EXHIBIT 10.10
AGREEMENT AND RELEASE
THIS AGREEMENT is dated as of the 31st day of May, 2005 by and among ZIM
CORPORATION (the "COMPANY"), a corporation incorporated pursuant to the Canada
Business Corporations Act and each of XXXXX XXXXXXX ("XXXXX"), XXXXXXX XXXXXX
("XXXXXXX"), XXXXXXXXX XXXXXXXXX ("XXXXXXXXX"), XXXXXXXX LIMITED ("XXXXXXXX"),
AND XXXXX XXXXXXX AND XXXXXXX XXXXXX (AS TRUSTEES OF XXXXXX XXXXXX) (in such
capacity, the "TRUSTEES" and, together with Maria, Stephen, Christian and
Xxxxxxxx, the "SHAREHOLDERS"), being the former shareholders of EPL
Communications Limited and E-Promotions Limited (together, "EPL").
RECITALS
WHEREAS pursuant to a share purchase agreement among the parties hereto
dated February 10, 2005 (the "SHARE PURCHASE AGREEMENT"), the Shareholders sold
all of the issued and outstanding shares of EPL to the Company;
AND WHEREAS in consideration of the terms of this Agreement and Release
(the "AGREEMENT") the parties have agreed to release one another from any and
all obligations arising under or relating to or arising in connection with the
Share Purchase Agreement and the transactions contemplated therein and the
agreements delivered in connection therewith;
NOW THEREFORE in consideration of the mutual representations, agreements
and promises in this Agreement, the receipt and sufficiency of which is hereby
acknowledged by each party, the Company and Shareholders agree as follows:
1. Upon the date hereof, each of Stephen, Maria, Christian and Xxxxxxxx will
enter into a consulting agreement with the Company, in the respective forms
attached hereto as Exhibits A, B, C and D (collectively, the "CONSULTING
AGREEMENTS").
2. The Company shall and does hereby grant to each of Stephen, Maria,
Christian and Xxxxxxxx, with effect from the date hereof, the following
Options, with an exercise price of $.20 US, to purchase common shares in
the capital of the Company (the "OPTIONS"), the terms of which are set
forth in the respective forms of Option Agreements attached hereto as
Exhibits E, F, G and H (collectively, the "OPTION AGREEMENTS"):
a. Stephen - 1,548,000 Options
b. Xxxxx - 1,440,000 Options
c. Finelook - 540,000 Options
x. Xxxxxxxxx - 72,000 Options
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Total 3,600,000 Options
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All Options will be immediately exercisable and will expire, if not
previously exercised, on May __, 2008. The Options will be governed by the
terms of the Company's employee stock option plan as may be amended,
restated or supplanted from time to time, a true, accurate and complete
copy of which is attached hereto as Exhibit I. The Option Agreements shall
be executed by the respective parties thereto upon the date hereof.
3. Xxxxxxx Xxxxxx is hereby appointed to the Advisory Committee of the Company
(the "COMMITTEE") and in such capacity shall receive due notice of all
meetings of the Committee together with all materials distributed to
members of the Committee. Xxxxxxx will be entitled to attend by conference
call, be heard and vote as a member at meetings of the Committee. Xxxxxxx
shall be entitled to remain on the Advisory Committee for three years from
the date hereof and thereafter will sit at the discretion of the board of
directors of the Company (the "BOARD"). Furthermore, for a period of three
years from the date hereof, Xxxxxxx will be entitled to attend by
conference call and participate in (without any right to vote) all sales
and technical presentations to, and discussions of, the Board, and shall
receive all notices of Board meetings as if a member of the Board.
Following the third anniversary of the date hereof, Xxxxxxx xxx, at the
discretion of the Board, attend by conference call and participate at
meetings of the Board in the manner set forth in the immediately preceding
sentence. All information obtained by Xxxxxxx relating to meetings of the
Committee or the Board shall be treated as confidential information of the
Company pursuant to a customary confidentiality agreement to be entered
into between Xxxxxxx and the Company. The Company shall reimburse Stephen's
reasonable out-of-pocket expenses relating to his attendance by conference
call at meetings of or involvement with the Committee and the Board.
Notwithstanding the foregoing, Xxxxxxx xxx attend in person any meetings of
the Committee or the Board upon the prior approval of the Board, which
approval shall not be unreasonably withheld, and the Company shall
reimburse Stephen's reasonable out-of-pocket expenses as are previously
agreed to in writing by the Company relating to such in-person attendance.
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4. Unless required by law and except in legal, arbitral or administrative
proceedings, the Shareholders agree not to reveal, disclose, use or cause
to be revealed, disclosed or used any information or material with respect
to the Company (which term shall, for the purposes of this paragraph,
include the Company, its successors and assigns, its officers and
directors, shareholders, agents and employees) which is knowingly or could
reasonably be injurious to any of the Company's interests and, without
limiting the generality of the foregoing, the Shareholders expressly agree
not to make any public statement of the business affairs, policies or the
like of the Company without the express written consent of the Company or
disparage the Company, directly or indirectly, in any respect. Furthermore,
but without limiting the generality of the preceding provisions of this
Section 4, the Shareholders agree not to reveal or disclose, or cause to be
revealed or disclosed this Agreement and the provisions hereof unless
required by law and except in legal, arbitral or administrative
proceedings.
5. Unless required by law and except in legal or administrative proceedings,
the Company agrees not to reveal, disclose, use or cause to be revealed,
disclosed or used any information or material with respect to the
Shareholders which is knowingly or could reasonably be injurious to any of
the Shareholders' interests and, without limiting the generality of the
foregoing, the Company expressly agrees not to make any public statement of
the business affairs, policies or the like of the Shareholders without the
express written consent of Shareholders or disparage the Shareholders,
directly or indirectly, in any respect. Furthermore, but without limiting
the generality of the preceding provisions of this Section 5, the Company
agrees not to reveal or disclose, or cause to be revealed or disclosed this
Agreement and the provisions hereof unless required by law and except in
legal, arbitral or administrative proceedings.
6. The Shareholders hereby release and forever discharge the Company (which
term shall, for the purposes of this paragraph, include the Company, its
successors and assigns, its officers and directors, shareholders, agents
and employees), from any and all actions, causes of action, claims and
demands whatsoever, including any claim which any of them may have or might
have had to or before any court or any arbitral or administrative tribunal,
as against the Company, or which any of them or their respective heirs,
executors, administrators, successors and assigns, or any of them,
hereafter can, shall or may have by reason or in any way arising out of any
cause, matter or thing whatsoever existing up to the present time relating
to the Share Purchase Agreement and the transactions contemplated therein
and the agreements by and among the parties thereto (or any of them)
delivered in connection therewith, and any obligations which may remain
owing by the Company to the Shareholders prior to the date hereof,
including, and without limiting the generality of the foregoing all claims
and demands for or with respect to registration of the common shares of the
Company received by the Shareholders pursuant to the terms of the Share
Purchase Agreement. The Shareholders further agree that none of them will
make any claims (including without limitation any cross-claim,
counterclaim, third party action or application) against any other person
or corporation who might claim contribution and indemnity against the
Company in respect of any such matters. The foregoing release shall not
apply to this Agreement, the Consulting Agreements or the Option
Agreements, or the terms and conditions hereof or thereof. A person who is
not a party to this Agreement has no right under the Contract (Rights of
Third Parties) Xxx 0000 to enforce any term of this Agreement except to the
extent set out in this Section 6 and it is expressly agreed and intended
that the Company's successors and assigns, officers and directors,
shareholders, agents and employees shall be entitled to enforce any benefit
conferred on any of them under the provisions of this Agreement.
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7. The Company hereby releases and forever discharges the Shareholders, from
any and all actions, causes of action, claims and demands whatsoever,
including any claim which the Company may have or might have had to or
before any court or any arbitral or administrative tribunal, as against the
Shareholders or any of them, or which the Company, its successors and
assigns, or any of them, hereafter can, shall or may have by reason or in
any way arising out of any cause, matter or thing whatsoever existing up to
the present time relating to the Share Purchase Agreement and the
transactions contemplated therein and the agreements by and among the
parties thereto (or any of them) delivered in connection therewith
(including, without limitation, the Non-Competition Agreements). The
Company further agrees not to make any claims (including without limitation
any cross-claim, counterclaim, third party action or application) against
any other person or corporation who might claim contribution and indemnity
against any Shareholder in respect of any such matters. The foregoing
release shall not apply to this Agreement, the Consulting Agreements or the
Option Agreements, or the terms and conditions hereof or thereof. A person
who is not a party to this Agreement has no right under the Contract
(Rights of Third Parties) Xxx 0000 to enforce any terms of this Agreement
except to the extent set out in this Section 7 and it is expressly agreed
and intended that the successors and assigns of the Shareholders shall be
entitled to enforce any benefit conferred on any of them under the
provisions of this Agreement.
8. In the event that any party breaches, or threatens to commit a breach of,
any of the provisions of this Agreement, each party acknowledges that a
remedy at law would be inadequate and that the non-breaching party may
suffer irreparable injury and harm, and accordingly, the parties
acknowledge and agree that the non-breaching party shall be entitled to
injunctive relief and hereby agrees to the entry of an order restraining
the breaching party from such actions as would constitute a breach of any
term of this Agreement. Such relief shall be in addition to any other
remedy to which a non-breaching party may be entitled at law or in equity.
9. This Agreement constitutes the entire agreement between the parties
pertaining to the subject matter of this Agreement and supersedes all prior
agreements, understandings, negotiations and discussions, whether oral or
written. There are no conditions, warranties, representations or other
agreements between the parties in connection with the subject matter of
this Agreement (whether oral or written, express or implied, statutory or
otherwise) except as specifically set out in this Agreement.
10. Any provision of this Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to that jurisdiction, be ineffective to the extent
of such prohibition or unenforceability and shall be severed from the
balance of this Agreement, all without affecting the remaining provisions
of this Agreement or affecting the validity or enforceability of such
provision in any other jurisdiction.
11. This Agreement shall be governed by and construed and interpreted in
accordance with the laws of England and Wales. The parties hereto
irrevocably submit to the exclusive jurisdiction of the High Court of
Justice of England and Wales with respect to any and all matters relating
to this Agreement and the transactions contemplated hereby.
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12. This Agreement shall enure to the benefit of, and be binding on, the
parties and their respective successors (including successors by merger)
and permitted assigns. No party may assign or transfer, whether absolutely,
by way of security or otherwise, all or any part of such party's rights or
obligations under this Agreement without the prior written consent of the
other parties hereto.
13. This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original and all of which taken together shall be
deemed to constitute one and the same instrument. Counterparts may be
executed either in original or faxed form and the parties adopt any
signatures received by a receiving fax machine as original signatures of
the parties; provided, however, that any party providing its signature in
such manner shall promptly forward to the other party an original of the
signed copy of this Agreement which was so faxed.
14. THE SHAREHOLDERS HEREBY DECLARE THAT THEY FULLY UNDERSTAND THE TERMS
OF THIS AGREEMENT AND HAVE HAD THE OPPORTUNITY TO OBTAIN INDEPENDENT
LEGAL REPRESENTATION IN CONNECTION WITH THIS AGREEMENT.
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IN WITNESS WHEREOF the parties have executed this Agreement, as of the
date first written above.
SIGNED as a Deed by )
XXXXX XXXXXXX in the presence of )
)
/s/ Xxxxxxxx Xxxxxxx )/s/ Xxxxx Xxxxxxx
Witness ) XXXXX XXXXXXX
)
SIGNED as a Deed by )
XXXXXXX XXXXXX in the presence of )
)
/s/ Xxxxxxxx Xxxxxxx )/s/ Xxxxxxx Xxxxxx
Witness ) XXXXXXX XXXXXX
)
SIGNED as a Deed by XXXXX XXXXXXX )
and XXXXXXX XXXXXX (as Trustees of )
Xxxxxx Xxxxxx) in the presence of )
)
)
/s/ Xxxxxxxx Xxxxxxx )/s/ Xxxxx Xxxxxxx and Xxxxxxx Xxxxxx
Witness ) XXXXX XXXXXXX AND
) XXXXXXX XXXXXX
)
SIGNED as a Deed by CHRISTIAN )
GOLDSBORO in the presence of )
)
)
/s/ Xxxxx Xxxxxx )/s/ Xxxxxxxxx Xxxxxxxxx
Witness ) XXXXXXXXX XXXXXXXXX
)
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EXECUTED as its Deed by
XXXXXXXX LIMITED acting by
Director: /s/ Xxxxxx Xxxxxxx
Secretary: /s/ Xxxxxx Xxxxxxx
ZIM CORPORATION
By: /s/ Xxxxxxx Xxxxxxxx
Name: Xxxxxxx Xxxxxxxx
Title: Chief Executive Officer
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