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Exhibit
10.4
PHOENIX FOOTWEAR GROUP AND
SUBSIDIARIES
WAIVER AND
RELEASE
THIS RELEASE is made
November 15, 2007, by Kenneth Wolf, 3575
Avenida Pantera, Carlsbad, CA 92009 (hereinafter
“Employee”), for the benefit of Phoenix Footwear Group,
Inc., with offices located at 5840 El Camino Real, Suite 106,
Carlsbad, CA 92008 (hereinafter “Phoenix Footwear Group,
Inc.”), together with parents, subsidiaries and affiliates,
and the officers, directors, agents, employees, successors and
assigns of Phoenix Footwear Group, Inc. and each of the other
aforementioned entities (hereinafter Phoenix Footwear Group, Inc.
and the other aforementioned persons and entities to be referred to
individually and collectively as the (“The
COMPANY”).
WHEREAS, Employee and Phoenix
Footwear Group, Inc. mutually agree that Employee’s
employment with Phoenix Footwear Group, Inc. will terminate on
November 15, 2007 the effective date; and
WHEREAS, Employee and Phoenix
Footwear Group, Inc. wish to enter into this Agreement for the
purpose of resolving any and all claims or disputes that exist or
may exist between them through the effective date of this
Agreement.
NOW, THEREFORE, in
consideration of the mutual promises made and payments provided for
herein (“The Settlement”). Employee and Phoenix
Footwear Group, Inc. agree as follows:
The COMPANY, in full and
complete settlement and satisfaction of all matters and claims
related to Employee’s employment with, and termination of
employment from, Phoenix Footwear Group, Inc., will:
1. Separation Payments.
Contingent upon Employee’s faithful performance of employee
obligations defined under this Waiver and Release the COMPANY
agrees to pay to Employee a gross separation payment in the amount
of ($150,000.00) which is equal to (eight months of
severance) of the Employee’s regular pay.
2. Medical and Dental
Insurance, Employee’s present coverage will be continued
during the severance period. Thereafter, in accordance with the
Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA),
Employee may choose continuation coverage under the provisions of
the Federal law, for up to eighteen months, provided Employee pays
the full cost of the premium, plus a two percent administrative
fee. Please refer to the COBRA qualifying event letter which will
be sent under separate cover.
3. Group Life Insurance.
Employee’s coverage will terminate effective the employment
termination date of (11/15/07) .
4. Short-term Disability and
Workers’ Compensation. These coverages cease upon
Employee’s last date of employment, (11/15/07)
.
5. Accrued Vacation Pay. The
COMPANY will pay to Employee accrued vacation pay in the amount of
$3510.12 whether or not Employee signs this Waiver and
Release.
6. All cash payments made to
Employee under this Agreement shall be subject to withholdings for
Federal and State income taxes and where applicable for Social
Security and Unemployment Compensation taxes.
7. If employee is asked to
leave prior to November 15, 2007 for any reason (other than
fraud and/or conduct issues) employee’s separation benefits
will be unchanged and will begin on that new date.
In consideration the payment
of the SETTLEMENT to Employee by the COMPANY, and other good and
valuable consideration received, receipt of which is accepted and
acknowledged, Employee and COMPANY agree as follows:
1. Employee, on behalf of
himself, respective heirs, executors, successors and assigns,
hereby fully and forever releases the COMPANY and any respective
heirs, executors, successors, agents, officers and directors, from
and agree not to sue concerning, any and all claims, actions,
obligations, duties, causes of action, whether now known or
unknown, suspected or unsuspected, that employee may possess based
upon or arising out of any matter, cause, fact, thing, act, or
omission whatsoever occurring or existing at any time prior to and
including the date hereof (collectively, the “Released
Matters”), including without limitation,
a. Any and all claims
relating to or arising from Employee’s employment with the
COMPANY and the termination of such relationship;
b. Any and all claims
relating to, or arising from, Employee’s right to purchase,
or actual purchase of, shares of stock of the COMPANY, including,
without limitation any claims under a Stock Option Agreement
between the parties, any claims of fraud, misrepresentation, breach
of fiduciary duty, breach of duty under applicable state corporate
law, and securities fraud under any state or federal
law;
c. Any and all claims for
wrongful discharge of employment; termination in violation of
public policy; discrimination; breach of contract, both express and
implied; breach of a covenant of good faith and fair dealing, both
express and implied; promissory estoppel; negligent or intentional
infliction of emotional distress; negligent or intentional
misrepresentation; negligent or intentional interference with
contract or prospective economic advantage; unfair business
practices; defamation; libel; slander; negligence; personal injury;
assault; battery; invasion of privacy; false imprisonment; and
conversion;
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d. Any and all claims for
violation of any federal, state or municipal statute, including,
but not limited to, Title VII of the Civil Rights Act of 1964, the
Civil Rights Act of 1991, the Age Discrimination in Employment Act
of 1967, the Americans with Disabilities Act of 1990, the Fair
Labor Standards Act, the Employee Retirement Income Security Act of
1974, the Worker Adjustment and Retraining Notification Act, Older
Workers Benefit Protection Act, the California Fair Employment and
Housing Act, and the California Labor Code section 201, et.
seq.;
e. Any and all claims for
violation of the federal, or any state, constitution;
f. Any and all claims arising
out of any other laws and regulations relating to employment or
employment discrimination;
g. Any and all claims for
attorneys’ fees and costs; and
h. Any and all claims the
Employee may have against the COMPANY for any acts occurring at any
time prior to the execution of this Release.
Each of the parties agrees
that the foregoing enumeration of claims released is illustrative,
and the claims hereby released are
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