MUTUAL SEPARATION AGREEMENT
This
Mutual Separation Agreement is made as of March 28, 2006, between GVI Security
Solutions, Inc., a Delaware corporation (“GVI”) and Xxxxxxxxx Xxxxxxxx
(“Paciotti”).
RECITALS
WHEREAS,
Paciotti and GVI are parties to an Executive Employment Agreement, dated as
of
January 24, 2005 (the “Employment Agreement;” capitalized terms used but not
defined herein shall have the meanings set forth in the Employment Agreement),
whereby Executive was employed as Chief Executive Officer and Chief Financial
Officer of the Company; and
WHEREAS,
Paciotti and GVI have agreed to a mutual separation of the employment
relationship, termination of the Employment Agreement, and the settlement and
release of claims by each party on the terms set forth herein.
NOW,
THEREFORE, THE PARTIES AGREE AS FOLLOWS:
1. Termination. Paciotti’s
employment with GVI is terminated as of March 28, 2006 (the “Termination Date”)
and Paciotti shall cease to be an officer, director or employee of GVI and
its
subsidiaries on the Termination Date.
2. Severance. Paciotti
will be paid a total of one year’s base salary of $300,000 (the “Severance
Amount”). The Severance Amount will be payable in 12 equal monthly installments
during the one-year period commencing on the Termination Date. If and to the
extent permitted by GVI’s healthcare insurance providers, GVI shall continue to
provide Paciotti and his eligible dependants with direct coverage under the
healthcare insurance plans and policies provided to senior executives until
January 24, 2008 (the "Healthcare Termination Date"). If GVI’s healthcare
provider does not permit continued coverage, GVI shall pay for continued group
health insurance coverage for Paciotti and his otherwise eligible dependants,
pursuant to Section 4980B of the Internal Revenue Code (“COBRA”),
if
eligible, until the earlier of (i) the Healthcare Termination Date or (ii)
the
end of the COBRA continuation period pursuant to applicable law. If Paciotti
ceases to be eligible for COBRA prior to the Healthcare Termination Date, GVI
shall pay Paciotti an amount equal to the monthly COBRA premiums paid on his
behalf pursuant to this Agreement each month until and including the month
in
which the Healthcare Termination Date occurs. In consideration of the foregoing,
from the Termination Date until August 31, 2006, Paciotti shall serve as a
consultant to GVI on such matters as GVI may request, in particular, on matters
relating to filings by GVI with the Securities and Exchange Commission.
3. Acceleration
of Vesting of Stock Option.
Immediately upon the execution of this Agreement by the parties hereto,
Paciotti’s options to purchase an aggregate of 625,000 shares of GVI’s common
stock, par value $.001 per share, under the Option Agreements, dated as of
February 17, 2004 and January 6, 2005, between Paciotti and GVI shall be fully
vested and exercisable in full until December 31, 2006.
4. Release.
(a) In
exchange for the consideration provided for by Sections 2 and 3 hereof, Paciotti
for himself and for his heirs, executors, administrators and assigns
(hereinafter referred to collectively as “Releasors”), forever releases and
discharges GVI and any of its now or hereafter existing subsidiaries, parent
companies, divisions, affiliates or related business entities, successors and
assigns and any of their past or present shareholders, directors, officers,
attorneys, agents, trustees, administrators, employees or assigns (whether
acting as agents for GVI or in their individual capacities) (hereinafter
referred to collectively as “Releasees”), from any and all claims, demands,
causes of action, fees and liabilities of any kind whatsoever, whether known
or
unknown, which Releasors ever had, now have or may have against Releasees by
reason of any actual or alleged act, omission, transaction, practice, conduct,
occurrence or other matter up to and including the date hereof.
(b) Without
limiting the generality of the foregoing, this Agreement is intended to and
shall release Releasees from any and all claims, whether known or unknown,
which
Releasors ever had, now have and may have against Releasees, including but
not
limited to any claims, whether or not asserted, arising out of Paciotti’s
employment with Releasees and/or his termination from such employment, including
but not limited
to: (i)
any claim under the Civil Rights Act of 1964, as amended; (ii) any other claim
of discrimination or retaliation in employment (whether based on federal, state
or local law, statutory or decisional); (iii) any claim arising out of the
terms
and conditions of Paciotti’s employment with GVI, his termination from such
employment, and/or any of the events relating directly or indirectly to or
surrounding such termination; (iv) any claim of discrimination or breach of
fiduciary duty under the Employee Retirement Income Security Act of 1974, as
amended (except claims for accrued vested benefits under any employee benefit
plan of GVI in accordance with the terms of such plan and applicable law);
(v)
any claim arising under the Federal Age Discrimination in Employment Act of
1997, as amended (“ADEA”), and the applicable rules and regulations thereunder;
and (vi) any claim for attorney’s fees, costs, disbursements and/or the
like.
5. Covenant
not to Xxx.
Paciotti
covenants, except to the extent prohibited by law, not to commence, maintain,
prosecute or participate in any action, charge, complaint or proceeding of
any
kind (on his own behalf and/or on behalf of any other person or entity and/or
on
behalf of or as a member of any alleged class of persons) in any court, or
before any administrative or investigative body or agency (whether public,
quasi-public or private), except if otherwise required by law, against Releasees
with respect to any act, omission, transaction or occurrence up to and including
the date on which this Agreement is executed.
6. Cooperation. Paciotti
agrees to cooperate with GVI and its counsel in any action, proceeding or
litigation relating to any matter in which Paciotti was involved or of which
Paciotti has knowledge as a result of or in connection with his employment
by
GVI.
7. Non-Disparagement.
Paciotti
agrees that he will not at any time, orally or in writing, willfully denigrate,
disparage, ridicule or criticize, or willfully make any derogatory, disparaging
or damaging statements (or induce or encourage others to engage in any such
act)
regarding GVI and any of its subsidiaries, divisions, affiliates or related
business entities, successors and assigns and any of their past or present
shareholders, directors, officers, attorneys, agents, trustees, administrators,
employees or any other representatives of GVI or any of its respective products
or properties, including by way of news interviews or the expression of personal
views, opinions or judgments to the media.
2
8. Confidentiality;
Return of Corporate Property, Non-Solicitation.
Following the date hereof, Paciotti shall continue to be bound by the provisions
of Sections 5, 6, 7 and 8 of the Employment Agreement in accordance with the
terms thereof. Paciotti shall not be entitled to the additional consideration
provided in Section 8.3 of the Employment Agreement.
9. Specific
Performance.
In view
of the irreparable harm and damage which would be incurred by GVI in the event
of any violation by Paciotti of any of the provisions of Sections 4 through
8
hereof, Paciotti hereby consents and agrees that in any such event, in addition
to any other rights GVI may have, and without prejudice to any other remedies
which may be available at law or in equity, GVI shall be entitled to an
injunction or similar equitable relief to be issued by any court of competent
jurisdiction restraining Paciotti from committing or continuing any such
violation, without the necessity of proving damage, or posting any bond or
other
security.
10. Acknowledgment.
Paciotti acknowledges that: (i) he has carefully read this Agreement in its
entirety; (ii) he has been advised by GVI to seek the advise of an attorney;
(iii) he has had an opportunity to consider fully the terms of this Agreement;
(iv) he has been give 21 days in which to consider whether to enter into this
Agreement; (v) he fully understands the significance of all the terms and
conditions of this Agreement; (vi) he has had answered to his satisfaction
any questions he has asked with regard to the meaning and significance of any
of
the provisions of this Agreement; and (vii) he is signing this Agreement
voluntarily and of his own free will and assents to all the terms and conditions
contained herein.
11. Governing
Law.
This Agreement shall be governed in all respects by the laws of the State of
New
York without reference to its choice of law rules.
12. Successors
and Assigns.
Except as otherwise provided herein, the provisions hereof shall inure to the
benefit of, and be binding upon, the successors, assigns, heirs, executors
and administrators of the parties hereto.
13. Entire
Agreement; Amendment.
This Agreement constitutes the full and entire understanding and agreement
between the parties with regard to the subjects hereof and thereof. Neither
this
Agreement nor any term hereof may be amended, waived, discharged or terminated
other than by a written instrument signed by the party to be
charged.
14. Counterparts.
This Agreement may be executed in any number of counterparts, each of which
shall be enforceable against the parties actually executing such counterparts,
and all of which together shall constitute one instrument.
3
15. Severability.
The holding of any provision of this Agreement to be invalid or unenforceable
by
a court of competent jurisdiction shall not affect any other provision of this
Agreement, which shall remain in full force and effect.
16. Revocation.
Paciotti shall have seven days from the date he signs this Agreement to revoke
his release of his rights under ADEA by delivering a written revocation to
GVI,
which action by Paciotti shall revoke his release. If Paciotti revokes his
release, all of the provisions of this Agreement shall be void and unenforceable
except for Section 1 hereof.
4
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day
and year first above written.
GVI
SECURITY SOLUTIONS, INC.
By:
__________________________
Name:
Title:
______________________________
Xxxxxxxxx
Xxxxxxxx
5
