SEPARATION AGREEMENT
Exhibit
10.3
THIS SEPARATION AGREEMENT (as
the same may be amended, modified or supplemented from time to time, the “Agreement”)
is made and entered into as of May 28, 2009 (the “Effective Date”), by and
between Maven Media Holdings, Inc., a Delaware corporation (including its
successors, the “Corporation”),
Waste2Energy, Inc., a Delaware corporation (“Waste2Energy”)
and Xxxxxxxx Xxxxxxxxx (“AH”).
WHEREAS, AH is the
Corporation’s President, Secretary, Treasurer, principal stockholder (66.6% on a
fully diluted basis) and sole member of the Corporation’s Board of
Directors;
WHEREAS, the Corporation has
entered into an Agreement and Plan of Merger with Waste2Energy Acquisition Co.,
a Delaware corporation and wholly-owned subsidiary of the Corporation (“Acquisition
Co.”) and Waste2Energy dated May 6, 2009 (the “Merger
Agreement”);
WHEREAS, pursuant to the
Merger Agreement, Acquisition Co., shall merge with and into Waste2Energy (the
“Merger”)
and the separate corporate existence of Acquisition Co. shall cease and
Waste2Energy, as it exists from and after the closing of the Merger, shall be
the surviving company;
WHEREAS, pursuant to the
Merger Agreement, and as a condition precedent to the closing of the Merger, the
Corporation, Waste2Energy and AH are entering into this Agreement;
NOW, THEREFORE, in
consideration of the premises and mutual covenants and agreements hereinafter
contained, the parties hereto agree as follows:
1. Resignation. The
parties hereby agree that the employment arrangement between AH and the
Corporation pursuant to which AH serves as the Corporation’s President,
Secretary and Treasurer is automatically and without further action terminated
as of the Effective Date. Except as expressly provided in this Agreement, all
rights and obligations of AH and the Corporation with respect to AH’s employment
with the Corporation are duly and effectively terminated as of the Effective
Date. As of the Effective Date, AH resigns from the Corporation’s Board of
Directors. After the Effective Date, AH agrees to cooperate with the
Corporation as is reasonably necessary to assist on transitional and resale
registration statement issues. As of the Effective Date, AH agrees
that she shall not represent to any third party that she is acting as an officer
or director of the Corporation.
2. Cancellation of
Shares. As of the Effective Date, 2,000,000 shares (the “Cancellation
Shares”) of the Corporation’s common stock (the “Common
Stock”) owned by AH as well as any other securities of the Corporation
owned by AH, including common stock, options, warrants, rights, notes,
debentures, and preferred stock shall be deemed cancelled (the “Share
Cancellation”), resulting in AH owning after the Share Cancellation no
shares of Common Stock or any other securities of the Company. Without limiting
the foregoing, on or prior to the Effective Date, AH shall deliver to the
Corporation (and/or its designees) stock certificates representing the 2,000,000
Cancellation Shares beneficially owned by her along with stock powers signed in
blank and medallion signature guaranteed. On or prior to the Effective Date, AH
shall deliver to the Corporation certificates representing any other shares of
the Corporation’s securities that AH may own along with stock powers medallion
signature guaranteed (or such other appropriate transfer
documents).
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3. Benefits. AH
will not be eligible for any compensation or employer-sponsored benefits after
the Effective Date.
4. Payment to AH.
Immediately after AH has delivered the 2,000,000 shares cancelled pursuant to
the Share Cancellation to the Corporation with appropriate stock powers
medallion signature guaranteed, the Corporation shall pay AH the sum of $210,000
which shall be delivered to AH pursuant to wiring instructions provided by AH to
the Corporation.
5. Corporation Property.
AH represents, warrants and covenants that she has returned to the Corporation,
or will return to the Corporation on or before the Effective Date, all
Corporation property including, but not limited to, credit cards, cash cards,
banking information, computers, telecommunications equipment and
keys.
6. Representations by and
Covenants of AH. AH hereby represents and warrants to the
Corporation that:
a. As of the
Effective Date and assuming the Share Cancellation, AH shall not beneficially
own any shares of Common Stock or any other securities of the Corporation
including options, warrants, debentures or preferred stock.
b. As of the
Effective Date and assuming the Share Cancellation, the Corporation will have
1,000,000 shares of Common Stock issued and outstanding and there will not be
outstanding any shares of preferred stock, warrants, agreements, or other rights
or instruments entitling any person to acquire shares from the
Corporation.
c. All
shares of issued and outstanding Common Stock are validly issued, fully paid and
nonassessable.
d. All
issuances of Common Stock by the Corporation have been made in accordance with
applicable federal securities laws and the state securities laws of the given
states in which the securities were offered and/or sold. Accordingly,
the Corporation will not be subject to contingent liabilities which could
include, without limitation, (i) rescission obligations and/or other liabilities
for damages to purchasers of Common Stock who resided in the States where the
Common Stock was offered and/or sold; and/or (ii) punitive damages, fines,
penalties and/or other sanctions which might be imposed in connection with any
enforcement actions brought by any such regulatory authorities of the States
where the Common Stock was offered and/or sold.
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e. The
Corporation has taken all action necessary to enter into the Merger Agreement
and perform all acts necessary thereunder. Neither the entry into
such agreement and/or performance of the Corporation’s acts thereunder will
violate any material agreement, law, rule and/or regulation.
f. The
Corporation has filed all reports required to be filed by it under the
Securities Act of 1933, as amended (the “Securities
Act”), and the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), including pursuant to Section 13(a) or
Section 15(d) of the Exchange Act (the foregoing materials, including
the exhibits thereto, being collectively referred to herein as the “SEC
Reports”). As of their respective dates, the SEC
Reports complied as to form in all material respects with the requirements of
the Securities Act and the Exchange Act and the rules and regulations of the SEC
promulgated thereunder, as applicable, and none of the SEC Reports, when filed,
contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading;
7. Mutual
Non-Disparagement. AH, solely on behalf of herself and her
estate, and the Corporation, for itself and on behalf of its officers,
directors, partners, managers, members, employees, agents, and attorneys, with
regard to AH and her employment with the Corporation and her service to the
Corporation, expressly acknowledge, agree, and covenant that they will not make
any statements, comments, or communications that could constitute disparagement
of one another or that may be considered to be derogatory or detrimental to the
good name or business reputation of one another.
8. Mutual
Release.
a. AH,
solely on behalf of herself and her estate, forever releases and discharges the
Corporation and the Corporation’s, executors, administrators, parent company,
holding company, subsidiaries, successors, predecessors, officers, directors,
principals, partners, members, shareholders, agents, control persons, past and
present employees, insurers, and assigns (collectively the “Corporation’s
Parties”) from all actions, causes of action, suits, debts, dues, sums of
money, accounts, reckonings, bonds, bills, specialties, covenants, contracts,
controversies, agreements, promises, variances, trespasses, damages, judgments,
extents, executions, claims, and demands whatsoever, in law, admiralty or
equity, against the Corporation’s Parties other than AH’s rights and the
Corporation’s obligations under this Agreement that AH or her heirs, executors,
administrators, or agents and assigns ever had, now have or hereafter can, shall
or may, have for, upon, or by reason of any matter, cause or thing whatsoever,
whether or not known or unknown, from the beginning of the world to the day of
the date of this Agreement.
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AH
EXPRESSLY ACKNOWLEDGES THAT THE CONSIDERATION SET FORTH IN THIS AGREEMENT
CONSTITUTES ADEQUATE AND SUFFICIENT CONSIDERATION FOR THE FOREGOING
RELEASE.
b. The
Corporation forever releases and discharges AH and her executors,
administrators, agents and assigns (collectively the “AH
Parties”) from all actions, causes of action, suits, debts, dues, sums of
money, accounts, reckonings, bonds, bills, specialties, covenants, contracts,
controversies, agreements, promises, variances, trespasses, damages, judgments,
extents, executions, claims, and demands whatsoever, in law, admiralty or
equity, against the AH Parties other than the Corporation’s rights and AH’s
obligations under this Agreement that the Corporation ever had, now have or
hereafter can, shall or may, have for, upon, or by reason of any matter, cause
or thing whatsoever, whether or not known or unknown, from the beginning of the
world to the day of the date of this Agreement.
9. Confidentiality. The
parties hereto agree that the terms and conditions of this Agreement are
confidential and further agree that they shall not divulge the terms of
this Agreement to third parties generally, except as required by applicable
law or to enforce this Agreement or to defend against a claim related
thereto; provided, however, that the
parties may reveal such terms to their respective accountants, legal counsel and
other professional advisors. In the event this covenant of confidentiality is
breached, the Corporation and AH may pursue legal remedies for any damage
arising from a breach of this Section 8. The
parties agree that any press release or other public disclosure relating to
the contents of this Agreement shall be mutually acceptable to both parties
hereto. Notwithstanding the foregoing, the Corporation shall be under no
obligation to reach agreement with AH on the contents of any such public
announcement or disclosure required by applicable law, rule or regulation,
including, but not limited to, any public announcement or
disclosure required by federal or state securities laws, rules or
regulations. Notwithstanding anything provided elsewhere in this Section 8, the
parties may make any disclosure required by law, subpoena, regulation or
governing authority, including disclosure required by a self-regulatory
organization such as the Financial Industry Regulatory Authority (“FINRA”)
or the Securities and Exchange Commission (the “SEC”)
and to their respective lawyers and accountants. AH hereby authorizes
the Corporation to disclose the terms and conditions of this Agreement in any
filings it makes with the SEC and authorizes the Corporation to file this
Agreement as an exhibit to any filings it makes with the SEC.
10. Cooperation.
a. AH
agrees to give reasonable cooperation, at the Corporation's request, in any
pending or future litigation, regulatory proceeding or arbitration brought
against the Corporation or any of its affiliates and in any investigation the
Corporation or any of its affiliates may conduct. The Corporation shall
reimburse AH for all expenses reasonably incurred by her in compliance with this
Section 9(a) but shall not
reimburse AH for her time spent in compliance with this Section 9(a).
Furthermore, AH agrees, in the event she receives a court or
administrative order, subpoena, request for interview or similar demand
regarding the Corporation, including, but not limited to, from a regulatory or
law enforcement agency, she shall, except to the extent she is advised not to do
so by her legal counsel, immediately inform the Corporation in writing of her
receipt of such subpoena request or similar demand.
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b. The
Corporation agrees to cause its employees, officers, directors, agents and other
representatives to give reasonable cooperation, at AH’s request, in any
threatened, pending or completed action, suit or proceeding (whether civil,
criminal, administrative, formal or informal investigative or other), whether
instituted by the any governmental agency, FINRA, the New York Stock Exchange,
SEC, stockholder of the Corporation, or any other party, or any inquiry or
investigation that AH in good faith believes might lead to the
institution of any such action, suit or proceeding brought against
AH.
11. Acknowledgement of
Consideration. AH acknowledges that the only consideration that she has
received for executing this Agreement is the consideration set forth in this
Agreement and that no other promise, inducement, threat, agreement or
understanding of any kind or description has been made with or to AH by the
Corporation to cause her to agree to the terms of this Agreement. AH
acknowledges that other than as specifically set forth herein she has no claims
for money due from the Corporation.
12. Notices. All
notices, requests, demands and other communications under this Agreement shall
be in writing and shall be deemed to have been duly given (i) on the date of
service if served personally on the party to whom notice is to be given; (ii) on
the day of transmission if sent via facsimile transmission to the facsimile
number given below, and telephonic confirmation of receipt is obtained promptly
after completion of transmission; (iii) on the day after delivery to Federal
Express or similar overnight courier or the Express Mail service maintained by
the United States Postal Service; or (iv) on the fifth (5th) day
after mailing, if mailed to the party to whom notice is to be given, by first
class mail, registered or certified, postage prepaid and properly addressed, to
the party as follows:
If to the
Corporation to:
c/o Waste2Energy, Inc.
1185 Avenue of the
Xxxxxxxx
00xx
Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
5
Attention: Xxxxxxxxxxx
x’Xxxxxx Xxxxxx
Fax No.
(000) 000-0000
With a
copy to:
Xxxx
Xxxx, Esq.
Sichenzia
Xxxx Xxxxxxxx Xxxxxxx LLP
00
Xxxxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
If to AH: Xxxxxxxx
Xxxxxxxxx
0000Xxxxxxxxxx
Xxxxxx
Xxxxx
Xxxxx, XX 00000
Fax No. (000)
000-0000
or at
such other place as may be designated by a party in writing by like
notice.
13. Further
Assurances Each of the parties hereto shall execute and
deliver any and all additional papers, documents, and other assurances, and
shall do any and all acts and things reasonably necessary in connection with the
performance of their obligations hereunder and to carry out the intent of the
parties hereto.
14. Headings The section
headings contained herein are for convenience only and shall not be deemed to
control or affect the meaning or construction of any provision of this
Agreement.
15. Counterparts. This
Agreement may be executed in counterparts, it being understood that such
counterparts, taken together, shall constitute but one and the same
agreement. A facsimile signature shall constitute an original
signature.
16. Governing Law, Venue, Waiver
of Jury Trial This Agreement shall be governed by and
construed solely and exclusively under and pursuant to the laws of the State of
New York as applied to agreements among New York residents entered
into and to be performed entirely within New York. Each of the
parties hereto expressly and irrevocably (1) agrees that any legal suit, action
or proceeding arising out of or relating to this Agreement will be instituted
exclusively in the New York State Supreme Court, County of New York,
or in the United States District Court for the Southern District of
New York, (2) waives any objection they may have now or hereafter to
the venue of any such suit, action or proceeding, and (3) consents to the
jurisdiction of either the New York State Supreme Court, County of
New York, or the United States District Court for the Southern District of
New York in any such suit, action or proceeding. Each of the
parties hereto further agrees to accept and acknowledge service of any and all
process which may be served in any such suit, action or proceeding in the
New York State Supreme Court, County of New York, or in the United
States District Court for the Southern District of New York and agree that
service of process upon it mailed by certified mail to its address will be
deemed in every respect effective service of process upon it, in any such suit,
action or proceeding.
17. Entire
Agreement This Agreement sets forth the entire agreement
among the parties with respect to the subject matter hereof and supersedes all
prior agreements or understandings among the parties pertaining to the subject
matter hereof, whether oral, implied or written. There are no
warranties, representations or other agreements between the parties in
connection with the subject matter hereof except as specifically set forth or
incorporated herein.
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18. Interpretation. The
division of this Agreement into Sections, and subsections and the insertion of
headings are for convenience of reference only and will not affect its
construction or interpretation. Terms of gender will be deemed interchangeable,
as will singular and plural terms, in each case, unless the context otherwise
requires.
19. No
Amendment/Waiver. This Agreement may not be amended or
modified in any manner nor may any of its provisions be waived except by written
amendment executed by the parties expressly indicating the parties’ intention to
so amend or modify this Agreement. Any such amendment, modification
or waiver shall be effective only in the specific instance and for the purpose
for which it was given.
20. Non-Assignability. The
obligations of AH and the Corporation hereunder are personal and may not be
assigned or transferred in any manner whatsoever, nor are such obligations
subject to involuntary alienation, assignment or transfer.
21. Severability. The
various Sections of this Agreement are severable, and if any Sections or an
identifiable part thereof is held to be invalid or unenforceable by any court of
competent jurisdiction, then such invalidity or unenforceability shall not
affect the validity or enforceability of the remaining Sections or identifiable
parts thereof in this Agreement, and the parties hereto agree that the portion
so held invalid, unenforceable or void shall, if possible, be deemed amended or
reduced in scope, or otherwise be stricken from this Agreement, to the extent
required for the purposes of the validity and enforcement hereof.
22. No Strict
Construction. The parties hereto have participated jointly in
the negotiation and drafting of this Agreement. In the event any
ambiguity or question of intent or interpretation arises, this Agreement shall
be construed as if drafted jointly by all parties hereto, and no presumption or
burden of proof shall arise favoring or disfavoring any party by virtue of the
authorship of any provision of this Agreement.
23. Third Party
Beneficiaries. AH’s estate and heirs are intended third
party beneficiaries of AH’s rights and the Corporation’s obligations
hereunder.
[SIGNATURE
PAGE FOLLOWS]
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IN WITNESS WHEREOF, the
parties hereto have executed this Agreement on and as of the day and year first
above written.
| MAVEN MEDIA HOLDINGS, INC. | |||
|
|
By:
|
/s/ | |
| Name: Xxxxxxxx Xxxxxxxxx | |||
| Title: President | |||
| Xxxxxxxx Xxxxxxxxx | |||
| WASTE2ENERGY, INC. | |||
|
|
By:
|
/s/ | |
| Name: Xxxxxxxxxxx x’Xxxxxx-Xxxxxx | |||
|
Title: Chief
Executive Officer
|
|||
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