CONSULTANT PARTIAL SETTLEMENT AGREEMENT
ES/RA20102004-4
This Consultant Partial Settlement Agreement (hereafter the "AGREEMENT") is
entered into this 28th day of October2004 by and between:
Xxxxxx X. Xxxxxx, 000 Xxxxxx Xx., Xxxxxxxx Xxxx, XX. 00000
And
Viva International, Inc. a Delaware publicly traded company (OTC-BB, VIVI) with
offices at 000 Xxxxxxxx Xxxx Xxxxx, Xxxxxxxx Xxxx, Xxxxxxxx 00000 and Xxxxx,
Xxxxxxx 00000, (hereafter the "COMPANY").
WHEREAS, CONSULTANT is presently engaged by the COMPANY, with services having
been properly and satisfactory performed during the employment period between
1/15/03 and 9/30/04, said duties including but not limited to (describe):
Aviation consulting and advisory services
AND WHEREAS, The COMPANY acknowledges the CONSULTANT is owed and entitled to
payment for past services. The COMPANY and the CONSULTANT wish to amicably
resolve, in part, claims the CONSULTANT has against the COMPANY.
CONSULTANT and COMPANY acknowledge that the type and amount of payment to
CONSULTANT under this AGREEMENT is being made for the sole purpose of partial
satisfaction and will satisfy the claim only to the amount equal to and as
reflected in the applicable S-8 registration statement. Accordingly, the strike
price as stated below in b. will be used in the S-8 registration statement and
the claim will be reduced on the COMPANY'S books and records by the total number
of shares issued to the CONSULTANT multiplied by the share value as used in the
registration statement.
a. this AGREEMENT is acknowledged as a partial settlement and does not
satisfy the total amount due and owing for the period stated above,
b. the strike price of the stock shall be that of the stock quoted on the
OTC-BB as of the close of business, 04:00 PM, New York, New York USA,
the date this Agreement is executed,
c. this agreement is executed on behalf of the COMPANY and has been
authorized by a resolution of the COMPANY'S Board of Directors,
d. an Attorney's Letter is issued in support of the terms and the
AGREEMENT and in satisfaction of all documentation requirements thereto
and prepares appropriate SEC registration without qualification,
e. an Accountants Letter or Approval as may be customary is issued in
support of the S-8 registration filing,
f. the XXX X-0 Registration is formally requested by the COMPANY to be
prepared by the outside counsel normally used for SEC matters and that
this is done on or before October 29, 2004,
g. instructions to issue stock in accordance with the XXX X-0 registration
statement are to be directed to the COMPANY'S Transfer Agent on the
first business day following acceptance of the S-8 registration by the
SEC. Upon issuance, the Transfer Agent will forward the common stock
certificates directly to the consultant unless the employee directs
otherwise in writing to the COMPANY'S Chairman/Secretary.
h. CONSULTANT agrees to be bound by any restriction, limitation and/or
reporting requirement that may result from acceptance of S-8 stock
pursuant to agreement. CONSULTANT further agrees and accepts the
responsibility without limitation for any resulting federal or state
income tax that may result from acceptance of S-8 stock and holds the
COMPANY harmless from these tax liabilities.
The parties represent that they have been advised by their respective counsel,
are competent to enter into, fully understand the terms and consequences, and do
knowingly and voluntarily enter into the AGREEMENT.
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THEREFORE; based on the recitals above, the parties agree as follows:
Terms
1. Payment. On or before fifteen (15) calendar days from the date of execution
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of this AGREEMENT or the 10th day of November 2004 which ever comes first,
and in consideration for the promises and covenants contained herein, the
COMPANY will cause to be transferred and delivered free of any fees,
charges and encumbrances except that of any state or federal taxes to
CONSULTANT or CONSULTANT'S designated representative in the United States,
free trading common stock in the amount of one million shares (1,000,000).
Said stock shall be subject to the terms and conditions as stated herein
this AGREEMENT, filing requirements, and all SEC Rules and Regulations.
CONSULTANT agrees to acknowledge and accept said stock in partial
settlement of past due amounts for services rendered for the period first
stated above and subject to the terms and conditions stated herein the
AGREEMENT.
2. Tax. Any and all appropriate State and Federal government taxes together
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with any withholding shall be responsibility of the CONSULTANT, and the
CONSULTANT agrees to indemnify and hold harmless the COMPANY for any claim
for such by any governmental authority.
3. Obligations under Securities Laws to prevent "Insider" Trading. Obligations
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under the Securities and Exchange Commission, (SEC), rules and regulations
and U.S. securities laws apply to everyone. In the normal course of
business, officers, directors, employees, agents, contractors, consultants
and anyone doing business with the COMPANY may come into possession of
significant, unpublished price sensitive information. This information is
the property of the COMPANY and the CONSULTANT has been entrusted with it.
CONSULTANT agrees not to profit from it by buying or selling securities
himself, or passing on the information to others to enable them to profit
or for them to profit on your behalf. The purpose of this policy is both to
inform CONSULTANT of CONSULTANT'S legal responsibilities and to make clear
to CONSULTANT that the misuse of unpublished price sensitive information is
contrary to COMPANY policy and SEC Rules and Regulations & U.S. securities
laws. Xxxxxxx xxxxxxx is a crime, penalized by fines and jail for
individuals under both SEC Rules and Regulations and U.S. laws. Insider
traders must also disclose any profits made, and are often subjected to an
injunction against future violations. Finally, insider traders may be
subjected to civil liability in private lawsuits. Employers and other
controlling persons (including supervisory personnel) are also at risk
under SEC/U.S. securities laws if they recklessly fail to take preventive
steps to control xxxxxxx xxxxxxx.
4. Prohibition against "Short Selling" of Company Stock. CONSULTANT agrees not
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to, directly or indirectly, and or cause, the selling of any equity
security, including derivatives, of the Company if he or she (1) does not
own the security sold, or (2) if he or she owns the security, does not
deliver it against such sale. No COMPANY director, officer or other
employee, agent, contractor or any party doing business or having a
business or contractual relationship with COMPANY may engage in short
sales. A short sale, as defined in this policy, means any transaction
whereby one may benefit from a decline in the Company's stock price in a
short period of time.
5. Non-Disclosure. CONSULTANT represents that they have not disclosed the
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terms of this AGREEMENT to anyone other than CONSULTANT'S spouse.
CONSULTANT, and CONSULTANT'S spouse agree to keep the terms of the
AGREEMENT, including the fact that a payment was made to CONSULTANT and the
amount of such payment, strictly confidential and, unless required by law,
will not disclose such information without the prior written permission of
the COMPANY to anyone except tax advisors, if any, but only after informing
those persons that they too must keep the information confidential.
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6. Statements and Breach. CPNSULTANT, and CONSULTANT'S spouse may state only
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that "the matter has been resolved" or words to that effect, but will not
otherwise disclose any information about this AGREEMENT or its terms.
Because a breach of this confidentiality paragraph would cause COMPANY
damages that are impracticable or too difficult to fix, in the event of
such a breach, CONSULTANT shall be liable to COMPANY for liquidated damages
in the amount not to exceed $50,000.00 for each breach, plus any attorneys'
fees and costs owed pursuant to Section 13 herein and any equitable relief.
7. No Disparagement. CONSULTANT agrees not to disparage COMPANY or any of its
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officers, employees, agents or representatives and will not knowingly say
or do anything that would have an adverse impact on COMPANY.
8. Further Documents. Each party agrees to execute or cause their counsel to
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execute any additional documents and take any further action which may
reasonably be required in order to consummate this AGREEMENT or otherwise
fulfill the obligations of the parties thereunder. The parties hereto this
AGREEMENT agree to modify and execute any changes necessary to correct any
errors clerical and or verbiage which may cloud and or misdirect the intent
of this AGREEMENT.
9. Dispute. Should a dispute arise concerning this AGREEMENT or its
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performance, such dispute shall be resolved by binding arbitration
administered by the American Arbitration Association under its commercial
dispute resolution rules. If arbitration is initiated, the arbitration
shall be held in Miami, Florida. Each party shall bear the cost of their
representation regardless of the arbitrated decision.
10. Construction. This AGREEMENT shall be construed and enforced in accordance
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with the laws of the State of Michigan.
11. Integration. This AGREEMENT constitutes an integration of the entire
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understanding and agreement of the parties with respect to the matters
referred to in this AGREEMENT. Any representation, warranty, promise or
condition, whether written or oral, between the parties with respect to the
matters referred to in this AGREEMENT which is not specifically
incorporated in this AGREEMENT shall not be binding upon any of the parties
hereto and the parties acknowledge that they have not relied, in entering
into this AGREEMENT, upon any representations, warranties, promises or
conditions not specifically set forth in this AGREEMENT. No prior or
contemporaneous oral or written understanding, covenant, or agreement
between the parties, with respect to the employment period described herein
nor matters referred to in this AGREEMENT, shall survive the execution of
this AGREEMENT. Each party hereto assumes the risk of misrepresentation,
concealment or mistake, and if any party should subsequently discover that
any fact relied upon in entering into this AGREEMENT was untrue, or that
any fact was concealed from it, or that its understanding of the facts or
law was incorrect, it shall not be entitled to set aside this AGREEMENT by
reason thereof. This AGREEMENT may be modified only by a written agreement
executed by both parties hereto.
12. Binding Agreement. The parties understand and expressly agree that this
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AGREEMENT shall bind and benefit (as applicable) the heirs, employees,
owners, officers, shareholders, directors, subsidiaries, spouses,
affiliates, successors, predecessors, agents, witnesses, attorneys,
representatives, and assigns of the COMPANY and CONSULTANT.
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13. Counterparts. This AGREEMENT may be executed in counterparts, and each
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counterpart shall have the same force and effect as an original and shall
constitute an effective, binding agreement on the part of each of the
undersigned.
14. Assignment. This AGREEMENT may not be assigned by the CONSULTANT or the
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Company without the prior written consent of the other Party.
Notwithstanding the foregoing, this AGREEMENT may be assigned by the
COMPANY to a corporation controlling, controlled by or under common control
with the COMPANY without the consent of the CONSULTANT.
The Parties hereto acknowledge and execute this Partial Settlement Agreement as
of the date first set forth above by placing their hand and seal below:
Dated: 10-28-04
/s/ Xxxxxx X. Xxxxx, Chairman
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for Viva International, Inc. Per Corporate Resolution
dated 10-28-04.
Dated: 10-28-04
/s/ Xxxxxx X. Xxxxxx
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(Consultant Signature and Print Name)
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