SEPARATION AGREEMENT AND MUTUAL RELEASE IN FULL
Exhibit
10.2
THIS
SEPARATION AGREEMENT AND MUTUAL RELEASE IN FULL (this “Agreement”) is made by
and between Xxxxxxx Xxxxxxxxx (the “Former Director”) and Bluegate Corporation,
a Nevada corporation (together with its subsidiaries, the
“Company”).
PRELIMINARY
STATEMENT
The
Former Director served on the Board of Directors of the Company;
The
Former Director holds shares of the Company’s common stock and stock options
exercisable for shares of the Company’s common stock; and
The
Former Director and the Company desire to settle fully and finally all matters
between them, including any matters that may have arisen out of Former
Director’s service on the Board of Directors and his employment with the Company
and his separation therefrom.
AGREEMENT
NOW, THEREFORE, in consideration of the
mutual covenants and promises contained in this Agreement, the Former Director
and the Company agree as follows:
1. The
Former Director’s employment with the Company terminated effective as of the
close of business on July 30, 2009 (the “Separation Date”).
2. The
Former Director resigned as a Director of the Company, such resignation took
effect as of the close of business on October 28, 2009 (“the Resignation
Date”).
3. The
Former Director agrees that he will not, directly or indirectly, and will not
cause or permit any person or entity controlled by him to: a) make or
in any way participate in any “solicitation” of “proxies” (as such terms are
used in the proxy rules of the Securities and Exchange Commission) to vote, or
seek to advise or influence any person with respect to the voting of any voting
securities of the Company; b) form, join, or in any way participate in a “group”
(within the meaning of Section 13(d)(3) of the Securities Act of 1933, as
amended) with respect to any voting securities of the Company; c) form, join, or
in any way participate in any shareholder action regarding the Company; and/or
d) advise, assist or encourage any other persons in connection with any of the
foregoing.
4. For a
period of five years after the Effective Date, without the prior written consent
of the Board of Directors of the Company, the Former Director agrees that he
will not, directly or indirectly, and will not cause or permit any person or
entity controlled by him to: (a) induce or attempt to induce any
employee to leave the employ of the Company or an independent contractor to
terminate its retention by the Company, (b) solicit for employment, attempt to
employ or employ (whether as an employee, independent contractor or otherwise)
any employee or independent contractor of the Company or (c) in any way
interfere with the relationship between the Company and any of its employees or
independent contractors.
5. The
Former Director and Company agrees that he/it will not make any disparaging
comments regarding the other or any of its former, current, or future
stockholders, directors, officers, or employees. The phrase
“disparaging comments” will mean any comment, remark, or statement, whether
written or oral, that is harmful to the reputation of the Former Director or
Company or any such other person in the community.
6. The
Former Director agrees that he will fully vacate the Company’s offices on or
prior to the earlier of the date the Company vacates the offices or February 28,
2010 (the “Office Term”) and will return to the Company no later than the date
he vacates the Company’s offices all credit cards, keys, identification,
computer software and hardware, telecommunications equipment, and all other
property belonging to the Company.
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7. The
Company agrees that it will return to the Former Director no later than the date
he vacates the Company’s offices all personal information along with the
furniture, artwork, and computer software and hardware (as detailed in Schedule
2) belonging to the Former Director. The Company also agrees to
provide the Former Director with a schedule listing the capital contributions
made by the Former Director to the Company to date that can be readily
documented, with no warranty of accuracy by the Company. The Company
further agrees that any and all public filings needed to be completed
as a result of this Agreement will be done at Company expense,
including but not limited to Form 4 and 13D and an Opinion Letter to remove the
restrictive legend from Former Directors’ and his affiliates’ restricted
shares.
8. Both the
Company and the Former Director agree that during the Office Term the Former
Director will continue to have access to the common areas of the space (e.g.
conference room, reception area, kitchen, etc.) and use of general
administrative support (i.e. reception, telephone, internet access feed, and
copier); however, all Information Technology (“IT”) and telecommunications
related support (e.g. IT network infrastructure, new telephony services, server
access, IT consulting and support services, etc.) from Company will be
terminated on November 15, 2009.
9. The
Former Director hereby waives any rights or entitlements to any employee
benefits or other obligations of the Company (including any wage claims,
Director’s fees, vehicle allowances or expense account reimbursements) up to and
including the Resignation Date, other than those rights or entitlements which
may be required by law;
provided that: (a) the Former Director will be entitled to
receive any 401k plan benefits for which the Former Director is eligible in
accordance with the terms of the plans and law based on the Former Director’s
compensation and length of service through the Separation Date and all
post-termination health insurance continuation benefits required to be provided
by law and (b) this Agreement will not be deemed to constitute a waiver of the
Former Director’s rights, if any, to indemnification or advancement of expenses
in accordance with the certificate or articles of incorporation and bylaws of
the Company, as in effect as of the Effective Date, with respect to any claim,
action, suit or proceeding relating to or involving the Former Director’s
service as a Director or officer of the Company prior to the Resignation
Date.
10. As
consideration for the Former Director’s acceptance of the terms and conditions
in this Agreement, the Company will pay a separation payment of $44,369 (the
“Separation Payment”), which will be subject to all applicable federal and state
tax withholding and statutory deductions, and is specifically represented by
Company as being a repayment of a promissory note to Former Director for charges
made by Company using charge and credit cards of the Former
Director. The Separation Payment will be made no later than November
11, 2009 and serves as the primary consideration for Former Director entering
into this agreement.
11. In
exchange for the valuable consideration hereunder:
(a) The
Former Director, for and on behalf of himself and his heirs, beneficiaries,
executors, administrators, attorneys, successors and assigns, hereby releases
and waives all claims, causes of action and demands of any kind against the
Company, any of its affiliates (including each stockholder of the Company), or
any creditors of the Company, any of their respective employee plans and any of
their respective stockholders, Directors, officers, trustees, employees,
attorneys and agents, in their individual and official capacities, and all of
their predecessors, heirs, executors, administrators, successors and assigns
(collectively, the “Released Parties”), which the Former Director had, has or
may have through the date the Former Director executes this Agreement, whether
known or unknown, arising out of or relating to: (i) the Former
Director’s employment with the Company or the termination thereof, (ii) the
Former Director’s service as a Director or officer of the Company or his
resignation as a Director or officer, (iii) the Former Director’s ownership of
capital stock of the Company, or of options, warrants, rights or other
securities or instruments exercisable or exchangeable for or convertible into
shares of the capital stock of the Company, or the sale and assignment of such
capital stock or other securities to the Company pursuant to this Agreement,
(iv) any notes, indebtedness, obligations, liabilities of the Company,
including, without limitation, the amounts described in Schedule 1, or (v) to
matters otherwise arising up to and including the Resignation Date, including
any wages, bonuses or commissions, or on account of any alleged conduct of the
Released Parties which might be alleged by the Former Director to constitute
race, color, sex, religious, age, national origin, ancestry, genetic information
or disability discrimination, or any claim or right under Title VII of the Civil
Rights Act of 1964, as amended, the Civil Rights Act of 1991 and the
laws amended thereby, the Americans with Disabilities Act, the Age
Discrimination in Employment Act of 1967, as amended, the Older Workers Benefit
Protection Act, the Family and Medical Leave Act, the Equal Pay Act, the Fair
Labor Standards Act, the Rehabilitation Act of 1973, the Employee Retirement
Income Security Act of 1974, the Texas Commission on Human Rights Act, the Texas
Persons with Mental Retardation Act, the Texas Tests for Acquired Immune
Deficiency Syndrome and Related Disorders law, Texas wage and hour laws, or any
other provision of federal, state or local statutory or common law or
regulation. Nothing in this paragraph shall be construed as a waiver
or relinquishment of any right that Former Director may have in any stock,
options, or warrants that currently exist and that are held by Former Director,
the terms of which are in full force and effect and shall not be modified
hereby. In the event anyone claiming to be released hereby files any
claim against the Former Director, this release will become null and void and of
no effect for that party making the claim against the Former
Director.
(b) The
Company, for and on behalf of itself and its heirs, beneficiaries, executors,
administrators, attorneys, successors and assigns, hereby releases and waives
all claims, causes of action and demands of any kind against the Former Director
in his individual and official capacities, and against Xxxxxxx Xxxxxxxxx &
Associates, PC and its employees, which the Company had, has or may have through
the date the Former Director executes this Agreement, whether known or unknown,
arising out of or relating to: (i) the Former Director’s employment
with the Company or the termination thereof, (ii) the Former Director’s service
as a director or officer of the Company or his resignation as a director or
officer, (iii) the Former Director’s ownership of capital stock of the Company,
or of options, warrants, rights or other securities or instruments exercisable
or exchangeable for or convertible into shares of the capital stock of the
Company, or the sale and assignment of such capital stock or other securities to
the Company pursuant to this Agreement, (iv) any notes, indebtedness,
obligations, liabilities of the Former Director, including, without limitation,
the amounts described in Schedule 1, or (v) to matters otherwise arising up to
and including the Resignation Date, including any wages, bonuses or commissions,
or on account of any alleged conduct of the Former Director which might be
alleged by the Company.
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12. To the
extent not prohibited by applicable law, the Former Director and the Company
hereby warrants that he/it has and will not institute any lawsuit, claim,
action, charge, complaint, petition, appeal, accusatory pleading, or proceeding
of any kind against the other Party or any other Released Party, and both
Parties waive, or at a minimum assign to the other Party, any and all rights to
any and all forms of recovery or compensation from any legal action brought by
the other Party or on that other Party’s behalf in connection with the matters
that are the subject of this Agreement. To the extent not prohibited
by applicable law, in the event that a lawsuit or any of the foregoing actions
are filed by the Former Director or the Company in breach of this covenant, it
is expressly understood and agreed that:
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(a)
|
This
covenant will constitute a complete defense to any such lawsuit or
action.
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(b)
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Any
material breach by a Party of any of the terms contained in this Agreement
relieves the other Party of any and all obligations it may have pursuant
to this Agreement.
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(c)
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Should
a Party bring any type of administrative or legal action arising out of
claims waived under this Agreement, the Party bringing the action will
bear all legal fees and costs associated therewith, including those of any
Released Parties.
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13. For a
period of five years after the Effective Date, as necessary, the Former Director
agrees to provide thorough and accurate information and testimony voluntarily to
or on behalf of the Company or any affiliate thereof regarding any
investigation, litigation or claims initiated by or against the Company or any
affiliate thereof or by any entity or person (a “Proceeding”), but he agrees not
to disclose or to discuss with anyone who is not directing or assisting in any
Proceeding, other than his attorney, the fact of or the subject matter of any
Proceeding, except as required by law. The Former Director will take
all reasonable steps to cooperate fully with the Company or any affiliate in
supplying thorough and accurate information in each Proceeding and during the
defense or prosecution thereof. The Former Director will make
commercially reasonable efforts to accommodate his schedule to cooperate with
the Company or any affiliate and provide such information as soon as is
reasonable under the circumstances. In requesting information the
Company or any affiliate will attempt to work with the Former Director to
arrange times that reasonably accommodate his schedule and, to the extent
permitted by law, the Company will reimburse the Former Director for reasonable
travel, commuting, parking or other similar out-of-pocket expenses incurred by
him in connection with providing such information or testimony.
14. This
Agreement will be binding upon and will inure to the benefit of the successors,
assigns, heirs, executors and administrators of the respective
parties.
15. The
Former Director acknowledges and agrees that the Company has not made any
representations to the Former Director regarding the tax consequences of any
amounts received by the Former Director pursuant to this Agreement and further
the Former Director agrees that he will be solely responsible for payment of all
his personal tax liabilities due on any and all payments to him set forth in
this Agreement, including federal, state and local taxes, and interest and
penalties, which are or may become due.
16. Nothing
contained in this Agreement, or the fact of its submission to the Former
Director, will be admissible evidence in any judicial, administrative or other
legal proceeding, or be construed as an admission of any liability or wrongdoing
on the part of the Company or the other Released Parties of any violation of
federal or state statutory or common law or regulation.
17. Should
any provision of this Agreement be held invalid or unenforceable by operation of
law or otherwise, all other provisions will remain in full force and effect;
provided that a court
may modify any provision to make it valid and enforceable.
18. This
Agreement sets forth the entire agreement between the parties and supersedes any
and all prior oral or written agreements or understandings between the Former
Director and the Company. This Agreement may not be altered, amended,
or modified except by a further written document signed by the Former Director
and an authorized officer of the Company.
19. This
Agreement will be construed and enforced in accordance with the laws of the
State of Texas without reference to its or any other state’s conflicts of law
rules.
20. This
Agreement may be executed in counterparts, each of which will be deemed to be an
original but all of which together will constitute one and the same
instrument. A facsimile signature will be deemed to be an original
signature for all purposes.
21. The
Former Director acknowledges that he has had adequate time to review this
Agreement, that he has been advised by the Company to consult with legal counsel
of his choosing regarding this Agreement, that he has received adequate
consideration for this Agreement, and that he enters into this Agreement freely,
knowingly and voluntarily.
22. The
provisions of this Agreement shall become effective once both parties have
executed the Agreement below (the “Effective Date”).
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IN
WITNESS WHEREOF, the Parties hereto have executed this Separation Agreement and
Mutual Release In Full as of the date specified below.
Bluegate
Corporation
By: /s/ Xxxxxxx X.
Xxxxxxx November 7, 2009
Xxxxxxx
X. Xxxxxxx
Chief
Financial Officer
Accepted
and agreed to this Seventh (7th) day
of November, 2009.
By: /s/ Xxxxxxx
Xxxxxxxxx
Xxxxxxx
Xxxxxxxxx
Witness:
/s/ Xxxxx
Xxxxxx
Xxxxx
Xxxxxx
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SCHEDULE 1
Xxxxxxx Xxxxxxxxx Amounts Payable and Accrued Through
10/31/09
|
Amount
|
Description
|
||
| $ | 34,451 |
Note
payable as of 10/31/09
|
|
| $ | 7,922 |
Accrued
interest on note payable as of 10/31/09
|
|
| $ | 22,499 |
Accrued
director's fees through 10/31/09
|
|
| $ | 6,000 |
Accrued
vehicle allowance from 5/1/08 through 12/31/08
|
|
| $ | 1,996 |
Accrued
interest on payroll checks held until cashed
|
|
| $ | 72,868 |
Total
Accrued
|
|
Xxxxxxx Xxxxxxxxx Texas Wage Claim =
$38,000+
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SCHEDULE 2
Xxxxxxx Xxxxxxxxx – Furniture, Artwork, and Computer
Software and Hardware
All
furniture fixtures and equipment (including computers and printers) in the
following offices, last occupied by:
Xxxxxxx
Xxxxxxxxx (Dell #: 26TM361)
Xxxx
Xxxxxxxxxxx (Dell #: JN68491)
File room
(between Manfred’s and Dana’s office)
Xxxxxxx
Xxxxxxxxx (Dell #: 27W6CC1)
Xxxx
Xxxxx
Other
Xxxxxxx
Xxxxxxxxx & Associates, PC, Server and Monitor in Server Room
Xxxxxxx
Xxxxxxxxx & Associates, PC phone numbers; 000-000-0000 and
000-000-0000
Xxxxxxx
Xxxxxxxxx & Associates, PC, Suite 640 number
Dell
Laptop in Xxxxxxx Xxxxxxxxx’x possession (Dell
#: 6DN3LF1)
All
Artwork on all walls in Suite 600 & 640
All (6)
Mesh netting chairs throughout the office
All (6)
leather and stained wood chairs throughout the office.
Antique
table in Trent’s office
Chest of
Drawers in Conference Room
Movable
White Boards in Steve’s Office and in Conference Room
Movable
Computer shelf in Tech area
Xxxxx the
Sailfish
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