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EXHIBIT 10.15
CONFIDENTIAL SEPARATION
AND RELEASE AGREEMENT
This Confidential Separation
and Release Agreement (the “Agreement”) is made and
entered into by and between Thomas A. Franza and Comarco, Inc.
(“the Company”), who agree and state the
following:
RECITALS
Franza was employed by the
Company as President and Chief Executive Officer, and he served as
a member of the Company’s Board of Directors through
March 10, 2008 (the “Separation Date”).
The parties desire to end
their working relationship amicably, pursuant to the terms and
conditions set forth below.
AGREEMENTS
NOW, THEREFORE, and in
consideration of the foregoing Recitals and the agreements of the
parties contained herein, the parties do hereby agree as
follows:
1. Effective Date
. The Effective Date of this Agreement shall be seven days
after Franza executes and delivers it to the Company, unless Franza
otherwise revokes the Agreement in writing before expiration of
that seven-day period.
2. Employment
Separation Date . Franza and the Company agree that
Franza’s employment ended on the Separation Date.
3. Separation
Benefits . The Company agrees to provide Franza the
following benefits:
a. Separation Amount.
The Company will pay Franza the gross amount equivalent to 22
months of his regular base monthly salary, subject to all
appropriate withholdings. The Company will pay this separation
amount within seven business days after the Effective
Date.
b. Health Plan
Benefits. The Company will pay Franza the additional amount of
$30,207.54, which is equivalent to the current cost of
Franza’s health plan premiums for a 22-month period. The
Company will pay this additional amount within seven business days
after the Effective Date. Franza will have the opportunity to
extend his health plan benefits by timely electing continued
coverage through COBRA, pursuant to the Company’s procedures.
Franza understands and acknowledges that he is solely responsible
for making timely payments of premium amounts for any such
coverage.
c. Company Car. The
Company will transfer to Franza (at the Company’s cost) title
and ownership of the Company-owned car which Franza was using as of
the time his employment ended. The Company will transfer ownership
of the car as soon as reasonably practicable after the Effective
Date.
Franza acknowledges and
agrees that he shall not accrue any other employment benefits after
the Separation Date, and that the Separation Benefits shall be the
sole amounts paid to him. Franza understands and agrees that as of
the Separation Date, other than the Separation Benefits, Franza
will not have earned and will not be entitled to any further
compensation or benefits from the Company, including, without
limitation, salary, bonuses, incentive compensation, stock, stock
options, accrued vacation payments, severance pay, unvested pension
benefits, employer-paid health benefits, fringe benefits, expense
reimbursements, or any other employment benefits. Franza
specifically acknowledges and agrees that the Company’s
payment of the Separation Benefits is in lieu of any benefits
otherwise available under any of the Company’s other
policies, including, but not limited to, the Company’s
severance policy.
This Agreement will not
affect Franza’s rights in the Company’s 401k Plans or
any deferred compensation plan, change in control benefits,
continued insurance coverage under COBRA, claims under
worker’s compensation or ownership of the Company’s
stock or stock options, if any.
4. Release .
Franza, for himself and his heirs, assigns, executors,
administrators, agents and successors, past and present
(collectively, the “Franza Affiliates”), hereby fully
and without limitation releases, covenants not to sue, and forever
discharges the Company, its subsidiaries, parent companies
(including Comarco, Inc.), divisions, affiliated corporations,
affiliated partnerships, trustees, directors, officers,
shareholders, partners, agents, employees, consultants, insurance
carriers, attorneys, assigns, executors and administrators,
trustees, predecessors and successors, past and present
(collectively with the Company, the “Releasees”), both
individually and collectively, to the fullest extent permitted by
law, from any and all rights, claims, demands, liabilities, actions
and causes of action whether in law or in equity, suits, damages,
losses, attorneys’ fees, costs, and expenses, of whatever
nature whatsoever, known or unknown, fixed or contingent, suspected
or unsuspected (collectively, the “Claims”), that
Franza or the Franza Affiliates now have, or may ever have, against
any of the Releasees for any acts or omissions by the Company
or any of the other Releasees occurring on or prior to the
Effective Date of this Agreement.
Without limiting the
generality of the foregoing, Franza understands and agrees that,
except as otherwise prohibited by law, the Release provisions of
this Section apply to any Claims that Franza or the Franza
Affiliates now have, or may ever have, against the Company or any
of the other Releasees occurring prior to the Effective Date that
arise out of or are in any manner related to:
(1) Franza’s employment by the Company or any of the
other Releasees; and (2) the termination of Franza’s
employment with the Company or any of the other
Releasees.
Without limiting the
generality of the foregoing, Franza specifically and
expressly
2
releases, to the fullest extent
permitted by law, any Claims against the Company and the other
Releasees occurring prior to the Effective Date of this Agreement
arising out of or related to violations of any federal or state
employment discrimination laws, including the California Fair
Employment and Housing Act; the Age Discrimination In Employment
Act; Title VII of the Civil Rights Act of 1964; the Americans With
Disabilities Act; the National Labor Relations Act; the Equal Pay
Act; the Employee Retirement Income Security Act of 1974; as well
as Claims arising out of or related to violations of the provisions
of the California Labor Code; the California Government Code; the
California Business & Professions Code, including
Business & Professions Code Section 17200 et
seq .; state and federal wage and hour laws, including the
federal Fair Labor Standards Act; breach of contract; fraud;
misrepresentation; common counts; unfair competition; unfair
business practices; negligence; defamation; infliction of emotional
distress; invasion of privacy; assault; battery; false
imprisonment; wrongful termination; and any other state or federal
law, rule, or regulation.
5. All Disputes
. Franza acknowledges that Franza is aware of and familiar with
the provisions of Section 1542 of the California Civil Code,
which provides 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.”
Franza hereby waives and
relinquishes all rights and benefits that Franza has against the
Company under Section 1542 of the California Civil Code, or
the law of any other country, territory, state or jurisdiction, or
common law principle, to the same or similar effect.
6. Older Worker’s
Benefit Protection Act . This Agreement is subject to the
terms of the Older Workers Benefit Protection Act of 1990 (the
“OWBPA”). The OWBPA provides that an individual cannot
waive a right or claim under the Age Discrimination in Employment
Act (“ADEA”) unless the waiver is knowing and
voluntary. Pursuant to the terms of the OWBPA, Franza acknowledges
and agrees that Franza has executed this Agreement voluntarily, and
with full knowledge of its consequences.
In addition, Franza hereby
acknowledges and agrees that: (a) this Agreement has been
written in a manner that is calculated to be understood, and is
understood, by Franza; (b) the release provisions of this
Agreement apply to rights and claims that Franza may have
under the ADEA, including the right to file a lawsuit against the
Company for age discrimination; (c) the release provisions of
this Agreement do not apply to any rights or claims that Franza may
have under the ADEA that arise after the date Franza executes this
Agreement; (d) the Company does not have a preexisting duty to
pay the Separation Amount identified in this Agreement;
(e)&
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