RETIREMENT AND BOARD SERVICE ABOARD SERVICE AGREEMENT
Exhibit
10.4
RETIREMENT
AND BOARD SERVICE ABOARD SERVICE AGREEMENT
This
Retirement and Board Service Agreement (the “Agreement”)
dated as of June 26, 2007, is made by and between ANTs software
inc., a Delaware corporation (the “Company”) and Xxxxxxx X.
Xxxxxxx (“Executive”). Its purpose is to set forth the
parties’ agreement regarding the cessation of employment status of the Executive
with the Company, the continuation of the Executive’s service on the Company’s
Board of directors, the mutual termination of the Executive’s Employment
Agreement with the Company dated on March 23, 2007, the provision of the
benefits Executive is to receive, and the provision of the mutual waivers and
releases the parties are giving each other.
Whereas,
both parties agree and acknowledge receipt of sufficient consideration for
the
mutual promises and undertakings contained in this Agreement;
The
parties agree as follows:
1. Retirement. Executive
understands and agrees that he is retiring as an employee of the Company
effective as of June 26, 2007. That certain Employment Agreement
dated March 23, 2007 by and between the Executive and the Company is hereby
mutually terminated.
2. Continuation
of Board Service. Executive shall continue as a member
of the Company’s Board of directors and shall continue as Chairman of the Board
of directors of the Company. In addition to the retirement benefits
set forth below, the Company will pay to Executive non-executive Chairman board
fees of $25,000 per annum.
3. Retirement
Benefits. In consideration for the releases provided
herein and subject to the waiting period and other requirements set forth in
paragraph 7, below, the Company shall pay Executive, as retirement benefits
and
on a 1099 basis, ten equal quarterly payments of fifty thousand dollars
($50,000) each, for an aggregate amount of Five Hundred Thousand dollars
($500,000), with the first such payment due on July 1, 2007 and the remaining
payments paid in quarterly installments on October 1, January 1, April 1, and
July 1 for each succeeding quarter until paid in full. Company shall
deposit $500,000 into a mutually agreeable escrow for such funds to be held
in
trust, to be paid out as required hereby. The escrow agent shall be
selected by Executive and the escrow shall be structured in such a manner that
(i) it may not be revoked by the Company, and (ii) the funds deposited into
the
account shall not be considered part of the Company’s general funds, and shall
be beyond the reach of the Company’s creditors. All interest on such
trust funds shall accrue to the benefit of Executive and be paid out with the
final payment made. All of Executive’s stock options shall be and
continue unaffected by this Agreement. The Company acknowledges and
agrees that all of Executive’s stock options are fully vested and that such
options shall be exercisable up to that date which is three months following
cessation of Executive’s service on the Company’s Board of
directors. Company will provide to Executive, continuation health
coverage pursuant to the Consolidated Omnibus Budget Reconciliation Act of
1985
(COBRA) for a period of eighteen months and at Executive’s cost.
4. General
Mutual Release. In exchange for the
consideration provided in this Agreement, the adequacy of which is hereby
acknowledged, each party hereto, on behalf of himself or itself and his or
its
heirs, successors and assigns, hereby fully releases and forever discharges
the
other party hereto, including each of their officers, directors, agents,
employees, attorneys, parents, affiliates and/or subsidiaries, from any and
all
claims, actions and liabilities of any kind or character whatsoever, arising
in
law or in equity, known or unknown, suspected or unsuspected, that such party
has ever had, now has or may now have against the other party, including,
without limitation, all claims directly or indirectly related to or arising
out
of Executive’s employment by the Company, the performance of his duties during
that employment, and/or the termination of or his resignation from that
employment. This waiver and release specifically includes, but is not
limited to, all claims, if any, whether arising in tort or in contract, related
to Executive’s employment, including any and all claims for wrongful discharge
or wrongful termination; claims for alleged violation of public policy or breach
of implied covenant of good faith and fair dealing; claims for breach of
fiduciary duty; claims for negligent or intentional infliction of emotional
distress; claims arising in connection with Executive’s compensation, benefits,
warrants and/or stock options; claims for breach of express or implied contract
or for further monetary compensation by way of additional salary or bonus
allegedly due Executive by reason of his employment with the Company; and all
other claims, based on common law or federal or state statute, including claims
for discrimination based on age arising under state statute or the federal
Age
Discrimination in Employment Act, the Older Workers’ Benefits Protection Act, or
any similar federal or state law prohibiting age discrimination.
-1-
Each
party
further understands and expressly agrees that this Agreement specifically
extends to all claims, whether those claims are presently known to the party
or
not, or suspected by the party or not. By signing below, each party
expressly waives the benefits of Section 1542 of the California Civil Code,
which provides:
“A
general release does not extend to claims which the creditor does not know
or
suspect to exist in his favor at the time of executing the release which if
known by him must have materially affected his settlement with the
debtor.”
Executive
agrees that he has not assigned or transferred, in whole or in part, any of
the
claims, actions or liabilities released by him herein.
5. No
Admission of Liability. The parties deny that either one
of them has any liability to the other. Neither this Agreement, nor
the consideration the parties are receiving under it, shall be deemed or
construed as an admission of liability by any party.
6. Confidentiality. Each
party agrees that the terms and conditions of this Agreement are and shall
remain strictly confidential, and that none of them, nor anyone acting on his
or
its behalf, will disclose those terms and conditions to any third
party: (i) except that the Company may disclose the general terms as
required under securities laws, (ii) except for Executive’s tax or legal
advisors or his spouse, or (iii) unless compelled by law to do so.
7. Waiting
Period. Executive acknowledges that the Company
has specifically advised him to consult with an attorney of his own choosing
in
order to review this Agreement and advise him of his rights concerning
it. Executive further acknowledges that the Company has further
advised him that he has twenty-one (21) days from the date this Agreement was
originally presented to him in which to consider whether to sign it, and that
if
he chooses to do so, he will be given an additional seven (7) days from the
date
he signs it in which to revoke it. Unless revoked by Executive, this
Agreement shall become effective the day immediately after the expiration of
the
seven (7) day period set forth above (the “Effective
Date”). Executive understands and agrees that this Agreement will not
become effective before the Effective Date. The offer contained in
this Agreement will expire and may not be accepted by Executive following the
expiration of twenty-one (21) days after this Agreement was first presented
to
him.
-2-
8. Indemnification. Each
party shall indemnify, defend and hold harmless the other and his or its
assignees against, and in respect of, any and all claims, demands, losses,
costs, expenses, obligations, liabilities, damages, recoveries and deficiencies,
including interest, penalties and reasonable attorneys’ fees (collectively
“Losses”) that the other or he or its assignees may incur which arise, result
from or relate to any breach or failure by such party to perform any of such
party’s covenants contained in this Agreement.
9. Voluntary
Agreement. Executive expressly acknowledges and warrants
that he has read and fully understands this Agreement; that he has had the
opportunity to consult with legal counsel of his own choosing in order to have
the terms and conditions of this Agreement fully explained to him; that he
is
not executing this Agreement in reliance on any promises, representations or
inducements other than those set forth herein; that he understands he is giving
up legal rights by signing this Agreement; and that he is executing it
voluntarily, free of any duress or coercion, after due deliberation, with a
full
understanding of what it means to do so.
10. Other
Provisions.
10.1 Binding
Effect. This Agreement shall be binding upon and inure to the
benefit of the respective heirs, executors, representatives, successors and
assigns of the parties hereto.
10.2 Further
Assurances. The parties shall execute and deliver such
instruments and take such other actions as may be reasonably necessary in order
to carry out the intent of this Agreement.
10.3 Counterparts. This
Agreement may be executed in any number of separate counterparts, each of which
shall be deemed to be an original and all of which together shall be deemed
to
be one and the same instrument.
10.4 Headings. The
subject headings of the sections and subsections of this Agreement are included
for purposes of convenience only and shall not affect the construction or
interpretation of any of its provisions.
10.5 Waivers. Any
party to this Agreement may waive any right it may have hereunder or any breach
or default hereunder by any other party hereto; provided that no such waiver
will be effective against the waiving party unless it is in writing and
specifically refers to this Agreement. No waiver will be deemed to be
a waiver of any subsequent or other right, breach or default of the same or
similar nature.
10.6 Entire
Agreement. This Agreement, including the documents and things
anticipated to be delivered hereby embodies the entire agreement and
understanding of the parties hereto with respect to the subject matter hereof,
and supersedes all prior or contemporaneous agreements or understandings
(whether written or oral) among the parties, in respect to the subject matter
contained herein. This Agreement may not be modified, amended or
terminated except by written agreement signed by both parties specifically
referring to this Agreement.
-3-
10.7 Governing
Law. This Agreement is deemed to have been made in the State of
California and shall be governed by, and construed in accordance with, the
laws
of the State of California for contracts made and to be performed within
California.
10.8 Assignment. Executive
may not assign this Agreement, or assign his rights or delegate his duties
hereunder, without the prior written consent of the Company.
10.9 Severability. Any
provision of this Agreement which is illegal, invalid or unenforceable shall
be
ineffective to the extent of such illegality, invalidity or unenforceability,
without affecting in any way the remaining provisions hereof.
10.10 No
Rules of Construction. No rules of construction are intended by
the parties hereto or shall be invoked in the interpretation hereof and, for
all
purposes, the parties hereto shall all be deemed to be joint authors
hereof.
10.11 Notices. All
notices, demands and other communications provided for hereunder shall, unless
otherwise stated herein, be in writing and shall be personally delivered or
sent
by nationally recognized overnight courier, with delivery
acknowledged.
10.12 Remedies. The
remedies herein provided are cumulative and not exclusive of any remedies
provided by law. The party against whom enforcement is sought shall
pay on demand all losses, costs and expenses, if any, of the party seeking
enforcement (including attorneys’ and other professionals' fees actually
incurred) in connection with the enforcement of this Agreement.
IN
WITNESS WHEREOF,
the parties hereto have caused this Agreement to be executed by their respective
officers or representatives thereunto duly authorized, this Agreement to become
effective as of the date first above written.
|
a
Delaware Corporation
|
|||
|
|
By:
|
/s/ Xxx Xxxxx | |
|
Xxx
Xxxxx, Chief Executive Officer
|
|||
|
|
|
/s/ Xxxxxxx X. Xxxxxxx | |
|
Xxxxxxx
X. Xxxxxxx
|
-4-
