EXHIBIT 99.2
SEPARATION AND SEVERANCE AGREEMENT
This Separation and Severance Agreement ("Agreement") is made and
entered into by and between EVOLVE ONE, INC., a Delaware corporation (the
"Company"), and XXXX XXXXXXXXXX, an individual ("Xxxxxxxxxx") as of the 26th day
of January 2005.
RECITALS
X. Xxxxxxxxxx has been employed by the Company as an officer and served
on the Company's Board of Directors.
B Xxxxxxxxxx and the Company entered into an Employment Agreement on
January 7, 2002 (the "Employment Agreement").
C. After lengthy discussions among the parties concerning the
operations, management structure and future of the Company, the parties desire
to terminate their relationship and reorganize the structure of the Company on
an amicable basis pursuant to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual promises, undertakings
and releases, receipt of which is hereby acknowledged as sufficient
consideration by both parties, the parties agree as follows:
1. RECITALS. The above recitals are true, correct, and are herein
incorporated by reference.
2. RESIGNATION OF EMPLOYMENT. Xxxxxxxxxx hereby resigns as a key
employee and Director and from any and all other offices or positions he may
have had with the Company or any of its subsidiaries, to be effective on the
Termination Date, as defined herein
Xxxxxxxxxx acknowledges that he has timely received all wages, benefits
or other monies due through the date of this Agreement under the Employment
Agreement or otherwise from the Company.
3. TERMINATION. The Employment Agreement is permanently terminated
effective on the Termination Date. Except as otherwise provided for herein in
this Agreement, no provision of the Employment Agreement shall survive the
termination of Xxxxxxxxxx' employment with the Company.
4. SEVERANCE AND BENEFITS. Subject to the conditions set forth herein,
the Company and Xxxxxxxxxx agree to the following.
(a) The Company shall issue Xxxxxxxxxx options to purchase up
to 10 million shares ("Shares"), exercisable at $0.30 per share at the time the
Company amends its Stock Option Plan to increase the number of shares covered by
the Plan to allow issuance of the 10 million options. The Shares shall be
registered under an effective registration statement on Form S-8 ("Registration
Statement"). To discharge its obligation under this paragraph, the Company
1
shall file the Registration Statement at its sole cost and expense to include
Xxxxxxxxxx as a selling shareholder. Xxxxxxxxxx acknowledges and understands
that the aggregate amount of shares sold under the Registration Statement during
any three-month period while he remains an affiliate cannot exceed an amount
equal to 1% of the Company's issued and outstanding shares of common stock.
(b) For a period of three (3) years following the Termination
Date of this Agreement, Xxxxxxxxxx shall not (i) without first obtaining the
written consent of the Company, directly or indirectly, do business with any of
the past or current customers of the Company for purposes of engaging in any
competitive operations, or (ii) directly or indirectly, solicit or proposition,
or otherwise attempt to induce any of the customers of the Company to terminate
their relationships with the Company.
(c) The Company agrees that if Xxxxxxxxxx is made a party, is
threatened to be made a party, to any action, suit or proceeding, whether civil,
criminal, administrative, or investigative (a "Proceeding"), by reason of the
fact that Xxxxxxxxxx is or was a director, officer, or employee of the Company,
or is or was serving at the request of the Company as a director, officer,
member, employee, or agent of another corporation, partnership, joint venture,
trust, or other enterprise, including service with respect to employee benefit
plans, whether or not the basis of such Proceeding is Xxxxxxxxxx' alleged action
in an official capacity while serving as a director, officer, member, employee,
or agent, Xxxxxxxxxx shall be indemnified and held harmless by the Company to
the fullest extent legally permitted or authorized by the Company's Articles of
Incorporation, Bylaws, or resolutions of the Board of the Company, or, if
greater, by the laws of the State of Florida, against all cost, expense,
liability, and loss (including, without limitation, attorney's fees, judgments,
fines or other liabilities or penalties and amounts paid or to be paid in
settlement) reasonably incurred or suffered by Xxxxxxxxxx in connection
therewith, and such indemnification shall continue as to Xxxxxxxxxx even if he
has ceased to be a director, member, employee, or agent of the Company or other
entity and shall inure to the benefit of Xxxxxxxxxx' heirs, executors, and
administrators. The Company shall also advance to Xxxxxxxxxx all reasonable
costs and expenses incurred by Xxxxxxxxxx in connection with a Proceeding within
forty (40) days after receipt by the Company of a written request for such
advance. Such request shall include a written undertaking by Xxxxxxxxxx to repay
the amount of such advance if it shall ultimately be determined that Xxxxxxxxxx
is not entitled to be indemnified against such costs and expenses; provided that
the amount of such obligation to repay shall be limited to the after-tax amount
of any such advance except to the extent Xxxxxxxxxx is able to offset such taxes
incurred on the advance by the tax benefit, if any, attributable to a deduction
for repayment.
(d) Xxxxxxxxxx acknowledges that, in consideration of the
terms of this Agreement, the Company is not obligated to pay him any severance
pay under the terms of the Employment Agreement or otherwise, and agrees that
the amounts set forth above are all that Xxxxxxxxxx is to receive from the
Company. Such severance pay is in full and complete satisfaction of all of the
Company's obligations to Xxxxxxxxxx, including, without limitation, all salary,
commissions, stock options and stock not heretofore issued or granted, car
allowances, vacation pay or other compensation of any kind. Xxxxxxxxxx agrees
that this severance payment constitutes consideration for the covenants and
releases of Xxxxxxxxxx as set forth herein.
2
(e) The Company agrees to pay to Xxxxxxxxxx upon execution
hereof $6,144, representing an amount equal to COBRA charges for the ensuing
six-month period.
5. TERMINATION DATE AND CONDITION TO AGREEMENT. The effective date of
the resignation of Xxxxxxxxxx and termination of the Employment Agreement shall
be January 26, 2005 ("Termination Date").
6 RETURN OF PROPERTY. As a condition to the terms of this Agreement,
Xxxxxxxxxx shall return to the Company, in good condition, all property,
documentation and materials or property to the Company in Xxxxxxxxxx'
possession.
7. NON-DISPARAGEMENT. The Company and Xxxxxxxxxx further agree that
they shall not make any disparaging, denigrating or untrue statements about the
parties or about any other employee of the Company. It is agreed and understood
that any breach of this paragraph by Xxxxxxxxxx or the Company would be material
to the other.
8. GENERAL RELEASES AND VOLUNTARY WAIVER OF RIGHTS.
(a) Except for the obligations created by or arising out of
this Agreement, effective on the Termination Date, Xxxxxxxxxx and Xxxxxxxxxx'
descendants, heirs, successors and assigns, and each of them, do hereby release,
acquit, satisfy and forever discharge and covenant not to xxx the Company, its
agents, servants, employees and all persons for whose conduct it is legally
responsible, including, but not limited to, its officers, directors, attorneys,
insurers, stockholders, parent, subsidiary, affiliated or related entities and
their respective successors and assigns, and each of them, past or present, from
any and all manner of action, causes of action, rights, liens, agreements,
contracts, covenants, obligations, suits, claims, debts, dues, sums of monies,
costs, expenses, attorneys' fees, judgments, orders and liabilities, accounts,
covenants, controversies, promises, damages, of whatever kind and nature in law
or equity or otherwise whether now known or unknown, including specifically but
not limited to, any and all claims arising out of such employment relationship
which Xxxxxxxxxx ever had (including claims not yet accrued) against the
Company, its agents, servants, employees and persons for whom it is legally
responsible, for and upon any reason arising out of the employment relationship
Xxxxxxxxxx had with the Company and the transactions and relationships described
herein. Xxxxxxxxxx specifically acknowledges that he has been advised that he
should consult with an attorney concerning his rights and the signing of this
Release.
(b) Except for the obligations created by or arising out of
this Agreement, effective on the Termination Date, the Company, and the
Company's successors and assigns, and each of them, does hereby release, acquit,
satisfy and forever discharge and covenant not to xxx Xxxxxxxxxx, Xxxxxxxxxx'
descendants, heirs, successors and assigns, and each of them, past or present,
from any and all manner of action, causes of action, rights, liens, agreements,
contracts, covenants, obligations, suits, claims, debts, dues, sums of monies,
costs, expenses, attorneys' fees, judgments, orders and liabilities, accounts,
covenants, controversies, promises, damages, of whatever kind and nature in law
or equity or otherwise whether now known or unknown, including specifically but
not limited to, any and all claims arising out of such employment
3
relationship which the Company against Xxxxxxxxxx, for and upon any reason
arising out of the employment relationship with Xxxxxxxxxx and the transactions
and relationships described herein.
9. NON-ADMISSIONS. The Company and Xxxxxxxxxx agree that neither this
Agreement nor the consideration given shall be construed as an admission of any
wrongdoing or liability by the Company or Xxxxxxxxxx, and that all such
liability or wrongdoing is expressly denied.
10. ANTI-COERCION. Each of the Parties hereto has entered into this
Agreement without undue influence, fraud, coercion, duress, misrepresentation,
or restraint having been imposed upon them by any other party, and further
acknowledges that each party had the opportunity to be represented by counsel of
their own selection.
11. INTERPRETATION OF RELEASE. That this Agreement shall be construed
in any case which doubt may arise in such a manner as will make it lawful and
fully enforceable, and in the event that any part hereof shall be deemed
unenforceable or illegal, then it is the intention of the Parties hereto that
such part be severed and only the remainder be in force. That for the purposes
of interpretation and construction of this Agreement, this Agreement shall be
deemed to have been drafted by the Company and by Xxxxxxxxxx.
12. NOTICES. Any notice required or permitted to be given under the
terms of this Agreement shall be sufficient if in writing and if sent postage
prepaid by registered or certified mail, return receipt requested; by overnight
delivery; by courier; or by confirmed telecopy, in the case of Xxxxxxxxxx to the
business or residence as shown on the records of the Company, or in the case of
the Company to its principal office or at such other place as it may designate.
13. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the Parties and shall not be modified, altered, or discharged, except by
a writing signed by each of the Parties hereto.
14. GOVERNING LAW, JURISDICTION AND VENUE. This Agreement shall be
governed by the laws of the State of Florida. The Parties acknowledge that this
Agreement contains provisions, which are enforceable in the State of Florida,
and all Parties consent to the personal jurisdiction of the State of Florida.
The Company and Employee acknowledge and agree that the U.S. District for the
Southern District of Florida, or if such court lacks jurisdiction, the Judicial
Circuit (or its successor) in and for Palm Beach County, Florida, shall be the
venue and exclusive proper forum in which to adjudicate any case or controversy
arising either, directly or indirectly, under or in connection with this
Agreement and the parties further agree that, in the event of litigation arising
out of or in connection with this Agreement in these courts, they will not
contest or challenge the jurisdiction or venue of these courts.
15. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same Agreement.
4
16. WAIVER OF BREACH - EFFECT. No waiver or any breach of any term or
provision of this Agreement shall be construed to be, nor shall be, a waiver of
any other breach of this Agreement. No waiver shall be binding unless in writing
and signed by the Party waiving the breach.
17. FULL UNDERSTANDING AND VOLUNTARY ACCEPTANCE. In entering into this
Agreement, the Parties represent that they have relied upon the advice of their
attorneys or have chosen to enter into this Agreement without the assistance of
counsel based upon their understanding of the terms hereof. The terms of this
Agreement have been completely read and explained to them by there attorneys
and/or they have reviewed the terms hereof in complete detail and that the terms
are fully understood and voluntarily accepted by them. The Parties understand
and agreement that Xxxxxxxxx Xxxxxxxxxx & Beilly LLP is counsel to the Company
and is not counsel, and has not rendered advice, to Xxxxxxxxxx.
18. ATTORNEYS' FEES. In the event of proceeding arising out of the
construction, enforcement, and/or interpretation of this Agreement, the
prevailing party shall be entitled to reasonable attorneys' fees and costs, both
on the trial and appellate level.
19. HEADINGS. The headings in this Agreement are for convenience only
and shall not be used to interpret or construe its provisions.
XXXXXXXXXX ACKNOWLEDGES THAT XXXXXXXXXX HAS READ THIS AGREEMENT, THAT
XXXXXXXXXX HAS BEEN GIVEN AMPLE OPPORTUNITY TO REVIEW IT AND TO CONSULT WITH A
REPRESENTATIVE OR ATTORNEY OF XXXXXXXXXX' CHOOSING CONCERNING ITS TERMS.
XXXXXXXXXX FURTHER ACKNOWLEDGES THAT XXXXXXXXXX UNDERSTANDS THE TERMS AND
CONDITIONS OF THIS AGREEMENT AND IS VOLUNTARILY ENTERING INTO IT WITH THE
COMPANY.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
EVOLVE ONE, INC.
By: /s/ Xxxxx Xxxxxxxx
------------------------------------
Xxxxx Xxxxxxxx, President
/s/ Xxxx Xxxxxxxxxx
----------------------------------------
XXXX XXXXXXXXXX
5
