SETTLEMENT AGREEMENT
1. ICOA, Inc., a Nevada corporation ("Company") and Xxxxxx Xxxxxx ("Employee")
enter into this Settlement Agreement ("Agreement"), which was received by
Employee on the date written below, for and in consideration of the
promises made among the parties, and other goods and valuable consideration
as follows:
2. Employment and Consulting Relationships. Employee's employment relationship
with Company is hereby terminated effective December 31, 2004. Employee
resigns as an officer of the Company and of WebCenter Technologies as of
that date. Employee and Company shall enter into a consulting agreement
substantially in the form attached hereto as Exhibit 4 covering their
relationship from January 1, 2005 onward.
3. Payment. Employee has received all accrued wages owing through last day of
employment. Within fourteen days after Employee's executing of this
Agreement, provided Employee has not revoked this Agreement, and as
consideration for this Agreement, the commitments made by the Company
substantially in the form of the Subscription Agreement, Warrant and
Registration Rights Agreement attached hereto as Exhibits 1, 2 and 3 shall
become effective. The signed original of this agreement is to be sent to
Xxxxx Xxxxxxxx, Xx. at 000 Xxxxxxx Xxxx, Xxxxxxx, XX 00000. Company will
withhold taxes on the amount paid in accordance with all applicable local,
state and federal laws.
4. Such agreements and commitments by the Company as specified in paragraph 3
are in full payment of any and all claims arising from, related to, or in
connection with Employee's employment with the Company, including, but not
limited to, all claims for breach of contract, fraud, wrongful discharge,
misrepresentation, defamation, violation of public policy, breach of the
implied covenant of good faith and fair dealing, personal injury, emotional
distress, sexual harassment, and age, race, sex or other prohibited
discrimination; all liabilities for the payment of any sums for accrued
earnings, bonuses, stock options or other stock rights, severance pay, sick
leave or holiday plans, and any employee benefits.
5. Employee represents and warrants the Employee has returned to Company all
Company's property, books, lists, records, other documents and equipment.
Employee covenants that should be later discovered in his possession or any
additional items of Company's property, Employee agrees to promptly return
such property to the Company. Employee acknowledges that he has received
any personal property belonging to him that was on Company's premises.
6. Except as expressly provided herein (including Exhibits 1-4 hereto,
Employee, for himself, his successors, administrators, heirs, and assigns,
hereby fully releases, waives and forever discharges Company, any
affiliated companies or subsidiaries, alter egos, their predecessors,
successors, affiliates, assigns, shareholders, directors, officers, agents,
attorneys and employees, whether past, present or future (the "Released
Parties") from any all actions, suits, debts, demands, damages, claims
judgments or liabilities of any nature including costs and attorneys' fees,
whether known or unknown, including, but not limited to, all claims arising
1
out of Employee's employment with or separation from any of the Released
Parties arising as of the date hereof,. Employee acknowledges and agrees
that this release, the release contained in paragraph 7 and the covenant
not to xxx set forth in paragraph 8 are essential and material terms of the
Agreement and that, without such release and covenant not to xxx, no
agreement would have been reached by the parties. Employee understands and
acknowledges the significance and consequences of this release and this
Agreement.
7. Employee specifically waives and releases Company from all claims he may
have as of the date he signs this Agreement regarding claims or rights
arising under the Age Discrimination in Employment Act of 1967, as amended,
29 U.S.C. ss. 621 ("ADEA"). This paragraph does not waive rights or claims
that may arise under the ADEA after the date Employee signs this Agreement.
Employee agrees that this Agreement provides benefits to which he is not
otherwise entitled and that Company has advised Employee to consult an
attorney prior to signing this Agreement. Employee has been provided
twenty-one (21) days within which to consider whether he should sign this
Agreement and waive and release all claims and rights arising under the
ADEA. Employee shall have seven days within which to revoke this Agreement
and this Agreement shall not become effective or enforceable until that
revocation period has expired.
8. To the maximum extent permitted by law, Employee covenants not to xxx or to
institute or cause to be instituted any action in any federal, state or
local agency or court against any of the Released Parties, including, but
not limited to, any of the claims released in paragraphs 6 and 7 of this
Agreement.
9. Employee acknowledges that he (a) fully understands his right to discuss
this Agreement with his private attorney, (b) has carefully read and fully
understands this entire Agreement, and (c) is voluntarily entering into
this Agreement.
10. It is intended that the provisions of this Agreement shall be enforced to
the fullest extent permissible under the laws and public policies applied
in each jurisdiction in which enforcement is sought. The provisions of this
Agreement shall be construed in accordance with the internal laws of the
State of Rhode Island. In the event that any paragraph, subparagraph or
provision of this Agreement shall be determined to be partially contrary to
governing law or otherwise unenforceable, the paragraph, subparagraph, or
provision and this Agreement shall be enforced to the maximum extent
permitted by law, and if any paragraph, subparagraph or provision of this
Agreement shall be determined to be totally contrary to governing law or
otherwise totally unenforceable, the paragraph, subparagraph, or provision
shall be severed and disregarded and the remainder of this Agreement shall
be enforced to the maximum extent permitted by law.
11. The parties agree that (except in connection with required public
disclosure, in connection with tax reporting, or pursuant to legal process
in any legal action to enforce the terms of this Agreement) they, their
2
agents, and their family members, directors, officers, employees, and other
Released Parties shall keep confidential the terms of this Agreement.
Employee and the Company further agree not to disparage in the future
either the Employee or any of the Released Parties.
12. Employee understands and agrees that in the course of his employment with
Company, he has acquired confidential information and trade secrets
concerning the operations of Company, Company's owners, subsidiaries and
affiliates (collectively the "Companies"), including, but not limited to,
information relating to the organization, employment policies, compensation
and benefit plans, and personnel and any data, formulae, specifications,
proprietary knowledge or information, customer list, marketing strategies,
pricing and credit policies, trade secrets, inventions or processes, owned,
developed or used in the course of Company's business (collectively
"Confidential Information"). Employee covenants and agrees that he will not
disclose any Confidential Information that is not available to the general
public.
13. Employee agrees that this Agreement, including the Exhibits thereto,
constitutes the entire understanding between the parties with reference to
the subject matter of this Agreement, including employment, independent
contractor status, all loans, advances, investments made by Employee, all
promises and representations made by Company or its officers, directors or
employees, and all prior negotiations and understandings, verbal or
written, between Employee and Company, relating to the items and things
referred to in this Agreement have been merged herein. Employee agrees that
the stock option granted to Employee on or about August 20, 2002 for
1,000,000 shares is hereby cancelled and replaced with warrants for
1,000,000 shares as outlined in Exhibit 2.
14. Any and all disputes arising out of or in any way related to Employee's
employment with, or separation from, Company, as well as any and all
disputes or claims arising out of or in any way related to this Agreement,
including, without limitations, fraud in the inducement of this Agreement,
or relating to the general validity or enforceability of this Agreement,
shall be submitted to final and binding arbitration before an arbitrator of
the American Arbitration Association, Providence, Rhode Island, in
accordance with the rules of that body governing commercial disputes, and
prevailing party shall be entitled to reasonable costs and attorneys' fees.
Judgment on the award rendered by the arbitrator may be entered in any
court having jurisdiction thereof.
15. The parties hereto agree that if any covenant, paragraph or clause
contained in this Agreement, other than paragraphs 6, 7 and 8 is declared
illegal, null or void, or against public policy, for any reason, the
remaining covenants, paragraphs or clauses contained in this Agreement
shall not be affected thereby.
16. Each reference to the Company herein shall include all subsidiaries and
affiliates of the Company.
3
Executed at Warwick, Rhode Island, this 8th day of April, 2005.
ICOA, Inc.
By:
---------------------------------
Its:
--------------------------------
Accepted and Agreed to:
By:
---------------------------------
Xxxxxx Xxxxxx
Exhibit 1 - Form of Subscription Agreement
Exhibit 2 - Form of Warrant
Exhibit 3 - Form of Registration rights Agreement
Exhibit 4 - Form of Consulting Agreement
4
