SETTLEMENT AND RELEASE AGREEMENT
Exhibit 10.1
SETTLEMENT AND RELEASE AGREEMENT
THIS SETTLEMENT AND RELEASE
AGREEMENT (this
“Agreement”),
dated as of June 7, 2019 (the “Effective Date”), is
entered into by and among (i) BLOCKCHAIN INDUSTRIES, INC., a
corporation incorporated under the laws of the State of Nevada (the
“Company”),
and (ii) XXXXXXX XXXXXXXX, an individual residing at 0000 Xxxxx
Xxxxxx, Xxxxx Xxxxxx, Xxxxxxxxxx 00000 (the
“Executive”).
The Company and the Executive are collectively referred to herein
as the “Parties,” or each of them individually as a
“Party”.
WHEREAS, the Executive is presently the chief executive
officer of the Company;
WHEREAS, the Executive and the Company desire to
terminate the Executive’s employment effective upon the
execution hereof and subject to the terms and conditions herein
contained;
WHEREAS, subject to the terms and conditions herein
contained, the Parties now wish to fully and finally resolve their
disputes and all claims that could have been raised in any legal
form or forum, including in litigation or any other proceeding, and
any claims that the Parties ever had against each other, now have,
or may hereafter have for or by reason of any cause, action, event,
statement, omission or failure to act, matter or thing whatsoever,
occurring on or prior to the Effective Date and/or arising out of
the Parties’ disputes, from the beginning of time until the
end of time.
NOW, THEREFORE, IN CONSIDERATION OF THE PROMISES, ACTS, RELEASES
AND OTHER GOOD AND VALUABLE CONSIDERATION HEREINAFTER RECITED, THE
SUFFICIENCY AND RECEIPT OF WHICH IS HEREBY ACKNOWLEDGED, THE
PARTIES HERETO, INTENDING TO BE LEGALLY BOUND, AGREE AS
FOLLOWS:
1.
Conditions Precedent
to the Executive’s Release of the Company. The releases contained in Section 5 hereof shall
be effective upon (i) the payment of Ten Thousand United States
Dollars (US$10,000) to the Executive, representing a negotiated
severance payment, by check or electronic wire, no later than ten
(10) business days following the day hereof, (ii) the payment of
Fifteen Thousand United States Dollars (US$15,000) to the
Executive, representing a negotiated severance payment, by check or
electronic wire, no later than thirty (30) business days following
the day hereof, (iii) the payment of Sixty Two Thousand United
States Dollars (US$62,000).to the Executive, representing
negotiated wage salary payments, by check or electronic wire, to be
paid as follows (a) 20,666.66 due by July 15, (b) 20,666.66 due by
August 15, and (c) 20,666.66 due no later than September 30, (iv)
the Company’s consent provided to the company’s
transfer agent, AST Financial, to allow for the transfer of Two
Million (2,000,000) shares of the Company’s common stock held
by Premier Trust, Inc. as Trustee of The Santa Xxxxxx Trust to the
Trustee of The Mount Mitchell Trust and (v) the execution of the
escrow agreement (attached as Exhibit A hereto, the
“Escrow
Agreement”) by the
Executive. Notwithstanding the foregoing, the above-referenced
payments shall not be delivered unless and until the Executive
complies with his obligation pursuant to Section 2
hereof.
2.
Conditions Precedent
to the Company’s Release of the Executive. The releases contained in Section 5 hereof shall
be effective upon (i) the Executive’s delivery to the Company
of Six Million Five Hundred Thousand (6,500,000) shares of the
Company’s common stock which are presently held by and in the
name of the Executive or Premier Trust, Inc. as Trustee of The
Santa Xxxxxx Trust (, the “Executive
Trust”), together with
any and all instruments of transfer, stock powers or any other
documentation necessary or advisable to effectuate the transfer of
said shares of common stock to the Company, (ii) the
Executive’s or the Executive Trust’s delivery to the
Escrow Agent of a share certificate evidencing Five Hundred
Thousand (500,000) shares of the Company’s common stock in
the name of the Executive or the Executive Trust, together with any
and all undated
instruments of transfer, stock powers
or any other documentation necessary or advisable to effectuate the
transfer of said shares of common stock to the Company
(collectively, the “Escrow
Property”) (iii) the
execution of the Escrow Agreement and (iv) the delivery of the
Executive’s resignation from all officers and director
positions he may hold with the Company (to be delivered promptly at
the request of the Company following the date hereof and not before
any such request). The “Escrow Agent” shall mean the
law firm of Lucosky Xxxxxxxx LLP.
3.
Resignation;
Removal. The Executive shall
deliver his resignation from all officer and director positions he
may hold with the Company to the board of directors of the Company
at such time following the date hereof as the Company shall
instruct in writing. The Executive shall not deliver his
resignation prior to any such written instructions from the
Company.
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4.
Escrow
Shares. Subject to the terms
and conditions contained in the Escrow Agreement, the Escrow
Property shall be promptly released to the Executive in the event
that the Company consummates a transaction with Blockchain Exchange
Alliance (including any wholly-owned subsidiary thereof,
“BXA”) prior to December 31, 2020 wherein BXA
purchases, in one or more transactions, greater than fifty one
percent (51%) of the Company’s common equity (or preferred
equity which converts into greater than said percentage of common
equity) (a “Qualified
Transaction”). In the
event that a Qualified Transaction does not occur by the date
specified, the Escrow Property shall be delivered to the Company
and the Company shall be permitted to take any and all actions
necessary or advisable to return the escrowed shares of common
stock to the treasury.
5.
Executive
Release. Upon satisfaction of
the conditions precedent contained in Section 1 hereof, the
Executive, on behalf of itself and its direct or indirect
predecessors, successors, parent companies, divisions,
subsidiaries, agents, affiliates, subrogees, insurers, trustees,
trusts, administrators, representatives, personal representatives,
legal representatives, transferees, assigns, successors in interest
of assigns, members and any firm, trust, corporation, partnership,
investment vehicle, fund or other entity managed or controlled by
the Executive, the Executive’s members or in which the
Executive has or had a controlling interest and the respective
consultants, employees, legal counsel, officers, directors,
managers, shareholders, stockholders, owners of any of the
foregoing (collectively, the “Executive
Releasors”), hereby
remise, release, acquit and forever discharge the Company and any
and all of its respective direct or indirect affiliates, parent
companies, divisions, subsidiaries, agents, transferees,
consultants, employees, legal counsel, officers, directors,
managers, shareholders, stockholders, stakeholders, owners,
predecessors, successors, assigns, successors in interest of
assigns, subrogees, insurers, trustees, trusts, administrators,
fiduciaries and representatives, legal representatives, personal
representatives and any firm, trust, corporation or partnership
investment vehicle, fund or other entity managed or controlled by
the Company or in which the Company has or had a controlling
interest, if any (collectively, the “Company
Releasees”), of and from
any and all federal, state, local, foreign and any other
jurisdiction’s statutory or common law claims (including
claims for contribution and indemnification), causes of action,
complaints, actions, suits, defenses, debts, sums of money,
accounts, covenants, controversies, agreements, promises, losses,
damages, orders, judgments and demands of any nature whatsoever, in
law or equity, known or unknown, of any kind, including, but not
limited to, claims or other legal forms of action or from any other
conduct, act, omission or failure to act, whether negligent,
intentional, with or without malice, that the Executive Releasors
ever had, now have, may have, may claim to have, or may hereafter
have or claim to have, against the Company Releasees, from the
beginning of time up to and including the date hereof, including,
but not limited to, any claim relating to Executive’s
employment and/or termination of employment (except worker’s
compensation claims) to the date of this Agreement as well as any
claims of breach of contract, express or implied and/or any claims
of harassment or discrimination (for example, on the basis of
gender, race, age, national origin, handicap or disability or other
protected category) under any federal, state or local law, rule or
regulation including, but not limited to, the New York Human Rights
Law, the Age Discrimination in Employment Act, 29 U.S.C. §
621, et seq.,
Title VII of the Civil Rights Act of 1964, the Americans with
Disabilities Act, the
California Fair Employment and Housing Act, The California Family
Rights Act, the New York Human Rights Law, the Family and Medical
Leave Act of 1993, or any claim arising under the Employment
Retirement Income Security Act (“ERISA”) (except for
claims for vested benefits under ERISA) (the
“Released Executive
Claims”). Nothing in the
foregoing release shall release any claim to enforce this
Agreement.
6.
Company
Release. Upon satisfaction of
the conditions precedent contained in Section 2 hereof, the
Company, on behalf of itself and its direct or indirect
predecessors, successors, parent companies, divisions,
subsidiaries, agents, affiliates, subrogees, insurers, trustees,
trusts, administrators, representatives, personal representatives,
legal representatives, transferees, assigns and successors in
interest of assigns, and any firm, trust, corporation, partnership,
investment vehicle, fund or other entity managed or controlled by
the Company or in which the Company has or had a controlling
interest and the respective consultants, employees, legal counsel,
officers, directors, managers, shareholders, stockholders, owners
of any of the foregoing (collectively, the
“Company
Releasors”), in
consideration of the Executive’s execution of this Agreement,
hereby remise, release, acquit and forever discharge the Executive
and any and all of its respective direct or indirect affiliates,
parent companies, divisions, subsidiaries, agents, transferees,
consultants, employees, legal counsel, officers, directors,
managers, members, shareholders, stockholders, stakeholders,
owners, predecessors, successors, assigns, successors in interest
of assigns, subrogees, insurers, trustees, trusts, administrators,
fiduciaries and representatives, legal representatives, personal
representatives and any firm, trust, corporation or partnership
investment vehicle, fund or other entity managed or controlled by
the Executive, the Executive’s members or in which the
Executive has or had a controlling interest, if any (collectively,
the “Executive
Releasees”), of and from
any and all federal, state, local, foreign and any other
jurisdiction’s statutory or common law claims (including
claims for contribution and indemnification), causes of action,
complaints, actions, suits, defenses, debts, sums of money,
accounts, covenants, controversies, agreements, promises, losses,
damages, orders, judgments and demands of any nature whatsoever, in
law or equity, known or unknown, of any kind, including, but not
limited to, claims or other legal forms of action or from any other
conduct, act, omission or failure to act, whether negligent,
intentional, with or without malice, that the Company Releasors
ever had, now have, may have, may claim to have, or may hereafter
have or claim to have, against the Executive Releasees, from the
beginning of time up to and including the date hereof (the
“Released Company
Claims”). Nothing in the
foregoing release shall release any claim to enforce this
Agreement.
Notwithstanding anything contained herein to the contrary, the
“Released Company Claims” shall not include any claims
which Xxxx Xxx (“Xxx”) may have against the Executive relating
to the Executive’s present debt owing to Xxx in the amount of
$58,000, plus any interest or fees. Upon the payment of said
obligation to Xxx, the Released Company Claims relating to the
Executive Releases shall equally apply to Xxx with respect to said
obligation. It is understood by
both parties that the other half of the Executive’s backpay
that he has waived for himself is to be paid to Xxxx Xxx directly
by the Company for a total of $58,000 to Xxxx
Xxx.
Notwithstanding anything contained herein to the contrary, the
“Released Company Claims” shall not include any claims
which the Company may have against the Executive as the result of
claims or actions brought by shareholders of the Company wherein
the cause of said claim or action occurred during a period when the
Executive was engaged by the Company (“Shareholder
Claims”).
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7.
Release of Unknown
Claims:
(a) The
Parties stipulate and agree that the Company Releasors and the
Executive Releasors expressly waive the provisions, rights and
benefits conferred by any law of any state or any territory of the
United States or of any other nation, or principle of common law
relating to claims which the Parties did not know or suspect to
exist in the other Party’s favor at the time of executing
this Agreement, which, if known by Parties, would have materially
affected the Executive’s and/or the Company’s
settlement with the other Party; and
(b) The
Company Releasors or the Executive Releasors may hereafter discover
facts in addition to or different from those that any of them now
knows or believes to be true, but the Company Releasors and the
Executive Releasors, upon the effectiveness of the respective
releases contained herein pertaining to such Party, fully, finally,
and forever settle and release any and all claims, known or
unknown, suspected or unsuspected, contingent or non-contingent,
whether or not concealed or hidden, that now exist, or heretofore
have existed upon any theory of law or equity now existing or
coming into existence in the future, including, but not limited to,
conduct that is negligent, reckless, intentional, with or without
malice, or a breach of any duty, law or rule, without regard to the
subsequent discovery or existence of such different or additional
facts. The Company Releasors and the Executive Releasors
acknowledge that the inclusion of such “unknown claims”
in this Agreement was separately bargained for and was a key
element of the Agreement, and that each of them assumes the risk of
any mistake of fact or law on its own behalf. If the Parties should
subsequently discover that its understanding of the facts or of the
law was or is incorrect, the Parties shall not be entitled to
relief in connection therewith, including without limitation of the
generality of the foregoing, any alleged right or claim to set
aside or rescind this Agreement. This Agreement is intended to be,
and is, final and binding upon the Parties hereto according to the
terms hereof regardless of any claims of mistake of fact or law.
This Section shall not apply to any Shareholder Claims, which are
expressly excluded in this agreement.
8.
No
Action. Upon the satisfaction
of the conditions precedent set forth in Section 2 hereto, the
Company covenants and agrees not to commence or prosecute any
action or proceeding against the Executive based on the Released
Company Claims. Upon the satisfaction of the conditions precedent
set forth in Section 1 hereto, the Executive covenants and agrees
not to commence or prosecute any action or proceeding against the
Executive based on the Released Executive Claims. Executive
affirms, by signing this document, that he has filed no actions or
charges against the Company Releasees relating to, or arising out
of, employment with or termination of employment from the Company
with any federal, state or local agency. Executive further agrees
that he will not personally recover monies for filing any charge or
complaint against the Company Releasees with any federal, state or
local agency regarding his employment with or termination from the
Company in the future. Nothing in this Agreement alters in any way
Executive’s rights and obligations under the Securities and
Exchange Act or in dealing with the Securities and Exchange
Commission.
9.
Indemnification.
The Executive shall indemnify, defend and save harmless the Company
and its members, managers, officers, agents and employees from all
loss, liability or expense (including the reasonable fees and
expenses of outside counsel) arising out of or in connection with
any Shareholder Claims. The Executive acknowledges that the
foregoing indemnity shall survive the termination of this
Agreement. Any amounts owing to the Company in connection with this
Section may be offset from the proceeds owing to the Executive in
connection with Section 1 hereof.
Preparation of
Agreement. Each Party
represents to the other that its counsel has negotiated and
participated in the drafting of, and are legally authorized to
negotiate and draft, this Agreement. Each Party to this Agreement
acknowledges that this Agreement was drafted jointly by the Parties
hereto and each Party has contributed substantially and materially
to the preparation of this Agreement. The Agreement shall be
construed as having been made and entered into as the result of
arms-length negotiations, entered into freely and without coercion
or duress, between parties of equal bargaining power. It is
acknowledged and agreed that Lucosky Xxxxxxxx LLP is counsel to the
Company and not the Executive and the Executive has been advised to
seek independent counsel.
10.
Acknowledgment of
Waiver of Claims under ADEA.
Executive acknowledges that he is waiving and releasing any rights
he may have under the Age Discrimination in Employment Act of 1967
(“ADEA”) and that this waiver and release is knowing
and voluntary. Executive and the Company agree that this waiver and
release does not apply to any rights or claims that may arise under
ADEA after the effective date of this Agreement. Executive
acknowledges that the consideration given for this waiver and
release is in addition to anything of value to which Executive was
already entitled. Executive further acknowledges that he has been
advised by this writing that (a) he should consult with an attorney
prior to executing this Agreement; (b) he has at least twenty-one
(21) days within which to consider this Agreement and if he takes
fewer than the 21 days to review this Agreement he is thereby
waiving any and all rights to the balance of the 21 day period; (c)
pursuant to the ADEA he has at least seven (7) days following the
execution of this Agreement by the parties to revoke the Agreement
by providing written notice of revocation to the Company and
returning any and all consideration received under this Agreement,
in which case the Agreement becomes null and void; and (d) this
Agreement shall not be effective until the seven day revocation
period has expired. Executive further acknowledges that the only
consideration for signing this Agreement is the terms stated in
this Agreement, and that no other promise 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; that he is competent to execute
this Agreement; that the consideration received for executing this
Agreement is greater than that ordinarily provided by the Company
under any severance plan, policy or practice; and that Executive
fully understands the meaning and intent of this Agreement. It is
understood and agreed that this Agreement shall not be effective or
enforceable for a period of seven (7) days following the signing of
the Agreement (the “Effective Date”) and that Executive
may revoke the Agreement for any reason during that period by
written notice actually received during that time by the Company.
It is further understood that no payment shall be made in
accordance with this Agreement until after the Effective
Date.
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11.
Confidentiality.
Except as permitted below, each Party shall maintain the
confidentiality of the Agreement. The negotiations in connection
with this Agreement were and are intended by the Parties to be
privileged settlement discussions, and are confidential; none of
the Parties shall disclose such negotiations unless compelled to do
so by a court of competent jurisdiction. Neither this Agreement,
its contents, terms and conditions, nor any other information
concerning this Agreement or the dispute between the Parties, shall
be disclosed to third parties (including, but not limited to, the
media) without the express written approval of all the Parties,
except as otherwise provided in this Section or as required by
federal or state securities law, rule or regulation. This Agreement
shall not be introduced in evidence or used for any purpose except:
(a) in an action to enforce its provisions; (b) to prove a defense
to a claim or other legal form of action alleged to have been
released herein; (c) in response to an order directed to a Party
from a judicial or governmental authority having jurisdiction over
such Party, in which event the receiving party shall notify the
other Parties of the order; (d) in response to a subpoena or other
process served on a Party (the “Served
Party”) by a third party
seeking to compel the disclosure of this Agreement or its terms, in
which event, however, the Served Party shall notify the other Party
or Parties of such subpoena or process as soon as possible and
grant it or them the opportunity to notify the Served Party in
writing within ten (10) days if the other Party or Parties intend
to move to quash, seek a protective order or take other appropriate
action, and, if so informed, the Served Party shall not make the
disclosure sought by the subpoena or notice unless the relief
sought is denied or the other Party or Party – despite its or
their notice to the contrary – fails to seek the noticed
relief within a reasonable time; (e) if appropriate in a future
action, in an application for a determination that the settlement
between the Parties is a good faith settlement properly subject to
a contribution bar, in which event this Agreement shall be filed
under seal; or (f) as required by federal or state law, rule or
regulation. The Parties also may, to the minimum extent necessary,
disclose this Agreement to the Internal Revenue Service and/or any
state taxing authorities and to the Parties’ respective
attorneys, accountants, auditors, professionals and other financial
advisors/consultants who have a legal or ethical obligation to hold
the terms and information herein confidential, so that they may
perform their professional, business, or financial duties and
obligations. To the extent possible under federal or state law,
rule or regulation, any disclosure by either Party subject to the
confidentiality terms of this Section shall not reference the other
Party. The determination of whether a federal or state law, rule or
regulation requires the disclosure of this Agreement or any term or
provision hereof is left to the sole discretion of the Party making
the disclosure, in consultation with its attorneys, accountants,
auditors, professionals or other financial
advisors/consultants.
12.
Non-Disparagement.
The Parties will not make any disparaging or untrue remarks or
statements against any of the Executive Releasees or the Company
Releasees that would adversely affect the reputation of any same,
in any business, professional or personal
community.
13.
Exclusive
Rights. The Company hereby
grants the Executive with nonexclusive rights to disclose the
history and/or story of the Company and its founding and business
from date of the establishment of the business until the date
hereof, and the right to sell or license same to a third party only
by written consent of the Company, which consent will not be
unreasonably withheld after arms length negotiation with the
Company in connection with its compensation for any such sale or
license. The Executive shall have rights to disclose the history
and/or story of the Company and its founding and business relating
to any time following the date hereof, but not before December 31,
2020.
14.
Expenses.
The Parties agree that each shall be responsible for payment of its
own costs and expenses, including attorneys’ fees, associated
with the negotiation and execution of this Agreement and any
discussions leading thereto.
15.
Amendments /
Modifications. This Agreement
shall not be modified, amended, supplemented, or otherwise changed
except by a writing signed by all Parties. The Parties expressly
intend and agree that there shall be no exceptions to this
“oral modification” clause, including, but not limited
to, any present or future claims of partial performance or
equitable estoppel. No parol or oral evidence shall be admitted to
alter, modify or explain the terms of this Agreement, which all
Parties agree is clear and unambiguous.
16.
Entire
Agreement. This Agreement
represents the entire agreement of the Parties as to the matters
set forth herein and shall supersede any and all previous
contracts, arrangements or understandings among the
Parties.
17.
Counterparts.
This Agreement may be executed in counterparts. The execution of
this Agreement and the transmission thereof by facsimile or e-mail
shall be binding on the Party signing and transmitting same by
facsimile or e-mail fully and to the same extent as if a
counterpart of this Agreement bearing such Party’s original
signature has been delivered.
18.
Authorized
Representative. Each signatory
on behalf of a Party to this Agreement represents and warrants that
he or she is a duly authorized representative of that Party, with
full power and authority to agree to this Agreement and all the
terms herein on behalf of that Party, which Party shall be bound by
such signature.
19.
Notices.
Any notices, consents, waivers, or other communications required or
permitted to be given under the terms of this Agreement must be in
writing and in each case properly addressed to the Party to receive
the same in accordance with the information below, and will be
deemed to have been delivered: (i) if mailed by certified mail,
return receipt requested, postage prepaid and properly addressed to
the address below, then three (3) business days after deposit of
same in a regularly maintained U.S. Mail receptacle; or (ii) if
mailed by Federal Express, UPS or other nationally recognized
overnight courier service, next business morning delivery, then one
(1) business day after deposit of same in a regularly maintained
receptacle of such overnight courier; or (iii) if hand delivered,
then upon hand delivery thereof to the address indicated on or
prior to 5:00 p.m., EST, on a business day. Any notice hand
delivered after 5:00 p.m., EST, shall be deemed delivered on the
following business day. Notwithstanding the foregoing, notice,
consents, waivers or other communications referred to in this
Agreement may be sent by facsimile, e-mail, or other method of
delivery, but shall be deemed to have been delivered only when the
sending Party has confirmed (by reply e-mail or some other form of
written confirmation) that the notice has been received by the
other Party. The addresses and facsimile numbers for such
communications shall be as set forth below, unless such address or
information is changed by a notice conforming to the requirements
hereof. No notice to or demand on the Parties in any case shall
entitle the Parties to any other or further notice or demand in
similar or other circumstances:
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If to the Company:
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000
Xxxxxxx Xxx., Xxxxx 000
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Xxxxx
Xxxxxx, XX 00000
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Attn:
Xxxx Xxx
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E-Mail:
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If to the Executive:
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Xxxxxxx Xxxxxxxx
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0000
Xxxxx Xxxxxx
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Xxxxx
Xxxxxx, Xxxxxxxxxx, 00000
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E-Mail:
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20.
MANDATORY FORUM
SELECTION. THE PARTIES
IRREVOCABLY AGREE THAT ANY DISPUTE ARISING UNDER, RELATING TO, OR
IN CONNECTION WITH, DIRECTLY OR INDIRECTLY, THIS AGREEMENT OR
RELATED TO ANY MATTER WHICH IS THE SUBJECT OF OR INCIDENTAL TO THIS
AGREEMENT (WHETHER OR NOT SUCH CLAIM IS BASED UPON BREACH OF
CONTRACT OR TORT) SHALL BE SUBJECT TO THE EXCLUSIVE JURISDICTION
AND VENUE OF THE STATE OR FEDERAL COURTS LOCATED IN NEW YORK. EACH
PARTY HEREBY CONSENTS TO THE EXCLUSIVE JURISDICTION AND VENUE OF
ANY STATE OR FEDERAL COURT HAVING ITS SITUS IN SAID STATE, AND
WAIVES ANY OBJECTION BASED ON FORUM NON CONVENIENS. EACH PARTY
HEREBY WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS AND CONSENT
THAT ALL SUCH SERVICE OF PROCESS MAY BE MADE BY CERTIFIED MAIL,
RETURN RECEIPT REQUESTED, DIRECTED TO THE APPLICABLE PARTY AS SET
FORTH HEREIN IN THE MANNER PROVIDED BY APPLICABLE STATUTE, LAW,
RULE OF COURT OR OTHERWISE.
21.
Third Party
Beneficiaries. The Parties
expressly agree that any Executive Releasees or Company Releasees
other than the Executive and the Company, respectively, are third
party beneficiaries of this Agreement and shall be permitted to
bring a cause of action for any breach of this Agreement which
causes damage to said third party
beneficiaries.
22.
Voluntary Execution of
Agreement. This Agreement is
executed voluntarily and without any duress or undue influence on
the part or behalf of the Parties hereto. The Parties acknowledge
that: (i) they have read this Agreement; (ii) they have been
represented in the preparation, negotiation, and execution of this
Agreement by legal counsel of their own choice or that they have
voluntarily declined to seek such counsel (Lucosky Xxxxxxxx LLP
represents the Company and not the Executive); (iii) they
understand the terms and consequences of this Agreement and of the
releases it contains; and (iv) they are fully aware of the legal
and binding effect of this Agreement.
23.
Governing
Law. This Agreement shall be
governed by the internal laws of the State of New York, and for all
purposes shall be construed in accordance with the laws of such
State, without giving effect to the choice of law provisions of
such State.
[signature page follows]
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IN WITNESS
WHEREOF, the Parties execute
this Settlement and Release Agreement as of the date first written
above.
ACCEPTED AND AGREED:
By:
__________________________
Name:
Title:
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ACCEPTED AND AGREED:
I ACKNOWLEDGE THAT I HAVE CAREFULLY READ THIS AGREEMENT AND
UNDERSTAND ALL OF ITS TERMS, INCLUDING THE FULL AND FINAL RELEASE
OF CLAIMS SET FORTH ABOVE. I FURTHER ACKNOWLEDGE THAT I HAVE
VOLUNTARILY ENTERED INTO THIS AGREEMENT, THAT I HAVE NOT RELIED
UPON ANY REPRESENTATION OR STATEMENT, WRITTEN OR ORAL, NOT SET
FORTH IN THIS AGREEMENT, AND THAT I HAVE HAD THIS AGREEMENT
REVIEWED BY MY ATTORNEY AND MY TAX ADVISOR, OR HAVE BEEN GIVEN THE
OPPORTUNITY TO DO SO.
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Sworn
and Subscribed to before me this
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day of ,
20___
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Notary
Public
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_______________________________
XXXXXXX XXXXXXXX
Date: __________________________
THIS IS A LEGAL AGREEMENT, RELEASE AND COVENANT
NOT TO XXX. READ CAREFULLY BEFORE SIGNING.
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EXHIBIT A
ESCROW AGREEMENT
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