EXHIBIT 10.13
SEVERANCE AGREEMENT
Whereas, Xxxxxxx Xxxx is currently a member of the Board of Directors of
Visual Information Services Corporation of Illinois and/or Viscorp Nevada
(hereinafter referred to collectively as "Viscorp"); and
Whereas, Xxxxxxx Xxxx is currently President of Viscorp Nevada and is or
has acted as Chief Executive Officer and/or President of Visual Information
Services Corporation of Illinois; and
Whereas, Xxxxxx Xxxxxxx is and or has acted as a consultant and/or employee
of Viscorp Nevada; and
Whereas, Xxxxxxx Xxxx entered into an Employment Agreement dated November
12, 1994 with Viscorp for a period of three years which he acknowledges to be a
valid and binding document; and
Whereas, it is the desire of Xxxxxxx Xxxx to tender his resignation as it
relates to both of the above named corporations both as an officer and a member
of the Board of Directors and terminate any other relationship he may have with
either corporate entity or its successor; and
Whereas, Xxxxxx Xxxxxxx wishes to terminate her relationship as a
consultant and/or employee or in any other way acting on behalf of Viscorp; and
Whereas, each Xxxxxxx Xxxx and Xxxxxx Xxxxxxx claim that Viscorp owe either
salary or valid reimbursable expenses incurred by them as a direct result of
acting as and for Viscorp; and
Whereas, Xxxxxxx Xxxx is a significant shareholder of Viscorp; and
Whereas, Viscorp wishes to resolve any and all outstanding claims of
Xxxxxxx Xxxx and Xxxxxx Xxxxxxx, now and forever.
FOR GOOD AND SUFFICIENT CONSIDERATION ACKNOWLEDGED BY XXXXXXX XXXX AND XXXXXX
XXXXXXX, IT IS HEREBY AGREED BY AND BETWEEN VISCORP, XXXXXXX XXXX AND XXXXXX
XXXXXXX, AS FOLLOWS:
A. Xxxxxxx Xxxx shall immediately resign as and from the Board of Directors of
each of the corporate entities;
B. Xxxxxxx Xxxx shall immediately tender his resignation as a corporate officer
of each of the corporate entities;
C. Viscorp shall pay to Xxxxxxx Xxxx and Xxxxxx Xxxxxxx a total sum of money
approximately $300,000.00 upon the submission of valid and proper approved
business expenses which sum of money shall represent full and complete
settlement of any and all monies claimed by either Xxxxxxx Xxxx or Xxxxxx
Xxxxxxx for, but not limited to salary, consultation, reimbursement or for any
other
purpose or reason or claim either may have now or in the future against Viscorp.
Any funds issued to Xxxxxxx Xxxx and Xxxxxx Xxxxxxx shall be issued separately.
The payment of said funds is contingent upon VisCorp Nevada receiving funding
based on the issuance of a certain Offering Memorandum for the issuance of
Viscorp's 8% Cumulative Convertible Preferred Stock with warrants to purchase
shares of common stock as set forth in a Confidential Offering Memorandum
(Wincap deal) dated December 9, 1996 as amended from time to time. The issuance
of monies as set forth in this paragraph is also contingent upon Xxxxxxx Xxxx
having agreed in writing to the terms and conditions of said Offering Memorandum
both individually and as a Board of Director as amended from time to time to
include an exclusion from the reverse stock split of 220,000 shares of common
stock and lock-up agreement owned in the name of Xxxxxxx Xxxx.
D. The funds as set forth in Paragraph C above shall be paid as follows:
1. The first $225,000.00 shall be paid for valid reimbursable expenses
forthwith upon
a. The submission of valid claims to Viscorp and subsequently
approved;
b. Viscorp receiving the first $3,000,000.00 of funding.
2. The balance of valid reimbursable expenses not to exceed the total as
set forth in Paragraph C above shall be paid by VisCorp at a rate of 5% of any
additional funding received as a result of the Wincap funding, said payment to
be made monthly until paid in full.
E. Said payment as it relates to Xxxxxxx Xxxx represents full and complete
payment of any and all claims pursuant to Section 4 of the Employment Agreement
dated November 12, 1994 as well as any and all other claims he may have against
Viscorp or their respective Board of Directors, officers, employees,
representatives, and advisors.
F. Xxxxxxx Xxxx shall continue to cooperate in defending any actions currently
pending or subsequently brought against Viscorp or their respective directors,
officers, employees, representatives and advisors as well as Viscorp bringing
any action against any other party in the future.
G. The remaining terms and conditions of the Employment Agreement dated
November 12, 1994 shall remain in full force and effect as it relates to his
continuing obligations.
H. Xxxxxxx Xxxx shall, in addition, continue to advise Viscorp from time to
time as requested by Viscorp, and shall not, even after termination, do any act
to disparage others from acting with Viscorp.
I. The following terms and conditions shall apply in addition to anything set
forth above to Xxxxxx Xxxxxxx:
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1. She acknowledges that by reason of her consultant and/or employment
she has access to Confidential Information (as defined below)
concerning the business and policies of Viscorp and any affiliate
thereof. She shall not:
a. Divulge or disclose, directly or indirectly, any Confidential
Information to any person, firm, corporation or other entity, for
any purpose or reason whatsoever, or
b. Make use of any of the Confidential Information for purposes or
for the benefit of any person, firm, corporation or other
business entity except Viscorp or any affiliate thereof, except,
in each case, to the extent
i. Such Confidential Information is obtainable from public
sources (other than as a result of any breach of this
Agreement) or is known to her by reason of her prior
employment by any entity other than Viscorp or any
predecessor thereof, or
ii. Such disclosure is required by applicable law or authorized
in writing by Viscorp.
For purposes of this Agreement, "Confidential Information" shall mean all
proprietary information relating to Viscorp and its business (as currently
conducted and as proposed to be conducted), properties and assets.
She agrees that at the time of termination of her relationship with
Viscorp, regardless of the reasons, therefor, she will deliver to Viscorp and
not deliver to anyone else any and all originals and copies of all notes, files,
memoranda, paper and in general, any and all physical matter containing
confidential Information or any other information related to the conduct of the
business of Viscorp. She acknowledges that all such materials are and shall
remain the sole and exclusive property of Viscorp.
2. Non-competition.
A. She and Viscorp acknowledge and recognize that Viscorp's business
has been conducted, and sales of its Products have been and will
be made, in each State of the United States and world-wide, that
the nature of the industry in which Viscorp competes is highly
competitive and that Viscorp would find it extremely difficult or
impossible to replace her. Accordingly, in consideration of the
premises and the covenants contained herein, the consideration to
be received hereunder, she shall not, during the Non-compete
Period (as hereinafter defined):
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(i) Directly or indirectly engage in, whether such engagement
shall be as an employee, consultant, officer, director,
partner, stockholder (other than ownership of up to 3% of
the outstanding securities of any public company with a
market capitalization of less than $1,000,000,000, ownership
of up to 1% of the outstanding securities of any public
company with a market capitalization of $1,000,000,000 or
more of investments in mutual funds or similar investment
vehicles), affiliate or other participant in any Competitive
Business (as hereinafter defined), or represent in any way,
any Competitive Business, whether such engagement or
representation shall be for profit or not,
(ii) Interfere with, disrupt or attempt to disrupt the
relationship, contractual or otherwise, between Viscorp and
any third party, including, without limitation, any
customer, supplier, employee, or consultant of Viscorp, or
(iii) Affirmatively assist, solicit or induce others to
engage in any Competitive Business in any manner
described in the foregoing clauses (i) and (ii).
As used herein, "Competitive Business" shall mean any business involving
the sale of products in any city or county in any State of the United States or
any other jurisdiction outside of the United States if such business or the
products sold by it are competitive, directly or indirectly, with
A. The business of Viscorp,
B. Any of the products, or
C. Any products or business being developed or conducted by Viscorp or
any subsidiaries of Viscorp during the Employment Period.
As used herein, "Noncompete Period" shall mean the 18-month period
commencing on the date of this Agreement.
B. Anything to the contrary contained herein notwithstanding,
nothing in this Section is intended to prohibit Xxxxxx from
making any passive or personal investments, conducting her
private business affairs, donating her time for charitable
purposes or giving seminars or speeches so long as such
activities are not competitive with or adverse to Viscorp, the
Business or the Products.
C. Xxxxxx acknowledges and agrees that the breadth of the
territorial restriction in this Section is reasonable and
necessary to protect Viscorp because, among
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other things, Viscorp conducts the Business throughout the United
States and outside the United States; the Business could be
located in any jurisdiction in the United States or outside the
United States; and any lesser restriction would unfairly infringe
upon Viscorp's conduct of the Business.
D. Xxxxxx understands that the foregoing restrictions may limit her
ability to earn a livelihood in a business similar to the
Business, but she nevertheless believes that she has received and
will receive sufficient consideration and other benefits from the
transactions contemplated by the Documents and as a consultant
and/or employee of Viscorp and as otherwise provided hereunder to
clearly justify such restrictions which, in any event, given her
education, abilities and skills Xxxxxx does not believe would
prevent her from earning a living.
3. Assignment. This Agreement shall inure to the benefit of and shall be
binding upon Viscorp, its successors and assigns. The obligations and duties of
Xxxxxx are personal and not assignable, whether voluntarily or involuntarily or
by operation of law or otherwise.
4. Notices. All notices, requests, consents and other communications
hereunder to any party shall be deemed to be sufficient if contained in a
written instrument delivered in person or sent by telegraph or facsimile (if
automated confirmation of full transmission is received), nationally -
recognized overnight courier or first class registered or certified mail, return
receipt requested, postage prepaid, addressed to such party at the address set
forth below or such other address as may hereafter be designated in writing by
such party to the other parties:
1. If to the Corporation, to :
Viscorp
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Fax: 312/000-0000
Copy to:
Xxxxxxxx X. Xxxxxxx, Esq.
Frank, Miller, Xxxxxxx & Tabis P.C.
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Fax: 312/000-0000
2. If to Xxxxxxx Xxxx:
Xxxxxxx Xxxx
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3. If to Xxxxxx Xxxxxxx:
Xxxxxx Xxxxxxx
All such notices, requests, consents and other communications shall be
deemed to have been delivered (a) in the case of personal delivery or delivery
by telegraph or facsimile (if automated confirmation of full transmission is
received), on the date of such delivery, (b) in the case of dispatch by
nationally-recognized overnight courier, on the next business day following such
dispatch and (c) in the case of mailing, on the third business day after the
posting thereof.
5. Entire Agreement. This Agreement contains the entire agreement of
Viscorp and Xxxxxxx Xxxx (which incorporates the terms and conditions of his
Employment Agreement) and Xxxxxx Xxxxxxx relating to the subject matter hereof.
6. Waiver, Amendment. No provision hereof may be waived except by a
written agreement signed by the waiving party. The waiver of any term or
condition of this Agreement shall not be deemed to constitute a waiver of any
other term or condition hereof. This Agreement may be amended only by a
subsequent writing signed by the party or parties to be bound thereby.
7. Governing Law and Jurisdiction. This Agreement shall be governed by
and construed in accordance with the laws of the State of Illinois.
Jurisdiction shall be in the first instance in the Federal Court in the State of
Illinois.
8. Remedies. All remedies hereunder are cumulative, are in addition to
any other remedies provided for by law and may, to the extent permitted by law,
be exercised concurrently or separately, and the exercise of any one remedy
shall not be deemed to be an election of such remedy or to preclude the exercise
of any other remedy. Xxxxxxx and Xxxxxx acknowledge that in the event of any
breach of his or her respective covenants contained in this Agreement Viscorp
shall be entitled to immediate relief enjoining such violations in any court or
before any judicial body that Viscorp shall choose to have jurisdiction.
9. Severability. In the event that any provision of this Agreement would
be held in any jurisdiction to be invalid, prohibited or unenforceable for any
reason, such provision, as to such jurisdiction, shall be ineffective, without
invalidating the remaining provisions of this Agreement in any other
jurisdiction. Notwithstanding the foregoing, if such provision could be more
narrowly drawn so as not to be invalid, prohibited or unenforceable in such
jurisdiction, it shall, as to such jurisdiction, be so narrowly drawn, without
affecting the invalidity or enforceability of such provision in any other
jurisdiction.
10. Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original and all of which, taken together, shall
constitute one and the same instrument.
11. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed to be a part
of this Agreement.
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12. Attorneys. In the event that any party hereto brings an action or
proceeding for a declaration of the rights of the parties under this Agreement,
for injunctive relief, for an alleged breach or default of, or any other action
arising out of, this Agreement or the transactions contemplated hereby, or in
the event any party is in default of its obligations pursuant hereto, whether or
not suit is filed or prosecuted to final judgment, the prevailing party in any
such action or proceeding shall be entitled to reasonable attorney's's fees, in
addition to any court costs incurred and in addition to any other damages or
relief awarded.
13. Medical Benefits to continue as is for six months.
IN WITNESS WHEREOF, Viscorp and Xxxxxxx Xxxx and Xxxxxx Xxxxxxx have
executed this Agreement as of the 7 day of January, 1997.
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Xxxxxxx Xxxx Xxxxxx Xxxxxxx
SUBSCRIBED and SWORN to SUBSCRIBED and SWORN to
before me this 8 day of before me this ________ day of
JANUARY, 1997. ____________________, 1997.
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Notary Public Notary Public
[OFFICIAL SEAL]
VisCorp Nevada Visual Information Services Corp.
By: By:
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Its Vice President Its
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January 5, 1997
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