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Exhibit
10.8
SEPARATION AGREEMENT
AND GENERAL RELEASE
THIS SEPARATION AGREEMENT
AND GENERAL RELEASE (“Agreement”) is made and
entered into by and between JACKSON HEWITT TAX SERVICE INC.
(the “Company”) on behalf of its agents, attorneys,
assigns, employees, successors, predecessors, officers, directors,
stockholders, and parent, subsidiary or related companies, and
MICHAEL D. LISTER (the “Executive”) on behalf of
himself, his agents, attorneys, assigns, heirs, executors,
administrators, beneficiaries and personal and legal
representatives.
WITNESSETH:
WHEREAS , the
Executive has heretofore served as the Company’s Chief
Executive Officer and as a member of the Company’s Board of
Directors;
WHEREAS ¸ the
Company and the Executive each desire to enter into this Agreement
to set forth in writing the terms and conditions of the
Executive’s termination from all positions with, and
separation from, the Company, its subsidiaries and
affiliates;
NOW, THEREFORE , in
consideration of the premises and of the promises and agreements
hereinafter set forth, the parties hereto, intending to be legally
bound, do hereby agree as follows:
1. SEPARATION
ACKNOWLEDGEMENT . The Company and the Executive acknowledge
that, effective as of October 9, 2007, there occurred a
Without Cause Termination of the Executive within the meaning given
such term in that certain Employment Agreement by between the
Company and the Executive dated as of July 20, 2006 (the
“Employment Agreement”), and that concurrent with such
event and in accordance with Section VIII of the Employment
Agreement, the Executive resigned as a member of the
Company’s Board of Directors, and as the Chief Executive
Officer of the Company and from all other positions the Executive
holds with the Company, its subsidiaries and affiliates.
2. PAYMENTS AND
BENEFITS . Unless the Executive shall have revoked this
Agreement as set forth in Section 5(d) below, immediately
following the expiration of the revocation period set forth in such
Section 5(d), the Company shall pay to the Executive the
amounts required by Section VIII(A) of the Employment Agreement
(such amount, the “Severance Amount”), and the
Executive shall otherwise be entitled to receive the benefits
arising under the Employment Agreement as result of his Without
Cause Termination thereunder, all as set forth on Schedule 1
hereto (the “Company Obligations”). The Severance
Amount shall be subject to income and payroll tax
withholding.
3. REPRESENTATIONS BY
EXECUTIVE REGARDING EXECUTION OF AGREEMENT . The Executive
represents and agrees that he has had a full and adequate
opportunity to discuss and consider his claims. The Company advises
the Executive to consult an attorney prior to executing this
Agreement, and the Company understands the Executive has done so.
Further, the Executive represents and agrees that this Agreement is
written in a manner that he understands.
4. ENTIRE
AGREEMENT . The Executive represents and acknowledges that
in executing this Agreement he has not relied upon any oral
representations or written representations or statements not
expressly made a part hereof made by anyone with regard to the
subject matter, basis, or effect of this Agreement. This Agreement
embodies the entire agreement of the parties with respect to the
subject matter hereof and all statements and writings which
pre-date the execution hereof are superseded hereby, except that
the rights, duties and obligations of the Company and the Executive
arising under the Employment Agreement upon the Executive’s
Without Cause Termination within the meaning of the Employment
Agreement shall survive the execution and delivery of this
Agreement and shall continue to be governed by the terms of the
Employment Agreement; provided, however, that if the terms of the
Employment Agreement conflict with the terms hereof, then the terms
of this Agreement will control.
5. EXECUTIVE’S
GENERAL RELEASE AND COVENANT NOT TO SUE . (a) In
exchange for the consideration provided by the Company pursuant to
this Agreement and subject to the receipt by the Executive of the
Severance Amount (net of applicable income and payroll tax
withholding), the Executive hereby releases, acquits, withdraws,
retracts and forever discharges any and all claims, manner of
actions, causes of action (in law or in equity), suits, judgments,
debts, liens, contracts, agreements, promises, liabilities,
demands, damages, losses, costs, expenses or disputes, known or
unknown, fixed or contingent, directly or indirectly, personally or
in a representative capacity, against the Company and its agents,
attorneys, assigns, employees, successors, predecessors, officers,
directors, shareholders, and parent, subsidiary or related
companies, (hereinafter “Released Parties”) by reason
of any act, omission, matter, cause or thing whatsoever, from the
beginning of time up to and including the date of execution of this
Agreement to the extent that such a release is permitted as a
matter of law; provided, however, nothing herein shall release the
Company or Released Parties from their respective obligations under
this Agreement or under the Employment Agreement to extent the
provisions thereof survive the Without Cause Termination of the
Executive. This General Release includes, but is not limited to,
all claims, manner of actions, causes of action (in law or in
equity), suits or requests for attorneys’ fees and/or costs
(i) arising or relating to income, payroll or excise taxes in
connection with the Executive’s employment or the payment of
the Severance Amount hereunder or (ii) under the Employee
Retirement Income Security Act of 1974; Title VII of the Civil
Rights Act of 1964 as amended; the Americans with Disabilities Act;
the Rehabilitation Act of 1973; the Family and Medical Leave Act;
the anti-retaliation provisions of the Fair Labor Standards Act;
the Equal Pay Act; the Pregnancy Discrimination Act; the
Consolidated Omnibus Budget Reconciliation Act
(“COBRA”); the Age Discrimination in Employment Act of
1967 (the “ADEA”); the Older Worker’s Benefits
Protection Act (the “OWBPA”); the Occupational Safety
and Health Act; the National Labor Relations Act; 42 U.S.C.
§§ 1981 through 1988; any federal, state or local
law regarding retaliation for protected activity or interference
with protected rights; and any state or local law, including but
not limited to the New Jersey Law Against Discrimination, N.J.
Stat. Ann. § 10:5-1 et seq. ; New Jersey’s law
regarding Equal Pay, N.J. Stat. Ann. § 34:11-56.1 et
seq. ;
the New Jersey Smokers’ Rights
Law, N.J. Stat. Ann § 34:6B-1 et seq. ; the
Conscientious Employee Protection Act; the New Jersey Constitution;
and all claims under New Jersey public policy or common law,
including, but not limited to, common law claims of outrageous
conduct, intentional or negligent infliction of emotional distress,
negligent hiring, breach of contract, breach of the covenant of
good faith and fair dealing, promissory estoppel, negligence,
wrongful termination of employment, interference with employment
relationship, civil rights, fraud and deceit and all other claims
of any type or nature, including all claims for damages, wages,
compensation, vacation, reinstatement, medical expenses, punitive
damages, and claims for attorney’s fees. The Executive and
the Company intend that this release shall discharge all claims
against the Company and all other Released Parties to the full and
maximum extent permitted by law. The Executive and the Company
further agree that to the extent that federal or state law
prohibits the waiving of certain claims as a matter of law, this
Agreement is not intended to waive any such claims.
(b) The Executive represents
that he has not filed or permitted to be filed against the Company
or any of the Released Parties, individually or collectively, any
lawsuits, charges or proceedings (including any arbitrations), and
the Executive covenants and agrees not to do so at any time
hereafter with respect to the subject matter of this Agreement or
the claims released pursuant hereto. The Executive agrees to
indemnify, defend, and hold the Company and the Released Parties
harmless from all costs and expenses, including attorney’s
fees, incurred by the Company or any of the Released Parties
arising from the defense of any such lawsuit, charge or
proceeding.
(c) Executive acknowledges
and agrees that, in regard to Executive’s release and waiver
of claims under the ADEA and the OWBPA, as set forth in
Section 5(a), Executive was informed that Executive does not
waive any such rights or claims that may arise after the date this
Agreement is executed and that Executive has twenty-one
(21) days after receiving this Agreement within which to
consider this Agreement. If Executive executes this Agreement
before the end of such twenty-one (21)-day period, then Executive
acknowledges that Executive’s decision to do so was knowing,
voluntary and not induced by fraud, misrepresentation or a threat
to withdraw, alter or provide different terms prior to the
expiration of such twenty-one (21)-day period. Executive further
acknowledges that this Agreement is effective and enforceable
against Executive upon Executive’s execution hereof, subject
to Executive’s revocatio
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