EXHIBIT 10.9
AGREEMENT
THIS AGREEMENT is made and entered into this ___ day of April, 2003, by and
between ELINEAR, INC., a Delaware corporation (the "Company"), and XXX XXXXXX
("Xxxxxx").
RECITALS
X. Xxxxxx has served as an officer and director of the Company;
B. The parties desire to address certain issues of Xxxxxx'x
compensation 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. For his past services to the Company, the Company shall grant and
issue to Xxxxxx 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 Xxxxxx'x death and shall inure to his heirs, personal
representatives and assigns.
2. Options previously granted and issued to Xxxxxx shall be modified as
follows:
(a) All previously granted and issued options held by Xxxxxx shall
be deemed fully vested and exerciseable.
(b) Non-qualified non-Plan options exerciseable to purchase
100,000 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 200,000 shares at a price of $2.90 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board of directors on December 28, 2002 shall be rescinded, null and void.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 Xxxxxx'x death and shall inure to the benefit of his
heirs, personal representatives and assigns.
3. Except as expressly provided for herein, the Company shall have no
other debt, obligation or liability to Xxxxxx for compensation or expense
reimbursement arising from or in connection with his performance of services as
a director of the Company.
4. Except for the agreements contained herein, the Company, on the one
hand, and Xxxxxx, 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.
5. This Agreement shall in all respects be interpreted, enforced and
governed under the laws of the State of Texas.
6. 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. 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.
7. 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.
8. 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.
9. 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
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XXX XXXXXX
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Signature
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