FRAMEWORK AGREEMENT
This
Framework Agreement (this “Agreement”)
is
made as of the 15th day of October, 2008, among DIGITALFX INTERNATIONAL, INC.,
a
Florida corporation (the “Corporation”),
XXXXXXX X. XXXX (“Xxxx”),
XXXXX
XXXXXX (“Xxxxxx”)
and
XXX XXXXX (“Black”).
WHEREAS,
Portside Growth and Opportunity Fund, Highbridge International LLC and Iroquois
Master Fund, Ltd. (the “Investors”)
and
the Corporation are parties to that certain Securities Purchase Agreement,
dated
as of November 29, 2007 (the “Original
Securities Purchase Agreement”),
as
amended by that certain Amendment and Exchange Agreement dated as of March
24,
2008 (the “Amendment
and Exchange Agreement”
and
together with the Original Securities Purchase Agreement, the “Amended
Agreement”);
and
WHEREAS,
an Event of Default has occurred under the Amended Agreement by reason of the
occurrence of one or more Financial Covenant Failures with respect to the
Corporation’s Fiscal Quarter ended June 30, 2008; and
WHEREAS,
Kall has negotiated the terms of separate agreements with each of the Investors
(each, a “Note
Purchase Agreement”),
pursuant to which he will purchase from the Investors $350,000 of the aggregate
unpaid principal amount of the Notes held by the Investors in consideration
for,
among other things, the Investors’ forbearance for a period of 30 days starting
the date of closing of the Note Purchase Agreements from enforcing any rights
regarding redemption of the Notes that may have arisen by reason of the
aforementioned Financial Covenant Failures; and
WHEREAS,
Kall has advised the Corporation that he would be willing to consummate the
Note
Purchase Agreements, accept an appointment to the Board, and serve in the
capacities of Chairman of the Board and Chief Executive Officer of the
Corporation in accordance with the terms, and subject to the conditions
hereinbelow set forth; and
WHEREAS,
Ellins, the current Chairman of the Board and Chief Executive Officer of the
Corporation, has agreed to resign from the Board and executive positions he
holds with the Corporation in accordance with such terms, and subject to the
conditions set forth in a separate agreement that Kall and Ellins have executed;
and
WHEREAS,
the Corporation acting through its Board has expressed a willingness to accept
such resignations and, subject to the review and consideration of all pertinent
facts by the existing Board, to appoint Kall as Chairman and Chief Executive
Officer pursuant to the terms, and subject to the conditions set forth in this
Agreement; and
WHEREAS,
Capitalized terms used herein and not otherwise defined herein shall have the
respective meanings ascribed to them in the Original Securities Purchase
Agreement, the Amendment and Exchange Agreement or any other Transaction
Document, as applicable,
NOW,
THEREFORE, in consideration of the premises, and the mutual terms and conditions
hereinbelow set forth, the Parties agree, as follows:
ARTICLE
I
CONSTRUCTION
AND DEFINED TERMS
1.01 Articles
and Sections.
The
Article and Section headings and captions in this Agreement are for convenience
only and shall not affect the construction or interpretation of this Agreement.
The references in this Agreement to Articles and Sections shall be read as
Articles or Sections of this Agreement unless otherwise specifically
provided.
1.02 Defined
Terms.
Unless
otherwise expressly stated in this Agreement, capitalized terms used in this
Agreement shall have the following meanings:
“Affiliate”
means
any Person who controls, is controlled by, or is under common control with,
another Person.
“Board”
means
the Board of Directors of the Corporation.
“Definitive
Board Meeting”
means
the Board meeting that will take place for the purpose of approving this
Agreement and all corporate actions required by this Agreement.
“Director”
or “Directors”
means
a
member or members of the Board, as applicable.
“Kall
Nominee”
means
the Person designated by Kall to serve on the Board.
“Party”
means
any of the Corporation, Kall, Ellins or Black considered individually as the
context may require, and “Parties”
means
all of them considered together.
“Person”
means
any natural person, corporation, limited liability company, partnership, joint
venture, entity, association, joint-stock company, trust or unincorporated
organization and any governmental authority.
ARTICLE
II
THE
NOTE PURCHASE AGREEMENTS
2.01 Execution
and Closing of the Note Purchase Agreements.
Kall
covenants and agrees that, subject to the satisfaction of the conditions set
forth in Section 2.02 hereof on or before October 22, 2008, he shall effectuate
a closing of the Note Purchase Agreements not later than said date.
2.02 Conditions
Precedent to Kall’s Consummation of the Note Purchase Agreements.
The
obligation of Kall to execute the Note Purchase Agreements and to close the
transactions contemplated therein and thereby, including Kall’s purchase of
$350,000 of the aggregate unpaid principal amount of the Notes held by the
Investors, shall be subject to the satisfaction of each of the following
conditions:
2
(a) Ellins
shall have tendered his written resignation, effective on the date of closing
of
the Note Purchase Agreements, as Chairman of the Board, as Chief Executive
Officer of the Corporation and with respect to any other position that he may
hold as a manager, director and/or executive officer of any of the Corporation’s
subsidiaries. A copy of the form of such resignation is annexed hereto as
Exhibit A.
(b) Black
shall have tendered her written resignation, effective not later than two days
after the date of closing of the Note Purchase Agreements, as President of
VM
Direct, LLC, a subsidiary of the Corporation and with respect to any other
position that she may hold as a manager, director and/or executive officer
of
any of the Corporation’s other subsidiaries. A copy of the form of such
resignation is annexed hereto as Exhibit B.
(b) Xxxxx
X. Xxxxxxx and Xxxxx Xxxxxx (together with Ellins, the “Resigning
Directors”)
shall
have tendered their written resignations as Directors, effective at the
conclusion of the Definitive Board Meeting or on the date of closing of the
Note
Purchase Agreements, whichever shall occur last. A copy of the form of such
resignation is annexed hereto as Exhibit C.
(c) The
Board
shall adopt resolutions at the Definitive Board Meeting, such resolutions to
be
effective upon conclusion of the Definitive Board Meeting or on the date of
closing of the Note Purchase Agreements, whichever shall occur
last:
(i) reducing
the size of the Board to three Directors;
(ii) filling
the vacancy on the Board resulting from the resignations of the Resigning
Directors by appointing (x) Kall as Chairman of the Board and Chief Executive
Officer of the Corporation, and (y) provided that the Kall Nominee possesses
credentials acceptable to the Board and is qualified to serve as a Director
and
member of an audit committee in accordance with applicable SEC rules and
American Stock Exchange listing requirements, appointing the Kall Nominee as
a
Director.
ARTICLE
III
TERMINATION
OF ELLINS’ AND BLACK’S EMPLOYMENT;
EXCHANGE
OF RELEASES
3.01 Exchange
of Releases.
On the
effective dates of each of the above-mentioned resignations to be tendered
by
Ellins and Black, the Corporation shall enter into separation and release
agreements with each of them: (a) providing, among other things, that neither
of
them shall be entitled to receive any salary, severance payments or other
compensation (other than reimbursement of expenses that they shall have incurred
prior to the respective dates of termination of their employment in the ordinary
course of rendering their respective services as executives of the Corporation
and/or its subsidiaries), health or other benefits from the Corporation or
any
of its subsidiaries; and (b) containing reciprocal releases and
non-disparagement covenants. Such releases shall be applicable to any claim
that
the Corporation, Ellins or Black, in their respective capacities as releasing
parties had, have or may in the future have against the Corporation, Ellins
or
Black, in their respective capacities as released parties, other than, as to
each releasing party, claims accruing to him, her or it that shall arise under
this Agreement. A copy of such Separation and Release Agreement is annexed
hereto as Exhibit D.
3
ARTICLE
IV
ADDITIONAL
COVENANTS AND AGREEMENTS
4.01.
Reporting
and Compliance Matters.
Ellins
and Black shall cooperate with the Corporation with respect to its disclosure
and reporting obligations under the Securities Act of 1933, as amended (the
“Securities
Act”),
the
Securities Exchange Act of 1934, as amended (the “Exchange
Act”),
the
rules promulgated under the Securities Act or the Exchange Act, any state
securities laws, rules or regulations, and to any other U.S. governmental
authorities as may be required by law.
4.02 RazorStream
Hosting Agreement.
The
Corporation further agrees that it shall not undertake any action that would
result in a termination of the Amended and Restated License, Hosting and
Services Agreement between the Corporation and RazorStream on or before July
15,
2009.
4.03 Business-Related
Trademarks and Domain Names.
Ellins
and/or Black will (a) assign all of their respective rights in, titles to and
interests in; or (b) convey worldwide, exclusive, perpetual, royalty free
licenses to use the Hello World® service xxxx (USPTO Serial No. 78976428) and
all other registered and unregistered trademarks, service marks and domain
names
owned by either of them which have been used by the Corporation and/or any
of
its Affiliates. The parties agree that the Hello World xxxx shall revert to
Ellins and / or Black and the license shall terminate in the event the
Corporation files for a bankruptcy or a plan of reorganization, but shall remain
otherwise with the Corporation or any of its successors or assigns under the
terms of the immediately preceding sentence.
4.04
Other
Covenants.
Ellins
and Black shall cooperate
with and render assistance to the Corporation as required from time to time
in
all matters relating to the transition of management, filing the necessary
documentation, and in matters concerning litigation, etc so long as their
reasonable expenses are covered by the Corporation.
ARTICLE
V
TERMINATION
5.01 Termination.
This
Agreement may be terminated and the transactions contemplated hereby may be
abandoned:
(a) at
any
time by the mutual agreement of the Parties; or
4
(b) by
any of
the Parties in the event that the Note Purchase Agreements shall not be
executed, and/or the transactions contemplated by the Note Purchase Agreements
shall not have been consummated, on or before October 22, 2008.
5.02 Effect
of Termination.
If this
Agreement is terminated pursuant to Section 5.01, all obligations of the Parties
under this Agreement shall terminate and this Agreement shall thereupon be
deemed to be null, void and enforceable ab initio.
ARTICLE
VI
MISCELLANEOUS
6.01. Notices.
Any
notices, consents, waivers or other communications required or permitted to
be
given under the terms of this Agreement must be in writing and will be deemed
to
have been delivered: (i) upon receipt, when delivered personally; (ii) upon
receipt, when sent by facsimile (provided confirmation of transmission is
mechanically or electronically generated and kept on file by the sending party);
or (iii) one Business Day after deposit with an overnight courier service,
in
each case properly addressed to the party to receive the same. The addresses
and
facsimile numbers or email addresses for such communications shall
be:
If
to the Corporation:
|
DigitalFX
Interational, Inc.
|
0000
Xxxx
Xxxxxxx Xxxx, Xxxxx 0
Xxx
Xxxxx, Xxxxxx 00000
Attn:
|
Abraham,
Sofer, Esq., General Counsel
|
Telecopy
No.: 000-000-0000
If
to Kall:
|
0000
Xxxxxxx Xxxx Xxxxx
|
Xxx
Xxxxx, Xxxxxx 00000
Email:
xxxxxxxx@xxxxxxxx.xxx
with
copy to:
|
Arent
Fox, LLP
|
0000
Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
|
Xxxxxx
X. Xxxxxx, Esquire
|
email:
xxxxxx.xxxxxx@xxxxxxxx.xxx
If
to Ellins or Black:
|
Xx.
Xxxxx Xxxxxx
|
0000
Xxxxx Xxxxx Xxxxx
Xxx
Xxxxx, Xxxxxx 00000
Email:
xxxxx@xxxxxxxxxxx.xxx
6.02. Amendments,
Waivers and Consents; Successors and Assigns.
Neither this Agreement nor any of the terms hereof may be amended, changed,
waived or discharged, nor shall any consent be given, unless such amendment,
change, waiver, discharge or consent is in writing and signed by the Parties
hereto. This Agreement shall inure to the benefit of and be binding upon each
Party hereto and each Party’s successors and assigns. This Agreement may not be
assigned by any Party hereto without prior written consent of each of the other
Parties hereto.
5
6.03. Governing
Law.
The validity, construction, operation and effect of any and all of the terms
and
provisions of this Agreement shall be determined and enforced in accordance
with
the laws of the State of Nevada without giving effect to principles of conflicts
of law thereunder.
6.04. Jurisdiction;
Venue.
(a) Each
Party
to this Agreement hereby irrevocably consents to the exclusive jurisdiction
of
the Eighth
Judicial District Court of Xxxxx County, Nevada and/or
United States District Court for the District of Nevada (collectively, the
“Nevada Courts” and each a “Nevada Court”) in connection with any and all claims
based upon or arising out of this Agreement or the matters or transactions
contemplated herein, and irrevocably agrees that all claims in respect of any
such matters or transactions may be heard in either of such Nevada
Courts.
(b) Each
Party
to this Agreement hereby waives any objection to jurisdiction and venue of
any
such claim brought, or action instituted, hereunder in any Nevada Court and
further agrees not to assert (i) any defense based on the lack of jurisdiction
or venue in any Nevada
Court,
or
(ii)
any defense of improper venue or inconvenient forum in any Nevada
Court.
(c) Each
Party
to this Agreement hereby waives any right of jurisdiction on account of the
place of such Party’s residence, or domicile, or on account of such Party’s
place of incorporation, formation or organization.
(d) Each
Party
to this Agreement hereby acknowledges and agrees that any forum other than
a
Nevada Court is an inconvenient forum and that a suit brought by any Party
against any other Party in any court other than a Nevada Court should be
transferred to a Nevada Court.
6.05. Waiver
of Jury Trial
.
EACH
PARTY HEREBY IRREVOCABLY WAIVES THE RIGHT TO A TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM (WHETHER BASED IN CONTRACT, TORT OR OTHERWISE)
ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER RELATED
DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENT OR ACTION
RELATED HERETO OR THERETO.
6.06 Counterparts;
Facsimile.
This
Agreement may be signed in any number of counterparts, each of which shall
be an
original, with the same effect as if the signatures thereto and hereto were
upon
the same instrument. This Agreement shall become effective when each Party
hereto shall have received a counterpart, or facsimile of a counterpart, of
the
Agreement, signed by the other Party or Parties hereto. Delivery of an executed
copy of this Agreement by facsimile transmission shall have the same effect
as
delivery of an originally executed copy of this Agreement, whether an originally
executed copy shall be delivered subsequent thereto.
6
6.06. Entire
Agreement.
This
Agreement constitutes the entire agreement among the Parties with respect to
the
subject matter hereof and supersedes all prior agreements, understandings and
negotiations, both written and oral, among the Parties with respect to the
subject matter hereof. No representation, inducement, promise, understanding,
condition or warranty not set forth herein has been made or relied upon by
any
Party hereto. None of the provisions of this Agreement is intended to confer
upon any Person other than the Parties hereto any rights or remedies
hereunder.
6.08 Amendments;
No Waivers.
(a) Any
provision of this Agreement may be amended prior to the closing of the Note
Purchase Agreements if, and only if, such amendment is in writing and signed
by
all of the Parties. Any provision of this Agreement may be waived by the Parties
if the waiver is in writing and signed by the Parties to be bound.
(b) No
failure or delay by any Party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. The rights and remedies herein provided
shall be cumulative and not exclusive of any rights or remedies provided by
Law.
6.09 Expenses.
Each of
the Parties shall pay all of its, his or her own fees, costs and expenses
(including, without limitation, fees, costs and expenses of legal counsel)
incurred in connection with the negotiation of this Agreement, the performance
of its, his or her obligations hereunder, and the consummation of the
transactions contemplated hereby.
[the
balance of this page has been left blank intentionally]
7
6.10 Successors
and Assigns.
No
Party to this Agreement may assign his, her or its rights or delegate his,
her
or its obligations hereunder without the prior written consent of the other
Parties. The provisions of this Agreement shall be binding upon and inure to
the
benefit of the Parties hereto and their respective successors and
assigns.
IN
WITNESS WHEREOF, and intending to be legally bound hereby, each of the Parties
hereto executes this Agreement under seal as of the date first above
written.
DigitalFX International, Inc. | ||
|
|
|
By: | /s/ Xxxxx Xxxxxx | |
Xxxxx Xxxxxx, Chief Executive Officer |
||
By: | /s/ Xxxxxxx Xxxx | |
Xxxxxxx X. Xxxx |
||
By: | /s/ Xxxxx Xxxxxx | |
Xxxxx Xxxxxx |
||
By: | /s/ Xxx Xxxxx | |
Xxx Xxxxx |
8
Exhibit
A
Form
of Ellins Resignation
October
[
], 2008
DigitalFX
Interational, Inc.
0000
Xxxx
Xxxxxxx Xxxx, Xxxxx 0
Xxx
Xxxxx, Xxxxxx 00000
Gentlemen:
Reference
is made to the Framework Agreement, dated as of October [ ], 2008, by and among
DigitalFX International, Inc. (the “Corporation”),
Xxxxxxx X. Xxxx, Xxxxx Xxxxxx and Xxx Xxxxx (the “Agreement”)
I
hereby
resign, effective on the date of closing of the Note Purchase Agreements, as
Chairman of the Board and as Chief Executive Officer of the Corporation, and
with respect to any other position that I may hold as a manager, director and/or
executive officer of any of the Corporation’s subsidiaries
Very truly yours, | |
Xxxxx Xxxxxx |
9
Exhibit
B
Form
of Black Resignation
October
[
], 2008
DigitalFX
Interational, Inc.
0000
Xxxx
Xxxxxxx Xxxx, Xxxxx 0
Xxx
Xxxxx, Xxxxxx 00000
Gentlemen:
Reference
is made to the Framework Agreement, dated as of October [ ], 2008, by and among
DigitalFX International, Inc. (the “Corporation”),
Xxxxxxx X. Xxxx, Xxxxx Xxxxxx and Xxx Xxxxx (the “Agreement”)
I
hereby
resign, effective on the second day after the date of closing of the Note
Purchase Agreements, as President of VM Direct, LLC, a subsidiary of the
Corporation and with respect to any other position that I may hold as a manager,
director and/or executive officer of any of the Corporation’s other
subsidiaries.
Very truly yours, | |
Xxx Xxxxx |
10
Exhibit
C
Form
of Director Resignation
October
[
], 2008
DigitalFX
Interational, Inc.
0000
Xxxx
Xxxxxxx Xxxx, Xxxxx 0
Xxx
Xxxxx, Xxxxxx 00000
Gentlemen:
Reference
is made to the Framework Agreement, dated as of October [ ], 2008, by and among
DigitalFX International, Inc. (the “Corporation”),
Xxxxxxx X. Xxxx, Xxxxx Xxxxxx and Xxx Xxxxx (the “Agreement”)
I
hereby
tender my resignation from the Board of Directors of the Corporation effective
_________________.
Very truly yours, | |
11
Exhibit
D
SEPARATION
AND
GENERAL RELEASE AGREEMENT
This
Separation and General Release Agreement (“Agreement”) effects an agreeable
separation of the employment relationship between ___________ (“EMPLOYEE”) and
DigitalFX International Inc, 0000 X Xxxxxxx Xxxx, Xxxxx 0, Xxx Xxxxx XX, 00000
(“Corporation”), as well as a resolution of any claims, known and unknown, now
existing between the parties.
1.
|
Separation
of Employment.
|
EMPLOYEE’s
employment with Corporation is
terminated
effective October [ ], 2008 (the Effective Date”).
2.
|
Settlement
of Consideration.
|
The
parties acknowledge that this Agreement is an integral part of a set of
agreements involving members of VM Investors LLC, the Corporation, Xx. Xxxxxxx
Xxxx, Xx. Xxxxx Xxxxxx and Ms. Xxx Xxxxx, and it is hereby agreed that, Employee
shall not be entitled to receive any salary, severance payments or other
compensation (other than (i) the payment of deferred and/or unpaid salary
accrued by the Corporation and owed through the Effective Date, (ii) amounts
accrued for paid time off and other payments required by applicable law,
and
(iii) the reimbursement of expenses that Employee shall have incurred
prior to the Effective Date in the ordinary course of rendering his / her
services as an executive of the Corporation and/or its subsidiaries), nor
shall
the Employee be entitled to any health or other benefits from the Corporation
or
any of its subsidiaries.
3.
|
Mutual
Releases.
|
3.1
|
Release
by Employee
|
The
Employee on behalf of himself, his heirs, estate, executors, administrators,
successors and assigns, does fully and forever waive, release and discharge
the
Corporation, the present and former officers, directors, managers, consultants
and employees of the Corporation and each of its subsidiaries, and the attorneys
of each of such persons and entities, and their respective heirs, executors,
administrators, successors and assigns (collectively, the “Released
Parties”)
from
any and all actions, claims, demands, losses, expenses, obligations and
liabilities arising out of or related to any conduct or activity occurring
up to
the date of his execution of this Agreement (with the exception of the
Exclusions set forth in the last sentence of this Section 3.1), including,
but
not limited to: (i) any claims relating to or arising out of the Employee’s
employment; (ii) any alleged employment discrimination under any federal,
state
or municipal statute, regulation, order, rule or legal authority, including,
without limitation, the Age Discrimination in Employment Act of 1967, as
amended
by the Older Workers Benefit Protection Act of 1990 (“OWPBA”)
and
otherwise; Title VII of the Civil Rights Act of 1964, as amended by the Civil
Rights Act of 1991 and otherwise; the Americans With Disabilities Act; the
Family and Medical Leave Act of 1993; (iii) any and all contract, tort or
personal injury claims, including, without limitation, those arising out
of or
relating to any employment agreement and any other documents by which he
and the
Corporation or any affiliates of either of them were or may have been bound;
(iv) other than the amount stated in Section 2 above, any and all claims
for any
other form of compensation, wages, salary, wage accruals, bonuses or sales
commissions of any type or kind; (v) any and all claims for punitive, exemplary,
consequential, or statutory damages; and (vi) any and all claims for attorneys’
fees or expenses associated with his retention of counsel. The Employee
represents and warrants that he has not assigned any such claims or authorized
any other person, group or entity to assert such claims on his behalf. This
release shall not include, and the Employee is not waiving, releasing or
discharging any of the Released Parties in relation to, any worker’s
compensation or unemployment insurance claims which the Employee now has
or
which may have accrued to him on or prior to the Termination Date, any claims
arising under this Agreement and any claim for vested benefits that the Employee
may have under 401(k) or other benefit plan (the “Exclusions”).
12
As
a
further consideration and inducement for this Agreement, to the extent permitted
by law, the Employee hereby waives, releases and discharges any and all actions,
claims, demands, losses, expenses, obligations and liabilities against the
Released Parties which he does not know or does not suspect to exist in his
favor up to the date of his execution of this Agreement with the exception
of
the Exclusions. The Employee expressly agrees that this waiver, release and
discharge shall extend and apply to all unknown, unsuspected and unanticipated
injuries, liabilities and damages as well as those that have been known,
suspected, anticipated or disclosed up to the date of his execution of this
Agreement with the exception of the Exclusions.
3.2
|
Release
by the Corporation
|
The
Corporation, for itself and on behalf of its directors and officers, does
hereby
fully and forever waive, release and discharge the Employee, his heirs, estate,
executors, administrators, successors and assigns (the “Employee
Released Parties”)
from
any and all actions, claims, demands, losses, expenses, obligations and
liabilities arising out of or related to any conduct or activity occurring
up to
the date of the Corporation’s execution of this Agreement, including but not
limited to: (i) any claims relating to or arising out of Employee’s employment
or any other business relationship involving the Employee and any of the
Released Parties; (ii) any claims for breach of any employment agreement,
other
contract and any other documents by which he and the Corporation or any
affiliates of either of them were or may have been bound; (iii) any claims
for
breach of any duty; (iv) any claims for attorneys’ fees and costs; and (i) all
other claims sounding in tort, contract, pursuant to any statute and/or of
any
other nature (collectively, the “Released
Parties’ Claims”).
The
Corporation represents and warrants to the Employee, that neither it, nor
any of
its subsidiaries, has assigned any of the Released Parties’ Claims or authorized
any other person, group or entity to assert any such claims on his or their
behalf. This release shall not include, and the Corporation and its subsidiaries
are not waiving, releasing or discharging the Employee Released Parties from
claims which the Corporation and/or any its subsidiaries now have or which
may
have accrued to any of them based upon any criminal or unlawful conduct by
the
Employee, or any claims arising under this Agreement. The Corporation, for
itself, and on behalf of each of its subsidiaries, represents and warrants
that
as of the date of this Agreement it has no knowledge of any such criminal
or
unlawful conduct by the Employee.
13
As
a
further consideration and inducement for this Agreement, to the extent permitted
by law, the Corporation, for itself, and on behalf of each of its subsidiaries,
and their respective directors, officers and managers, hereby waive, release
and
discharge any and all of the Released Parties’ Claims against the Employee which
any of them does not know or does not suspect to exist in its, his or their
favor up to the date of the Corporation’s execution of this Agreement. The
Corporation, for itself, and on behalf of each of its subsidiaries, and their
respective directors, officers and managers, expressly agrees that this waiver,
release and discharge shall extend and apply to all unknown, unsuspected
and
unanticipated injuries, liabilities and damages as well as those that have
been
known, suspected, anticipated or disclosed up to the date of the Corporation’s
execution of this Agreement.
This
Agreement also does not prohibit EMPLOYEE from filing an administrative charge
with a government agency, but this Agreement does release any claim which
EMPLOYEE has or may have for monetary relief, reinstatement, or for any other
remedy for EMPLOYEE personally, arising out of any proceeding before any
government agency or court.
If
any
agency or court should take jurisdiction over any matter in which EMPLOYEE
has
or may have any personal interest, whether initiated by EMPLOYEE or otherwise,
EMPLOYEE must promptly inform that agency or court that this Agreement
constitutes a full and final settlement by EMPLOYEE of all claims released
under
this Agreement.
EMPLOYEE
therefore waives any right he or she may have to share in any relief, monetary
or otherwise, relating to any claim released herein, whether such claim was
initiated by EMPLOYEE or not.
EMPLOYEE
agrees that this Agreement may be pled as a complete bar to any
individual recovery in any proceedings,
action
or suit before any court, with respect to any claim under federal,
state,
local
or other
law relating to her/his employment with
Corporation or the
termination of such
employment.
5.
|
Confidentiality
and Non-Disparagement.
|
EMPLOYEE
agrees that he/she will keep both the existence and terms of this Agreement
completely confidential and will not disclose the contents of this Agreement
to
anyone except her/his tax advisor, attorney and/or spouse, unless required
to do
so by force of law. EMPLOYEE further agrees that he/she will not disparage
Corporation, or any of the
Released Parties,
in any
way, including but not limited to making negative statements or implications,
in
written or verbal form, to current or potential customers, vendors, or employees
of Corporation or its affiliates. Any disclosure or breach of this
confidentiality and non-disparagement provision shall be deemed a material
breach of this Agreement.
14
EMPLOYEE
agrees that he/she will not use, remove from Corporation’s premises, make
unauthorized copies of or disclose any confidential or proprietary information
of Corporation or any of
the
Released Parties,
including but not limited to, their trade secrets, copyrighted information,
customer lists, any information encompassed in any research and development,
reports, work in progress, drawings, software, computer files or models,
designs, plans, proposals, marketing and sales programs, financial projections,
and all concepts or ideas, materials or information related to the business
or
sales of Corporation and any affiliated or related entities that has not
previously been released to the public by an authorized representative of
those
companies.
Within
one (1) business day after the date EMPLOYEE
signs
this Agreement,
EMPLOYEE shall return to Corporation all Corporation property, including
all
confidential and proprietary information, as described in Paragraph
5.2
above,
and all materials and documents containing trade secrets and copyrighted
materials, including all copies and excerpts of the same.
In
the
event of a breach of this Section 5,
EMPLOYEE
agrees to pay Corporation’s attorneys’ fees and costs incurred in any action
brought to enforce the terms, or establish breach of this
Paragraph 5.
6.
|
Denial
of Liability.
|
No
provision of this Agreement shall be construed as an admission by EMPLOYEE
or
Corporation of improper conduct, omissions, or liability.
7.
|
Consultation
with Counsel
|
EMPLOYEE
acknowledges that this Agreement constitutes written notice from Corporation
that he/she should consult with an attorney before signing this
Agreement.
EMPLOYEE
acknowledges that he/she has had an opportunity to fully discuss all aspects
of
this Agreement with her/his attorney to the extent he/she desires to do so.
EMPLOYEE agrees that he/she has carefully read and fully understands all
of the
provisions of this Agreement and that he/she is voluntarily entering into
this
Agreement.
8.
|
Review
Period.
|
EMPLOYEE
is advised that he/she may take up to seven (7) calendar days to consider
this
Agreement before signing.
9.
|
Complete
Agreement.
|
This
Agreement sets forth the entire Agreement between the parties hereto.
EMPLOYEE acknowledges that Corporation has made no promises to him/her other
than those contained in this Agreement, and that he/she is not relying on
any
promises or representations which do not appear written herein.
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10.
|
Choice
of Law.
|
This
Agreement shall be construed, enforced, and governed by the laws of the State
of
Nevada.
11.
|
Severability.
|
Should
any provision of this Agreement be declared or determined by any Court to
be
illegal or invalid, the validity of the remaining parts, terms or provisions
shall not be affected thereby and said illegal or invalid part, term or
provision shall be deemed not to be a part of this Agreement.
EMPLOYEE
ACKNOWLEDGES THAT
HE/SHE UNDERSTANDS
AND
AGREES TO THE
PROVISIONS AND WAIVERS CONTAINED WITHIN THIS
AGREEMENT AND IS SIGNING THIS AGREEMENT VOLUNTARILY, OF HER/HIS OWN FREE
WILL,
WITHOUT DURESS OR COERCION***
DATE:________________,
2008 ________________________________
Name
CORPORATION
DATE:
________________, 2008 By:
________________________________
Name:
______________________________
Title:
_______________________________
16