Exhibit 10.2
SEPARATION AGREEMENT AND GENERAL
RELEASE
THIS SEPARATION AGREEMENT AND
GENERAL RELEASE (“
Agreement ”) is made and entered into as of
July 14, 2009, 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 C. YERINGTON (the “
Executive ”) on behalf of himself, his agents,
attorneys, assigns, heirs, executors, administrators, beneficiaries
and personal and legal representatives.
W I T N E S S E T
H:
WHEREAS , the Executive has heretofore served as the
Company’s President and Chief Executive Officer and as a
member of the Company’s Board of Directors (the “
Board ”); and
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
June 4, 2009, the Executive’s employment with the
Company terminated due to a Without Cause Termination, as such term
is defined in that certain Amended and Restated Executive
Employment Agreement by and between the Company and the Executive
dated as of December 4, 2007 (the “ Employment
Agreement ”), and that, concurrent with such event and in
accordance with Section 8.5 of the Employment Agreement, the
Executive resigned as a member of the Board and from all other
positions the Executive then held 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) hereof, (i) immediately following the
expiration of the revocation period set forth in Section 5(d)
hereof, the Company shall pay to the Executive the sum of
$490,000.00 (the “ Initial Amount ”); and
(ii) on the first business day following the six
(6) month anniversary of the effective date of termination, an
amount equal to the aggregate amount required by Section 8.1
of the Employment Agreement less the amount of the Initial Payment
(such amount, the “ Remaining Amount ” and,
together with the Initial 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. The Executive acknowledges and agrees that
the payment of the Severance Amount as set forth herein is being
done at the express request, and with the agreement, of the
Executive.
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 thereunder 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 the “
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 the 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 thereunder.
This general release set forth in this
Section 5(a) 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.
- 2 -
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 general release set forth in this
Section 5(a) 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) The Executive acknowledges and
agrees that, in regard to the Executive’s release and waiver
of claims under the ADEA and the OWBPA, as set forth in
Section 5(a) hereof, the Executive was informed that the
Executive does not waive any such rights or claims that may arise
after the date this Agreement is executed and that the Executive
has twenty one (21) days after receiving this Agreement within
which to consider this Agreement. If the Executive executes this
Agreement before the end of such twenty-one (21) day period,
then the Executive acknowledges that the 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. The Executive further acknowledges that this
Agreement is effective and enforceable against the Executive upon
the Executive’s execution hereof, subject to the
Executive’s revocation of this Agreement. The Executive
further understands and acknowledges that this Agreement is not
enforceable or effective until the period in
Section 5(d) hereof has expired and that if the Executive
revokes this Agreement, the Executive will lose all benefits under
this Agreement.
(d) The Executive understands that
the Executive has seven (7) days following the
Executive’s execution of this Agreement to revoke this
Agreement. The Executive further understands that, if th
