LETTER OF CLARIFICATION
The undersigned are parties to a Separation Agreement and Release (the
"Separation Agreement") entered into on March 15, 2007, and are exchanging this
letter agreement to clarify their mutual expectations as set forth herein.
Capitalized terms used but not defined herein have the meanings ascribed thereto
in the Separation Agreement.
1. Clarification. The Separation Agreement provides for the termination of
Executive's employment by the Company and his resignation from its Board of
Directors in return for consideration provided therein. By their signatures
below the parties confirm that due to a scrivener's error there were omitted
from the Separation Agreement provisions to the effect that: notwithstanding the
terms and conditions of the Separation Agreement, during the period commencing
on the Execution Date and ending May 31, 2011, Executive (i) shall make himself
available from time to time for consultations with members of the Board and
senior management of the Company regarding the business and affairs of the
Company, potential acquisitions and strategic alliances, expansion and other
business opportunities, (ii) shall make himself available once each calendar
quarter for meetings to be held in Manhattan, New York, with one or more members
of the Board of the Company to review the Company's strategic plan, (iii) at the
request of the Company and for such additional compensation in the nature of a
finder's fee as may be agreed, shall introduce the Company to institutional
sources of capital and institutions interested in acquiring shares of the
Company and (iv) at the request of the Company and for such additional
compensation in the nature of a headhunter's fee as may be agreed, introduce to
the Company executives who may be suitable for positions as members of
management of the Company. It is understood that the consultations required of
Executive shall be provided primarily by telephone at times convenient to
Executive and the Company acknowledges that its requests for consultations
cannot interfere with Executive's other obligations. It is further understood
that unless the Consultant otherwise consents, the Company shall not provide the
Consultant confidential information regarding the business and affairs of the
Company that would prohibit the Consultant from trading in the Company's
securities.
2. Notices. All notices provided for in this Letter Agreement shall be in
writing signed by the party giving such notice, and delivered personally or sent
by overnight courier or messenger against receipt thereof or sent by registered
or certified mail, return receipt requested, or by facsimile transmission, if
confirmed by mail as provided in this Section 2. Notices shall be deemed to have
been received on the date of personal delivery or facsimile or, if sent by
certified or registered mail, return receipt requested, shall be deemed to be
delivered on the third business day after the date of mailing. Notices shall be
sent to the following addresses:
To the Company:
XXXXX INDUSTRIES INCORPORATED.
0000 Xxxxx Xxxxxxx Xxxxxx
Xxx Xxxxx, XX 00000
Facsimile: (000) 000 0000
Attention: Xxxxx Xxxxxx
With a copy to:
Xxxxx & Xxx Xxxxxx LLP
0 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Facsimile: 212-779-9928
Xxxxxxx X. XxXxxx, Esq.
To Xx. Xxxxx:
Xxxxxxx X. Xxxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
With a copy to:
Sayid and Associates LLP
000 Xxxx 00xx Xxxxxx, Xxxxx 0 X
Xxx Xxxx, Xxx Xxxx 00000
Attention: M. Xxxxx Xxxxx
or to such other address as any party shall designate in the manner
provided in this Section 2.
3. Miscellaneous. This Letter Agreement constitutes the entire agreement
between the parties relating to the subject matter hereof and supercedes any and
all prior or contemporaneous oral and prior written agreements and
understandings. Notwithstanding the foregoing, in the event of any conflict
between the terms of this Letter Agreement and the terms of the Separation
Agreement, the terms of the Separation Agreement shall govern. Further, any
breach of the terms of this Agreement shall not vitiate the releases provided in
the Separation Agreement nor entitle either party to withhold any of the
consideration provided for therein. This Letter 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 a modification, amendment or waiver and is
signed by all parties with respect to a modification or amendment or the party
granting the waiver with respect to a waiver. No course of conduct or dealing
and no trade custom or usage shall modify any provisions of this Letter
Agreement.
4. Governing Law. This Letter Agreement shall be governed by and construed
in accordance with the laws of the State of New York applicable to contracts
made and to be performed entirely within such state. Each party hereby consents
to the exclusive jurisdiction of the Federal and state courts situated in New
York County, New York in connection with any action arising out of or based upon
this Agreement and the transactions contemplated by this Agreement.
5. Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of the parties hereto, and their respective personal
representatives, successors and permitted assigns. In the event that any
provision of this Agreement becomes or is declared by a court of competent
jurisdiction to be illegal, unenforceable or void, this Agreement shall continue
in full force and effect without said provision, provided that as so interpreted
each of the parties continue to receive the benefit of the bargain contemplated
hereby.
6. Future Assurances. Each party shall, without payment of any additional
consideration by any other party, at any time on or after the date hereof take
such further action and execute such other and further documents and instruments
as the other party may request in order to provide the other party with the
benefits of this Letter Agreement.
7. Captions; Gender. The captions and headings contained herein are solely
for convenience and reference and do not constitute a part of this Agreement.
All references to any gender shall be deemed to include the masculine, feminine
or neuter gender, the singular shall include the plural and the plural shall
include the singular.
8. Status. Simultaneously herewith counsel to the Company is delivering to
you a letter with respect to your status as an affiliate of the Company which
letter is incorporated herein by reference.
9. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same document.
IN WITNESS WHEREOF, the parties have executed this Letter of Clarification
as of May 11, 2007.
Xxxxx Industries Incorporated
By: /s/ Xxxxxxx Xxxxx By: /s/ Xxxxx Xxxxxxxxxx
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Xxxxxxx Xxxxx Xxxxx Xxxxxxxxxx
President
