EXHIBIT 10.10
AGREEMENT
THIS AGREEMENT is made and entered into this ___ day of April, 2003, by and
between ELINEAR, INC., a Delaware corporation (the "Company"), and J. XXXXXXX
XXXXX ("Xxxxx").
RECITALS
X. Xxxxx has served as a director of the Company and entered into an
agreement with the Company in November, 2002 concerning compensation
and expense reimbursement with respect to Xxxxx' past and future
services as a director.
B. The parties desire to readdress the issues of Xxxxx' compensation and
expense reimbursement and other issues in light of a proposed business
combination between the Company and NetView Technologies, Inc., a
Texas corporation ("Netview"), subject to the consummation of the
NetView acquisition.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinbelow set forth, the parties agree, subject to the consummation of the
NetView acquisition, as follows:
1. Beginning the date hereof and continuing thereafter until January
15, 2004, the Company agrees to pay to Xxxxx in full compensation for his
services as a director the sum of $2,400 per month. Such compensation shall be
payable in bi-weekly installments in accordance with the Company's customary
payroll practices. Such compensation shall be subject to customary payroll tax
deductions and other customary withholdings.
2. Commencing the date hereof and continuing thereafter until January
15, 2004, the Company agrees to reimburse Xxxxx for the following expenses:
* Car allowance in the amount of $148 per month
* Health insurance reimbursement in the amount of $238 per month
* Cell phone base charge in the amount of $44 per month
* Internet connection fee in the amount of $20 per month
Xxxxx agrees to prepare and submit monthly expense reports for the
foregoing expenses. Further, Xxxxx shall not be entitled to any additional
expense reimbursement unless such additional expense was approved in advance by
a proper officer of the Company.
3. For all meetings of the Board of Directors attended by Ivins in
person, Xxxxx shall be entitled to a non-accountable expense allowance in the
amount of $200.
4. For his past services to the Company, the Company shall grant and
issue to Xxxxx non-qualified, non-Plan stock options exerciseable to purchase
100,000 shares of the Company's Common Stock. The exercise price of the options
shall be the closing bid price of the Company's Common Stock on the
over-the-counter market on the Closing Date of the transaction with NewView. The
options shall be fully vested and shall be exerciseable until March 31, 2008.
The options shall survive Ivin's death and shall inure to his heirs, personal
representatives and assigns.
5. Options previously granted and issued to Xxxxx shall be modified as
follows:
(a) All previously granted and issued options held by Xxxxx shall
be deemed fully vested and exerciseable.
(b) Non-qualified non-Plan options exerciseable to purchase
140,000 shares of Common Stock at an exercise price of $2.18 per share shall be
extended to expire on December 29, 2010.
(c) Incentive stock options granted under the Plan exerciseable to
purchase 175,000 shares at a price of $2.90 per share and an additional 75,000
shares at a price of $3.40 per share shall be modified as follows:
(1) The repricing of the options by resolution of the Company's
board of directors on December 28, 2002 shall be rescinded, null and void.
(2) The options shall be converted to non-qualified non-Plan
options.
(3) The options shall be exerciseable until March 31, 2008. The
options shall survive Ivin's death and shall inure to the benefit of his heirs,
personal representatives and assigns.
6. Concurrently with the Closing of the business combination with
NetView, the Company shall pay to Xxxxx all sums which have accrued and are due
and owing to Xxxxx under their agreement dated November, 2002.
7. Except as expressly provided for herein, the Company shall have no
other debt, obligation or liability to Xxxxx for compensation or expense
reimbursement arising from or in connection with his performance of services as
a director of the Company.
8. Except for the agreements contained herein, the Company, on the one
hand, and Xxxxx, on the other, each irrevocably and unconditionally agree to
release, acquit and forever discharge the other, together with their respective
agents, representatives, successors and assigns, from and against any and all
claims, demands, debts, obligations, liabilities or causes of action, known or
unknown, at law or in equity, based upon any fact, transaction or occurrence up
to the date hereof.
9. This Agreement shall in all respects be interpreted, enforced and
governed under the laws of the State of Texas.
10. This Agreement contains the entire agreement of the parties and
fully supersedes any and all prior agreements, arrangements or understandings
among the parties relating to the subject matter hereof, including, without
limitation, the agreement of the parties entered into in November, 2002. All
prior and contemporaneous negotiations and agreements are deemed incorporated
into this instrument and any such prior documents or instruments are to be
deemed to have been abandoned if not so incorporated. No oral understandings,
statements, promises or inducements contrary to the terms of this instrument
exist. This instrument may not be changed or modified orally, but only upon the
written agreement and consent of all of the parties, which consent may be
withheld in the sole discretion of such party.
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11. The agreements contained herein shall only be effective and
enforceable upon the consummation of the Agreement and Plan of Merger by the
Company, NetView and NetView Acquisition Corp (the "Merger Agreement') . In the
event such Merger Agreement is terminated without consummation for any reason,
these agreements contained herein shall be null, void and unenforceable.
12. In the event of litigation between or among the signatories hereto
to enforce any provision of this Agreement, the prevailing party shall be
entitled to an award of costs and reasonable attorneys' fees.
13. This Agreement may be executed by telex, telecopy or other
facsimile transmission, and may be executed in counterparts, each of which shall
be deemed an original, but all of which shall together constitute one agreement.
IN WITNESS WHEREOF, the parties to this Agreement have duly executed effective
on the day and year first above written.
ELINEAR, INC.:
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Signature
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Name and Title
J. XXXXXXX XXXXX
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Signature
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