Exhibit 10.6
SEPARATION AGREEMENT AND
RELEASE
This SEPARATION AGREEMENT AND
RELEASE (“ Agreement ”) is entered into this
18 th day of August, 2005 (the “
Effective Date ”), between Surfect Technologies, Inc.,
together with each of its parents, subsidiaries, affiliates,
directors, officers, and agents (collectively the “
Employer ”) on the one hand, and Thomas Griego
(“ Employee ”) on the other hand. The Employer
and Employee are jointly referred to as the “ Parties
.”
WHEREAS, the Employee has been
employed by the Employer and held the position of CEO and President
previously and Chief Technology Officer since May 13, 2005;
and
WHEREAS, the Parties have mutually
agreed to terminate their employment relationship (the “
Separation ”); and
WHEREAS, the Parties desire to enter
into this Agreement in order to set forth their respective rights
and obligations in connection with the Separation.
NOW, THEREFORE, in consideration of
the mutual covenants contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties hereto agree as follows:
1.
Separation . Employee’s voluntarily resignation is
effective on the close of business on June 6, 2005 (the “
Separation Date ”). Employer agrees that, following
the Separation Date and consistent with Employer’s policies
and practices, Employee will be paid any accrued and unused paid
vacation, sick or other leave time.
2.
No Additional Compensation . Except as set forth herein,
Employee agrees that Employee is not entitled to any other salary,
bonus, severance, stock options, reimbursement, benefit, interests
or opportunities from the Employer. Employee further agrees that
the benefits and monetary payments described herein are not
required by the Employer’s policies and procedures and that
such benefits and payments are in addition to anything of value to
which Employee may have been eligible to receive by virtue of his
employment and the termination of his employment with the
Employer.
3.
Consideration .
3.1
Consulting Agreement . In partial consideration for
Employee’s execution and delivery of this Agreement, Employer
agrees to enter into a consulting agreement with Employee for a
fixed period of time. The duration of the consulting agreement is
for two (2) consecutive months and the corresponding compensation
will be paid in advance.
3.2
Stock Options . Pursuant to an Incentive Stock Option
Agreement between Employer and Employee (the “Option
Agreement”) entered into pursuant to the Surfect
Technologies, Inc. Incentive Stock Option Plan (the “Option
Plan”), Employee has accrued a vested option to purchase
950,000 shares (700,000 under option agreement issued December 2001
and 250,000 under option agreement issued July 2004) of
Employer’s common stock at an exercise price of $.022/share
as of June 1, 2005. In consideration for Employee’s execution
and delivery of this Agreement, Employer agrees to allow Employee
to continue to vest per the terms of the original option
agreements. The parties hereto agree that there shall be no
amendment of
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the Surfect Technologies, Inc
Incentive Stock Option Agreement dated December 17, 2001 by and
between Employer and Employee without Employee’s written
consent.
3.3
Benefits . The Employer additionally agrees to pay
Employee’s COBRA Coverage for the month of June 2005 plus
eighteen (18) additional months through December 31,
2006.
3.4
Severance Pay . Employer shall pay to Employee one
months’ severance pay in the amount of $14,583.00.
3.5
Debt Forgiveness . Employer shall forgive those
amounts owed to Employer by Employee as set forth on Exhibit
“A” hereto in partial consideration for
Employee’s execution and delivery of this
Agreement.
3.6
GET Systems Premises . As partial consideration for the
execution of this Agreement, Employer shall provide to Employee or
Employee’s assign Griego Electrochemical Technologies, Inc.,
a New Mexico corporation (“GET”), lab and work space at
Employer’s location (the “Surfect Space”) without
rent or other charge through December 31, 2005. Usage of the
Surfect Space shall be restricted to normal business hours between
Monday and Friday, and Employee must seek pre-approval from Steve
Anderson prior to entering the Surfect Space. Beginning January 1,
2006, Employee’s privileges under this Section 3.6 shall
automatically cease, and continue only upon mutual agreement of the
Parties.
3.7
E-mail As partial consideration for the execution hereof and
the agreements contained herein, Employer will provide to Employee
a secure e-mail address so long as Employee serves as a director of
Employer.
4.
COBRA . As required by the continuation coverage
provisions of Section 4980B of the U.S. Internal Revenue Code of
1986, as amended (the “ Code ”), Employee shall
be offered the opportunity to elect continuation coverage under the
group medical and dental benefit plans of the Employer for Employee
and Employee’s covered dependants (“ COBRA
Coverage ”). Notwithstanding Section 3.3 of this
Agreement, any additional COBRA Coverage obtained by the Employee
shall be at Employee’s sole expense. Employee understands and
agrees that the Employer’s group medical and dental benefit
plans may change after the Separation Date, and that the existence
and duration of Employee’s rights and/or the COBRA rights of
Employee’s eligible dependents may also be limited by Section
4980 of the Code.
5.
Release and Waiver . Employee, for and on behalf of Employee
and each of Employee’s heirs, executors, administrators,
personal representatives, successors and assigns, hereby
acknowledges full and complete satisfaction of and fully releases
and forever discharges the Employer, its subsidiaries and their
predecessors, successors, assignees, parent companies, members and
their affiliates, officers, directors, partners, employees, agents
and attorneys, past and present (collectively, the “
Released Entities ”), from any and all liability on or
for any and all charges, claims, controversies, actions, causes of
action, cross-claims, counterclaims, demands, debts, duties,
sanctions, fines, compensatory, liquidated damages, punitive or
exemplary damages, consequential or other damages, claims for
costs, attorneys’ fees, sums of money, suits, contracts,
covenants, controversies, agreements, promises, responsibilities,
obligations and accounts of any nature whatsoever in law or in
equity, direct or indirect, both past and present and whether or
not now or heretofore known, suspected or unsuspected, or claimed
against the
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Released Entities (collectively,
“ Claims ”), through and including the date of
this Agreement, including, but not limited to, Claims arising out
of or in any way related to or based upon:
a.
Employee’s employment,
involvement, interest in or Separation from the
Employer;
b.
Any and all claims in equity, tort
or contract, and any and all claims alleging breach of an express
or implied, oral or written, contract, policy manual or employee
handbook;
c.
Any and all claims for
reinstatement, back pay, front pay, attorneys’ fees and any
form of injunctive or other equitable relief;
d.
Any alleged misrepresentation,
defamation, interference with contract, intentional or negligent
infliction of emotional distress, sexual harassment, negligence or
wrongful discharge;
e.
Any federal, state or locate
statute, code, ordinance or regulation, including, but not limited
to, the Age Discrimination in Employment Act of 1987, as amended;
and
f.
All rights afforded by any statute
or other law which limit the effect of a release with respect to
unknown claims.
The Parties represent that they have
not commenced and will not at any time after execution of this
Agreement commence any action, lawsuit, or other legal proceeding
or file any charge or complaint with any federal, state or local
agency against each other relating in any way to Employee’s
employment or the termination of his employment with
Employer.
Employee understands the
significance of this release of unknown claims and Employee’s
waiver of protection against a release of unknown claims, and
acknowledges and agrees that this waiver is an essential and
material term of this Agreement.
The Parties intend that the release
set forth in this paragraph shall be construed as broadly and
generally as the law permits and that no reference therein to a
specific form of claim, statute or type of relief is intended to
limit the scope of this release and waiver. Employee acknowledges
that if Employee brings or attempts to bring a Claim against a
Released Entity or seeks to recover against a Released Entity in
any Claim brought by a governmental agency on Employee’s
behalf, this release shall serve as a complete defense to any such
Claim.
6.
Confidentiality .
6.1
Confidentiality . Employee acknowledges that all proprietary
knowledge and information that he acquired in the course of his
employment relating to the Employer’s financial status,
personnel policies and procedures, business development activities,
services, products, advertising, prices, suppliers, supplier lists,
customers, customer lists, customer needs and requirements,
marketing sources, projects, product designs, ideas, discoveries,
creations, developments, improvements, computer software,
manufacturing and processes are the valuable property of the
Employer. From and after the Effective Date, Employee shall
maintain strictly confidential and shall not to use, directly or
indirectly, for the benefit of Employee or any third party other
than the Employer, any Confidential Information (as defined below),
unless he is required to disclose Confidential Information pursuant
to the terms of a valid and effective order issued by a court of
competent jurisdiction or a governmental authority. All physical
items, including electronic media, containing Confidential
Information, including, without limitation,
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any business plan, know-how,
collection methods and procedures, advertising techniques,
marketing plans and methods, sales techniques, documentation,
contracts, reports, letters, notes, any computer media, customer
lists, project files or information, employee and prospective
employee files, and all other information and materials
