EXHIBIT 10.2
SETTLEMENT AGREEMENT
This Settlement Agreement (the "Agreement") is made effective as of the
10th day of March 2006 (the "Effective Date") by and between ________________,
an individual residing in ___________ County, North Carolina ("Employee"),
Mobile Reach International, Inc., a Delaware corporation with its principle
place of business in Wake County, North Carolina ("MRI"), and Mobile Reach
Solutions, Inc., a Delaware corporation with its principle place of business in
Wake County, North Carolina ("MRS" or "Waves") and Mobile Reach Technologies,
Inc., a North Carolina corporation with its principle place of business in Wake
County, North Carolina ("MRT"). Collectively MRI, MRS/Waves and MRT are referred
to as the "Companies".
BACKGROUND
WHEREAS, Employee has been employed by MRT (the "Employment");
WHEREAS, the Companies and Employee desire to set forth certain agreements
and understandings among them with respect to the Employment, which are set
forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises in this Agreement
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby expressly acknowledged by the Companies and Employee, the
parties agree as follows:
1. Disposition of Relationship. As of the Effective Date, the parties
acknowledge and agree that Employee shall cease employment with MRT.
The following obligations and conditions must be met by the dates specified by
the Companies:
(a) By June 30, 2006, Companies shall pay all amounts owed by Companies to
the Companies' 401k plan such that the Employee can roll-over then
close their 401k account.
(b) By June 30, 2006, Companies shall grant to Employee_________ shares of
MRI stock ("Shares"). Company agrees to adjust the number of shares
based on any stock splits which occur between Effective Date of this
Agreement and date that shares are issued. Company agrees to assist
Employee in removing restriction legends from these and any other
share certificates that Employee has.
(c) By June 30, 2006, Companies shall pay to Employee a lump sum cash
payment of _____________________________________ dollars ($______.00).
(d) By Effective Date of this Agreement, MRT and Spectrum Mobile, Inc.
will have entered into a Licensing Agreement dated of an even date
herewith.
(e) Companies shall be responsible for paying all state and federal
withholding taxes related to the foregoing.
During the period of time up until June 30, 2006, Employee agrees, under any
circumstances, not to demand any amounts from or to pursue legal or governmental
actions against Companies for outstanding amounts owed or for non-payment of
Companies 401k plan.
Companies agree that all obligations to Employee that are owed from MRT will be
owed by MRI should MRT be unable to pay the obligations.
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If all of obligations/conditions (a), (b), (c), (d), and (e) are met by the
dates specified, then:
(x) Employee shall release Companies from all other amounts owed. This
includes unpaid salary obligations and includes unpaid vacation
accruals.
(y) Release Companies as specified in Paragraph 2.
The amounts specified in obligations/conditions (a), (b), (c), (d), and (e)
shall be referred to as "Settlement Payment". Employee agrees that the
Settlement Payment constitutes all payments that will be made by the Companies
to Employee. Further, Employee acknowledges that upon issuance of the Shares to
Employee, the Shares shall be "restricted securities", as that term is defined
under Rule 144 of the Securities Act of 1933, as amended (the "Securities Act")
and may not be sold or otherwise transferred until the Shares have been
registered with the Securities and Exchange Commission (the "SEC") under
provisions set forth under Rule 144 of the Securities Act. Employee understands
and acknowledges that MRI makes no representations or warranties regarding the
future price of the Shares, the current or future value of the Shares, or its
current business, operations or financial condition or prospects and, except as
expressly set forth in this Agreement, Employee has not relied on any
representations or warranties from MRI or its representatives in any manner
whatsoever. Employee represents and warrants to MRI that they meet the criteria
of an "accredited investor", as such term is defined under Rule 501(a)(3) of the
Securities Act, is acquiring the Shares for their own account and for investment
purposes, they have no present intention to distribute the Shares publicly, and
they have the financial sophistication and knowledge to understand the risk of
acceptance of the Shares.
2. Release by Employee. If all of obligations/conditions (a), (b), (c),
(d), and (e) from Paragraph 1 are met by the dates specified, Employee hereby
releases and forever discharges the Companies as well as any parent companies,
affiliates, subsidiaries, divisions, officers, directors, stockholders,
employees, agents, representatives, attorneys, lessors, lessees, licensors and
licensees of the Companies, and their respective successors, assigns, heirs,
executors and administrators (collectively, the "Companies Released Parties"),
from any and all claims (including attorneys' fees and costs incurred), demands,
rights, actions, and/or causes of action of any kind or nature whatsoever, known
or unknown, whether direct, indirect, accrued, inchoate, contingent, potential
or otherwise, in statutory or common law, or in equity, which arose prior to
Employee's execution of this Agreement and which Employee has ever had or now
has, related directly or indirectly to Employee's Employment with the Companies
and/or violation by any one or more of the Company Released Parties of any
federal and/or state civil rights laws, including, without limitation, the
federal Family and Medical Leave Act (28 U.S.C. ss. 2601 et seq.), the federal
Age Discrimination in Employment Act (29 U.S.C. ss. 621 et seq.), and the
federal Americans with Disabilities Act (42 U.S.C. ss. 12101 et seq.). Employee
further agrees that this release applies to all agreements between Companies and
Employee or between Companies. Employee further agrees not to hereafter,
directly or indirectly, xxx, assist in or be a voluntary party to, except as
required by law, any suit or proceeding against any one or more of the Company
Released Parties for any claims relating to events occurring prior to or
simultaneously with the execution of this Agreement, including but not limited
to Employee's Employment with the Companies as provided for or referenced
herein.
3. Release by the Companies. Upon the effectiveness of conditions (x), and
(y) from Paragraph 1, the Companies each hereby release and forever discharge
Employee, from any and all claims that were under authority of the officers of
the Companies after Effective Date including attorneys' fees and costs incurred,
demands, rights, actions, and/or causes of action of any kind or nature
whatsoever, whether direct, indirect, accrued, inchoate, contingent, potential
or otherwise, in statutory or common law, or in equity, which arose prior to the
execution of this Agreement by the Companies and which the Companies has ever
had or now has, related directly or indirectly to Employee's relationship with
the Companies. Each of the Companies further agrees not to hereafter, directly
or indirectly, xxx, assist in or be a voluntary party to, except as required by
law, any suit or proceeding against any one or more of the Employee Released
Initials: Employee _______ Companies _______ Page 2 of 5
Parties for any claims relating to events occurring prior to or simultaneously
with the execution of this Agreement, including but not limited to Employee's
employment relationship with the Companies as provided for or referenced herein.
Each of the Companies further agrees that Employee is not held by any previously
agreed to non-compete agreement. This release, however, does not release
Employee from any of their obligations as set forth in this Agreement, whether
or not related to or arising out of acts, events or circumstances occurring or
existing on or prior to the date hereof, including, without limitation, any
matters for which Employee is obligated to indemnify either the Companies
pursuant to Section 7.
4. Broad and Comprehensive Nature of Releases. The parties hereto further
agree and intend the releases set forth in Sections 2 and 3 to be as broad and
comprehensive as possible, so that none of the Company Released Parties or
Employee shall ever be liable, directly or indirectly, to the other parties or
their respective beneficiaries, heirs, successors or assigns, or any person or
entity claiming by, through, under or on behalf of any party hereto, for any
claims, demands, rights, actions, and/or causes of action of any kind or nature
whatsoever by reason of any dealings of the Company Released Parties or Employee
with the released parties prior to the date of this Agreement, or any disputes
related directly or indirectly to Employee's employment relationship with the
Companies.
5. Acknowledgments. By his/her signature below, Employee represents that
he/she understands that when the conditions of Paragraph 1 are met, then this
Agreement constitutes and encompasses a final and complete release of all claims
by Employee against the Companies and/or the Company Released Parties,
regardless of their character, by reason of any dealings by Employee with the
Company Released Parties prior to Employee's execution of this Agreement.
Employee understands and agrees that this release is not an admission by the
Companies that any such claims exist and/or of liability by the Companies with
respect to such claims. Neither the release set forth in Section 3, the
settlement evidenced by this Agreement, nor any evidence relating thereto, will
ever be admissible against any one or more of the Company Released Parties in
any suit or proceeding of any nature. The release and the settlement evidenced
by this Agreement are, however, and may be asserted by any one or more of the
Company Released Parties as an absolute and final bar to any suit or proceeding
now pending or hereafter brought by Employee against any one or more of the
Company Released Parties.
6. Indemnification by Employee. Employee shall hold harmless and indemnify
the Companies and each Company Released Party (each, an "Indemnitee") from and
against, and shall compensate, reimburse and pay for, any loss, damage, injury,
decline in value, lost opportunity, liability, claim, demand, settlement,
judgment, award, fine, penalty, fee (including reasonable attorneys',
accountants' and expert witness' fees), charge, cost (including costs of
investigation) or expense of any nature (collectively, "Damages"), which are
directly or indirectly suffered or incurred by any Indemnitee or to which any
Indemnitee may otherwise become subject (regardless of whether or not such
Damages relate to any third-party claim) and which arise from or as a result of,
or are directly or indirectly connected with, any statement or statements made,
or any information provided, by Employee to any current, former or prospective
investor, lender or shareholder of the Companies.
7. Confidentiality. Employee hereby acknowledges that they have held
positions of trust and confidence with the Companies, and that during the course
of their employment relationship with the Companies, they have been exposed to
and worked with others in the employ of the Companies and the Company Released
Parties sharing data, trade secrets, advertising and customer lists, investor
information, research and development information, technical processes, and
other material which is proprietary in nature, confidential to the Companies and
the Company Released Parties, and not generally available to the public or its
competitors ("Confidential Information"). If divulged, this information would be
potentially damaging to the Company Released Parties' ability to compete in the
marketplace. Employee therefore agrees not to disclose any Confidential
Information to any person or entity, except as may be required by statute, law
Initials: Employee _______ Companies _______ Page 3 of 5
or regulation. In addition, Employee further agrees to maintain any and all
information relating to the claims released in this Agreement, as well as the
terms of this Agreement, in the strictest confidence.
8. Future Conduct by Employee and the Companies. After executing this
Agreement: (i) Employee will not, directly or indirectly, denigrate, defame,
disparage, or cast aspersions upon the Companies or any one of the Company
Released Parties; (ii) Employee will use all reasonable efforts to prevent any
member of their immediate family from engaging in any such activity; (iii)
except in the course of carrying out the obligations of this Agreement, Employee
will not discuss the Companies or their respective properties, businesses or
financial conditions with any current, former or prospective investor, lender or
shareholder of the Companies and will direct any inquiries regarding the
Companies to the proper representatives of the Company; and (iv) the Companies
will not, directly or indirectly, denigrate, defame, disparage, or cast
aspersions upon Employee.
9. Injunctive Relief to Enforce. The parties to this Agreement acknowledge
and agree that a violation of this Agreement by such party will cause such
damage to the other parties and/or the Company Released Parties as will be
irreparable and that in such event, money damages will not be adequate.
Accordingly, each of the parties hereto agree that upon any violation of this
Agreement by such party, the other parties hereto and/or any of the Company
Released Parties shall be entitled as a matter of right to an injunction to
prevent any further violation of this Agreement. Such right of injunctive relief
shall be cumulative and in addition to whatever other remedies the parties
hereto and/or any of the Company Released Parties may have at law or in equity.
10. No Modifications. This Agreement may not be changed or terminated
orally. No modification or waiver of any of the provisions of this Agreement
shall be effective unless such modification or waiver is in writing and signed
by all the parties hereto.
11. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of each of the parties hereto, as well as their respective successors,
assigns, heirs, executors and administrators.
12. Governing Law. The parties further agree that this Agreement shall be
governed by and construed in accordance with the laws of the State of North
Carolina, and that any controversy arising out of or relating to this Agreement,
or the breach thereof, shall be adjudicated in the state or federal courts of
Wake County, North Carolina.
13. Entire Agreement. This Agreement sets forth the entire and fully
integrated understanding between the parties, and there are no representations,
warranties, covenants or understandings, oral or otherwise, that are not
expressly set out herein. This Agreement supersedes all prior agreements,
negotiations, and understandings, whether oral or written, between the parties.
14. Headings. The headings or titles to the paragraphs of this Agreement
are solely for convenience of reference and shall be ignored when interpreting
this Agreement.
15. Severability and Construction. Should any part of this Agreement be
declared invalid for any reason by any court of competent jurisdiction, such
decision or determination shall not affect the validity of any remaining
portion, and such remaining portion shall remain in force and effect as if this
Agreement had been executed with the invalid portion eliminated; provided, that,
in the event of a declaration of invalidity, the provision declared invalid
shall not be invalidated in its entirety, but shall be observed and performed by
the parties to the extent such provision is valid and enforceable. The parties
hereby agree that any such provision shall be deemed to be altered and amended
to the extent necessary to affect such validity and enforceability.
Initials: Employee _______ Companies _______ Page 4 of 5
16. Voluntary Execution. Employee hereby acknowledge that they have read
this Agreement, that they understand its contents, and they relied upon or had
the opportunity to seek the legal advice of their attorney, who is the attorney
of their choosing. Employee further represents that they are relying solely upon
their own knowledge and information as to the nature and extent of any such
claims, and has not been influenced in the execution of this Agreement by any
representations made by or on behalf of the Companies and/or the Company
Released Parties.
17. Additional Agreements. All parties agree to execute any further or
additional documents and to take such other action as may be reasonably
necessary to fully and completely carry out the intention of the parties hereto
and the terms of this Agreement.
18. Counterparts. This Agreement may be executed in any number of
counterparts and all of such counterparts shall for all purposes constitute one
and the same instrument.
COMPANIES:
By:
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Name: A. Xxxxxxxxxxx Xxxxxxx
Title: Chief Executive Officer
On behalf of Mobile Reach International, Inc., parent Company
and for fully owned subsidiary, Mobile Reach Technologies, Inc.
EMPLOYEE:
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