**Exhibit 10.12**

 

 

**SEPARATION AGREEMENT AND GENERAL RELEASE**

 

THISSEPARATION AGREEMENT AND GENERAL RELEASE (“Agreement”) is made and entered intoby and between John F. Moynahan (“Executive” or “Party”) and Who’s Your Daddy, Inc.(“Employer” or “Party”), a Nevada corporation, with an effective date of November 21,2008.

 

**RECITALS**

 

A.      Executive was employed by Employer as itsSenior Vice President and Chief Financial Officer (“CFO”) as of May 1, 2007,pursuant to an Employment Agreement of equal date (“Employment Agreement”);

 

B.        On September 5, 2008, the Executiveprovided notice to the Employer that he had elected to voluntarily resign fromhis employment under the terms of the Employment Agreement;

 

C.        The Employment Agreement provides that theExecutive receives certain compensation upon his resignation under the terms ofthe Employment Agreement and the Employer is currently unable to pay thiscompensation;

 

D.       In consideration for the release granted byExecutive herein, Employer wishes to grant, and Executive desires to receive, therelease set forth in this Agreement; and

 

E.         Executive and Employer (collectively, the “Parties”)wish permanently to resolve any and all actual and/or potential disputesbetween them, including disputes arising out of Executive’s employment withEmployer or the cessation of that employment.

 

NOW,THEREFORE, for and in consideration of the execution of this Agreement and themutual covenants contained in the following paragraphs, Employer and Executiveagree as follows:

 

**1.  ****No Admission of Liability****.     **The Parties agree that neither this Agreement,nor performance of the acts required by it, constitute an admission ofliability, culpability, negligence or wrongdoing on the part of anyone, andwill not be construed for any purpose as an admission of liability, culpability,negligence or wrongdoing by any Party and/or by any Party’s current, former orfuture parents, subsidiaries, related entities, predecessors, successors, officers,directors, shareholders, agents, employees and assigns.

 

**2.  ****Separation Payments****.**     Inconsideration of the releases granted by Executive herein and in settlement ofamounts otherwise owed to the Executive under his Employment Agreement, Employeragrees to pay Executive a total of $120,000, with $20,000 to reimburse theExecutive for Employer-Related travel expenses already incurred by him, payableas follows.

 

a.)                        $10,000 to be paid by the Employer to theExecutive following the execution of this Agreement with the Employer using abest efforts basis to make****this payment as soon as possible;

 

b.)                       Executive shall receive 5% (five percent) ofthe net cash proceeds received from capital raised by the Employer throughdirect loans (not including any loans made to the Employer by officers, directorsor employees) or the issuance of debt or equity financial instruments since November 21,2008 up to the first $1,000,000 of such funds received, and 8% (eight percent) ofsuch funds received above that amount, with such amount to be paid to theExecutive promptly after end of the month in which such funds were received;

 

c.)                        Executive shall receive a portion of cashcollections from sales of Employer’s products based on the size of product andthe selling price per case as follows:

 

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| **Sales Price per Case** | ** ** | **Payment  per Case** | ** ** |
|-----------------------------------------|------------|----------------------------|------------|
|                                    |       |                       |       |
| 16 oz. products                         |       |                       |       |
| $23.00 and up                           |       | $                          | 1.25       |   |
| $17.00 to $22.99                        |       | $                          | 1.00       |   |
| $10.01 to $16.99                        |       | $                          | 0.50       |   |
| $10.00 and below                        |       | $                          | 0.00       |   |
|                                    |       |                       |       |   |
| 8 oz products                           |       |                       |       |
| $22.00 and up                           |       | $                          | 1.00       |   |
| $16.00 to $21.99                        |       | $                          | 0.75       |   |
| $10.01 to $15.99                        |       | $                          | 0.30       |   |
| $10.00 and below                        |       | $                          | 0.00       |   |

 

Notwithstandingthe above, the payment to Executive related to sales of product to T-BoneBeverages shall be $0.20 per case. These payments shall be paid to theExecutive promptly after the end of the month in which they were received. Eachpayment will include a lead schedule in the form attached herein as Exhibit A,along with copies of invoices to support the calculations. This lead schedulewill be transmitted to the Executive each month to support a payment or markedto show that no payment was due.

 

**3.  Protection of ConfidentialInformation; Post-Employment Non-Solicitation.** Executive hereby understands andacknowledges that he is subject to certain obligations, set forth in Section 8“Restrictions Respecting Competing Businesses, Confidential Information, etc.”of the Employment Agreement and agrees that he will comply with saidobligations, to the fullest extent allowable by state and federal law.

 

**4.  Executive’s GeneralRelease.** In consideration of the benefits providedunder this Agreement, including without limitation the Separation Payments, Executiveon his own individual behalf and on behalf of his heirs, executors, administrators,assigns and successors, fully and forever releases and discharges Employer andeach of its current, former and future parents, subsidiaries, related entities,employee benefit plans and their fiduciaries, predecessors, successors, officers,directors, shareholders, agents, employees and assigns (collectively, “Releasees”),with respect to any and all claims, liabilities and causes of action, of everynature, kind and description, in law, equity or otherwise, which have arisen, occurredor existed at any time prior to the signing of this Agreement, arising out of, orin connection with, or resulting from Executive’s employment with Employer, orthe cessation of that employment.

 

**5.  Waiver ofEmployment-Related Claims.** Executive understandsand agrees that, with the exception of potential employment-related claimsidentified below, and provided there is no default on this Agreement by theEmployer, he is waiving and releasing any and all rights or remedies he mayhave had or now has to pursue against Employer or any of the Releasees for anyemployment-related causes of action, including without limitation, claims ofwrongful discharge, breach of contract, breach of the covenant of good faithand fair dealing, fraud, violation of public policy, defamation, discrimination,personal injury, physical injury, emotional distress, claims under Title VII ofthe Civil Rights Act of 1964, the Americans With Disabilities Act, the FederalRehabilitation Act, the Family and Medical Leave Act, the Health Insurance andPortability and Accountability Act, the California Fair Employment and HousingAct, the California Family Rights Act, the Equal Pay Act of 1963, theprovisions of the California Labor Code and any other federal, state or locallaws and regulations relating to employment, conditions of employment (includingwage and hour laws) and/or employment discrimination. Claims not covered byExecutive’s release are (i) claims for unemployment insurance benefits, (ii) claimsunder the California Workers’ Compensation Act (Executive represents, however, thathe is not aware of having sustained any work-related injuries during hisemployment with the Employer), (iii) claims arising out of the breach ofthis Agreement, and (iv) claims relating to coverage of the Executive as aformer director and/or officer of the Employer under the Employer’s directors’ andofficers’ liability insurance policy.

 
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**6.  MutualWaiver of Unknown Claims.**Executive and the Employer expressly waive any and all statutory and/orcommon law rights they each may have to the effect that a General Release doesnot release unknown claims, including any rights under Section 1542 of theCivil Code of the State of California, which states as follows:

 

**“A general release does not extend to claims which thecreditor does not know or suspect to exist in his favor at the time ofexecuting the release, which if known by him must have materially affected hissettlement with the debtor.”**

 

Executiveand the Employer expressly agree and understand that the general releases givenby the parties pursuant to this Agreement apply to all unknown, unsuspected andunanticipated claims, liabilities and causes of action which may exist againstthe other party.

 

**7.  Employer’sRelease.**Inconsideration of the benefits provided under this Agreement, Employer, on itsown behalf and on behalf of its current, former and future parents, subsidiaries,related entities, employee benefit plans and their fiduciaries, predecessors, successors,officers, directors, shareholders, agents, employees and assigns, fully andforever releases and discharges Executive, his heirs, executors, administrators,assigns and successors, with respect to any and all claims, liabilities andcauses of action, of every nature, kind and description, in law, equity orotherwise, which have arisen, occurred or existed at any time prior to thesigning of this Agreement, arising out of, or in connection with, or resultingfrom Executive’s employment with Employer, or the cessation of that employment.

 

**8.  MutualNon-Disparagement.**TheExecutive agrees not to disparage the Employer, the Employer’s officers, directors,employees, shareholders and agents, affiliates and subsidiaries in any mannerlikely to be harmful to them or their business, business reputation or personalreputation. The Employer, the Employer’s officers, directors, and employeesagree not to disparage the Executive in any manner likely to be harmful to himor his business reputation or personal reputation.

 

**9.  Right ofAudit and Events of Default.**Not more than four times per year, the Employee is entitled to requestand examine accounting documents reasonably related to verifying that theamounts paid to him under this Agreement were properly calculated and properlypaid in a timely manner. Such investigation may be conducted in the principaloffice of the Employer during normal business hours or remotely via electronictransmission of such documents. If a deficiency is found by the Employee as aresult of this examination and the Employer does not make a payment toExecutive to rectify such deficiency within 5 business days, this Agreementshall be in default. This Agreement shall also be considered in default if theEmployer declares bankruptcy, reorganization or liquidation.

 

**10.  RemediesUpon Event of Default.** Upon an Event of Default, the Executive may, at his sole discretion, takewhatever actions he deems necessary to collect $120,000 less any SeparationPayments received prior to the Event of Default pursuant to this Agreement.

 

**11.  Consideration/RevocationPeriod.** ThisAgreement is intended to release and discharge any claims by Executive underthe Age Discrimination and Employment Act. To satisfy the requirements of theOlder Workers’ Benefit Protection Act, 29 U.S.C. section 626(f), the Partiesagree as follows:

 

(a)          Executive acknowledges that he has read andunderstands the terms of this Agreement;

 

(b)         Executive acknowledges that he has beenadvised to consult with independent counsel regarding this Agreement, and thathe has received all counsel necessary to willingly and knowingly enter intothis Agreement;

 

(c)          Executive acknowledges that he has been giventwenty-one (21) days to consider the terms of this Agreement (the “ConsiderationPeriod”), has taken sufficient time to consider whether to execute it, and haschosen to enter into this Agreement knowingly and voluntarily. If Executivedoes not present an executed copy of this Agreement to Employer’s Chief FinancialOfficer on or before the expiration of the Consideration Period, this Agreementand the offer it contains will lapse; and

 
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(d) Forseven (7) days following the execution of this Agreement (should he electto execute it), Executive may revoke this Agreement by delivering a writtenrevocation to Employer’s Chief Financial Officer. This Agreement shall notbecome effective until the eighth (8th) day after Executive executes and doesnot revoke it (the “Effective Date”). If Executive either fails to sign theAgreement during the Consideration Period, or revokes it prior to the EffectiveDate, he shall not receive the Separation Payments described herein.

 

**12.  Severability.** The Parties agree that if any provision ofthe releases given under this Agreement is found to be unenforceable, it willnot affect the enforceability of the remaining provisions and the courts mayenforce all remaining provisions to the extent permitted by law.

 

**13.  EntireAgreement.** TheParties acknowledge that this Agreement contains the entire agreement betweenthe Parties concerning its subject matter, and further acknowledge that thisAgreement supersedes any and all prior agreements concerning this subject matter.

 

**14.  VoluntaryExecution.**TheParties acknowledge that they have read and understand this Agreement and thatthey sign it voluntarily and without coercion. The Parties further agree thatif any of the facts or matters upon which they relied in signing this Agreementprove to be otherwise, this Agreement will nonetheless remain in full force andeffect.

 

**15.  Notices.** All notices, consents, directions, approvals,instructions, requests and other communications required or permitted by theterms of this Agreement to be given to any person shall be in writing, andshall be delivered via email concurrently to the following addresses:

 

Executive:                  jmoynahan@att. net****and****moyno 2006@gmail.com

Employer:                   michaelrdunn@hotmail. com, edon@wydmail.comand michaeld @wydmail.com

 

orto such other email address as a party may have furnished to the other partiesin writing in accordance herewith. Any notice, consent, direction, approval, instruction,request or other communication given in accordance with this Section 14 shallbe effective after it is received by the intended recipient.

 

**16.  Waiver,Amendment and Modification.**The Parties agree that no waiver, amendment or modification of any ofthe terms of this Agreement shall be effective unless in writing and signed byall parties affected by the waiver, amendment or modification. No waiver of anyterm, condition or default of any term of this Agreement shall be construed asa waiver of any other term, condition or default.

 

**17.  Choice ofLaw and Venue.** ThisAgreement shall be deemed to have been made in the State of California and thevalidity, interpretation and performance of this Agreement shall be governed by,and construed in accordance with, the internal law of California, withoutgiving effect to conflict of law principles. Any action, demand, claim orcounterclaim relating to, or arising under, the terms and provisions of thisAgreement, or to its breach, shall be commenced in California in a court ofcompetent jurisdiction. In the event that one Party takes legal action againstthe other Party related to this Agreement, the prevailing Party is entitled tocollect legal fees, court expenses and the like from the other party, whichshall be paid promptly upon the settlement of such legal action.

** **

**18.  Headingsand Counterparts.**The headings contained in this Agreement are inserted for reference purposesonly and shall not in any way affect the meaning, construction orinterpretation of this Agreement. This Agreement may be executed in two (2) counterparts,each of which when executed shall be deemed to be an original, but both ofwhich, when taken together, shall constitute one and the same document.

 

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INWITNESS WHEREOF, the Executive and the Employer have executed this Agreement asof the dates written below.

 

 
|   | John  F. Moynahan (“Executive”)                |   |     |
|--------|----------------------------------------------------------|--------|----------|
|   |                                                     |   |     |
|   | /s/ John F. Moynahan                                     |   | 11/21/08 |
|   |                                                     |   | Date     |
|   |                                                     |   |     |
|   | Who’s  Your Daddy, Inc. (“Employer”) |   |     |
|   |                                                     |   |     |
|   |                                                     |   |     |
|   | By:                                                      |   |     |   |
|   |                                                     |   |     | Date |
|   | Name:                                                    |   |     |   |
|   |                                                     |   |     |   |
|   | Title:                                                   |   |     |   |

 
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Exhibit A

Lead Schedule to Accompany Payments underSection 2

 
| ** **   | ** ** | ** **         | ** ** | **Date of** | ** ** | **Product**    | ** ** | ** ** | ** ** | ** **       | ** ** | **Invoice**              | ** ** | **Rate**   | ** ** | **Due to**   | ** ** |
|--------------|------------|--------------------|------------|------------------|------------|----------------|------------|------------|------------|------------------|------------|--------------------------|------------|------------|------------|-------------------|------------|
| **Customer** | ** ** | **Invoice #** | ** ** | **Shipment**     | ** ** | **Collection** | ** ** | **Type**   | ** ** | **# Cases** | ** ** | **$ per Case** | ** ** | **Amount** | ** ** | **per Case** | ** ** | **Executive** | ** ** |
|         |       |               |       |             |       |           |       |       |       |             |       |                     |       |       |       |              |       |   |   |
|         |       |               |       |             |       |           |       |       |       |             |       |                     |       |       |       |              |       |   |   |
|         |       |               |       |             |       |           |       |       |       |             |       |                     |       |       |       |              |       |   |   |

 
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