Exhibit 10.9
TERMINATION AGREEMENT
BETWEEN ADVA INTERNATIONAL INC. AND XXXXXX L DOWN
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THIS TERMINATION AGREEMENT (the "Agreement"), dated April 30th 2002 and
made effective as of the 1ST day of May 2002 (the "Effective Date"), by and
between ADVA INTERNATIONAL INC., a corporation incorporated under the laws of
the state of Delaware ("ADVA" or the "Company"), and XXXXXX L DOWN (the
"Executive").
WHEREAS, ADVA is desirous of replacing the Executive's Employment
Agreement (attached herein as Exhibit A, "Employment Contract") with a
Consultant Agreement (attached herein as Exhibit B, "Consulting Agreement") for
the position of President of Global Information Group USA ("GIG") a wholly owned
subsidiary of ADVA International Inc;
WHEREAS, the Executive is agreeable to this transition from Employee to
Consultant as President of GIG;
WHEREAS, although ADVA considers the termination of the Executive's
current Employment Contract to be in the best interests of the Company at this
time, it desires to induce the Executive to continue to serve the Company as a
Consultant on the basis of a six (6) month contract which will provide for the
Company's continued access to the Executive's expertise and experience;
WHEREAS, the Executive is willing to continue to serve the Company as a
Consultant from and after the Effective Date hereof on the basis of the terms
and conditions set forth in the attached Exhibit B, "Consulting Agreement" by
and between the Company and Xxxxxx L Down dated May 3, 2002 with an effective
date of May 1, 2002;
WHEREAS, the Company acknowledges and agrees without reservation to the
vesting as of May 1, 2001 of all remaining stock options as noted in the
Executive's Employment Contract totaling 75,000 shares;
WHEREAS, the Company acknowledges and agrees without reservation to its
monetary indebtedness to the Executive for unpaid salary as per the Executive's
contract for the months of February, March and April 2002, the total amount due
and terms of repayment contained herein;
WHEREAS, the Company acknowledges and agrees without reservation to its
monetary indebtedness to the Executive for unreimbursed expenditures made by the
Executive on the behalf of the Company, the total amount due and terms of
repayment contained herein;
WHEREAS the Company acknowledges and agrees without reservation that
Executive's Employment Contract currently in force entitles the Executive to a
severance package ("Severance Package") the total amount due and terms of
repayment contained therein the Employment Contract,
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NOW, THEREFORE, upon the mutual promises and covenants of the parties,
and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, and intending to be legally bound, the parties agree as
follows:
1. Reimbursement of Expenses. The Company shall reimburse all expenses
outstanding and due to Executive for the totality of his employment
with the Company up to the Effective Date. Funds shall be reimbursed in
four equal tranches each to be disbursed on the first day of each month
commencing on the Effective Date and ending on August 1, 2002 (the
"Repayment Period"). The total amount outstanding and due as of the
Effective Date is $ 2933.50 generating an April payment of $1,546.11
and ongoing four (4) monthly payments of $346.85 each.
2. Payment of Outstanding Salary. The Company shall pay all salary
outstanding and due to the Executive for the totality of his employment
with the Company up to the Effective Date. Funds shall be reimbursed in
four equal tranches each to be disbursed on the first day of each month
during the Repayment Period. The total amount outstanding and due as of
the Effective Date is $31,249- generating an April payment of $10,416-
and ongoing four (4) monthly payments of $5,208.33 each.
3. Severance
a. Executive's Employment Contract entitles the Executive to
irrevocable Severance Pay payable at the Effective Date of
termination. (see Employment Agreement Exhibit A).
b. Executive agrees to hold in reserve the payment of the total cash
value of the Severance Package due from the Company for the term of
the Repayment Period when and if the following conditions are met
unequivocally:
i. the terms and covenants contained in this Agreement
requiring any action, behavior or payment of or by the
Company are fully and duly executed and or payments made
according to the terms herein.
ii. the terms and covenants contained in the attached Exhibit B,
the Consulting Agreement, requiring any action or payment of
or by the Company are fully and duly executed and or
payments according to the terms therein.
c. Should the Company perform as agreed herein, and repay all funds
outstanding and due to the Executive according to the terms herein
by or at the end of the Repayment Period, the Executive shall waive
any contractual and future legal rights to the total cash value of
the Severance Package.
d. In the event of the Company's failure, for any reason, to fully
comply with any of the terms and covenants contained herein, with
special attention to Sections 1-2, the Severance Package shall be
re-instated immediately and the Company liable for an immediate
one-time payment to the Executive, or his designated agent, of the
full cash value of the Severance Package, that in addition to any
and all payments due under any other provisions or obligations.
4. Agreement Default.
a. The Company agrees to fully execute and abide by the terms and
covenants as will be found in Exhibit B, the Consulting Agreement,
attached hereto. In the event that the Company defaults on any term
or suspends the Consulting Agreement for any reason (known
collectively with 4(b) below as an "Agreement Default"); including
but not limited to, "for cause" (as it is defined in Section 7 -
Exhibit A of the Consulting Agreement); the Company agrees that the
aggregate and full cash value of all outstanding and unpaid Salary,
Expenses and Severance Package shall become due and owing to the
Executive immediately and will be paid by the Company via
irrevocable SWIFT wire transfer within five (5) business days of
written notification to the Company of said Agreement Default.
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b. In the event that the Company defaults on any term or suspends this
Agreement for any reason or in any way (known collectively with 4(a)
above as an "Agreement Default"), including but not limited to "for
cause" (as it is defined in Section 7 - Exhibit A of the Consulting
Agreement); the Company agrees that the aggregate and full cash
value of all outstanding and unpaid Salary, Expenses, and Severance
thereto shall become due and owing to the Executive immediately and
paid by the Company.
c. In the event that the Company wishes to dispute the validity of an
Agreement Default, the Company hereby agrees to:
i. File such Notice of Dispute in writing with the Executive
within five (5) business days of the receipt of written
notification of Agreement Default
ii. Submit the dispute to binding Alternative Dispute Resolution
(ADR) under the terms of Section 6 - Settlement hereunder,
no later then thirty (30) calendar days from the Notice, or
at the earliest date that such ADR adjudication is
available, with no delay unreasonably sought or imposed by
either party.
5. Payment Details.
i. Grace Period. In the case of all payments due the Executive,
the Company shall enjoy a grace period of five (5) business
days before any default may be triggered according to the
terms and covenants herein.
7. Confidentiality. Both parties agree to hold this Agreement and the
details thereof in strictest confidence unless disclosure is in
compliance with judicial or governmental decree, report or regulation.
In the event of said disclosure, parties agree to limit disclosure to
the minimum required for proper compliance. Furthermore, for the term
of the Agreement, Executive reserves the right to approve, prior to
release, all language referring to Executive and his relationship with
the Company henceforth to be contained in any documents for public
distribution, said approval not to be unreasonably withheld.
8. Settlement of Disputes. All claims, controversies, demands, disputes or
differences between the parties hereto or any persons bound hereby
arising out of, or by virtue of, or in connection with, or relating to
this Agreement shall be submitted to and determined by arbitration in
accordance with this Section 7.
i. In the event of such a claim, controversy, demand, dispute
or difference, ADVA, on the one hand, and Consultant on the
other hand, shall each select one arbitrator and shall
together select a third arbitrator who is neutral and
unbiased, and who shall serve as the chairman of the panel.
If the parties are unable to agree upon the third
arbitrator, or if one of the parties is unable or fails to
select an arbitrator in accordance with this Section, the
American Arbitration Association ("AAA") shall be designated
by either party to appoint such arbitrator(s) to arbitrate
the matter in accordance with this Section.
ii. The matter shall be arbitrated under the commercial
arbitration rules of the AAA then obtaining, such
arbitration to be held in the City of Charlotte, North
Carolina. At any time before a decision of the arbitration
panel has been rendered, the parties may resolve the dispute
by settlement. The decision of a majority of arbitrators
shall be the award of the panel of arbitrators and shall be
made in writing setting forth the award and the reasons for
the decision. Such award shall be binding and conclusive on
all parties, shall not be subject to appeal and may be
enforced as such in accordance with the provisions of the
award. This agreement to arbitrate is specifically
enforceable by the parties to this Agreement.
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8. General Provisions.
e. Non-Assignability. This Agreement may not be assigned by the
Executive without ADVA's prior written consent; provided,
however, that nothing in this Section 8(a) shall preclude the
executors, administrators, or other legal representatives of the
estate of the Executive from assigning any right hereunder to the
person or persons entitled thereto under the Executive's will or,
in case of intestacy, to the person or persons entitled thereto
under the laws of intestacy applicable to the Executive's estate.
f. No Attachment. Except as otherwise required by law, no right to
receive payments under this Agreement shall be subject to
anticipation, commutation, alienation, sale, assignment,
encumbrance, charge, pledge or hypothecation or to execution,
attachment, levy or similar process or assignment by operation of
law, and any attempt, voluntary or involuntary, to effect any
such action shall be null, void and of no effect.
g. Amendment. No amendment or modification of this Agreement shall
be deemed effective unless and until executed in writing by the
parties hereto.
10. Obligations and Liabilities.
The Consultant agrees that, with respect to the Executive's prior
Employment Contract attached herewith as Exhibit A, when duly executed
and on the Effective Date herein, this Agreement shall continue any and
all of the Executive's obligations, liabilities, restrictions or
responsibility as defined in or related to said prior Employment
Contract as President of Global Information Group USA, Inc. pursuant to
the attached Consulting Agreement.
11. Legal Expenses. Each party shall pay its or his own expenses incident
to obtaining or enforcing any right or benefit provided by this
Agreement.
12. Limitation of Claims. No claim, regardless of form, which in any way
arises out of this Agreement or the parties' performance of this
Agreement may be made, nor action based upon such a claim brought, by
either party more than one (1) year after the termination of this
agreement or basis for the claim becomes known to the party desiring to
assert it, which ever is shorter.
13. Severability. If for any reason any provision of this Agreement shall
be held invalid, such invalidity shall not affect any other provision
of this Agreement not held so invalid, and all other such provisions
shall to the full extent consistent with law continue in full force and
effect. If any such provision shall be held invalid in part, such
invalidity shall in no way affect the rest of such provision not held
so invalid, and the rest of such provision, together with all other
provisions of this Agreement, shall likewise to the full extent
consistent with law continue in full force and effort.
14. Headings. The headings are included solely for convenience of reference
and shall not control the meaning or interpretation of any of the
provisions of this Agreement.
15. Governing Law. This Agreement has been executed and delivered in the
state of South Carolina and its validity, interpretation, performance
and enforcement shall be governed by and construed in accordance with
the laws thereof applicable to contracts executed and to be wholly
performed in South Carolina.
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16. Consent to Jurisdiction. Except as provided in Section 7 hereof,
Executive and ADVA irrevocably consent to the exclusive jurisdiction of
the Civil Division of the Sixteenth Judicial Circuit Court in York
County, South Carolina and/or the United States District Court,
District of South Carolina in any action or proceeding pursuant to this
Agreement and agree to service of process in accordance with Section 19
herein.
17. Successors, Binding Agreement.
a. ADVA will require any successor (whether direct or indirect, by
purchase, merger, consolidation, or otherwise) to all or
substantially all of the business and/or assets of ADVA to expressly
assume and agree to perform this Agreement in the same manner and to
the same extent that ADVA would be required to perform it if no such
succession had taken place.
b. This Agreement shall inure to the benefit of and be enforceable by
and inure to the benefit of both ADVA and its successors and assigns
and the Executive and his personal or legal representatives,
executors, administrators, heirs, distributes, devisees, legatees,
successors and assigns. If the Executive should die while any amount
is payable to the Executive under this Agreement all such amounts,
unless otherwise provided herein, shall be paid in accordance with
the terms of this Agreement to the Executive's devisee, legatee, or
other designee, or, if there is no such designee, to the Executive's
estate.
18. Entire Understanding. This Agreement and Exhibits hereto set forth the
entire understanding between the parties with respect to the subject
matter hereof and cancels and supersedes all prior oral and written
agreements between the parties or otherwise applicable to Executive,
with respect to the subject matter hereof. This Agreement may be
executed in counterpart(s).
19. Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall have been duly given if
delivered by hand or mailed, certified or registered mail, return
receipt requested, with postage prepaid, to the following address or to
such other address as either party may designate by like notice:
If to ADVA:
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ADVA International Inc.
000 Xxxxx Xxxxxxxx Xxxx, Xxxxx 000, Xxxx Xxxx, XX
Attention: Xxxxx Xxxxxxxx
With a copy to:
Blank Rome Xxxxxxx & XxXxxxxx LLP
Xxx Xxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Facsimile: 215.569.5555
Attention: Xxxxx X. Xxxxxx, Esquire
or such other address as Client may designate,
and if to Executive:
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Xxxxxx L Down
00 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
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EXECUTIVE AFFIRMS THAT THE ONLY CONSIDERATION FOR SIGNING THIS AGREEMENT AND THE
EXHIBITS THERETO ARE THE TERMS STATED HEREIN, THAT NO OTHER PROMISES OR
AGREEMENTS OF ANY KIND HAVE BEEN MADE TO OR WITH HIM BY ANY PERSON OR ENTITY
WHATSOEVER TO CAUSE HIM TO SIGN THIS AGREEMENT, AND THAT HE FULLY UNDERSTANDS
THE MEANING AND INTENT OF THIS DOCUMENT. EXECUTIVE STATES AND REPRESENTS THAT HE
HAS BEEN ADVISED, AND HAD AN OPPORTUNITY, TO DISCUSS FULLY AND REVIEW THE TERMS
OF THIS AGREEMENT WITH AN ATTORNEY. EXECUTIVE FURTHER STATES AND REPRESENTS THAT
HE HAS CAREFULLY READ THIS AGREEMENT, UNDERSTANDS THE CONDITIONS HEREOF, FREELY
AND VOLUNTARILY ASSENTS TO ALL THE TERMS AND CONDITIONS HEREOF, AND SIGNS THE
SAME AS HIS OWN FREE ACT.
IN WITNESS WHEREOF, ADVA has caused this Agreement to be executed and
its seal to be affixed hereto by its Directors thereunto duly authorized, and
the Executive has signed this Agreement this 5th day of June 2002, effective as
of May 1, 2002.
ATTEST: FOR:
ADVA International Inc
Signed: /s/Xxxxxx X. Down Signed: /s/Xxxxx X. Xxxxxxxx
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Xxxxxx X. Down (Executive) Xxxxx Xxxxxxxx
CEO and Chairman of the Board
WITNESS: C. Xxxxx Xxxxx
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C. Xxxxx Xxxxx
Non-Executive Director of ADVA
International Inc.
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