Exhibit 99.1 - Separation agreement dated May 1, 2006, between
the Company and Xxxx Xxxxxxxxx
SEPARATION AGREEMENT
Agreement, made this first day of May, 2006, by and between Adsouth
Partners, Inc., a Nevada corporation with offices at 0000 X. Xxxxxx Xxxxxx, Xxxx
Xxxxx, XX 00000 and any and all of its subsidiaries ("Adsouth") (or any name
whatsoever it may be called),; and Xxxx Xxxxxxxxx, whose address is
XXXXXXXXXXXXXXXXXXXXXXXXXXXX ("Xxxxxxxxx");
WITNESSETH:
WHEREAS, Xxxxxxxxx is a director and Chief Executive Officer of
Adsouth and an officer and/or director of one or more of its subsidiaries; and
WHEREAS, Xxxxxxxxx desires to resign as an officer of Adsouth and as
an officer and director of Adsouth's subsidiaries; and
WHEREAS, Xxxxxxxxx is a party to an employment agreement with
Adsouth which provides for certain severance and other payments to him; and
WHEREAS, the parties desire to set forth their respective
obligations in this Agreement; and
WHEREAS, Xxxxxxxxx desires to continue as a director until the
expiration of his present term;
WHEREFORE, the parties hereto do mutually agree as follows:
1. Resignation. Xxxxxxxxx hereby resigns as Chief Executive
Officer and president of Adsouth. He also hereby resigns as an officer and
director of each of Adsouth's subsidiaries, including, but not limited to
Adsouth, Inc., Dermafresh, Inc., Miko Distributors, Inc., and Genco Power
Solutions, Inc., all Florida corporations (collectively, the "Subsidiaries").
Xxxxxxxxx shall continue as a director of Adsouth until the expiration of his
term or until his successor is elected and qualified.
2. Payments to Xxxxxxxxx. Adsouth shall make the following
payments to Xxxxxxxxx:
(a) Until Adsouth makes the first payment pursuant to Section
2(b), Adsouth will continue to pay Xxxxxxxxx his salary at the current rate,
which is at the annual rate of $250,000. The last payment due pursuant to this
Section 2(a) shall be the last regularly scheduled salary payment day preceding
the first payment pursuant to Section 2(b).
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(b) Adsouth will pay Xxxxxxxxx xxxxxxxxx payments in the
total amount of $270,833, payable in seven consecutive monthly installments. The
first six monthly installments will be in the amount of $41, 667.00 and the
seventh installment shall be in the amount of $20,833.33. The first payment
shall be made not later than May 16, 2006, and the second through sixth payments
pursuant to this Section 2(b) shall be made on the same day of the month for the
following six months; provided, that if a payment is due on a day which is not a
business day, the payment shall be made on the next business day. In the
alternative and as a priority over the preceding, if the envisioned sale of the
Adsouth Division to WWE takes place with a cash element the then remaining
outstanding balance due to Xxxxxxxxx shall be immediately paid in full to
Xxxxxxxxx. A business day shall mean a day other than a Saturday, Sunday or
other day on which banks are required or permitted to be closed in the State of
Florida.
(c) Adsouth shall pay Xxxxxxxxx his Quarterly Bonus, as
defined in Section 3(b)(ii) of his employment agreement (the "Employment
Agreement") dated October 7, 2005 between Adsouth and Xxxxxxxxx, but in no event
and the Employment Agreement notwithstanding, more than two hundred seventy-five
thousand ($275,000.00) dollars, for the quarter in which the contemplated sale
by Adsouth of its products sector to MFC Development Corp. ("MFC") is
consummated, provided, that such sale is consummated not later than the quarter
ended September 30, 2006. Except as set forth in this Section 2(c), no Quarterly
Bonus shall be payable to Xxxxxxxxx for any quarter after the quarter ended
March 31, 2006.
(d) Adsouth shall pay the insurance premiums on such
insurance coverage as Xxxxxxxxx elects in exercise of his rights under the
Consolidated Omnibus Budget Reconciliation Act ("COBRA") until the earlier of
(i) one year from the date of this Agreement or (ii) the month in which
Xxxxxxxxx first obtains insurance coverage from another employer. It is
Cammarano's responsibility to take any action necessary for him to obtain
coverage under COBRA.
(e) Adsouth shall transfer title to Xxxxxxxxx, within fifteen
days of the date of the last signature hereto, for the model year 2004 Nissan
Titan, VIN: 0X0XX00X00X000000, free and clear of all liens and encumbrances.
(f) Adsouth shall transfer to Xxxxxxxxx his cell phone and
cell phone service and service contract, and Xxxxxxxxx shall assume and agree to
pay such service contract; provided, that
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Adsouth shall pay or reimburse Xxxxxxxxx for any cell phone bills which are due
for a six (6) month period from the date of this Agreement with monthly billing
not to exceed historical data.
(g) Except as set forth in this Section 2 and except as set
forth its obligations referred to in Section 3(b) of this Agreement, Adsouth
shall have no financial obligation to Xxxxxxxxx of any kind.
(h) Cammarano's stock, stock options and related shares shall
immediately vest and become exercisable consistent with all applicable laws
(SEC, State, Federal and otherwise).
(i) Any and all of Adsouth's subsidiaries and affiliates
guarantee any and all financial obligations undertaken by Adsouth in favor of
Xxxxxxxxx, pursuant to this Agreement or otherwise.
3. Continuing Obligations.
(a) Xxxxxxxxx agrees that the provisions of Sections 6, 7, 8
and 9 of the Employment Agreement shall continue in full force and effect as set
forth therein, except as set forth in Section 4 of this Agreement. Regarding
Section 7 of said Agreement Xxxxxxxxx my not compete with any of the same or
similar products for one year, but can compete immediately with respect to
unrelated products
(b) Adsouth agrees that the provisions of Section 10 of the
Employment Agreement shall continue in full force and effect as set forth
therein.
(c) Both parties agree that the provisions of Section 11
(other than Section 11(c)) of the Employment Agreement shall continue in full
force and effect as set forth therein with respect to the provisions which are
surviving pursuant to Sections 3(a) and 3(b) of this Agreement.
4. Negotiations with MFC. Adsouth understands that Xxxxxxxxx may
engage in negotiations with respect to a position with MFC, and Adsouth consents
to Xxxxxxxxx being employed or otherwise engaged by MFC on such terms as he and
MFC may agree, provided that Xxxxxxxxx does not violate the covenants referred
to in Section 3(a) of this Agreement, except that the restriction set forth in
Section 7(a)(iv) of the Employment Agreement shall not apply to employment with
MFC. Moreover, Xxxxxxxxx shall be entitled at any time to solicit business from
Adsouth retail customers -- for the same or similar products that he sold while
employed by Adsouth, as well as unrelated products -- on behalf of MFC, if he is
in fact employed by MFC.
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5. Releases.
(a) Xxxxxxxxx does hereby release and discharge Adsouth, the
Subsidiaries, their respective officers, directors, agents, counsel and
employees and their respective heirs, executors, administrators, successors and
assigns from any and all actions, causes of action, suits, debts, sums of money,
accounts, reckonings, notes, bonds, warrants, bills, specialties, covenants,
contracts, controversies, agreements, liabilities, obligations, undertakings,
promises, damages, claims and demands whatsoever, in law, admiralty or equity
which against them or any of them Xxxxxxxxx and his heirs, executors and
administrators ever had, now have or in the future can, shall or may have, for,
upon or by reason or any matter, cause or thing from the beginning of the world
to the date of this Agreement, except for Adsouth's obligations under this
Agreement.
(b) Adsouth does hereby release and discharge Xxxxxxxxx and
his heirs, executors and administrators from any and all actions, causes of
action, suits, debts, sums of money, accounts, reckonings, notes, bonds,
warrants, bills, specialties, covenants, contracts, controversies, agreements,
liabilities, obligations, undertakings, promises, damages, claims and demands
whatsoever, in law, admiralty or equity which against them or any of them
Adsouth and its successors and assigns ever had, now have or in the future can,
shall or may have, for, upon or by reason or any matter, cause or thing from the
beginning of the world to the date of this Agreement except for (i) Cammarano's
obligations under this Agreement and the Employment Agreement, to the extent
provided in Section 3 of this Agreement, and (ii) any conduct which is described
in clauses (a) and (b) of Nevada Revised Statutes Section 138(7).
6. Miscellaneous.
(a) Xxxxxxxxx represents, warrants, covenants and agrees that
he has a right to enter into this Agreement.
(b) Adsouth represents, warrants and agrees that it has full
power and authority to execute and deliver this Agreement.
(c) Any notice, consent or communication required under the
provisions of this Agreement shall be given in writing and sent or delivered by
hand, overnight courier or messenger service, against a signed receipt or
acknowledgment of receipt, or by registered or certified mail, return receipt
requested, or telecopier or similar means of communication if receipt is
acknowledged or if
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transmission is confirmed by mail as provided in this Section 6(c), to the
parties at their respective addresses set forth at the beginning of this
Agreement or by telecopier to Adsouth at (000) 000-0000, or to Xxxxxxxxx at
(561) - , with notice to Adsouth being sent to the attention of the individual
who executed this Agreement on behalf of Adsouth. Either party may, by like
notice, change the person, address or telecopier number to which notice is to be
sent. If no telecopier number is provided for Xxxxxxxxx, notice to him shall not
be sent by telecopier.
(d) This Agreement shall in all respects be construed and
interpreted in accordance with, and the rights of the parties shall be governed
by, the laws of the State of Florida applicable to contracts executed and to be
performed wholly within such State.
(e) Except for actions, suits, or proceedings taken pursuant
to or under Section 3(a) of this Agreement, any dispute concerning this
Agreement or the rights of the parties hereunder shall be submitted to binding
arbitration in Miami, Florida before a single arbitrator under the rules of the
American Arbitration Association. The award of the arbitrator shall be final,
binding and conclusive on all parties, and judgment on such award may be entered
in any court having jurisdiction. If one party prevails on all matter that are
in dispute, the arbitrator shall award counsel fees and costs to the prevailing
party. The arbitrator shall have no power to modify or amend any specific
provision of this Agreement except as expressly provided in 6(f) of this
Agreement.
(f) Notwithstanding the provisions of Section 6(e) of this
Agreement, with respect to any claim for injunctive relief or other equitable
remedy pursuant to Section 3(a) of this Agreement or any claim to enforce an
arbitration award or to compel arbitration, the parties hereby (i) consent to
the exclusive jurisdiction of the state courts sitting in Palm Beach County,
Florida and (ii) waives any claim that the jurisdiction of any such court is not
a convenient forum for any such action and any defense of lack of in personam
jurisdiction with respect thereof.
(g) If any term, covenant or condition of this Agreement or
the application thereof to any party or circumstance shall, to any extent, be
determined to be invalid or unenforceable, the remainder of this Agreement, or
the application of such term, covenant or condition to parties or circumstances
other than those as to which it is held invalid or unenforceable, shall not be
affected thereby and each term, covenant or condition of this Agreement shall be
valid and be enforced to the fullest extent permitted by law, and any court or
arbitrator having jurisdiction may reduce the scope of
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any provision of this Agreement, including the geographic and temporal
restrictions set forth in Section 7 of the Employment Agreement, so that it
complies with applicable law.
(h) This Agreement, together with the surviving provisions of
the Employment Agreement, constitute the entire agreement of Adsouth and
Xxxxxxxxx as to the subject matter hereof, superseding all prior or
contemporaneous written or oral understandings or agreements, including any and
all employment agreements or understandings, all of which (except as provided in
Section 3 of this Agreement) are hereby terminated, with respect to the subject
matter covered in this Agreement. This Agreement may not be modified or amended,
nor may any right be waived, except by a writing which expressly refers to this
Agreement, states that it is intended to be a modification, amendment or waiver
and is signed by both parties in the case of a modification or amendment or by
the party granting the waiver. No course of conduct or dealing between the
parties and no custom or trade usage shall be relied upon to vary the terms of
this Agreement. The failure of a party to insist upon strict adherence to any
term of this Agreement on any occasion shall not be considered a waiver or
deprive that party of the right thereafter to insist upon strict adherence to
that term or any other term of this Agreement.
(i) Neither party hereto shall have the right to assign or
transfer any of its or his rights hereunder except in connection with a merger
of consolidation of Adsouth or a sale by Adsouth of all or substantially all of
its business and assets.
(j) This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, successors, executors,
administrators and permitted assigns.
(k) The headings in this Agreement are for convenience of
reference only and shall not affect in any way the construction or
interpretation of this Agreement.
(l) No delay or omission to exercise any right, power or
remedy accruing to either party hereto shall impair any such right, power or
remedy or shall be construed to be a waiver of or an acquiescence to any breach
hereof. No waiver of any breach hereof shall be deemed to be a waiver of any
other breach hereof theretofore or thereafter occurring. Any waiver of any
provision hereof shall be effective only to the extent specifically set forth in
an applicable writing. All remedies afforded to either party under this
Agreement, by law or otherwise, shall be cumulative and not alternative and
shall not preclude assertion by such party of any other rights or the seeking of
any other rights or remedies against any other party.
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(m) Each party to this Agreement hereby certifies to the
other hereto that it has retained its or his own legal counsel for
representation and advice as to the contents of this Agreement and its legal
ramifications, and further, that each party is not relying on any statement made
by the legal counsel of the other party regarding any provision of this
Agreement. The language used in this Agreement will be deemed to be the language
chosen by the parties with the advice of counsel to express their mutual intent,
and no rules of strict construction will be applied against either party.
[Signatures on next page]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
ADSOUTH PARTNERS, INC.
By:/S/
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Xxxxx Xxx Xxxxxxxx, Chief Financial Officer
/S/
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Xxxx Xxxxxxxxx
