth the terms and obligations of the parties to each other from the Effective Date forward.

Terms of Agreement

In consideration of the promises contained in this Agreement, the receipt and sufficiency of which are hereby acknowledged, Xxxxx Mart and Xxxxxx now agree as follows:

1. Recitals. The Recitals are true and accurate and incorporated into this Agreement.

2. Termination without Cause. Xxxxxx voluntarily resigned his employment as well as his positions as an officer and director of Xxxxx Mart on August 27, 2007. Xxxxx Mart and Xxxxxx have mutually agreed that Xxxxxx shall be deemed terminated “without cause” pursuant to Section 5(b) of the EA.

3. Superseding and Satisfaction of EA. Except as specifically noted herein, this Agreement supersedes the EA. The obligations of Xxxxx Mart to Xxxxxx and Xxxxxx to Xxxxx Mart under the EA are deemed satisfied. Except for the provisions of the EA that are specifically incorporated into this Agreement, the EA is null and void as of the Effective Date. The provisions of Section 6 of the EA (relating to Company Property, Trade Secrets, Confidential Information, Non-Competition, Non-Solicitation, Reasonable and Continuing Obligations and Work Product) and Section 7 (Miscellaneous Provisions) shall survive and are specifically incorporated into this Agreement.

4. Salary Continuation. Xxxxx Mart will pay Xxxxxx the annual sum of $826,000.00, pro rata (the “Salary Continuation”) from August 27, 2007 through August 27, 2009 (the “Post Termination Period”). Xxxxx Mart will continue to pay Xxxxxx in semi-monthly installments via direct deposit as currently on file. Except for required deductions and withholdings, Xxxxxx is responsible for the payment of all taxes associated with the monies he receives as a result of this Salary Continuation. As provided in Section 2(b) of the December, 2005 Amendment to Employment Agreement, the Salary Continuation shall be paid in thirty-six (36) equal semi-monthly installments beginning on or about the payroll date immediately closest to February 27, 2008, and continuing for eighteen consecutive months thereafter. The beginning of the payments are being delayed six months from the Effective Date so as to comply with Treasury Regulation § 1.409A-3(i)(2).

5. Benefits Continuation. Xxxxx Mart will:

a. Continue Xxxxxx’x medical, dental, life, accident and disability insurance during the Post-Termination Period, all calculated as though Xxxxxx had been terminated “without cause” pursuant to Section 5(b) of the EA with respect to the continued medical and dental insurance benefits pursuant to this Section 5(a), the first eighteen months of such coverage shall count as COBRA continuation coverage. Following the end of he COBRA continuation period, if such coverage is provided under a health plan that is subject to Code Section 105(h), benefits payable under such health plan shall comply with the requirements of Treasury Regulation § 1.409A-3(i)(1)(iv)(A) and (B) and, if necessary, Xxxxx Mart shall amend such health plan to comply therewith. During the first six months of the Post-Termination Period Xxxxxx shall pay Xxxxx Mart the full amount of the premium cost for all such coverage (except for coverage up to $50,000 under a group term life insurance policy). After the end of such six month period, Xxxxx Mart shall make a cash payment to Xxxxxx equal to the aggregate premiums paid by Xxxxxx hereunder and thereafter such coverage shall be provided at the expense of Xxxxx Mart for the remainder of the Post-Termination Period.

6. Additional Consideration. Xxxxx Mart will:

a. Continue the current monthly automobile allowance being provided through August 27, 2009; provided, however, that during the six months following August 27, 2007 Xxxxxx shall not receive such payment, but such payment shall be paid to Xxxxxx in a lump sum amount equal to six months of such automobile allowance payment.

b. Provide Xxxxxx with a $25,000.00 lump sum payment on February 27, 2008 in lieu of an allowance for use with professionals to provide post-separation financial advice.

c. Make Xxxxxxx Xxxxxx or her successor available at Xxxxxx’x reasonable request to advise Xxxxxx as to benefits to which he is entitled pursuant to the various employee benefit plans in effect at Xxxxx Mart and pursuant to the Agreement.

7. Withholding. Xxxxx Mart shall be entitled to withhold from amounts to be paid to Xxxxxx hereunder any federal, state or local withholding or other taxes or charges which it is from time to time required to withhold; provided, that the amount so withheld shall not exceed the minimum amount required to be withheld by law. In addition, if prior to the date of payment of the Salary Continuation hereunder, the Federal Insurance Contributions Act (FICA) tax imposed under Internal Revenue Code (“Code”) Sections 3101, 3121(a) and 3121(v)(2), where applicable, becomes due, Xxxxx Mart may provide for an immediate payment of the amount needed to pay Xxxxxx’x portion of such tax (plus taxes thereon) and the Salary Continuation shall be reduced accordingly.

8. Additional Section 409A Provisions.

a. If any payment or the provision of any benefit required under the terms of this Agreement would jeopardize the ability of Xxxxx Mart to continue as a going concern, Xxxxx Mart shall not be required to make such payment or provide such benefit; rather, the payment or benefit shall be delayed until the first date that making the payment or benefit does not jeopardize the ability of Xxxxx Mart to continue as a going concern.

b. If any payment or benefit due pursuant to this Agreement would violate the terms of Section 16(b) of the Securities Exchange Act of 1934 or other Federal securities laws, or any other applicable law, then the payment or the provision of the benefit shall be delayed under the earliest date on which making such payment or providing such benefit would not violate such law.

x. Xxxxx Mart and Xxxxxx intend the terms of this Agreement to be in compliance with Code Section 409A. Xxxxx Mart does not guarantee the tax treatment or tax consequences associated with any payment or benefit, including but not limited to consequences related to Code Section 409A. To the maximum extent permissible, any ambiguous terms of this Agreement shall be interpreted in a manner which avoids a violation of Code Section 409A.

9. Fiscal Year 2007 Bonus Payment. Xxxxxx shall not be eligible to receive any Earned Bonus for Fiscal Year 2007. Xxxxxx waives any claim for such bonus payment.

10. Compensation for Vacation or Leave Time. The compensation provided hereunder includes pay for accrued, but unused vacation time. As a result, Xxxxxx shall receive no separate compensation for vacation and/or leave time, and Xxxxxx waives any claim for compensation therefore.

11. No Claim for Wages or Compensation. Xxxxxx acknowledges that through the Effective Date he has received all wages, salary or other compensation which he is due or to which he believes he may be entitled. Xxxxxx waives any claim for wages, salary or other compensation earned or accrued through the Effective Date.

12. Pension, Retirement or Deferred Compensation Benefits. Xxxxxx is not a participant in or beneficiary of any defined benefit pension or retirement plan. Xxxxxx participated in Xxxxx Mart’s 401(k) plan. Xxxxxx shall be entitled to exercise rights under Xxxxx Mart’s 401(k) plan available to him as a separating employee. Pursuant to § 5(i)(1) of the XX Xxxxxx is eligible to contribute to Xxxxx Mart’s 401(k) plan as if Xxxxxx had remained employed through July 8, 2008, and Xxxxx Mart will make matching contributions as if Xxxxxx had been employed though July 8, 2008, to the extent permitted by such plan. Xxxxxx does not waive any compensation or benefits available to him under the Executive Deferred Compensation Plan which shall be payable to him according to its terms. Pursuant to § 5(i)(1) of the XX Xxxxxx may contribute to the Executive Deferred Compensation Plan as if Xxxxxx had remained employed through July 8, 2008. Xxxxx Mart will make matching contributions as if Xxxxxx had been employed through July 8, 2008.

13. No Claim for Disability or Workers’ Compensation Benefits. Xxxxxx represents that he is not currently experiencing any condition, injury or illness for which he has, or in his reasonable opinion could or should seek short or long-term disability benefits. Xxxxxx acknowledges that as of the Effective Date he has not filed any claim for short or long-term disability benefits. Xxxxxx represents that he has not suffered or experienced any illness or injury in connection with his employment with Xxxxx Mart for which he has or could, in his reasonable opinion, seek workers’ compensation benefits. Xxxxxx acknowledges that as of the Effective Date he has not filed any claim for workers’ compensation benefits. This Agreement does not require Xxxxxx to waive any claim for workers’ compensation benefits.

14. No Claim for Prior Exercise of Stock Options. Xxxxxx has been granted stock options under the 2001 Xxxxx Mart, Inc. Omnibus Plan. Xxxxxx has previously exercised certain stock options. Xxxxxx acknowledges and agrees he voluntarily exercised all options exercised to date. Xxxxxx further acknowledges and agrees that he received fair and adequate disclosure about Xxxxx Mart, including financial information, prior to deciding to exercise his options and received fair and adequate compensation from such exercise. Xxxxxx waives and will not make any claim for damages relating to his prior exercise of these options at any time prior to the execution of this Agreement.

15. Exercise of Remaining Options. Xxxxxx has 415,000 current options that have not been exercised. Pursuant to the 2001 Xxxxx Mart, Inc. Omnibus Plan Xxxxxx may exercise his remaining options on or before November 27, 2007. Such exercise, if any, shall comply with the terms of the 2001 Xxxxx Mart, Inc. Omnibus Plan. All other options and performance shares which would otherwise vest after July 8, 2008 are forfeited as being non-vested.

16. Representations and Warranties. As a material part of this Separation Agreement, and subject to penalties for breach as specified in paragraph 17 herein, Xxxxxx represents and warrants:

x. Xxxxxx has not received notice of a pending charge, complaint or case filed against him by any administrative, regulatory, investigative or governmental agency or body relating to his conduct as an employee or officer of Xxxxx Mart.

x. Xxxxxx has not filed any charge or complaint against Xxxxx Mart with any administrative, regulatory, investigative or governmental agency or body.

x. Xxxxxx is not aware of any activity, practice or policy of Xxxxx Mart that he reasonably believes involve mail fraud, wire fraud or securities fraud, or violate any rule or regulation of the Securities and Exchange Commission or any provisions of Federal law relating to fraud against shareholders.

d. Except for those matters that reasonably arose within the exercise of his duties, Xxxxxx has not made any binding obligation to any person on behalf of Xxxxx Mart that has not been disclosed in writing to the Chief Financial Officer, Executive Vice-President of Operations or General Counsel of Xxxxx Mart.

x. Xxxxxx has not knowingly engaged in any activity that would reasonably be construed as acting outside the scope of his employment with Xxxxx Mart.

f. All information disclosed by Xxxxxx or known by him to have been disclosed by others to attorneys for Xxxxx Mart in connection with any pending litigation or investigation is, to the best of his knowledge, correct, truthful and has been provided to Xxxxx Mart.

x. Xxxxxx does not know and is not aware of any violation of a generally accepted accounting principle committed by Xxxxx Mart.

x. Xxxxxx has disclosed to the Chief Financial Officer, Executive Vice President of Operations or General Counsel all issues that Xxxxxx reasonably anticipates could have a material impact on Xxxxx Mart’s stock price. For purposes of this paragraph Xxxxxx will be held to a standard of care consistent with his position of Chief Executive Officer of a publicly traded company, as compared to other professionals holding or having similar professional backgrounds as Xxxxxx.

i. The representations and warranties are true and correct as of the date Xxxxxx signs this Agreement.

17. Continuing Duty as to Representations and Warranties. During the Salary Continuation Period Xxxxxx has an affirmative obligation and duty to notify the General Counsel of Xxxxx Mart in writing of any change or event that would alter or cause to be untrue or incomplete the Representation and Warranties specified in paragraph 16. Written notice shall be provided within three days of the event or knowledge giving rise to the notice required to be given.

18. Breach of Representations and Warranties. If Xxxxx Mart claims a breach of any Representation or Warranty such claim must: (i) be made in “good faith;” (ii) be material; (iii) be in writing detailing in specifics the nature of the alleged breach; and (iv) if practicable or if a cure is possible provide a reasonable period to cure. During any period of contest the Salary Continuation and Additional Consideration payment will be escrowed with a mutually acceptable escrow agent. If there is a material breach of any Representation and Warranty contained in this Agreement the Salary Continuation and Additional Compensation shall terminate. Additionally, Xxxxxx will repay to Xxxxx Mart an amount equal to the Salary Continuation and Additional Consideration previously paid to him.

19. Duty to Cooperate. From the Effective Date and until all payments due Xxxxxx under this Agreement are paid Xxxxxx has an affirmative duty to cooperate with Xxxxx Mart and will be available for consultation on all business related matters, including but not limited to matters currently in litigation or subject to administrative or regulatory investigation or involving matters that arose during his employment with Xxxxx Mart, all charges or litigation pending at the Effective Date or subsequently filed but based on events occurring prior to the Effective Date, or other matters (not limited to litigation) that fell within the purview of Xxxxxx acting as Xxxxx Mart’s CEO. Xxxxx Mart shall make requests for Xxxxxx’x cooperation in “good faith.” Xxxxxx will respond promptly to such requests when made. Requests for cooperation will be made to Xxxxxx by the General Counsel, CEO or Executive Vice President of Operations or designees of each. Xxxxxx’x duty to cooperate is a material term of this Agreement. If Xxxxx Mart claims a breach of this Duty to Cooperate, such claim must : (i) be made in “good faith;” (ii) be material; (iii) be in writing detailing in specifics the nature of the alleged breach; and (iv) if practicable or if a cure is possible provide a reasonable period to cure. During any period of contest the Salary Continuation and Additional Consideration payments will be escrowed with a mutually acceptable escrow agent. If Xxxxxx is found to have breached his Duty to Cooperate the Salary Continuation and Additional Consideration shall terminate. Additionally, Xxxxxx will repay to Xxxxx Mart an amount equal to the Salary Continuation and Additional Consideration previously paid to him.

20. Duty to Testify or Participate. From the Effective Date and until all payments due Xxxxxx under this Agreement are paid Xxxxxx has an affirmative duty to cooperate or truthfully testify as the request or obligation may arise. Xxxxxx’x duty to testify or participate is a material term of this Agreement. If Xxxxx Mart claims a breach of this Duty to Testify or Participate, such claim must : (i) be made in “good faith;” (ii) be material; (iii) be in writing detailing in specifics the nature of the alleged breach; and (iv) if practicable or if a cure is possible provide a reasonable period to cure. During any period of contest the Salary Continuation and Additional Consideration payments will be escrowed with a mutually acceptable escrow agent. If Xxxxxx is found to have breached his Duty to Testify or Participate the Salary Continuation and Additional Consideration shall terminate. Additionally, Xxxxxx will repay to Xxxxx Mart an amount equal to the Salary Continuation and Additional Compensation previously paid to him.

21. Reimbursement of Expenses. Xxxxxx acknowledges and agrees that as of the Effective Date he has submitted all expenses incurred prior to August 27, 2007 and is not owed reimbursement for any expense. Thereafter, and continuing until all payments required by this Agreement are paid, Xxxxx Mart will reimburse Xxxxxx for reasonable expenses, if any, provided such expenses are (a) approved in advance by the CEO of Xxxxx Mart or his designee; and (b) are submitted to the Executive Vice President of Operations for reimbursement within five (5) days of the expenditure.

22. Non-Competition Agreement. The provisions of Section 6(d) of the EA, relating to non-competition, are specifically incorporated into this Agreement but shall be revised to read as follows:

Xxxxxx recognizes that his duties will entail the receipt of Trade Secrets and Confidential Information as defined in this Section 6. Those Trade Secrets and Confidential Information have been developed by Xxxxx Mart at substantial cost and constitute valuable and unique property of Xxxxx Mart. Accordingly, Xxxxxx acknowledges that protection of Trade Secrets and Confidential Information is a legitimate business interest. Xxxxxx agrees not to compete with Xxxxx Mart during the Employment Term and for a reasonable and limited period thereafter. Therefore, during the Employment Term and for a period of two years thereafter, Xxxxxx shall not have an investment of $100,000.00 or more in a Competing Business (as defined in Section 2 of the EA) and shall not render personal services to any such Competing Business in any manner, including, without limitation, as owner, partner, director, trustee, officer, employee, consultant or advisor thereof. If Xxxxxx shall breach the covenants contained in this NonCompetition provision, Xxxxx Mart may recover from Xxxxxx all such damages as it may be entitled to at law or in equity. Xxxxx Mart shall be entitled to specific performance of the covenants in Section 6 of the EA, including entry of a temporary restraining order in state or federal court, preliminary and permanent injunctive relief against activities in violation of Section 6 of the EA, or both, or other appropriate judicial remedy, writ or order, in addition to any damages and legal expenses which Xxxxx Mart may be legally entitled to recover. Xxxxxx acknowledges and agrees that the covenants of Section 6 of the EA shall be construed as agreements independent of any other provision of the EA or this Agreement or any other agreement between Xxxxx Mart and Xxxxxx, and that the existence of any claim or cause of action by Xxxxxx against Xxxxx Mart, whether predicated upon the EA or this Agreement or any other agreement, shall not constitute a defense to the enforcement by Xxxxx Mart of such covenants. Xxxxxx acknowledges the reasonableness of the temporal restrictions against him, and the legitimate business interests Xxxxx Mart is protecting. Xxxxxx may engage in gainful employment without any

reduction or offset of the Salary Continuation or the Additional Consideration provided such employment does not violate Section 6 of the EA or this Agreement. Xxxxx Mart will not withhold payment to Xxxxxx due him under this Agreement as a result of or during pendency of any action to enforce Section 6 of the EA. Xxxxxx will comply with any injunction or pay money damages for violation of Section 6 of the EA as ordered by a court of competent jurisdiction.

23. Confidentiality of Xxxxx Mart Information. In addition to the provisions of Section 6 of the EA specifically incorporated herein, Xxxxxx agrees that:

x. Xxxxxx shall not, directly or indirectly, use or divulge to any third party any of Xxxxx Mart’s confidential information or materials disclosed or made available to Xxxxxx by reason of his employment with Xxxxx Mart and not generally known to the industry in which Xxxxx Mart is engaged (collectively, “Confidential Information”). The Confidential Information includes, without limitation, trade secrets and other information related to Xxxxx Mart’s practices in accounting, marketing, advertising, promotion, merchandising, selling and distributing, customers and customer lists, financial information, and research.

b. All of the Confidential Information is a valuable asset of Xxxxx Mart and is, will be and shall, at all times, remain the sole and exclusive property of Xxxxx Mart.

x. Xxxxxx shall, at all times, hold the Confidential Information secret and shall not disclose or comment to, or use for the benefit of, any person or entity.

d. As of the Effective Date Xxxxxx shall deliver or cause to be delivered to Xxxxx Mart all of the Confidential Information in his possession or control (included but not limited to that stored on a personal computer), as well as all other property furnished to or acquired by him as a result of, or during the course of, Xxxxxx’x employment with Xxxxx Mart, including but not limited to any computer equipment, telephone, gas or credit card, access cards or keys. All property shall be in the same condition as it was received by Xxxxxx normal wear and tear excepted. Notwithstanding this provision, and pursuant to Section 5(b) Xxxxxx is not required to return the personal automobile currently being utilized by Xxxxxx.

24. Non Disparagement. Xxxxx Mart and Xxxxxx agree that neither will make or publicize any statements that are in any way disparaging or negative toward each other or Xxxxx Mart’s services, products, officers, employees or representatives. The type of disparaging comments contemplated includes, but is not limited to, any remark which may cause or tend to cause an adverse impact on the reputation or character of Xxxxx Mart or Xxxxxx or cause a reasonable person in the community to negatively alter or change his or her opinion of Xxxxx Mart or Xxxxxx. Xxxxxx’x duty not to disparage is a material term of this Agreement and extends by him toward Xxxxx Mart’s officers, directors, employees, shareholders, directors, managers, assigns and shareholders. Xxxxx Mart’s duty not to disparage is a material term of this Agreement. If Xxxxx Mart claims a breach of this Duty of Non-Disparagement, such claim must : (i) be made in “good faith;” (ii) be material; (iii) be in writing detailing in specifics the nature of the alleged breach; and (iv) if practicable or if a cure is possible provide a reasonable period to cure. If Xxxxxx claims a breach of this Duty of Non-Disparagement, such claim must : (i) be made in “good faith;” (ii) be material; (iii) be in writing detailing in specifics the nature of the alleged breach; and (iv) if practicable or if a cure is possible provide a reasonable period to cure. If Xxxxxx or Xxxxx Mart are found to have breached the Duty of Non-Disparagement each will pay to the other the sum of $5,000.00 per occurrence. Xxxxxx or Xxxxx Mart may respond to a lawful subpoena or court order and testify truthfully as to matters asked about in such proceeding without breaching this Non-Disparagement provision. Xxxxxx or Xxxxx Mart will give the other notice of such court order or subpoena prior to the date required to appear.

25. Subordination. Any payment obligations incurred by Xxxxx Mart under this Agreement shall be subordinate to all other borrowings of Xxxxx Mart.

26. Confidentiality. Except as required by law or Xxxxx Mart’s business necessity, the parties agree not to disclose or publicize the terms of this Agreement to anyone other than their respective attorneys, financial advisors, tax advisors, accountants, or in the case of Xxxxxx, his spouse. Xxxxxx’x duty of confidentiality is a material term of this Agreement. If Xxxxx Mart claims a breach of this confidentiality provision, such claim must : (i) be made in “good faith;” (ii) be material; (iii) be in writing detailing in specifics the nature of the alleged breach; and (iv) if practicable or if a cure is possible provide a reasonable period to cure. During any period of contest the Salary Continuation and Additional Consideration will be escrowed with a mutually acceptable escrow agent. If Xxxxxx is found to have breached this Confidentiality provision the Salary Continuation and Additional Consideration shall terminate. Additionally, Xxxxxx will repay to Xxxxx Mart an amount equal to the Salary Continuation and Additional Compensation previously paid to him.

27. Equitable Remedies. Xxxxxx and Xxxxx Mart agree that it is not possible to measure in money the damages which will accrue to Xxxxx Mart if Xxxxxx breaches or threatens breach of any of the covenants, agreements, or obligations set forth in this Agreement. Accordingly, if any action or proceeding is commenced to enforce any of the provisions contained in this Agreement, Xxxxxx and Xxxxx Mart hereby waive the claim or defense thereto that there is an adequate remedy at law or that there has not been irreparable damage by such breach or threatened breach.

28. Notices. All notices, demands, communications required or preferred to be given in connection with this Agreement shall be in writing and shall be sent as follows:


If to Xxxxxx, then to:		If to Xxxxx Mart, then to:
Xxxxxxx X. Xxxxxx		Xxxxxxxx X. Xxxxxx, Esq.
0000 Xxxxx Xxxxxx Xxx		000X Xxxxxxxxx Xxx
Xxxxxxxxxxxx, XX 00000		Xxxxxxxxxxxx, Xxxxxxx 00000

or to such other person at such location as either party subsequently designates in writing to the other.

29. Governing Law. This Agreement shall be interpreted and governed by the laws of the State of Florida, without regard to its conflicts of law principles. Venue for any action shall be in the state or federal courts in and for Xxxxx County, Florida. Without limitation, the provisions of Section 7(h) of the EA (relating in part to the waiver of jury trial) are incorporated herein.

30. Severability. In the event any provision of this Agreement is found to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired. Further, any provision found to be invalid, illegal or unenforceable shall be deemed, without further action on the part of the parties hereto, to be modified, amended and/or limited to the minimum extent necessary to render such clauses and/or provisions valid and enforceable.

31. Representation by Counsel and Payment of Attorneys Fees. Xxxxx Mart and Xxxxxx were each represented by competent counsel of their respective choice or had the opportunity to be represented in negotiation and execution of this Agreement. Each relied, or had the opportunity to rely, on counsel’s advice in entering into this Agreement. Xxxxx Mart and Xxxxxx are each responsible for their own attorneys fees and costs incurred in the negotiation of Xxxxxx’x separation from employment, and the negotiation and execution of this Agreement.

32. Entire Agreement. Except as specifically provided herein, this Agreement supersedes all prior written and verbal promises and agreements which may exist between Xxxxx Mart and Xxxxxx. This Agreement constitutes the entire agreement between the parties relating to the cessation of Xxxxxx’x employment and this Agreement may be amended, modified or superseded only by a written agreement signed by both parties. No oral statements by Xxxxxx or by any employee of Xxxxx Mart shall modify or otherwise affect the terms and provisions of this Agreement.

33. No Admission of Liability. Xxxxx Mart denies that it is motivated by any improper purpose in executing this Agreement, or that it has taken any improper action against Xxxxxx in violation of any federal, state, local or common law principle. The parties further agree that this Agreement shall not be admissible in any proceeding as evidence of any improper motive or conduct by Xxxxxx or Xxxxx Mart.

34. Binding Effect. This Agreement shall bind and benefit the heirs, personal representatives, administrators, successors, subsidiaries, affiliates and assigns of Xxxxx Mart and Xxxxxx.

35. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same agreement.

REMAINDER OF PAGE INTENTIONALLY LEFT BLANK

BEFORE SIGNING THIS AGREEMENT, XXXXXX ACKNOWLEDGES THE FOLLOWING:

I HAVE READ AND FULLY UNDERSTAND THIS AGREEMENT;

I HAVE BEEN ADVISED OF MY RIGHT TO CONSULT MY OWN ATTORNEY BEFORE SIGNING THIS AGREEMENT;

I AM SIGNING THIS AGREEMENT KNOWINGLY AND VOLUNTARILY.

The parties hereto have executed this Agreement as of the date set forth above.


	XXXXX MART, INC.,
	a Florida corporation

/s/ Xxxxxxx X. Xxxxxx	By:	/s/ Xxx Xxxxx
Xxxxxxx X. Xxxxxx		Xxx Xxxxx
	Its:	Chairman of the Board

Social Security Number:

Dated: September 28, 2007	Dated: October 2, 2007

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SEPARATION AGREEMENT AND RELEASE

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