Exhibit 10.10
ENVIROKARE TECH, INC.
Agreement and General Release (Xxxxxxx Xxxxx)
This Agreement and General Release (hereinafter sometimes referred to as
the "Agreement"), made this 27th day of November, by and between Envirokare
Tech, Inc., a Nevada corporation ("Envirokare") and Xxxxxxx Xxxxx, an individual
residing in Miami, Florida (hereinafter referred to as "Xxxxx").
WHEREAS, pursuant to that certain Employment Agreement between Envirokare
and Xxxxx, dated as of December 18, 2000, as amended as of March 14, 2001 (the
"Employment Agreement"), Xxxxx was employed by and served as Chairman of the
Board of Directors, President and Chief Executive Officer of Envirokare;
WHEREAS, effective as of March 26, 2001, Xxxxx resigned as President of
Envirokare;
WHEREAS, pursuant to that certain Letter Agreement, dated May 8, 2001
between Envirokare and Xxxxx, dated May 8, 2001 (the "Letter Agreement"), among
other things, (i) the Employment Agreement was terminated, and Xxxxx resigned as
Chairman of the Board and Chief Executive Officer of Envirokare, all effective
as of May 1, 2001, and (ii) Xxxxx became Vice Chairman of the Board of
Envirokare; and
WHEREAS, Envirokare and Xxxxx desire to resolve certain matters in
connection with his employment by Envirokare and its subsidiaries;
NOW, THEREFORE, in consideration of the terms and conditions hereinafter
set forth, the parties agree as follows:
1. Date of Receipt. Xxxxx acknowledges receipt of this Agreement and General
Release.
2. Notice to Xxxxx. Xxxxx hereby acknowledges that this Agreement and General
Release constitutes written notice and advice from Envirokare that:
(a) He should consult with an attorney prior to executing this Agreement
and General Release.
(b) He has twenty-one (21) days from after the date first above set forth
to consider and review this Agreement and General Release (the "Review
Period"). If Xxxxx does not sign this Agreement and General Release
and return it to the Company within the Review Period, it will be null
and void. Xxxxx also understands that he may sign and return this
Agreement and General Release before the Review Period expires. If
Xxxxx executes this Agreement and General Release prior to the
expiration of such period, Xxxxx does so voluntarily and after having
had the opportunity to consult with an attorney.
(c) He has seven (7) days (the "Revocation Period") following the date he
executes this Agreement and General Release during which he may revoke
his acceptance of
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this Agreement and General Release. Xxxxx also understands that this
Agreement and General Release shall not become effective or
enforceable until the Revocation Period has expired.
(d) This Agreement and General Release does not waive rights or claims
that may arise after the date it is signed.
3. Termination of Letter Agreement. Effective at the conclusion of the
Revocation Period (the "Termination Date"), the Letter Agreement shall be
terminated in full without any further action on the part of Envirokare or
Xxxxx, and Xxxxx shall cease to be an employee of Envirokare or any of its
subsidiaries. Except as expressly provided in this Agreement, Xxxxx shall
not be entitled to receive any further wages, compensation, stock options
or benefits arising pursuant to the Employment Agreement or the Letter
Agreement or in connection with his employment relationship with Envirokare
or any of its subsidiaries, and Xxxxx shall not be entitled to any post
termination wages, compensation or benefits (including, without limitation,
severance pay, vacation pay or sick pay). Notwithstanding the foregoing,
(a) Xxxxx acknowledges that the obligations of Xxxxx set forth in Section 7
(referring to confidentiality), Section 8 (referring to non-solicitation),
and Section 9 (referring to non-competition) under the Employment Agreement
survive the termination of Xxxxx'x employment pursuant to the terms of the
Employment Agreement, and (b) Xxxxx shall retain the options to purchase
Envirokare common stock granted to him pursuant to the Letter Agreement,
with such options remaining exercisable in accordance with their terms.
4. Resignation from Envirokare. Effective as of the Termination Date, Xxxxx
shall be deemed to have resigned in all capacities as an officer and
director of Envirokare and its subsidiaries.
5. Payment. (a) Envirokare shall pay Xxxxx, within one (1) business day after
the Revocation Period expires, the amount of Seven Thousand Five Hundred
dollars ($ 7,500.00) (the "Payment" or "Xxxxx Payment") in consideration
for the promises and covenants contained herein. Such Payment shall be made
by wire transfer in accordance with wire transfer instructions provided by
Xxxxx, as follows:
(b) In the event that either Xxxx Xxxxxx or Xxxxxx Xxxxxxxxx receives
a payment (the "Kallan Payment" or "Xxxxxxxxx Payment") greater than the
Xxxxx Payment, pursuant to a completed agreement and general release by
either Kallan or Xxxxxxxxx with Envirokare, said agreement that pertains to
the contract status for either Kallan or Xxxxxxxxx with Envirokare, then
Xxxxx shall receive an additional payment from Envirokare that shall be
equal to the difference between the greater of the "Kallan Payment" or
"Xxxxxxxxx Payment" less the Xxxxx Payment. If required, as a result of the
conditions set forth in this Section 5 (b), this additional payment shall
be made to Xxxxx in the manner as described in Section 5 (a) and no later
than one (1) week after completion of either the Kallan or Xxxxxxxxx
agreement with Envirokare that results in a requirement for Envirokare to
make the additional payment to Xxxxx.
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Except for the payment(s) as described in this Section 5, Xxxxx
acknowledges and agrees that he is entitled to receive no other payments,
benefits, or compensation from Envirokare or any of its subsidiaries.
6. Release by Xxxxx. Xxxxx, for himself, his heirs, successors and assigns
(collectively, "Xxxxx Releasors"), hereby remises, releases and forever
discharges Envirokare and its affiliates, subsidiaries, successors,
predecessors, shareholders, directors, trustees, officers, agents,
servants, and employees and their successors and assigns (collectively, the
"Releasees"), and all of them, of and from any and all rights, claims,
causes of action, demands, suits, contracts, agreements, damages, and any
and all claims, demands, and liabilities whatsoever of every name and
nature, whether known or unknown, suspected or unsuspected, past or
present, fixed or contingent, including, but not limited to causes of
action for wrongful termination, breach of contract or breach of implied
covenant of good faith and fair dealing, or claims of discrimination
including violation of the Age Discrimination in Employment Act, violation
of the Americans with Disabilities Act, or violation of Title VII of the
Civil Rights Act of 1964, which the Xxxxx Releasors have had, now have or
may have had against the Releasees in any way related to (a) Xxxxx'x
employment by Envirokare and its subsidiaries and his resignation
therefrom; (b) the Employment Agreement; (c) the Letter Agreement and (d)
all other acts or omissions related to any matter at any time prior to and
including the date hereof; provided, however, that Envirokare is not
released from its obligations hereunder.
7. Waiver by Xxxxx. Without limiting the generality of the foregoing, Xxxxx
knowingly and voluntarily specifically waives any and all rights or claims
arising under the Age Discrimination in Employment Act of 1967, Title VII
of the Civil Rights Act of 1964 or other federal, state or local statues,
regulations or ordinances on the basis of age, race, sex, marital status,
sexual preference, national origin, religion, color, handicap, veteran
status, special disabled veteran status or any other basis prohibited by
law, any claim alleging wrongful or improper discharge arising from any
expressed or implied employment contract or breach of any alleged covenant
of good faith or fair dealing.
8. Release by Envirokare. Envirokare, on behalf of itself and its subsidiaries
(collectively, "Envirokare Releasors") hereby releases any and all claims,
causes of action, demands, suits, contracts, agreements, damages, and any
and all claims, demands, and liabilities whatsoever of every name and
nature, whether known or unknown, suspected or unsuspected, past or
present, fixed or contingent, which the Envirokare Releasors now have or
ever had against Xxxxx; provided, however, that Xxxxx is not released from
his obligations hereunder and those obligations preserved hereunder.
9. Surrender of Materials upon Termination. Upon the Termination Date, Xxxxx
shall immediately return to Envirokare all copies, in whatever form, of any
and all Confidential Information (as defined in the Employment Agreement)
and trade secrets and other properties of Envirokare and its affiliates
that are in Xxxxx'x possession, custody or control.
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10. Xxxxx Acknowledgements. Xxxxx acknowledges and agrees that
(a) He may subsequently discover facts which were in existence at the time
this Agreement and General Release is signed in addition to or
different from those which he now knows or believes to exist with
respect to the subject matter of this Agreement and which, if known or
suspected at the time of executing this Agreement, may have materially
affected this settlement. Nevertheless, Xxxxx hereby waives any right,
claim or cause of action that might arise as a result of such
different or additional facts provided such facts were in existence at
the time this Agreement and General Release is signed.
(b) He will receive no other or further consideration under the terms
hereof or otherwise in exchange for signing this Agreement and General
Release.
(c) He will not disclose any information regarding the terms and
conditions of this Agreement and General Release except to his wife,
counsel or tax advisor, or as may be required by lawful subpoena or
order of court.
(d) He and his advisors have been given ample opportunity to ask
questions, consider, read, review and analyze this Agreement and
General Release and that he understands its terms and conditions.
(e) He is acting solely in reliance upon his own knowledge, belief and
judgment or that of his advisors and not upon any representations
(except those specifically set forth herein) made by Envirokare, or
any others released under the terms hereof.
(f) His decision to sign this Agreement and General Release is entirely
voluntary and with full understanding of its consequences and without
being coerced or threatened with retaliation of any sort.
11. Governing Law. This Agreement and General Release shall be interpreted,
construed and applied in accordance with the laws of the State of Nevada.
12. No Violation. Envirokare expressly denies violation of any of its policies,
procedures, or federal, State, or local laws, ordinances or regulations.
The parties have entered into this Agreement and General Release for the
sole purpose of resolving claims to avoid the burden, expense and
uncertainty of litigation.
13. Entire Agreement. This document constitutes and contains the entire
agreement and understanding concerning Xxxxx'x employment and other subject
matters addressed herein between the parties and supersedes and replaced
all prior negotiations and all agreements proposed or otherwise, whether
written or oral, concerning the subject matters hereof.
14. Severability. If any individual provisions(s) of this Agreement and General
Release or the application (s) thereof is held invalid, such determination
shall not affect other provision(s) or application(s) of the Agreement
which can be given effect without the invalid
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provision(s) or application(s); and to this end the provisions of this
Agreement are declared to be severable.
15. No Subsequent Action. Xxxxx agrees not to file any administrative charges
or lawsuits relating to his employment, the termination of his employment,
any management decision, work assignment or other employment action
pertaining to Xxxxx arising out of or relating in any way to Xxxxx'x
employment with Envirokare.
16. Company Confidentiality. Envirokare shall keep this Agreement and General
Release and its contents confidential and shall not disclose it or such
contents to any other person or entity other than as may be required by law
in connection with any proceeding or trial, or in a filing such as with a
governmental agency such as the Securities and Exchange Commission, and the
Company's accountants, counsel, institutional or senior lenders, investment
bankers and other investors requiring knowledge hereof for purposes of any
loan to or equity financing of the Company, including due diligence related
thereto.
17. Expenses. Except as otherwise expressly provided herein, all costs and
expenses (including attorneys' fees and expenses) incurred by the parties
hereto in connection with this Agreement and the transactions contemplated
hereby shall be borne solely and entirely by the party which has incurred
such expenses; provided, however, that, any expenses incurred by either
party in enforcing its rights under this Agreement (including, but not
limited to, attorneys' fees and expenses incurred in connection with any
trial or appeal) shall be borne solely and entirely by the party against
which such rights are successfully enforced.
18. Counterparts. This Agreement may be executed in one or more counterparts,
each of which is an original, and all such counterparts constitute one and
the same instrument.
[signature page follows]
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Wherefore, the parties hereto, intending to be legally bound hereby, have
executed this Agreement and General Release to be effective as of the date first
written above.
/S/ Xxxxxxx Xxxxx /S/ Xxxxx Xxxxx
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Xxxxxxx Xxxxx Witness
Date: November 27, 2001 If this date is less than 21 days
-------------------------- after the Date of Receipt, Xxxxx'x
signature below indicates he has
voluntarily waived the remainder of
the Review Period:
/S/ Xxxxxxx Xxxxx
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Xxxxxxx Xxxxx
Date: November 27, 2001
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/S/ Xxxxx Xxxxx
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Witness
Envirokare Tech, Inc.
By: /S/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx, President
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