SEPARATION AND RELEASE AGREEMENT To Be Signed and Returned No Later than December 31, 2008
To
Be Signed and Returned No Later than December 31, 2008
This Separation Agreement and Release
Agreement ("Agreement"), is
effective as of December 23, 2008 and is entered into between Xxxxx Xxxxx Xxxxxx
with an address at ______________________________________ ("Employee") and
Datascension, Inc. (the "Employer"), and
together with its subsidiaries and affiliates, including Longview Fund, L.P. and
Viking Asset Management, LLC and their respective officers, directors,
employees, shareholders, members, partners, plan administrators, attorney, other
advisors and agents, as well as any predecessors, future successors or assigns
or estates of any of the foregoing, with an address at 000 Xxxx Xxxxxxxx
Xxxxxxx, Xxxxx X-000, Xxxx, XX 00000 (collectively, the "Company").
1. Separation of
Employment. Employee acknowledges and understands that
Employee's last day of employment with Employer is December 31, 2008 (“Separation Date”) and
that Employee has received all salary and benefits to which Employee is entitled
as a result of Employee's employment, except as otherwise provided in this
Agreement. Employee acknowledges that on the next regularly scheduled
paydate following the Separation Date, Employee received: (a) wages for
employment through the Separation Date and Employee understands that, except as
otherwise provided in this Agreement, Employee is entitled to nothing further
from Company, including reinstatement by Employer. This Agreement
also constitutes his voluntary resignation as a Director as of December 31,
2008.
2. a. Employee Release of
Company. In consideration of the payments set forth below in
paragraph 4 and other good and valuable consideration, the receipt of which is
hereby acknowledged, Employee hereby unconditionally and irrevocably releases,
waives, discharges and gives up any and all Claims (as defined below) which
Employee may have against Company, arising on or prior to the date
hereof. “Claims” means any and
all actions, charges, complaints, controversies, demands, causes of action,
suits, rights, and/or claims whatsoever for debts, sums of money, wages, salary,
commissions, bonuses, stock options, severance pay, vacation pay, sick pay, fees
and costs, attorneys’ fees, any payments due under the Executive Employment
Agreement, dated June 9, 2006, between Employer and Employee (the “Executive
Employment Agreement”), including, but not limited to any claims for any amounts
otherwise due under Sections 3 and 5 of the Executive Employment Agreement,
losses, penalties, damages, including damages for pain and suffering and
emotional harm arising, directly or indirectly, out of any promise, agreement,
offer letter, contract, understanding, common law, tort, the laws, statutes,
and/or regulations of the state of Nevada, the state of California, or any other
state, local municipality and the United States and Costa Rica, including, but
not limited to, federal and state wage and hour laws, federal and state
whistleblower laws, Title VII of the Civil Rights Act of 1964, the Civil Rights
Act of 1991, the Equal Pay Act, the Americans with Disabilities Act, the Family
and Medical Leave Act, the Employment Retirement Income Security Act (excluding
COBRA), the Vietnam Era Veterans Readjustment Assistance Act, the Fair Credit
Reporting Act, the Fair Labor Standards Act, the Age Discrimination in
Employment Act (“ADEA”), OSHA, the
Xxxxxxxx-Xxxxx Act of 2002, the California Law Against Discrimination, the
California Family Leave Act, the California Civil Rights Act, and the California
Conscientious Employee Protection Act, as each may be amended from time to time,
whether arising directly or indirectly from any act or omission, whether
intentional or unintentional. This releases all Claims including
those of which Employee is not aware and those not mentioned in this
Agreement. Employee specifically releases any and all Claims arising
out of Employee's employment with Employer or separation
therefrom. Nothing in this Agreement shall preclude Employee from (A)
filing with or participating in any manner in an investigation, hearing or
proceeding conducted by the Equal Employment Opportunity Commission, but
Employee hereby waives any and all rights to recover under, or by virtue of, any
such investigation, hearing or proceeding and (B) exercising Employee’s rights,
if any (i) under Section 601-608 of the Employee Retirement Income Security Act
of 1974, as amended, popularly known as COBRA, (ii) Employer’s 401(k)
pension plan, or (iii) Employer’s stock option plan.
b. Company Release of
Employee. In consideration of the release given by Employee of
the Company, and other good and valuable consideration, the receipt of which is
hereby acknowledged, Company hereby unconditionally and irrevocably releases,
waives, discharges and gives up any and all Claims (as defined below) which
Company may have against Employee, arising on or prior to the date
hereof. “Claims” means any and
all actions, charges, complaints, controversies, demands, causes of action,
suits, rights, and/or claims whatsoever for debts, sums of money, fees and
costs, attorneys fees, losses, penalties, damages, including damages for pain
and suffering and emotional harm arising, directly out of Employee’s employment
by Employer to the extent that such Claims do not arise out of willful or wanton
misconduct or intentional misconduct of the Employee, and to the extent that
such Claims do not otherwise directly or indirectly relate to any willful
wrongdoing by the Employee in any manner whatsoever relating to any behavior
which would be a violation of any federal, state, Costa Rican or local criminal
laws or regulations or any securities, taxation, labor or corporate laws,
including, but not limited to, the Sarbanes Oxley Act of 2002 (Pub. L. No.
107-204, 116 Stat. 745, also known as the Public PSLLC Accounting Reform and
Investor Protection Act of 2002). Employer will use its best efforts
to remove Employee from any personal guaranties he may have made on Employer
obligations as soon as practicable.
c. Waiver of Rights Under
Civil
Code Section
1542. Employer and Employee each acknowledge that the releases set forth
in Sections 2a. and 2b.of this Agreement are subject to California Civil Code Section 1542 which
states in relevant part as follows:
A GENERAL
RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO
EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN
BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE
DEBTOR.
Employee hereby expressly waives any
and all rights under said Civil Code Section 1542, and
specifically agrees that the release set forth in Sections 2a. shall be broadly
construed and shall include a release of all Claims, including any Claims which
were unknown or unsuspected by him at the time of the execution of this
Agreement. Employer waives any rights that it may have under section
1542 of the Civil Code of the State of California to the extent that it may
lawfully waive such rights pertaining to this release and otherwise limited to
the extent of released claims under Section 2b.
3. Representations; Covenant
Not to Xxx. Employee hereby represents and warrants to Company
that Employee has not: (A) filed, caused or permitted to be filed any pending
proceeding (nor has Employee lodged a complaint with any governmental or
quasi-governmental authority) against Company, nor has Employee agreed to do any
of the foregoing; (B) assigned, transferred, sold, encumbered, pledged,
hypothecated, mortgaged, distributed, or otherwise disposed of or conveyed to
any third party any right or Claim against Company that been released in this
Agreement; or (C) directly or indirectly assisted any third party in filing,
causing or assisting to be filed, any Claim against Company. In
addition, Employee represents and warrants and covenants that Employee shall not
encourage or solicit or voluntarily assist or participate in any way in the
filing, reporting or prosecution by himself or any third party of a proceeding
or Claim against Company. Employee represents and warrants that he
shall report to Employer’s Human Resources Department in writing if he receives
a formal or informal request for documents, materials, or information about
Employer within five business days of such formal or informal request and that
he shall not respond to same within five business days subsequent to the
delivery of such written notice to Employer’s Human Resources
Department.
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4. Consideration. As
good consideration for Employee’s execution, delivery, and non-revocation of
this Agreement:
Employer
shall pay Employee a total of $60,000 (less
withholdings and deductions), in one installment of $18,750 on the date of
execution hereof and in five subsequent installments of $8250 each with such
additional payments being made on each of the 30th,
60th,
90th,
120th and
150th day anniversaries of the date of execution hereof. In addition
to the amounts set forth in the previous sentence of this Section 4, Employee
shall also be paid reimbursed expenses in the amount of $_______, the
documentation for which has already been duly submitted by Employee and accepted
by Employer. Employee shall also be paid the sum of $4,687.50,
representing one week of vacation pay, on the 165th day
after the date of execution hereof. Within 30 days after the
completion of the 2008 annual audit by Employer’s auditing firm, Employee shall
be paid any bonus due to him based upon the results of the audit of October 2008
sales, if any bonus is determined to be due with respect
thereof. Employee acknowledges that the payment of the first payment
set forth in this paragraph 4 is adequate consideration to support his grants of
the release in paragraph 2 hereof and his other agreements and covenants set
forth in this Agreement, including but not limited to his covenant not to xxx in
paragraph 3 hereof and his non-solicitation covenant in paragraph 6
hereof.
5. Who is
Bound. Employer and Employee are bound by this
Agreement. Anyone who succeeds to Employee's rights and
responsibilities such as the executors of Employee's estate is bound and anyone
who succeeds to Employer's rights and responsibilities, such as its successors
and assigns is also bound.
6. Non Disparagement;
Confidentiality; Restrictive Covenants.
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For
purposes of this Agreement, the term “Confidential Information” shall mean all
of the following materials and information of the Company (whether or not
reduced to writing and whether or not patentable or protected by copyright): any
and all information concerning the business and affairs of the Company,
including but not limited to, any and all product specifications, procedures,
formulae, compositions, processes, designs, sketches, photographs, graphs,
drawings, samples, inventions, models, documentation, techniques, diagrams,
flowcharts, intellectual property, existing new products and new technology
information, product copies, manufacturing, development or marketing techniques,
material development or marketing timetables, strategies and development plans,
and past, current and planned research and development, current and planned
manufacturing and distribution methods and processes, customer lists, current
customer requirements, price lists, market studies, marketing information, sales
and customer pipeline information, business plans, database technologies and
information, systems, information related to the customers, suppliers or
personnel, all historical financial statements, financial projections and
budgets, historical and projected sales, capital spending budgets and plans, the
names and backgrounds of key personnel and personnel training and techniques and
materials, and any and all notes, analysis, compilations, studies, summaries,
and other material prepared by or for the Company containing or based, in whole
or in part, on any information included in the foregoing.. Company
and Employee agree not to make any defamatory or derogatory statements
concerning one another. Provided Employee directs all inquiries from
potential future employers to Employer's Department of Human Resources, Employer
agrees to provide information about dates of Employee's employment and position
Employee held during employment. Employee confirms and agrees that
Employee shall not directly or indirectly disclose to any person or entity or
use for Employee's own benefit any Confidential Information. Employee
agrees that the amounts paid to Employee as well as all of the terms of this
Agreement shall also be kept confidential. Employee shall not reveal
the terms of this Agreement to anyone, except to Employee's family, legal and
financial advisors and then only after securing the agreement of such individual
to maintain the confidentiality of this Agreement; or to the Internal Revenue
Service, Franchise Tax Board, or other taxing authorities and governmental
agencies, or in response to a subpoena or other legal process, all after
reasonable written notice has been provided to Employer sufficient to enable
Employer to contest the disclosure. Employee acknowledges that he
continues to be bound by any and all covenants previously entered into by him
with regard to nondisclosure, nonsolicitation, etc. including those contained in
the Executive Employment Agreement (including but not limited to those contained
in paragraphs 5(m), 6 and 7 of the Executive Employment Agreement), which terms
shall be deemed to automatically survive the termination of the Executive
Employment Agreement (“Other Binding Agreements”). If Employee tells
anyone the amount paid to Employee or any other term of this Agreement,
discloses any Confidential Information of Company in violation of this paragraph
6 or breaches any other term or condition of this Agreement or any Other Binding
Agreement, it shall constitute a material breach of the Agreement and without
limitation of Company's other remedies hereunder, or otherwise at law or in
equity, Employee shall be required to return the payments paid by Employer
hereunder, less $500. Employee agrees that if Employee is required to
return the payment paid hereunder, this Agreement shall continue to be binding
on Employee and Company shall be entitled to enforce the provisions of this
Agreement as if the payments had not been repaid to Employer and Employer shall
have no further payment obligations to Employee hereunder. Employer
agrees that it will not make disparaging remarks regarding Employee and it will
limit its disclosure as to Employee’s departure to generally comments regarding
his desire to pursue other opportunities; except to the extent other disclosure
is otherwise required under federal or state law or
regulation. Nothing set forth herein shall be construed to preclude
Employee from immediately engaging in lawful competition with Employer to the
extent such lawful competition does not include utilization of any Confidential
Information of Company; provided, however, that nothing shall be construed to
prevent Employee from contacting Company’s current customers so long as he does
not utilize Company Confidential Information in doing so.
7. Surrender of Company
Property. Employee represents and warrants to Company that
prior to or simultaneously with the execution of this Agreement, Employee has
surrendered to Employer all property belonging to, or purchased with the funds
of, Company and any equipment (including computers and cell phones), employee or
security identification or access cards, client data bases, computer files,
Company proposals, computer access codes, documents, memoranda, records, files,
letters, specification or other papers (including all copies and other tangible
forms of the foregoing) acquired by Employee by reason of his employment with
Employer and in Employee's possession or under his custody or control relating
to the operations, business or affairs of Employer or its
clients. Notwithstanding the foregoing, Employee shall return to
Costa Rica no later than January 5, 2009 and may remain in the Employer’s
“Apartment #1”until 2 PM Central Time on January 7, 2009 at which time he must
vacate the Apartment removing only his personal items, and any Company items
must be turned over the Employer by that time, including all books and records
located in California. All items being removed by Employee shall be
subject to review by designated Employer personnel. Employee also
agrees to immediately turn over his stock in Datascension, S.A. to the Company
and effect a transfer of his ownership in such stock and all of its assets
(which he acknowledges are Company property) to the Company or its
designee. Other than employment taxes in the amount of $_________,
Employee represents and warrants that Datascension S.A. has no liabilities other
than intercompany liabilities to Employer.
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8. Cooperation With
Investigations/Litigation. Employee agrees to reasonably
cooperate in any Company investigations and/or litigation regarding events which
occurred during Employee’s tenure with Employer. Employer will
compensate Employee for reasonable expenses Employee incurs in extending such
cooperation, so long as Employee provides advance written notice of Employee’s
request for compensation.
9. Construction of
Agreement. In the event that one or more of the provisions
contained in this Agreement shall for any reason be held unenforceable in any
respect under the law of any state of the United States, such unenforceability
shall not affect any other provision of this Agreement, but this Agreement shall
then be construed as if such unenforceable provision or provisions had never
been contained herein. This Agreement shall be governed under the
laws of the State
of California without reference to choice of law rules and to the extent
permitted hereunder, Employee consents to the sole jurisdiction of the state and
federal courts of California. EMPLOYER AND EMPLOYEE HEREBY WAIVE
THEIR RESPECTIVE RIGHT TO TRIAL BY JURY.
10. Opportunity For
Review.
(A) Employee
acknowledges that Employee has read and fully understands this Agreement and
represents that prior to signing this Agreement Employee has been advised to,
and has had an opportunity to, consult Employee’s counsel with respect to this
Agreement and Employee gives it freely and voluntarily. Employee
understands that Employee has waived the 8 days otherwise given to review this
Agreement before signing it (and has done so after consulting counsel) and that
if Employee fails to execute this Agreement and return it to Employer within the
time frame provided, Employer shall have no obligation to enter into this
Agreement and that the Separation Date shall be unaltered. The
parties understand that they are each responsible for their own attorney’s
fees.
(B) This
Agreement shall be effective and enforceable immediately upon execution and
delivery to Employer by Employee. The parties understand and agree
that Employee has waived his right of revocation of this Agreement (which he
would otherwise have after having executed and delivered it to Employer by so
advising Employer in writing no later than 11:59 p.m. on the seventh (7th) day
after Employee’s execution and delivery of this Agreement to Employer) upon
review with his counsel and knowingly entering into such waiver after
consultation with counsel. To the extent such eight day period is not
deemed not waivable, it is agreed by the parties that the effective date of this
Agreement is December 23, 2008, and that the eight day period expires as of
December 31, 2008. The parties agree that
the terms
of this Agreement shall be binding upon their successors and
assigns.
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Agreed to
and accepted by, on this 31st day of December, 2008 but effective as of December
23, 2008.
|
Witness:
|
EMPLOYEE:
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| ____________________________ | ____________________________ |
|
Xxxxx
Xxxxx
Xxxxxx
|
Agreed to
and accepted by, on this ____ day of ______________, 2008
| DATASCENSION, INC. | |||
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|
BY:
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Name:
Title:
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