TERMINATION AGREEMENT
This
agreement is hereby entered into this date, July 11, 2006, between Xxxxxx Xxxx,
residing at 0 Xxxxxxxx Xxxxxx, Xxxxxxx, Xxx Xxxx 00000 (“Kang”) and bioMETRX,
Inc., a Delaware corporation with offices at 000 Xxxxx Xxxxxxxx, Xxxxx 000,
Xxxxxxx, Xxx Xxxx 00000 and all affiliates (the “Company”). This agreement is
mutually agreed upon by the parties, as referenced above and binding in full
as
the acceptance of termination of the employment and employment agreements of
Kang with the Company.
WHEREAS, Kang
hereby resigns and withdraws any and all terms under the employment agreement
dated January 1, 2004 between bioMetrx Technologies, Inc., the Company’s
predecessor, and Kang;
WHEREAS,
the
Company hereby accepts the resignation and the withdrawal from all terms and
obligations under the employment agreement and employment;
NOW,
THEREFORE, in
consideration of the foregoing recitals, mutual promises, agreements and
covenants contained herein, and for other good and valuable consideration,
the
receipt and sufficiency of which is hereby acknowledged by both
parties,
Therefore
under mutual agreement between the parties the following defines all terms
and
considerations between the release;
Obligations
of Xxxx
Xxxx
hereby resigns as an officer, director and all positions under employment now
and past obligations from the above Companies and its affiliates. All employment
agreements and any amendments thereto are now null and void including any and
all obligations under such agreement of employment unless otherwise expressed
in
this agreement, except or set forth below. Kang shall not interfere with the
ongoing operations of the Company, its customers, carriers, employees and
agents. Kang shall indemnify and hold harmless the Company, its directors,
officers, employees, agents, successors, and assignees, from any and all
damages, costs, expenses and liabilities, including reasonable attorney’s fees
and disbursements, sustained in any action and arising in connection with his
employment and employment agreement between any and all parties under this
agreement.
Kang
will
continue to assist to the best of his ability, when requested by the Board
of
Directors of the Company during the next six months in regard to any
informational technology problem that may arise or any other questions. Such
service by Kang is offered at three thousand dollars ($3,000) per month and
for
other consideration being offered under this agreement.
Kang
also
acknowledges that all outstanding stock options issued to him by the Company
shall be immediately cancelled upon signing this Agreement. In addition, Kang
agrees to transfer, without consideration, 40% of his common stock in the
Company to designees of the Company.
Obligations
of the Company
The
Company hereby accepts the resignation of Kang as an officer, director and
all
positions under employment now and past obligations from the Company and its
affiliates. All extended employment and employment agreement are now null and
void including any and all obligations under such agreement of employment unless
otherwise expressed in this agreement. The Company shall indemnify and hold
harmless Kang from any and all damages, costs, expenses and liabilities,
including reasonable attorney’s fees and disbursements, sustained in any action
and arising in connection with his Employment or employment agreement between
any and all parties under this agreement.
Covenants
and Restrictions
Kang
covenants that, for a period of one (1) year following the date of this
Agreement:
(a) Without
the express written consent of the Board of Directors,
Kang
shall not directly or indirectly, own any interest in, participate or engage
in,
assist, render any services (including advisory services) to, become associated
with, work for, serve (in any capacity whatsoever, including, without
limitation, as an employee, consultant, advisor, agent, independent contractor,
officer or director) or otherwise become in any way or manner connected with
the
ownership, management, operation, or control of, any business, firm,
corporation, partnership or other entity (collectively referred to herein as
a
“Person”) that engages in, or assists others in engaging in or conducting any
business, which deals, directly or indirectly, in products or services similar
to or competitive with the Company’s product line or services in the United
States; provided, however, the above shall not be deemed to exclude Kang from
acting as director of another corporation with the consent of the Company’s
Board of Directors; provided further, however, that the above shall not be
deemed to prohibit Kang from owning or acquiring securities issued by any
corporation whose securities are listed with a national securities exchange
or
are traded in the over-the-counter market, provided that Kang at no time owns,
directly or indirectly, beneficially or otherwise, five (5%) percent or more
of
any class of any such corporation’s outstanding capital stock.
(b) Kang
shall not knowingly provide or solicit to provide to any Person or individual
(i) any goods or services which are competitive with those provided by the
Company or which would be competitive with the goods or services that the
Company has planned to provide; or (ii) any goods or services to any customer
of
the Company. The term “customer” shall mean any person or individual to whom the
Company has provided goods or services within the twelve (12) month period
prior
to the date of this Agreement.
(c) Kang
agrees that he shall not divulge to others, nor shall he use to the detriment
of
the Company or in any business or process of manufacture competitive with or
similar to any business or process of manufacture engaged in by the Company
or
any of its subsidiary or affiliated companies, any confidential or trade secret
information obtained by him during the course of his employment with the Company
relating to sales, salesmen, sales volume or strategy, customers, formulas,
processes, methods, machines, manufactures, compositions, ideas, improvements
or
inventions belonging to or relating to the business of the Company, or its
subsidiary or affiliated companies.
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(d) Kang
shall neither solicit, seek to solicit any of the Company’s personnel in any
capacity whatsoever nor shall Kang induce or attempt to induce any of the
Company’s personnel to leave the employ of the Company to work for Kang or
otherwise.
(e) Kang
agrees that he is entering into this Agreement in order to terminate his
employment with the Company and accordingly Kang agrees to provide the Company
with a complete release of any and all claims in the form attached
hereto.
(e) Kang
acknowledges that his breach of any of the restrictive covenants contained
in
this Section may cause irreparable damage to the Company for which remedies
at
law would be inadequate. Accordingly, if Kang breaches or threatens to breach
any of the provisions of this Section, the Company shall be entitled to
appropriate injunctive relief, including, without limitation, preliminary and
permanent injunctions in any court of competent jurisdiction, restraining Kang
from taking any action prohibited hereby. This remedy shall be in addition
to
all other remedies available to the Company at law or equity. If any portion
of
this Section is adjudicated to be invalid or unenforceable, this Section shall
be deemed amended to delete there from the portion so adjudicated, such deletion
to apply only with respect to the operation of this Section in the jurisdiction
in which such adjudication is made.
Proprietary
Property
(a) Kang
agrees that any and all inventions or improvements as will as any and all ideas,
creations, know-how and methods of applying and putting into practice any
inventions or improvements (all of the foregoing being hereinafter called
“Proprietary Property” and being more fully defined in subparagraph (b) below)
that are created, developed, conceived of or discovered either (i) by Kang
(solely or jointly with others) either in the course of his employment with
the
Company, on the Company’s time, with the Company’s materials or facilities,
relating to any subject matter with which his work for the Company is or may
be
concerned, or relating to any business in which the Company or any of its
subsidiaries or affiliated companies is involved; or (ii) by or for the Company;
or (iii) by any independent individual or person and thereafter acquired by
the
Company. Kang shall not, without limitation as to time or place, use any
Proprietary Property except Company business, nor disclose the same to any
other
person or individual except for disclosure on Company business or as may be
required by law.
(b) As
used
in this Agreement, “Proprietary Property” means proprietary technical
information not generally known in the Company’s industry and which is disclosed
to Kang or known or developed by Kang as a consequence of or through his
employment with the Company.
(c) Kang
shall not, directly or indirectly, lecture upon, publish articles concerning,
use, disseminate, disclose, sell or offer for sale any Proprietary Property
without the Company’s prior written permission.
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Lock-Up
Agreement
Kan
agrees and acknowledges that he will be restricted from selling more than 10,000
shares of the Company’s common stock in any given 30-day period. Kang further
agrees to comply with all state and federal laws that govern any such
sales.
Non-Disclosure
and Publicity
Except
as
required by law, neither party shall disclose to any third party the terms
and
conditions of this Agreement without the prior written consent of the other
party.
Governing
Law
This
Agreement will be deemed to have been executed and delivered in the State of
New
York and will be construed and interpreted according to the laws of that state.
Venue for each action, suit or other legal proceeding arising under or relating
to this Agreement shall be the New York State Supreme Court located in Nassau
County, New York, or the federal district court for the Southern District of
New
York, Nassau County, New York, and Kang hereby waives any right to xxx or be
sued in any other county in New York or any other state.
All
notices shall be in writing and shall be delivered by certified mail return
receipt requested or any other delivery system, which is capable of providing
proof of delivery. Any such notice shall be deemed effective on the day of
actual delivery.
This
Termination Agreement comprises the complete and exclusive statement of the
agreement of the parties concerning the subject matter hereof, and supersede
all
previous statements, representations, and agreements concerning the subject
matter hereof.
XXXXXX XXXX | BIOMETRX, INC. | ||
/s/ Xxxxxx Xxxx | /s/ Xxxx Xxxxxx | ||
|
Xxxx Xxxxxx |
||
Chief Executive Officer | |||
Date: July 11, 2006 | Date: July 11, 2006 | ||
|
|
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