EXECUTION VERSION
Separation and Release of Claims Agreement
This Separation and Release of Claims Agreement (“Agreement”) is entered into, as of the last date both parties have signed this Agreement (the “Execution Date”), by and between Grow Capital, Inc., a Nevada corporation (the “Employer”), on behalf of itself, its subsidiaries, and other corporate affiliates, and each of their respective employees, officers, directors, owners, shareholders, and agents, individually and in their official capacities (collectively referred to as the “Employer Group”), and Wayne Zallen (the “Employee”), residing at 722 W. Dutton Road, Eagle Point, OR 97524 (the Employer and the Employee are collectively referred to as the “Parties”).
WHEREAS, the Employee’s last day of employment with the Employer was January 28, 2019 (the “Employment Separation Date”);
WHEREAS, the Employee’s last day as a director of Employer was April 29, 2019 (the “Director Separation Date” and together with the Employment Separation Date, the “Separation Dates”);
WHEREAS, the Wayne A. Zallen Trust, u/a/d 10/24/14, Wayne A. Zallen, Trustee (the “Trust”) has entered into that certain Membership Interest Purchase Agreement (the “Purchase Agreement”), dated September 30, 2019, by and between the Trust and Employer pursuant to which the Trust will acquire WCS Enterprises, LLC (“WCS”) from Employer (the “Acquisition”) in exchange for shares of common stock of the Employer; and
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
1.No Representation. After the applicable Separation Dates, the Employee will not and has not represented himself as being an employee, director, officer, attorney, agent, or representative of the Employer Group for any purpose; except, however, since the applicable Separation Dates from time to time the Employee has, with the knowledge of the Employer, performed services with respect to WCS and Smoke On the Water Inc. (“Smoke”), both of which are wholly-owned subsidiaries of Employer. Except as otherwise set forth in this Agreement, the Employment Separation Date was the employment termination date for the Employee for all purposes, meaning, the Employee is not entitled to any further compensation, monies, or other benefits from the Employer Group, including coverage under any benefit plans or programs sponsored by the Employer Group.
2. Return of Property. The Employee warrants and represents that he has returned all Employer Group property, including identification cards or badges, access codes or devices, keys, laptops, computers, telephones, mobile phones, hand-held electronic devices, credit cards, electronically stored documents or files, physical files, and any other Employer Group property in the Employee’s possession.
3. Employee Representations. The Employee specifically represents, warrants, and confirms that the Employee:
(b)as of the Execution Date, will have been paid for all hours worked for the Employer Group;
(a)Employee’s General Release and Waiver of Claims
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waived, all including any amendments and their respective implementing regulations, and any other federal, state, local, or foreign law (statutory, regulatory, or otherwise) that may be legally waived and released; however, the identification of specific statutes is for purposes of example only, and the omission of any specific statute or law shall not limit the scope of this general release in any manner;
(b)Employer Group’s General Release and Waiver of Claims
In exchange for the consideration provided in this Agreement, the Employer Group, irrevocably and unconditionally fully and forever waives, releases, and discharges the Employee, including Employee’s heirs, executors, representatives, administrators, agents, and assigns, and the Trust (collectively, the “Employee Released Parties”), from any and all Claims, that Employer Group may have or have ever had against the Employee Released Parties, or any of them, arising out of, or in any way related to the Employee’s hire, benefits, employment with the Employer Group, service
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as a director of the Employer, termination, or separation from employment with the Employer Group by reason of any actual or alleged act, omission, transaction, practice, conduct, occurrence, or other matter from the beginning of time up to and including the date of the Employee’s execution of this Agreement, including, but not limited to:
(i)any and all claims arising under tort, contract, and quasi-contract law, including but not limited to claims of breach of an express or implied contract, tortious interference with contract or prospective business advantage, breach of the covenant of good faith and fair dealing, promissory estoppel, detrimental reliance, invasion of privacy, nonphysical injury, personal injury or sickness or any other harm, wrongful or retaliatory discharge, fraud, defamation, slander, libel, false imprisonment, and negligent or intentional infliction of emotional distress; and
(ii)any and all claims for monetary or equitable relief, including but not limited to attorneys’ fees, experts’ fees, medical fees or expenses, costs and disbursements, punitive damages, liquidated damages, and penalties.
(c)Specific Release of ADEA Claims.In further consideration of the benefits provided to the Employee in this Agreement, the Employee Releasors hereby irrevocably and unconditionally fully and forever waive, release, and discharge the Released Parties from any and all Claims, whether known or unknown, from the beginning of time through the date of the Employee’s execution of this Agreement arising under the Age Discrimination in Employment Act (ADEA), as amended, and its implementing regulations. By signing this Agreement, the Employee hereby acknowledges and confirms that:
(i)the Employee has read this Agreement in its entirety and understands all of its terms;
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5. Knowing and Voluntary Acknowledgment. The Employee specifically agrees and acknowledges that:
(a)the Employee has read this Agreement in its entirety and understands all of its terms;
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In the event of a revocation by the Employee, Employer Group shall have the option of treating this Agreement as null and void in its entirety.
6. Post-Termination Obligations and Restrictive Covenants.
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client information, client lists, and any confidential information of the Employer Group or its businesses, or of any other person or entity that has entrusted information to the Employer in confidence.
(c)Disclosure and Use Restrictions.
(i)Employee Covenants. The Employee agrees and covenants:
(A)to treat all Confidential Information as strictly confidential;
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(ii)Nothing in this Agreement shall be construed to prevent disclosure of Confidential Information as may be required by applicable law or regulation, or pursuant to the valid order of a court of competent jurisdiction or an authorized government agency, provided that the disclosure does not exceed the extent of disclosure reasonably deemed by Employee to be required by such law, regulation, or order. The Employee shall promptly provide written notice of any such order to an authorized officer of the Employer Group.
(iii)Nothing in this Agreement prohibits or restricts the Employee (or Employee’s attorney) from initiating communications directly with, responding to an inquiry from, or providing testimony before the Securities and Exchange Commission (SEC), the Financial Industry Regulatory Authority (FINRA), any other self-regulatory organization, or any other federal or state regulatory authority regarding this Agreement or its underlying facts or circumstances or a possible securities law violation.
(iv)Nothing in this Agreement shall be construed to prevent disclosure of Confidential Information to Employee’s advisors who are subject to confidentiality obligations and are subject to confidentiality requirements substantially similar to those set forth herein.
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(d)Notwithstanding anything herein to the contrary in this Section 6, Confidential Information related to WCS Enterprises, LLC shall be subject to the confidentiality provisions of the Purchase Agreement and not this Section 6.
(a)The Employee agrees and covenants that the Employee shall not at any time make, publish, or communicate to any person or entity or in any public forum any defamatory, maliciously false, or disparaging remarks, comments, or statements concerning the Employer Group or its businesses, or any of its employees, officers, or directors and their existing and prospective customers, suppliers, investors, and other associated third parties, now or in the future.
(b)The Employer agrees and covenants that the Employer Group shall not at any time make, publish, or communicate to any person or entity or in any public forum any defamatory, maliciously false, or disparaging remarks, comments, or statements concerning the Employee, WCS or the Employee’s businesses, or any of his or WCS’ employees and his or WCS’ existing and prospective customers, suppliers, investors, and other associated third parties, now or in the future.
In the event of a breach or threatened breach by one of the Parties of any of the provisions of this Agreement, the breaching Party hereby consents and agrees that the non-breaching Party shall be entitled to seek, in addition to other available remedies, a temporary or permanent injunction or other equitable relief against such breach or threatened breach from any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or other security. Any equitable relief shall be in addition to, not instead of, legal remedies, monetary damages, or other available relief. The Parties mutually agree that this Agreement can be specifically enforced in court and can be cited as evidence in legal proceedings alleging breach of the Agreement.
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shall inure to the benefit of the Employer and its successors and assigns. Any purported assignment by the Employer in violation of this Section 10(a) shall be null and void from the initial date of the purported assignment.
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offending provision, or by making such other modifications as it deems necessary to carry out the intent and agreement of the Parties as embodied in this Agreement to the maximum extent permitted by law. Any such modification shall become a part of and treated as though originally set forth in this Agreement. If such provision or provisions are not modified, this Agreement shall be construed as if such invalid, illegal, or unenforceable provisions had not been set forth in it. The Parties expressly agree that this Agreement as so modified by the court shall be binding on and enforceable against each of them.
Grow Capital, Inc. 2485 Village View Drive, Suite 180 Henderson, NV 89074 Phone: (702) 830-7919 Attn: Jonathan Bonnette Email:jbonnette@growcapitalinc.com
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with a copy to: | Seyfarth Shaw LLP 700 Milam Street, Suite 1400 Houston, Texas 77002 Telephone: (713) 225-2300 Attn: Mark W. Coffin Email: mcoffin@seyfarth.com |
To Employee:
with a copy to: | Wayne Zallen 722 W. Dutton Road Eagle Point, OR 97524 Telephone: (541) 821-4556 Email:wildwaynez@gmail.com
Haynes and Boone, LLP 1050 17th Street Suite 1800 Denver, CO 80265 Telephone: (720) 484-3712 Attn: Alan Talesnick |
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BELOW IS AN AGREEMENT TO RELEASE THE OTHER PARTY FROM ANY AND ALL CLAIMS TO THE EXTENT PROVIDED IN SECTIONS 4 AND 5 OF THIS AGREEMENT.
[signature page follows]
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Execution Date above.
| GROW CAPITAL, INC.
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| By:/s/ Jonathan Bonnette Name: Jonathan Bonnette Title: Chief Executive Officer Dated: September 30, 2019 |
EMPLOYEE
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/s/ Wayne Zallen Dated: September 30, 2019 |
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[Signature Page to Separation and Release of Claims]