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:
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.
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
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)&