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Exhibit
10.1
SEPARATION AGREEMENT
AND RELEASE
This Separation Agreement and
Release (the “Agreement”) is made effective as set
forth below, by and between Jones Soda Co. (“Jones
Soda”) and Peter M. van Stolk (“PVS”).
In consideration of the
mutual promises contained in this Agreement, Jones Soda and PVS
agree as follows:
1. PVS hereby resigns as an
officer (including as CEO and Chairman of the Board) and as an
employee of Jones Soda effective December 31, 2007
(“Separation Date”). Thereafter PVS will continue to
serve as a member of the Board of Directors, subject to all terms
and conditions generally applicable to members of the Board of
Directors of Jones Soda and subject to Washington and federal law.
Jones Soda acknowledges that PVS retains his rights and
responsibilities as a member of the Board of Directors and as a
shareholder, which includes all the rights and responsibilities of
those capacities that are specifically and explicitly protected by
federal and state law, including but not limited to corporate
governance laws and the Sarbanes-Oxley Act.
2. Jones Soda will pay PVS
severance payments in the total amount of $450,000
(“Severance Payment”). The Severance Payment shall be
made in equal monthly installments, less all applicable
withholdings, beginning January 31, 2008 and ending
December 31, 2009.
3. PVS will be on vacation
and out of the office from December 22, 2007 through the
Separation Date. Jones Soda agrees to pay PVS his accrued but
unused vacation pay through the Separation Date.
4. A. Jones Soda will pay PVS
$100,000, less lawful withholdings, ten days after expiration of
the Revocation Period, which amount shall be used by PVS to make a
donation to Vitamin Angels (“Vitamin Angels Donation”).
PVS shall provide Jones Soda with proof that he has donated the
remaining amount to Vitamin Angels by no later than March 21,
2008. Jones Soda will provide PVS with a 1099 Tax Form reflecting
the Vitamin Angels Donation. PVS assumes complete and sole
responsibility for the payment of any and all taxes, whether
federal, state, local, or otherwise, if any, relating to the
Vitamin Angels Donation, and shall protect, defend, indemnify and
hold harmless Jones Soda against any and all claims, lawsuits,
damages, liabilities, suits, actions, judgments, costs, taxes,
interests, penalties and expenses resulting from this
payment.
B. Jones Soda will pay for
PVS’s continuing COBRA coverage for a period of twelve
(12) months from the Separation Date. This continuing coverage
will include medical, dental and vision to the same extent as
maintained by PVS during his employment with Jones Soda,
recognizing that the plans offered may be changed so long as PVS is
offered the same plan as is generally available to other Jones Soda
employees.
5. PVS agrees that the
economic value of the Severance Payment, the Vitamin Angels
Donation, and other benefits contained in this Agreement is more
than he otherwise would be entitled to under his Employment
Agreement and the existing benefit plans provided by Jones Soda to
him.
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6. PVS accepts the payments
and benefits contained in this Agreement in full satisfaction of
all his rights and interests relating to his employment with Jones
Soda and, in consideration therefore, PVS hereby releases Jones
Soda, its affiliates, subsidiaries, successors, past and present
officers, directors, agents, and employees from all claims (other
than claims for the payments provided for under this Agreement),
causes of action or liabilities, suspected or unsuspected and
irrespective of any present lack of knowledge of any possible claim
or of any fact or circumstance pertaining thereto, which he may
have or could claim to have against Jones Soda. This Release is
intended to be all encompassing, and without limitation covers all
matters arising from or during the employment of PVS with Jones
Soda and/or related to his separation from Jones Soda. This Release
includes, but is not limited to, claims of discrimination based on
race, color, national origin, sex, marital status, age (including
the Age Discrimination in Employment Act), or physical or mental
disability under any federal, state, or local law, rule, or
regulation; claims under state or federal law governing the payment
of wages; and claims under any express or implied contract or legal
restrictions on Jones Soda’s right to terminate employees;
claims under any employment agreement between PVS and Jones Soda;
any and all claims based on tort law; and all workers’
compensation or disability claims under law. This Release applies
to all claims which arose up through the Separation
Date.
7. Jones Soda agrees that it
will indemnify PVS from any and all liabilities, obligations,
claims or expenses which arise in connection with or as a result of
PVS’s service as an officer, director or employee of Jones
Soda to the same extent as other officers and directors are
indemnified. Jones Soda further agrees that PVS will continue to be
covered by its Directors and Officers insurance so long as PVS
remains a Director.
8. PVS represents that he has
not filed any complaints, charges or lawsuits against Jones Soda or
any of its affiliates, subsidiaries, successors, past and present
officers, directors, agents, or employees with any governmental
agency or any court, related in any way to matters arising from or
during the employment of PVS with Jones Soda and/or his separation
from Jones Soda and that he will not do so at any time
hereafter.
9. PVS represents that he has
read, considered, and fully understands this Agreement and all its
terms, and executes it freely and voluntarily.
10. PVS acknowledges
that:
a. Pursuant to applicable
law, he has been offered the opportunity to review a copy of this
Agreement for a period of twenty-one (21) days (the
“Review Period”);
b. Jones Soda has advised PVS
to consult with an attorney concerning the terms and conditions of
this Agreement, including without limitation the release set forth
in this Separation and Release Agreement, and PVS has in fact done
so; and
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c. The terms and conditions
of this Agreement have not been amended, modified, or revoked
during the Review Period. PVS and Jones Soda agree that van Stolk
shall have seven (7) calendar days (the “Revocation
Period”) following the date on which he signs this Agreement
to revoke his acceptance of this Separation and Release Agreement
and the Release set forth herein, and this Separation and Release
Agreement shall not become effective until the Revocation Period
has expired.
11. PVS agrees that he shall
not make any disparaging or derogatory statements to any third
party regarding Jones Soda, or any of its officers, directors or
employees. PVS retains his rights and responsibilities as a member
of the Board of Directors and as a shareholder, which includes all
the rights and responsibilities of those capacities that are
specifically and explicitly protected by federal and state
law, including but not limited to corporate governance laws
and the Sarbanes-Oxley Act. Jones Soda, by and through its present
officers and directors, agrees that it will not make any
disparaging or derogatory statements to any third party regarding
PVS. This Para
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