EXHIBIT 10.7
SEPARATION AGREEMENT
This SEPARATION AGREEMENT (hereinafter "Agreement") is entered as of the
31st day of August 2003, by and between Xxxxxxx Xxxxx (who shall be, in his own
right and on behalf of his heirs, executors, administrators, legal
representatives, successors and assigns, and any other person or entity acting
through him, or on his behalf, collectively, hereinafter referred to as
"Xxxxx"), and China Wireless Communications, Inc. (which, together with its
predecessors, successors, China Wireless, subsidiaries, affiliates, and related
entities, and their respective present and former trustees, officers, directors,
employees, agents, attorneys, successors and assigns shall be hereinafter
referred to as "China Wireless).
WITNESETH:
WHEREAS, Xxxxx had been employed by China Wireless as President and Chief
Executive Officer (hereinafter referred to as the "Employment Relationship");
and
WHEREAS, the parties wish to discontinue such relationship they may have
together.
NOW, THEREFORE, in consideration of the mutual covenants and promises
hereinafter provided, and the actions taken or to be taken pursuant thereto,
China Wireless and Xxxxx agree as follows:
1. In consideration for the promises made herein by Xxxxx, and
performance of the actions to be taken pursuant thereto, (a) China
Wireless shall pay to Xxxxx the aggregate amount of Thirty Thousand
Dollars and no cents ($30,000) (hereinafter referred to as the
"Severance Benefits") as follows: Five Thousand ($5,000) Dollars on or
before the close of business on August 31, 2003 (less an amount
mutually agreed to amongst the parties relating to certain office rent
and furniture); Ten Thousand ($10,000) Dollars within five business
days after China Wireless has received an additional equity/debt
financing exceeding Five Hundred Thousand ($500,000) Dollars; and Five
Thousand ($5,000) Dollars per month for three months payable on or
before the fifth day of each month commencing October 2003 and
expiring on the third month thereafter (which amounts shall represent
China Wireless' total and only payment to Xxxxx in connection with the
Employment Relationship, any acts, events, transactions or omissions
occurring in relation to the Employment Relationship or the
termination thereof).
Xxxxx agrees to release China Wireless, and those individuals set
forth in the definition of China Wireless, individually and in their
official capacities, from any and all causes of action, claims or
damages of any kind or nature, including but not limited to all
matters arising our of this Employment Relationship. This release
includes, if at any later date it is claimed or determined by the
Internal Revenue Service, any other taxing authority or a court of
competent jurisdiction that any additional sum should have been
withheld or deducted from any portion of the Severance Benefits, Xxxxx
acknowledges and agrees that the payment of any taxes, interest or
penalty thereby determined to be due shall be Xxxxx'x sole
responsibility, except for the employer's share of any withholding due
an employer including but not limited to: Medicare Tax and FICA
contribution. Xxxxx hereby covenants and agrees to indemnify China
Wireless and hold it harmless from and against the assessment of any
economic advantage.
Xxxxx waives all claims for compensation, wages, bonuses, commissions,
or benefits (except those benefits that are vested and accrued) of any
kind of nature; any claims for discrimination in employment under any
federal, state, or local statue, law, regulation or ordinance,
including but not limited to Title VII of the Civil Rights Act of
1964, as amended, the federal Age Discrimination in employment Act ,
as amended, Section1981 of the Civil rights Act of 1866, as amend, the
Americans with Disabilities Act, as amended, the Older Workers
Benefits Protection Act, as amended, the Colorado State Human Rights
Law, and any injury or loss of any kind whatsoever, regardless of
whether such claims are past or present, personal or representative,
known or unknown, arising out of any event, occurrence or omission to
date, and expressly including without limitation any claim or
liability arising our of in connection with or in relating to the
Employment Relationship, the termination of the Employment
Relationship or aftermath thereof, or to any allegations,
transactions, Xxxxx has or may or might have against China Wireless
arising out of any occurrences, event, transaction or omission arising
on or before the date of this Agreement, including claims for
attorney's fees or costs or expense incurred by him.
2. Xxxxx is eligible for these Severance Benefits provided: (a) Xxxxx
does not, directly or indirectly through a third party, interfere with
any of China Wireless businesses, employees, contractors, and/or
clients (except as allowed pursuant to the terms herein), (b) Xxxxx
fully cooperates with China Wireless in any ongoing business matters
where his services are required (at such mutually agreeable reasonable
times as set forth in Section 3(h) below), and (c) that it is not
discovered that Xxxxx has breached his fiduciary duty to China
Wireless, committed illegal acts, gross negligence and/or fraud
during, and in connection with the Employment Relationship. Xxxxx
agrees that China Wireless will have the right to seek repayment of
the Severance Amount if he fails to satisfy any one of the following
conditions, or breaches any representation, covenant or warranty he
has made herein.
3. In further consideration for the Severance Benefits set forth in this
letter, Xxxxx agrees to the following special provisions:
(a) that for a period of 24 months following the date of this
Agreement Xxxxx will keep in confidence and will not, except
as specifically authorized in writing by China Wireless,
disclose to or use for the benefit of any third party, any
confidential or proprietary information about China Wireless
or its customers or clients which Xxxxx acquired, developed
or created by reason of the Employment Relationship;
(b) that for a period of 24 months following the date of this
Agreement Xxxxx will not, directly or indirectly through a
third party, solicit, influence, induce, recruit or cause
any employee or consultant of China Wireless, to terminate
his or her employment with China Wireless, or cause such
employee to be employed or retained by, or perform services
for, Xxxxx;
(c) That for a period of 12 months following the date of this
Agreement Xxxxx will not directly, or indirectly through a
third party, solicit, influence, induce, or contact any
China Wireless' clients/customers;
(d) That for a period of 12 months following the date of this
Agreement Xxxxx will not, directly or indirectly through a
third party, solicity, influence, induce, or contact any
potential clients/customers of China Wireless;
(e) That he will not, directly or indirectly through a third
party, make any statement, publish any statement, or issue
any communication, written or otherwise, to or in the media
(or any representation thereof) or otherwise, including but
not limited to print, television, radio and internet, or to
any other person including but not limited to China
Wireless' employees, business associates, clients,
customers, and /or contractors, that refers negatively to
the name, reputation, practices or operations of China
Wireless, or that reflects adversely on or encourages any
adverse action against China Wireless;
(f) That he will not, directly or indirectly through a third
party, make any statement, publish any statement, or issue
any communication, written or otherwise, to or in the media
(ore any representation thereof), including but not limited
to print, television, radio and the internet, or to any
other person including but not limited to China Wireless's
employees, business associates, clients, customers, and/or
contractors, that interfere with the business practices or
operations of China Wireless;
(g) That, upon reasonable notice and without the necessity of
China Wireless obtaining a subpoena or court order, Xxxxx
will provide information and/or assistance to China Wireless
or its designee and make himself available to China Wireless
or its designee at reasonable times and on a reasonable
basis in connection with the investigation and/or defense of
any claims asserted against China Wireless as to which Xxxxx
may have relevant information; this includes but is not
limited to furnishing relevant information and materials to
China Wireless, and providing testimony at depositions and
at trial.
(h) That for a period commencing on the date of this Agreement
and expiring January 3, 2004, Xxxxx will consult for China
Wireless at the direct behest and direction of the Board of
Directors of China Wireless (at such mutually agreeable
times and locations); and
(i) That he acknowledges, covenants, agrees, and/or represents
as follows:
i. He shall not seek unemployment benefits;
ii. He will not to disclose the terms, contents or
execution of this Agreement except as required by law
or to his immediate family, attorney, or tax advisor;
iii. He understands that by signing this Agreement, he is
providing a complete waiver of all claims (subject to
the terms and conditions of this Agreement) that may
have arisen, whether known or unknown, up until the
time this Separation Agreement is executed by him;
iv. He hereby waives, release and forever relinquishes any
and all rights or claims to employment with China
Wireless;
v. To the extent permitted by applicable state and federal
laws and statutes, he will not in any way voluntarily
assist, aid or participate in the pursuit of any claims
or actions brought by anyone against China Wireless;
vi. By signing and returning this Agreement, Xxxxx
represents and acknowledges, under penalty of perjury,
that he:
1. has carefully read this Agreement in its entirety
and fully understands the terms thereof;
2. is entering into this Agreement voluntarily and
without coercion and with knowledge that he is
releasing and waiving valuable claims that he has
or believes he may have against China Wireless;
3. has been given the time required by applicable
laws to review and consider this Agreement;
4. has been advised by competent counsel of his own
selection as to the meaning and significance of
this Agreement, the general release contained
therein, and all of the terms of this Agreement;
5. is giving this release of claims in return for
good and valuable consideration;
6. has not, directly or indirectly through a third
party, made any statement, published any
statement, or issued any communication, written or
otherwise, to or in the media (or any
representative thereof) or otherwise, including
but not limited to print, television, radio and
the internet, or to any other person including but
not limited to China Wireless' employees, business
associates, clients, customers, and/or
contractors, that refer negatively to the name,
reputation, practices or operations of China
Wireless, or that reflects adversely on or
encourages any adverse action against China
Wireless; and
7. he has not, directly or indirectly through a third
party, made any statement, publish any statement,
or issue any communication, written or otherwise,
to or in the media (or any representative
thereof), including but not limited to print,
television, radio and the internet, or to any
other person including but not limited to China
Wireless' employees, business associates, clients,
customers, and/or contractors, that will interfere
with the business practices or operations of China
Wireless.
vii. by entering into this Agreement, he is not relying upon
any oral or written promise(s) or statement(s) made by
anyone at any time on behalf of China Wireless;
viii.he has destroyed, and does not possess, and has not
given to a third party, any information which is
proprietary to China Wireless contained on any laptop,
and/or computer he possesses;
ix. he has reached an amicable resolution to any claims
Xxxxx Xxxx may or may not have against China Wireless;
x. commencing on the date China Wireless was created he:
1. acted in the best interest of China Wireless;
2. did not commit any illegal and/or fraudulent acts;
3. did not commit any acts of gross negligence; and
4. did not commit any material misstatements to China
Wireless' accountants, auditors, counsel, and/or
third parties.
xi. he confirms his resignation as President, Chief
Executive Officer, Chairman of the Board, and a member
of the Board of Directors of China Wireless effective
as of August 15, 2003;
xii. he has assumed and taken full responsibility for any
and all claims the following individuals may or may not
have against China Wireless: Xxxxxxxxx Xxxxxx (sole as
it relates to claims pertaining to actions of Xxxxx),
Xxxxx Xxxx, Xxxx Xxxxxxx, Xxx Xxxxxxx, and Xxx Xxxxx
(including affiliates of each of the foregoing), except
as such claims relate to current documents notes
payable to China Wireless.
xiii.He has entered into the voting agreement annexed
hereto and made a part of.
Xxxxx agrees that damages in the event of breach of any of the above
special provisions would be difficult to ascertain, and it is therefore agreed
that, in addition to and without limiting any other remedy or right China
Wireless may have, China Wireless shall have the right to an injunction or other
equitable relief in any court of competent jurisdiction enjoining any such
breach or prospective breach. The existence of this right shall not preclude any
other rights and remedies at law or in equity. Xxxxx also agrees that China
Wireless shall be entitled to any legal fees, costs and disbursements it incurs
in the enforcement of its rights in connection with these special provisions.
4. Within five business days after the execution of this Agreement by all
parties Xxxxx agrees to surrender, return, terminate and cancel all
right, title and interest in 500,000 shares of China Wireless Common
Stock presently owned by Xxxxx. China Wireless agrees to pay all fees
incurred from its transfer agent in connection with such action.
5. In the event a court of competent jurisdiction rules that any
provision of this Agreement is invalid, illegal or unenforceable, such
a ruling shall not affect the validity or enforceability of any other
provision of this Agreement. In the event a court of competent
jurisdiction rules that any provision of this Agreement is overbroad,
or over reaching etc. then such court shall narrow the scope and/or
breadth of such provision, and such a ruling shall not affect the
validity or enforceability of any other provision of the Agreement.
6. This Agreement includes all of the agreements between Xxxxx and China
Wireless in connection with the Employment Relationship, and
supersedes any such prior agreements or representation, and all of
such prior agreements shall be deemed null and void.
7. Notwithstanding anything contained herein to the contrary, the parties
agree that this Agreement in no way limits China Wireless' ability to
seek recourse from Xxxxx for any material misstatements to China
Wireless' accountants, auditors, counsel, and/or third parties,
illegal, grossly negligent, and/or fraudulent actions, or actions
which were not in the best interests of China Wireless during the time
that Xxxxx was employed by China Wireless.
8. China Wireless represents and agrees as follows:
(a) It will not, directly or indirectly through a third party,
make any statement, publish any statement, or issue any
communication, written or otherwise, to or in the media (or
any representation thereof) or otherwise, including but not
limited to print, television, radio and internet, or to any
other person including but not limited to Xxxxx, any
employees, business associates, clients, customers, and/or
contractors, that refers negatively to the name, reputation,
practices or operations of Xxxxx, or that reflects adversely
on or encourages an adverse action against Xxxxx;
(b) It will not, directly or indirectly through a third party,
make any statement, publish any statement, or issue any
communication, written or otherwise, to or in the media (or
any representative thereof), including but not limited to
print, television, radio and the internet, or to any other
person including but not limited to Xxxxx'x employees,
business associates, clients, customers, and/or contractors,
that interferes with the business practices or operations or
Xxxxx; and
(c) It will not disclose the terms, contents or execution of
this Agreement except as required by law or to its attorney
or tax advisor;
9. Xxxxx acknowledges that he has been given such time as is required by
applicable laws from receipt of this Agreement to consider its meaning
and determine whether he wishes to sign it. Xxxxx may revoke this
Agreement within seven (7) calendar days from the date he signs it, in
which case this agreement shall be null and void and of no force or
effect on either Xxxxx or China Wireless. Any revocation must be in
writing and received by China Wireless on or before the seventh day
after this Agreement is signed by Xxxxx. Such revocation must be sent
to:
Xxxxxxx X. Xxxxx, Esq.
Berkman, Henoch, Xxxxxxxx & Xxxxx, P.C.
000 Xxxxxx Xxxx Xxxxx
Xxxxxx Xxxx, Xxx Xxxx 00000
10. All disputes by any party relating to this Agreement ("Disputes")
shall be submitted to, and determined by, arbitration if good faith
negotiations among the parties do not resolve such claim, dispute or
other matter within 30 days. Such arbitration shall proceed in
accordance with the Commercial Arbitration Rules of the American
Arbitration Association then pertaining (the "Rules"), insofar as such
Rules are not inconsistent with the provisions expressly set forth in
this Agreement, unless the parties mutually agree otherwise, and
pursuant to the following procedures:
(a) Notice of the demand for arbitration shall be filed in
writing with other party or parties to such Dispute and with
the American Arbitration Association. Each party to such
Dispute shall appoint an arbitrator, and those appointed
arbitrators shall appoint a third neutral arbitrator within
10 days. If the appointed arbitrators fail to appoint a
third, neutral arbitrator within 10 days, such third,
neutral arbitrator shall be appointed by the American
Arbitration Association in accordance with the Rules. A
determination by a majority of the panel shall be binding.
(b) Reasonable discovery shall be allowed in arbitration.
(c) All proceedings before the arbitrators shall be held within
the State of Colorado. The governing law shall be the laws
of Colorado for contacts wholly executed, delivered and
performed within Colorado.
(d) The costs and fees of the arbitration, including attorneys'
fees, shall be allocated by the arbitrators.
(e) The award rendered by the arbitrators shall be final and
judgment may be entered in accordance with applicable law
and in any court having jurisdiction thereof.
11. Xxxxx releases, discharges, terminates and waives all claims against
China Wireless and its officers and directors, their estates, heirs,
executors, administrators, personal representatives and affiliates
form and against any and all claims, counterclaims, actions, or causes
of action whether asserted or unasserted and whether known or unknown
which Xxxxx has possessed or may possess up until the time of the
execution of this Agreement.
China Wireless releases, discharges, terminates and waives all claims
against Xxxxx from and against any and all claims, counterclaims, actions
or causes of action whether asserted or unasserted and whether known or
unknown which China Wireless has possessed or may possess up until the time
of the execution of this Agreement, based upon all disclosed non-fraudulent
acts of Xxxxx in the normal course of business (except those claims which
have not been released and have been assumed by Xxxxx set forth herein).
12. Xxxxx agrees to indemnify and hold harmless China Wireless and each
officer, and director of the other or person, in any, who controls
China Wireless within the meaning of the Securities Act against any
losses, claims, damages or liabilities, joint or several (which shall,
for all purpose of this Agreement, include, but not be limited to, all
costs of defense and investigation and all attorneys' fees), to which
such party may become subject, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are
based upon claims by Xxxxx Xxxx (resident of Wisconsin), Xxxx Xxxxxxx,
and/or Xxx Xxxxx (both residents of the State of Colorado) that are
not released by this Agreement. The foregoing shall not include claims
relating to current documented notes payable by China Wireless held by
any of the foregoing individuals.
13. Parties agree that China Wireless shall be responsible for rent on the
offices located at 0000 Xxxxxxx Xxxxxx Xxxxx #0000, Xxxxxx Xxxx,
Xxxxxxxx 00000 only through the date in which Xxxxx has previously
changed the locks on such location and Xxxxx shall be responsible for
any additional rent owed on such location for all periods thereafter.
Payment for such rent and for such furniture in such premises to be
mutually agreed upon and made as set forth in Section 1 above.
14. This Agreement may be executed in multiple counterparts, and each
counterpart when taken together shall be treated as a single and
entire document and be admissible in evidence as a duplicate original.
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Agreement as of the day and year written below.
China Wireless: Xxxxx:
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China Wireless Communications, Inc. Xxxxxxx Xxxxx
By: /s/ XXXX XXXXX /s/ XXXXXXX XXXXX
-------------------------------- -----------------------------
Name: Xxxx Xxxxx
Title: Chief Financial Officer
Dated: September 15, 2003 Dated: September 8, 2003
Sworn to before me this Sworn to before me this
15th day of September 2003 8th day of September 2003
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Notary Public Notary Public
