Exhibit 10.4
SEVERANCE AGREEMENT
This Severance Agreement ("Agreement") is made and entered into by and between
Brandon La Verne ("Employee") and AF Services, LLC, a Delaware limited liability
company
(the "Company").
RECITALS
A.
The Company is a services and support company for rapid response
direct marketers of computer hardware, software, peripheral and electronics
products.
B.
The Company has spent significant time, effort, and money to
acquire and develop certain goodwill and Proprietary Information (as defined
below) that it considers vital to its business and goodwill, and which has
become of great value to the Company.
C.
The Company's Proprietary Information has been and will
necessarily be communicated to and acquired by Employee in the course of his
employment, and the Company desires to continue the services of Employee, only
if, in doing so, it can protect its Proprietary Information and goodwill.
TERMS OF SEVERANCE
NOW, THEREFORE, in consideration of the benefits to be derived from the mutual
observance of the agreements and covenants hereinafter contained, the parties
agree as follows:
1.
EMPLOYMENT AT WILL.
1.1
AT ANY TIME, THE COMPANY OR EMPLOYEE MAY TERMINATE EMPLOYEE'S EMPLOYMENT
FOR ANY REASON, WITH OR WITHOUT CAUSE, AND WITHOUT PRIOR NOTICE.
THE COMPANY
WILL PAY EMPLOYEE ALL COMPENSATION THEN DUE AND OWING.
1.2
IF THE COMPANY TERMINATES EMPLOYEE'S EMPLOYMENT AT ANY TIME DURING THE
TWELVE MONTH PERIOD FOLLOWING A CHANGE OF CONTROL, WITHOUT CAUSE, AS EACH SUCH
TERM IS DEFINED BELOW, UPON EXECUTION AND DELIVERY TO THE COMPANY OF A SEVERANCE
AND RELEASE AGREEMENT THAT IS REASONABLY ACCEPTABLE TO THE COMPANY'S BOARD OF
DIRECTORS AND THAT CONTAINS, AMONG OTHER THINGS, A GENERAL RELEASE PROVISION (A
"SEVERANCE AND RELEASE AGREEMENT"), THE COMPANY SHALL PAY EMPLOYEE AN EQUIVALENT
OF SIX MONTHS OF HIS THEN BASE SALARY. ANY SEVERANCE PAYMENTS UNDER THIS
PARAGRAPH WILL BE PAID IN EQUAL MONTHLY INSTALLMENTS OVER A PERIOD OF MONTHS
EQUAL TO THE NUMBER OF MONTHS OF BASE SALARY TO BE PAID.
AFTER THE COMPANY HAS
SATISFIED ITS SEVERANCE PAYMENT OBLIGATIONS UNDER THIS PARAGRAPH, AND EXCEPT FOR
THE BENEFITS THAT HAVE VESTED AND ACCRUED, ALL OBLIGATIONS OF THE COMPANY UNDER
THIS AGREEMENT SHALL IMMEDIATELY CEASE UPON TERMINATION OF EMPLOYEE'S EMPLOYMENT
WITH THE COMPANY UNDER THIS AGREEMENT.
1.3
FOR PURPOSES OF THIS AGREEMENT, THE TERM "CAUSE" SHALL MEAN:
(I) A
MATERIAL BREACH OF ANY MATERIAL TERM SET FORTH IN THIS AGREEMENT; (II)
EMPLOYEE'S FAILURE TO FOLLOW THE REASONABLE INSTRUCTIONS OF THE COMPANY AFTER
EMPLOYEE HAS BEEN UNABLE OR UNWILLING TO CURE SUCH FAILURE WITHIN SEVEN CALENDAR
DAYS FOLLOWING RECEIPT OF NOTICE OF SUCH FAILURE;
(III) MISCONDUCT ON EMPLOYEE'S PART THAT IS MATERIALLY INJURIOUS TO THE COMPANY,
MONETARILY OR OTHERWISE, INCLUDING MISAPPROPRIATION OF TRADE SECRETS, FRAUD, OR
EMBEZZLEMENT; (IV) EMPLOYEE'S CONVICTION FOR FRAUD OR ANY OTHER FELONY; OR (V)
IF EMPLOYEE EXHIBITS IN REGARD TO HIS EMPLOYMENT UNAVAILABILITY FOR SERVICE
(OTHER THAN DUE TO PROTECTED DISABILITY OR REASONABLE ABSENCES IN CONFORMITY
WITH APPLICABLE FAMILY LEAVE OR OTHER APPLICABLE LAWS), MISCONDUCT, DISHONESTY,
OR HABITUAL NEGLECT.
1.4
FOR PURPOSES OF THIS AGREEMENT, THE TERM
"CHANGE