MUTUAL SEPARATION AGREEMENT
This Mutual Separation Agreement is made as of September 30, 2004, between
GVI Security, Inc., a Delaware corporation (the "Company"), GVI Security
Solutions, Inc., a Delaware corporation (the "Parent") and Xxxxxx Xxxx ("Xxxx").
RECITALS
WHEREAS, Xxxx and the Company are parties to an Employment Agreement,
dated as of July 22, 2003 (the "Employment Agreement;" capitalized terms used
but not defined herein shall have the meanings set forth in the Employment
Agreement), whereby Xxxx was employed as President of the Company; and
WHEREAS, Xxxx and the Company have agreed to a mutual separation of the
employment relationship, termination of the Employment Agreement, and the
settlement and release of claims by each party on the terms set forth herein.
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
1. Termination. Xxxx'x employment with Company is terminated as of the
date hereof (the "Termination Date") in accordance with Section 2.2(f) of the
Employment Agreement.
2. Severance. In accordance with Section 2.3 of the Employment Agreement,
Xxxx will be paid (i) on the date hereof, an amount equal to his accrued and
unpaid salary through the date hereof, plus any accrued vacation pay, any
unreimbursed expenses and any Incentive Bonus then earned but not already paid,
(ii) $350,000 payable in twenty-four (24) equal installments over the 12-month
period ending one-year from the date hereof; and (iii) within 60 days after the
end of the first Bonus Period ending after the date hereof, a prorated portion
(based upon the number of days during such Bonus Period Xxxx was employed by the
Company) of the Incentive Bonus that would otherwise be payable to Xxxx with
respect to such Bonus Period. In addition, until the end of the 12-month period
ending one-year period from the date hereof, Xxxx shall continue to be (i)
entitled to a monthly non-accountable expense allowance of $1,200, (ii) entitled
to a monthly automobile allowance of $800, and (iii) provided with medical
benefits under the Company's medical insurance plans on the same basis
applicable to other employees of the Company.
3. Acceleration of Vesting of Stock Option. Immediately upon the execution
of this Agreement by the parties hereto, Xxxx'x option to purchase 1,975,020
shares of Parent's common stock, par value $.001 per share, under the Option
Agreement, dated as of February 20, 2004, between Xxxx and Parent (f/k/a
Thinking Tools, Inc.) shall be exercisable in full.
4. Release.
(a) In exchange for the consideration provided for by Sections 2 and
3 hereof, Xxxx for himself and for his heirs, executors, administrators and
assigns (hereinafter referred to collectively as "Releasors"), forever releases
and discharges the Company, the Parent and any of their now or hereafter
existing subsidiaries, parent companies, divisions, affiliates or related
business entities, successors and assigns and any of their past or present
shareholders, directors, officers, attorneys, agents, trustees, administrators,
employees or assigns (whether acting as agents for the Company or in their
individual capacities) (hereinafter referred to collectively as "Releasees"),
from any and all claims, demands, causes of action, fees and liabilities of any
kind whatsoever, whether known or unknown, which Releasors ever had, now have or
may have against Releasees by reason of any actual or alleged act, omission,
transaction, practice, conduct, occurrence or other matter up to and including
the date hereof.
(b) Without limiting the generality of the foregoing, this Agreement
is intended to and shall release Releasees from any and all claims, whether
known or unknown, which Releasors ever had, now have and may have against
Releasees, including but not limited to any claims, whether or not asserted,
arising out of Xxxx'x employment with Releasees and/or his termination from such
employment, including but not limited to: (i) any claim under the Civil Rights
Act of 1964, as amended; (ii) any other claim of discrimination or retaliation
in employment (whether based on federal, state or local law, statutory or
decisional); (iii) any claim arising out of the terms and conditions of Xxxx'x
employment with the Company, his termination from such employment, and/or any of
the events relating directly or indirectly to or surrounding such termination;
(iv) any claim of discrimination or breach of fiduciary duty under the Employee
Retirement Income Security Act of 1974, as amended (except claims for accrued
vested benefits under any employee benefit plan of the Company in accordance
with the terms of such plan and applicable law); (v) any claim arising under the
Federal Age Discrimination in Employment Act of 1997, as amended, and the
applicable rules and regulations thereunder; and (vi) any claim for attorney's
fees, costs, disbursements and/or the like.
5. Covenant not to Xxx. Xxxx covenants, except to the extent prohibited by
law, not to commence, maintain, prosecute or participate in any action, charge,
complaint or proceeding of any kind (on his own behalf and/or on behalf of any
other person or entity and/or on behalf of or as a member of any alleged class
of persons) in any court, or before any administrative or investigative body or
agency (whether public, quasi-public or private), except if otherwise required
by law, against Releasees with respect to any act, omission, transaction or
occurrence up to and including the date on which this Agreement is executed.
6. Cooperation. Xxxx agrees to cooperate with the Company, the Parent and
their counsel in any action, proceeding or litigation relating to any matter in
which Xxxx was involved or of which Xxxx has knowledge as a result of or in
connection with his employment by the Company.
7. Non-Disparagement. Xxxx agrees that he will not at any time, orally or
in writing, willfully denigrate, disparage, ridicule or criticize, or willfully
make any derogatory, disparaging or damaging statements (or induce or encourage
others to engage in any such act) regarding the Company, the Parent, and any
their subsidiaries, divisions, affiliates or related business entities,
successors and assigns and any of their or past or present shareholders,
directors, officers, attorneys, agents, trustees, administrators, employees or
any other representatives of the Company or any of their respective products or
properties, including by way of news interviews or the expression of personal
views, opinions or judgments to the media.
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8. Confidentiality; Return of Corporate Property, Non-Solicitation.
Following the date hereof, Xxxx shall continue to be bound by the provisions of
Sections 5, 6 and 8 of the Employment Agreement in accordance with the terms
thereof.
9. Specific Performance. In view of the irreparable harm and damage which
would be incurred by the Company and the Parent in the event of any violation by
Xxxx of any of the provisions of Sections 4 through 8 hereof, Xxxx hereby
consents and agrees that in any such event, the Company and the Parent, in
addition to any other rights they may have, and without prejudice to any other
remedies which may be available at law or in equity, shall be entitled to an
injunction or similar equitable relief to be issued by any court of competent
jurisdiction restraining Xxxx from committing or continuing any such violation,
without the necessity of proving damage, or posting any bond or other security.
10. Acknowledgment. Xxxx acknowledges that: (i) he has carefully read this
Agreement in its entirety; (ii) he has had an opportunity to consider fully the
terms of this Agreement; (iii) he fully understands the significance of all the
terms and conditions of this Agreement; (iv) he has had answered to his
satisfaction any questions he has asked with regard to the meaning and
significance of any of the provisions of this Agreement; and (v) he is signing
this Agreement voluntarily and of his own free will and assents to all the terms
and conditions contained herein.
11. Governing Law. This Agreement shall be governed in all respects by the
laws of the State of Texas without reference to its choice of law rules.
12. Successors and Assigns. Except as otherwise provided herein, the
provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the parties hereto.
13. Entire Agreement; Amendment. This Agreement constitutes the full and
entire understanding and agreement between the parties with regard to the
subjects hereof and thereof. Neither this Agreement nor any term hereof may be
amended, waived, discharged or terminated other than by a written instrument
signed by the party to be charged.
14. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be enforceable against the parties actually
executing such counterparts, and all of which together shall constitute one
instrument.
15. Severability. The holding of any provision of this Agreement to be
invalid or unenforceable by a court of competent jurisdiction shall not affect
any other provision of this Agreement, which shall remain in full force and
effect.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
GVI SECURITY, INC.
By: __________________________
Name:
Title:
GVI SECURITY SOLUTIONS, INC.
By: __________________________
Name:
Title:
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Xxxxxx Xxxx
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