MUTUAL RELEASE AND SEPARATION AGREEMENT
EXHIBIT
10.1
THIS
MUTUAL RELEASE AND SEPARATION AGREEMENT
(this
“Agreement”) is made as of the 7th day of September, 2007, by Xxxxx Xxxxxx, an
individual (“Xxxxxx”), and GLOBETEL COMMUNICATIONS CORP., a Delaware corporation
(“GlobeTel”).
Preliminary
Statements
Xxxxxx
has been employed as Chief Executive Officer and has been a director of GlobeTel
Communications Corp. In connection with Xxxxxx’x employment, Xxxxxx was entitled
to certain compensation and benefits.
Xxxxxx
and GlobeTel wish to resolve and to settle all issues between them relating
to
the employment of Xxxxxx by GlobeTel, including without limitation, all issues
relating to salary and bonus payable to Xxxxxx, as hereinafter set
forth
W
I T N E S S E T H:
NOW,
THEREFORE,
in
consideration of the foregoing premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the
parties do hereby agree as follows:
1. Preliminary
Statements.
The
foregoing Preliminary Statements are true and form a part of this
Agreement.
2. Severance.
GlobeTel shall pay, provide and/or issue to Xxxxxx:
a. An
amount
equal to $83,333 (4 monthly pay periods, May thru August) representing the
amount due for unpaid salary due to be paid according to sub-paragraph f
below;
b. 1,333,333
options for Shares of GlobeTel common stock valued as set forth on Appendix
A to
the Employment Agreement to be provided on execution of this Agreement;
c. Accrued
but unpaid expenses of $60,017.78
to be paid according to sub-paragraph f below; ;
d. 801,045
shares of GlobeTel Common stock, or cash equivalent, representing the amount
due
for stock component of unpaid salary, as set forth on Appendix A to the
Employment Agreement to be issued on execution of this Agreement;
e. $125,000
in cash in full settlement of the severance provisions of Xxxxxx’x Employment
Agreement to be paid according to sub-paragraph f below.
f. The
cash
payments set forth in sub-paragraphs a, c and e above shall be paid in 12 equal
monthly installments. However, when the Company has received financing the
Company shall also allocate 10% of the first round of funding and 15% of each
further round of such financing to provide immediate lump sum payments to
Xxxxxx. Notwithstanding the lump sum payments, monthly payments will continue
to
be made by GlobeTel to Xxxxxx until all cash amounts in sub-paragraphs a, c
and
e are fully paid up within a maximum period of 6 months from the date of
execution thereof.
g. GlobeTel
will pay for all air freight costs associated with shipping all of Xxxxxx’x
personal belongings from Miami to his home address in London.
3. Treatment
of Stock Options.
(a) Xxxxxx
may exercise the following Options,
i. 500,000
options as set forth on Appendix A to the Employment Agreement, previously
granted to him in whole or part from time to time at any time during the option
period set forth in his Option Agreement.
ii. 657,895
of the 1,315,789 options granted on May 22, 2007 in whole or part from time
to
time at any time during the option period set forth in his Option Agreement.
The
remaining 657,894 options granted on that date shall be canceled.
(b) If
GlobeTel is acquired as a result of a friendly or hostile takeover or merger
or
other combination, all the stock and option based compensation that Xxxxxx
would
be entitled should this Agreement, or any of his option agreements, have run
for
their term shall immediately become vested and due to Xxxxxx.
(c) GlobeTel
hereby amends the Option Agreement to delete any reference to the GlobeTel
Stock
Option Plan, including but not limited to, any provision providing that the
Option Agreement incorporates any terms of the GlobeTel Stock Option Plan that
requires a holder of Options to exercise such options prior to the end of the
option term in the event of termination of employment, and to confirm that
the
Options may be exercised at any time or from time to time. GlobeTel agrees
to
take such actions as may be necessary to facilitate the exercise of the Options
and the issuance of Option Shares during the option term set forth in the Option
Agreement.
4. Retention
and Assignment of Company Property.
GlobeTel hereby assigns to Xxxxxx all right, title and interest that it may
have
in the Sony Vaio laptop, Samsung Monitor and HP Printer, in the possession
of
Xxxxxx. GlobeTel will pay for Xxxxxx to provide a “clone” copy of the hard drive
of the laptop. GlobeTel will pay for Xxxxxx to ship one (1) HotZone 4010 unit
and associated antenna from London to GlobeTel offices in Miami. Xxxxxx shall
delete or cause to be deleted any and all proprietary information, trade secrets
or any other information or programs in his possession that are the property
of
GlobeTel. This shall include any work-product of Xxxxxx that was created on
behalf of GlobeTel or at GlobeTel’s expense.
5. Mutual
Release.
In
consideration of the agreements and mutual promises made herein, GlobeTel,
on
the one hand, and Xxxxxx, on the other hand, hereby mutually release and forever
discharge each other, from all actions, suits, debts, dues, sums of money,
accounts, covenants, contracts, controversies, agreements, trespasses, damages,
judgments, claims, demands and all other liabilities and obligations whatsoever,
in law or in equity, known or unknown, existing or which may arise in the
future, and fixed or contingent (each a “Claim”), that the parties ever had, now
has or hereafter, can, shall or may have, from any matter, cause or thing
whatsoever, from the beginning of the world through the date hereof, other
than
the parties’ respective obligations under this Agreement and the other
agreements contemplated hereby. The parties represent that no portion of any
Claim has been assigned or transferred by subrogation or otherwise to any other
person, firm, or entity.
6. Indemnification.
The
Company agrees to indemnify Xxxxxx to the fullest extent permitted by law
consistent with the company's bylaws in effect as of the date hereof with
respect to any acts or omissions he may have committed during the period during
which he was an officer, director and/or employee of the company or any
subsidiary thereof, or of any other entity of which he served as an officer,
director or employee at the request of the company. The foregoing provisions
will survive termination of the Employee's employment with the Company for
any
reason whatsoever and regardless of fault.
7. Miscellaneous.
(b) Entire
Agreement.
This
Agreement contains the entire agreement and understanding of the parties, and
supercedes all prior agreements and understandings, written or oral; is
irrevocable and may not be modified or terminated except to the extent, if
any,
set forth in a writing signed by the parties.
(c) Governing
Law; Jurisdiction and Venue.
This
Agreement shall be governed by and construed in accordance with Florida law
without giving effect to the choice of law provisions thereof. Any legal
proceeding arising out of or relating to this Agreement shall be brought in
any
state court having jurisdiction located in Broward County, Florida, or in the
United States District Court, Southern District of Florida. Each party consents
to the jurisdiction of such courts in any legal proceeding and waives any
objection to the laying of venue of any legal action in any such
court.
(d) Counterparts.
This
Agreement may be executed in any number of counterparts, each of which shall
be
and constitute an original and one and the same instrument. A copy or facsimile
copy of this Agreement and any signatures hereon shall be considered for all
purposes as originals.
(e) Severability.
If any
term, provision or portion of this Agreement is held to be unlawful, in conflict
with federal, state or other applicable law or otherwise enforceable, the
remainder of this Agreement shall continue in full force and effect to the
same
extent as if the illegal or invalid provision was not included in this Agreement
and the remainder of the Agreement shall be enforced to give effect to the
fullest extent legally permissible the intent and purposes of the parties as
evidenced by this Agreement.
(f) Notices.
Any
notice or other communication required or permitted hereunder shall be in
writing and delivered at the addresses set forth below, or mailed by registered
or certified mail, return receipt requested, postage prepaid, or by any courier
service of recognized national standing, addressed as follows, or to such other
address or addresses as may be hereafter furnished by one party to the other
party in compliance with the terms hereof:
If
to
Xxxxxx, to:
Xxxxx
Xxxxxx
If
to
GlobeTel, to:
000
XX
0xx Xxx., Xxxxx 0000
Xxxx
Xxxxxxxxxx, XX 00000
(000)
000-0000
(000)
000-0000 fax
Attn: Xxxxxxxx
X. Xxxxxxxx, Esq., General Counsel
8. Non-Disparagement. GlobeTel
shall not do, say, or imply anything disparaging, negative or false about
Xxxxxx. Xxxxxx shall not do, say, or imply anything disparaging, negative or
false about GlobeTel, its officers, directors and/or employees. This paragraph
shall survive closing. The parties agree that any party violating this paragraph
shall be subject to an injunction, restraining such party from making any such
comments in the future.
9. Press
Release and 8K. GlobeTel
and Xxxxxx will formulate and agree to issue a mutually acceptable Press Release
and 8K in regards to Xxxxxx’x departure from GlobeTel.
10. Effectiveness.
This
Agreement shall bind and benefit Xxxxxx and GlobeTel but shall not become
effective or enforceable in any respect until the date executed and delivered
by
the each of the parties (the “Effective Date”).
THE
REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK
IN
WITNESS WHEREOF,
this
Agreement has been executed and delivered by the parties as of the dates set
forth below.
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Signed,
sealed and delivered
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in
the presence of:
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/s/
Xxxxx Xxxxxx
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Witness
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Xxxxx
Xxxxxx
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Date:
September
7,
2007
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STATE
OF _______________
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)
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)
ss:
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COUNTY
OF _____________
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)
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On
this
____ day
of
__________, 2007, before me a Notary Public, personally appeared Xxxxx Xxxxxx
who executed the above Mutual Release and Separation Agreement, and acknowledged
the same to be his free act and deed.
Personally
Known: __________ or
Produced Identification: __________.
Type
of
Identification Produced: ______________________________________.
NOTARY
PUBLIC
Sign
_________________________________
State
of
__________ at Large
My
Commission Expires: __________________
Serial
Number, if any: _____________________
| GLOBETEL COMMUNICATIONS CORP., a | |||
| Delaware Corporation | |||
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Xxxxx
Xxxxx
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By: |
/s/
Xxxxxxxx Xxxxxxxx
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Witness
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Name:
Xxxxxxxx Xxxxxxxx
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Title:
General Counsel, Director
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Date:
August
31,
2007
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| By: |
/s/
Xxxxxxxxxx
Xxxxxx
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Witness
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Name:
Xxxxxxxxxx
Xxxxxx
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Title:
Director
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Date:
September
7,
0000
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XXXXX
XX Xxxxxxx
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)
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)
ss:
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COUNTY
OF Broward
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)
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On
this
31
day of
August 2007, before me a Notary Public, personally appeared Xxxxxxxx Xxxxxxxx
who executed the above Mutual Release and Separation Agreement, and acknowledged
the same to be his free act and deed.
Personally
Known: _________ or
Produced Identification: x.
Type
of
Identification Produced: FL Drivers License.
NOTARY
PUBLIC
Sign:
/s/ Xxxxx
Xxxxxx
State
of
Florida at Large
My
Commission Expires: 3/25/2010
Serial
Number, if any: ______________________
Schedule
of Shares due for Salary
|
Date
|
Amount
Due
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Closing
price
|
Shares
|
|||||||
|
10/13/2006-11/12/2006
|
20,833.00
|
0.27
|
77,159.26
|
|||||||
|
11/13/2006-12/12/2006
|
20,833.00
|
0.28
|
74,403.57
|
|||||||
|
12/13/2006-1/12/2007
|
20,833.00
|
0.51
|
40,849.02
|
|||||||
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1/13/2007-2/12/2007
|
20,833.00
|
0.47
|
44,325.53
|
|||||||
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2/13/2007-3/12/2007
|
20,833.00
|
0.38
|
54,823.68
|
|||||||
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3/13/2007-4/12/2007
|
20,833.00
|
0.39
|
53,417.95
|
|||||||
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4/13/2007-5/12/2007
|
20,833.00
|
0.27
|
77,159.26
|
|||||||
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5/13/2007-6/12/2007
|
20,833.00
|
0.24
|
86,804.17
|
|||||||
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6/13/2007-7/12/2007
|
20,833.00
|
0.27
|
77,159.26
|
|||||||
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7/13/2007-8/12/2007
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20,833.00
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0.21
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99,204.76
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|||||||
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08/132007-09/13/2007
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20,833.00
|
0.18
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115,738.89
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Total
Accrued Salary
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229,163.00
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|||||||||
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801,045.35
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