SEPARATION AGREEMENT AND RELEASE
Exhibit
10.2
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* * *
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SEPARATION
AGREEMENT AND RELEASE
dated as
of April 6, 2007 (the “Agreement”) by and between Xxx. Xxxx Xxxxxxxxxx, an
individual currently having an office located at 0000
Xxxxxx Xxxx, Xxxxx X, Xxxxxxxxx, Xxx Xxxx, 00000
(hereinafter, the “Executive”), and Tia V, Inc., a Delaware corporation,
currently having its principal place of business located at 0000
Xxxxxx Xxxx, Xxxxx X, Xxxxxxxxx, Xxx Xxxx, 00000 (hereinafter, the
“Company”).
Each of
the Executive and the Company is, unless otherwise specifically identified,
a
“Party” and, collectively, the “Parties”). This Agreement is expressly for the
benefit of the Parties and certain “Company Releasees,” each as respectively
defined in Section 5 below.
R E C I T A L S:
WHEREAS,
the
Executive has served as the Company’s sole officer, director, principal and
employee since inception;
WHEREAS,
on
April
6, 2007, the Executive ceased working for the Company (hereinafter, the
“Cessation Date”); and
WHEREAS,
the
Executive desires to separate from the Company, cede control and to settle
fully
and finally all differences, disputes and claims she may have against the
Company and others including, but not limited to, those differences, disputes
and claims based upon, arising out of, or relating to the Executive’s employment
relationship with Company and the cessation thereof.
NOW,
THEREFORE, in
consideration of the mutual covenants and conditions herein contained, it is
hereby agreed by and between the Parties as follows:
1. Mutual
Agreement to Terminate Relationship; Executive’s
Resignation.
Company
and the Executive mutually desire to terminate Executive’s relationship with the
Company, effective as of the Cessation Date. Further, and in connection with
the
termination of her relationship with the Company, the Executive shall resign
all
of her positions with the Company, namely her positions as a director of the
Company and her official positions as President, Secretary and Treasurer of
the
Company, she having no other positions with the Company. Concurrently with
the
execution and delivery of this Agreement by the Parties, the Executive shall
execute and deliver to Company a letter of resignation effective as of the
Cessation Date (hereinafter, the “Executive’s Resignation Letter”). The
Executive’s Resignation Letter shall be substantially in the form annexed hereto
as Exhibit A.
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2. Separation
Consideration; Method of Delivery.
(a) The
Company agrees to pay to the Executive Two Hundred Fifty Thousand and 00/100
Dollars ($250,000.00) in the form of a non-negotiable promissory note as annexed
hereto as Exhibit B
(hereinafter, the “Executive Note”)
(b) The
Company shall deliver the Executive Note to the Executive’s counsel, Xxxxxxx
Xxxx, LLP (hereinafter, the “Escrow Agent”) on the Cessation Date, subject to
the terms and conditions of a separate escrow agreement by and among the
Company, the Executive and the Escrow Agent dated as of the Cessation Date,
substantially in the form annexed hereto as Exhibit B
(hereinafter, the “Note Escrow Agreement”).
3. No
Filings.
The
Executive represents that up to and including the date of execution
of this Agreement, she has not filed any action, claim, charge, or complaint
against Company or any other Company Releasee identified in Section 5 below,
with any local, state, or federal agency, self-regulatory organization ("SRO"),
or court and that she will not make such a filing at any time hereafter based
upon any events or omissions occurring prior to and up to the date of execution
of this Agreement. In the event that any agency or court assumes jurisdiction
of
any lawsuit, claim, charge or complaint, or purports to bring any legal or
regulatory proceedings against Company or any other Company Releasee identified
in Section 5 below on the Executive’s behalf, she promptly will request that the
agency, SRO, or court withdraw from or dismiss the lawsuit, claim, charge,
or
complaint with prejudice. Notwithstanding the foregoing provisions of this
Section 3 to the contrary, the Executive expressly retains any and all rights
that she may have: (a) to file and commence an action for indemnification
arising under the Company’s certificate of incorporation or by-laws
(collectively, “Indemnification Clam”); provided,
however,
that
such
right shall not apply to any Indemnification Claim which is the basis or a
part
of a claim of the Company against the Executive under the Securities Exchange
Agreement (as hereinafter defined in Section 5); (b) to file and commence an
action to enforce payment of the Executive Note; and (c) to enforce any of
her
rights under the Securities Exchange Agreement (as hereinafter defined in
Section 5) including any claims for indemnification thereunder to the extent
in
good faith she believes she is entitled thereto.
4. Covenant
Not to Xxx.
In
consideration for the promises set forth in this Agreement, the Executive
covenants that she will not file, participate in, or instigate the filing of
any
lawsuits, complaints or charges by herself or by any other person or party
in
any state or federal court or any proceedings before any local, state, or
federal agency, or SRO, except as required by law, claiming that Company or
any
other Company Releasee identified in Section 5 below has violated any law or
obligation, including, but not limited to, any claims that have been made or
that could have been made, based upon events or omissions occurring prior to
and
including the effective date of this Agreement. Notwithstanding the foregoing
provisions of this Section 4 to the contrary, the Executive expressly retains
any and all rights that she may have: (a) to file and commence an action for
an
Indemnification Claim; provided,
however,
that
such
right shall not apply to any Indemnification Claim which is the basis or a
part
of a claim of the Company against the Executive under the Securities Exchange
Agreement (as hereinafter defined in Section 5); (b) to xxx to enforce payment
of the Executive Note, and (c) to xxx to enforce any of her rights under the
Securities Exchange Agreement (as hereinafter defined in Section 5) including
any claims for indemnification thereunder to the extent in good faith she
believes she is entitled thereto.
5. Executive
Release.
Subject
to Company’s obligations in this Agreement or anything to the contrary stated
herein, in consideration for the promises set forth in this Agreement, the
Executive does hereby - for herself and for her heirs, representatives,
attorneys, executors, administrators, successors, and assigns - release, acquit,
and forever discharge Company and all of its affiliates, subsidiaries and
divisions, and their respective stockholders, officers, directors, partners,
servants, agents, employees, representatives, attorneys, employee welfare and
retirement plans and the respective plan administrators and fiduciaries, past,
present, and future, all persons acting under, by, through, or in concert with
any of them, and each of them (all of whom are hereinafter referred to as the
"Company Releasees"), from any and all actions, causes of action, grievances,
obligations, costs, expenses, damages, losses, claims, liabilities, suits,
debts, demands, and benefits (including attorneys' fees and costs actually
incurred), of whatever character, in law or in equity, known or unknown,
suspected or unsuspected, matured or unmatured, of any kind or nature
whatsoever, based on any act, omission, event, occurrence, or nonoccurrence
from
the beginning of time to and including the effective date of this Agreement,
including but not limited to any claims or causes of action arising out of
or in
any way relating to the Executive’s employment relationship with Company or any
other Company Releasee. The Executive agrees that this release of claims
includes, but is not limited to, claims for breach of any implied or express
contract or covenant; claims for promissory estoppel; claims of entitlement
to
any pay (other than the Separation Consideration promised in Section 2); claims
of wrongful denial of insurance and employee benefits, or any claims for
wrongful termination, public policy violations, defamation, invasion of privacy,
fraud, misrepresentation, unfair business practices, emotional distress or
other
common law or tort matters; claims of harassment, retaliation or discrimination
under federal, state, or local law; claims based on any federal, state or other
governmental statute, regulation or ordinance, including, without limitation,
Title VII of the Civil Rights Act, as amended, the Age Discrimination in
Employment Act of 1967, the Older Worker Benefit Protection Act, the National
Labor Relations Act, the Occupational Safety Health Act, the Americans with
Disabilities Act, the Family and Medical Leave Act, the Employee Retirement
Income Security Act of 1974, New York State Wage and Hour Laws, the New York
Occupational Safety and Health Laws, the New York Equal Pay Law, the New York
Human Rights Law, the New York Civil Rights Act, the New York City Human Rights
Act, and the New York City Administrative Code - Title 8. It is expressly
understood by the Executive that among the various rights and claims being
waived by the Executive in this Agreement are those arising under the Age
Discrimination in Employment Act of 1967 (29 U.S.C. sec. 621, et seq.), as
amended. Executive’s release of Company under this Section 5 shall not apply to
any claims of Executive under: (a) the Company’s certificate of incorporation or
by-laws for an Indemnification Claim; provided,
however,
that
such
right shall not apply to any Indemnification Claim which is the basis or a
part
of a claim of the Company against the Executive under the Securities Exchange
Agreement (as hereinafter defined); (b) the Executive Note, and (c) that certain
Securities Exchange Agreement by and among the Executive, the Company and
Vidatech kft dated as of March 16, 2007 (hereinafter, the “Securities Exchange
Agreement”) including any claims for indemnification thereunder to the extent in
good faith she believes she is entitled thereto.
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6. Mutual
Non-Disparagement.
(a) The
Executive agrees that she will not make any disparaging or defamatory
statements, either orally or in writing (and, for the purposes of this
Agreement, the term “writing” includes, but is not limited to electronic
communications), to any third party concerning Company (including, but not
limited to the Company Releasees identified in Section 5 above), concerning
its
or their officers, directors, employees or agents, or concerning its or their
services, products, offerings, quantitative or other research, or methods of
communicating such services, products or offerings, or its or their method
of
doing business, or employment practices. The Executive agrees that she will
direct her immediate family members and representatives not to make any
disparaging or defamatory statements, either orally or in writing, to any third
party concerning Company or any other Company Releasee, concerning its or their
officers, directors, employees or agents, or concerning its or their services,
products, quantitative or other research, or methods of doing business. Nothing
herein shall preclude the Executive from cooperating in a truthful manner with
any governmental agency or self-regulatory agency (SRO), in an investigation
or
review by such agency, or testifying in a court of law or other proceeding
if
compelled or requested to testify as a witness in a proceeding in which Company,
or any other Company Releasee, or Executive is a subject of the investigation,
review, or proceeding.
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(b) Company
agrees that it will direct Xx. Xxxxxx Rozsnyay not to make any disparaging
or
defamatory statements, either orally or in writing, to any third party
concerning the Executive including, but not limited to, any statements related
to the Executive’s performance during the Executive’s tenure at Company. Nothing
herein shall preclude Company, its corporate affiliates, or their respective
officers, directors, employees or agents from cooperating in a truthful manner
with any governmental agency or self-regulatory agency (SRO), in an
investigation or review by such agency, or testifying in a court of law or
other
proceeding if compelled or requested to testify as a witness in a proceeding
in
which Company, or any Company Releasee, or Executive is a subject of the
investigation, review, or proceeding.
7. Knowing
and Voluntary Agreement.
The
Executive understands and agrees that she:
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(h)
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has
had a reasonable time within which to consider this Agreement before
executing it;
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(i)
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has
carefully read and fully understands all of the provisions of this
Agreement;
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(j)
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is,
through this Agreement, releasing Company and the other Company Releasees
from any and all claims she may have against Company and the other
Company
Releasees (other than claims arising under the Executive Note and
the
Securities Exchange Agreement), as stated herein but not after this
Agreement is executed by the Executive, including claims under the
Age
Discrimination in Employment Act of
1967;
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(k)
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knowingly
and voluntarily agrees to all of the terms set forth in this Agreement
in
exchange for consideration that is more valuable than what Executive
is
already entitled to;
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(l)
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knowingly
and voluntarily intends to be legally bound by the
same;
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(m)
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was
advised, and hereby is advised in writing, to consider the terms
of this
Agreement and consult with an attorney of her respective choice prior
to
executing this Agreement;
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(n)
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has
had twenty-one (21) days to consider this Agreement before signing
it (the
“Consideration Period”), and has seven (7) days after signing this
Agreement to revoke her signature (the “Revocation Period”). Revocation
can be made by delivering written notice of revocation to: Xxxxxxxx
Xxxxx
& Xxxxx, LLP, 000 Xxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000;
Att: Xxxxxx Xxxxxxxx, Esq. For this revocation to be effective, written
notice must be received by Xxxxxx Xxxxxxxx, Esq. no later than the
close
of business on the seventh (7th) calendar day after the Executive
signs
this Agreement. If the Executive revokes this Agreement, it shall
not be
effective or enforceable and the Executive will not receive the benefits
provided herein.
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8. Executive
Representations and Warranties.
The
Executive represents, warrants and covenants to the Company
that:
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| (a) |
The
Executive has the requisite power, authority and legal capacity to
execute
and deliver this Agreement, to perform all of her obligations hereunder
and to undertake all actions required of the Executive hereunder;
and all
necessary approvals of third parties with respect to such matters
have
been given or obtained.
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| (b) |
This
Agreement has been duly executed and delivered by the Executive and
constitutes a valid and legally binding obligation of the Executive,
enforceable against the Executive, in accordance with its terms,
subject
to applicable bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to
or
affecting creditors' rights generally and to general principles of
equity.
The entering into of this Agreement and the transactions contemplated
hereby will not result in a violation of any of the terms or provisions
of
any law applicable to the Executive, or any agreement to which the
Executive is a party or by which she is
bound.
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| (c) |
The
Executive is acquiring the Executive Note as principal for her own
account
for investment purposes only and not with a view to or for distributing
or
reselling the Executive Note or any part thereof or interest
therein.
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| (d) |
The
Executive either alone or together with her representatives, has
such
knowledge, sophistication and experience in business and financial
matters
so as to be capable of evaluating and assessing the merits and risks
of
the prospective investment in the Executive Note, and has so evaluated
the
merits and risks of such investment and has determined that the Executive
Note is suitable for investment for her.
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| (e) |
The
Executive acknowledges that her acquisition of the Executive Note
is a
highly speculative investment, involving a high degree of risk and
the
Executive is able to bear the economic risk of an investment in the
Executive notes; and, at the present time, is able to afford a complete
loss of such investment.
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| (f) |
The
execution, delivery, and performance of this Agreement by Executive
and
the consummation by Executive of the transactions contemplated hereby
will
not conflict with or result in a default under the terms of any material
contract, agreement, obligation or commitment applicable to Executive.
The
execution, delivery and performance by the Executive of this Agreement
and
the completion of the transaction contemplated hereby do not and
will not
result in a violation of any law, regulation, order or ruling applicable
to the Executive, and do not and will not constitute a breach of
or
default under any agreement to which the Executive is a party or
by which
she is bound.
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| (g) |
The
Executive understands that no securities commission, stock exchange,
governmental agency, regulatory body or similar authority has made
any
finding or determination or expressed any opinion with respect to
the
merits of an investment in the Executive
Note.
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| (h) |
The
Executive confirms that neither the Company nor any of its directors,
employees, officers, consultants, agents or affiliates, has made
any
representations (written or oral) to the Executive regarding the
future
value of the Executive’s Note and acknowledges and confirms that the
Executive Note is non-transferable, not listed on any exchange and
that no
application has been or will be made be made for any such listing.
In
making its investment decision with respect to the Executive Note,
the
Executive has relied solely upon publicly available information relating
to the Company and not upon any verbal or written representation
made by
or on behalf of the Company.
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| (i) |
The
Executive is not and has not become aware of any advertisement in
printed
public media or on radio, television or other form of communication
(including electronic display such as the Internet) with respect
to the
offering of the Executive Note to
her.
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| (j) |
The
Executive understands that the sale and delivery of the Executive
Note is
conditional upon such sale being exempt from the registration and
prospectus requirements under applicable securities legislation or
upon
the issuance of such orders, consents or approvals as may be required
to
permit such sale and delivery without complying with such requirements.
If
required under applicable securities legislation or regulatory policy,
or
by any securities commission, stock exchange or other regulatory
authority, the Executive will execute, deliver, file and otherwise
assist
the Company in filing such reports, undertakings and other documents
with
respect to the issue of the Executive
Note.
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| (k) |
Except
as disclosed in writing to the Company, the Executive does not act
jointly
or in concert with any other person or company for the purposes of
acquiring the Executive Note.
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| (l) |
The
investment in the Executive Note may have tax consequences under
applicable taxation laws, that it is the sole responsibility of the
Executive to determine and assess such tax consequences as may apply
to
her particular circumstances, and the Executive has not received
and is
not relying on the Company for any tax advice
whatsoever.
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| (m) |
The
Executive is responsible for obtaining such legal advice as she considers
appropriate in connection with the execution and delivery of this
Agreement and her acquisition of the Executive Note hereby. The Executive
acknowledges that she has been advised that no accountant or attorney
engaged by the Company is acting as her representative, accountant
or
attorney in connection with this Agreement and/or the transactions
contemplated hereby.
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| (n) |
All
information which the Executive has provided or is providing the
Company,
or to its agents or representatives concerning the Executive’s suitability
to acquire the Executive Note is accurate and correct as of the date
of
the signature on the last page of this Agreement. Such information
includes, but is not limited to the Executive’s personal financial
affairs, business position and the knowledge and experience of the
Executive and the Executive’s advisors. The Company shall maintain such
information regarding the Executive in strict confidence except as
may be
required to be disclosed to governmental agencies pursuant to requirements
of applicable corporate securities and tax laws, rules and regulations
regarding the issuance and delivery of the Executive Note to the
Executive.
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| (o) |
The
Executive has been provided with copies of all material information
requested by either the Executive, the Executive’s purchaser
representative or other representing the Executive, including any
information requested to verify any information furnished, and there
has
been direct communication between the Executive and her representatives
on
the one hand and the Executive and the Executive’s representatives and
advisors on the other in connection with information regarding the
acquisition of the Executive Note under this Agreement. There has
been
made available the opportunity to ask questions of and receive answers
from the Company and/or the directors, officers, employees or
representatives of the Company concerning the issuance and deliver
of the
Executive Note under this Agreement and to obtain any additional
information (to the extent the Company possesses such information
or can
acquire it without unreasonable effort or expense) desired or necessary
to
verify the accuracy of the information provided.
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| (p) |
The
Executive represents and warrants that the Executive is an “accredited
investor” as such term is defined in Rule 501(a) of Regulation D, as
promulgated under the ’33 Act and, particularly, is either: (i) a natural
person whose individual net worth, or joint net worth with her spouse,
as
of the date of this Agreement, exceeds $1,000,000; or (ii) a natural
person who had an individual income in excess of $200,000 in each
of the
two most recent years or joint income with her spouse in excess of
$300,000 in each of those years and has a reasonable expectation
of
reaching the same income level in the current
year
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| (q) |
The
Executive acknowledges that the Executive Note shall bear a legend
substantially as follows:
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“THIS
NON-NEGOTIABLE PROMISSORY NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE “1933 ACT”) AND THE RULES AND
REGULATIONS PROMULGATED THEREUNDER AND MAY NOT, BY ITS TERMS, BE TRANSFERRED
OR
SOLD.”
| (r) |
The
Executive understands and acknowledges that the Company has the right
not
to record a purported transfer of the Executive
Note.
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| (s) |
The
Executive confirms that she has been advised to consult with her
own legal
and financial advisors with respect to the suitability of the Executive
Note (and the non-transferability restrictions thereon) as an investment
for the Executive and confirms that no representation has been made
to her
by or on behalf of the Company with respect
thereto.
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9. Full
and Independent Knowledge.
The
Parties represent that they have
discussed
thoroughly all aspects of this Agreement with their respective attorneys, fully
understand all of the provisions of the Agreement, and are voluntarily entering
into this Agreement.
10. No
Representations.
The
Parties acknowledge that, except as expressly set forth herein, no
representations of any kind or character have been made to induce the execution
of this Agreement.
11. Mutual
Non-Admission of Liability.
Each
of
the Parties hereby expressly acknowledges that the execution of this Agreement
and the mutual consideration provided hereunder are not and shall not be
construed in any way as an admission of wrongdoing or liability on the part
of
any Party arising out of or attributable to the Executive’s relationship with
and employment at Company or the termination of those
relationships.
12. Waiver.
The
failure of any Party to insist upon strict adherence to any term of this
Agreement on any occasion shall not be considered a waiver thereof or deprive
that party of the right thereafter to insist upon strict adherence to that
term
or any other term of this Agreement.
13. Miscellaneous.
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(e)
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The
language of all parts in this Agreement shall be construed as a whole,
according to its fair meaning, and not strictly for or against any
Party,
each Party having had a hand in its
drafting;
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(f)
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Should
any provision in this Agreement be declared or determined to be illegal
or
invalid, the validity of the remaining parts, terms, or provisions
shall
not be affected thereby, and the illegal or invalid part, term, or
provision shall be deemed not to be part of this Agreement, and all
remaining provisions shall remain valid and
enforceable.
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(g)
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Except
as otherwise expressly provided in the Securities Exchange Agreement
and
the Note Escrow Agreement, this Agreement sets forth the entire agreement
between the Parties pertaining to the subject matter of this Agreement
and
fully supersedes any prior agreement or understanding pertaining
to the
subject matter hereof;
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(h)
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The
headings used herein are for reference only and shall not affect
the
construction of this Agreement.
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15. Counterparts.
This
Agreement may be executed in one or more counterparts, by facsimile or original
signature, each of which shall be deemed an original, but all of which together
shall constitute one and the same instrument.
17. Notification.
Notice
to be given under this Agreement shall be deemed given, when received, and
if
sent by reputable courier (DHL, FedEx or UPS), as follows:
If
to the
Company, to:
TIA
V,
Inc.
1095
Budapest
Soroksari
ut 94-96
Att:
Xx.
Xxxxxx Rozsnyay
Fax
No.:
+36-
Copy
to:
Xxxxxxxx
Xxxxx & Xxxxx, LLP
000
Xxxxx
Xxxxxx
Xxxxx
0000
Xxx
Xxxx,
Xxx Xxxx 00000
Att:
Xxxxxx Xxxxxxxx, Esq.
Fax
No.:
(000) 000-0000
If
to the
Executive, to:
Xxx.
Xxxx
Xxxxxxxxxx
0000
Xxxxxx Xxxx , Xxxxx X
Xxxxxxxxx,
Xxx Xxxx, 00000
Fax
No.:
(000) 000-0000
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With
a
copy to:
Xxxxxxx
Xxxx, LLP
0000
Xxxxxxxx, 00xx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Att:
Xxxxxxx X. Xxxxx, Esq.
Fax:
(000) 000-0000
[The
remainder of this page has been left blank intentionally. The signatures of
the
parties appear on the next succeeding page.]
IN
WITNESS WHEREOF,
the
parties have executed and entered into this Agreement as of the day and year
first-above written.
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TIA
V, INC.
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By
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/s/
Xxxxxx Rozsnyay
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Name:
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Xxxxxx
Rozsnyay
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Title:
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President
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THE
EXECUTIVE:
/s/
Xxxx
Xxxxxxxxxx
Xxx.
Xxxx
Xxxxxxxxxx
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