Prime Sun Power Inc. Separation and Mutual Release Agreement
This
Confidential Separation and Mutual Release Agreement (“Agreement”) is
entered into this 19th day of June, 2009 by and among Prime Sun Power
Inc. (the “Company”), on the one
hand, and Xxxxx
Xxxxxxx (“Executive”) on the
other hand.
I.
RECITALS
A.
WHEREAS, Executive previously entered into an employment agreement with the
Company dated January 7, 2009 (the “Employment
Agreement”) with respect to rendering services as Chief Operating Officer
and Interim Chief Executive Officer of the Company);
B.
WHEREAS, Executive previously gave notice of intention to resign and the Company
has accepted such resignation; and
C.
WHEREAS, each of the parties desires to arrange for mutually acceptable terms
for repayment of outstanding obligations to the Executive and to provide for
release of any and all claims of any nature or kind whatsoever that either party
has, ever has had, or may ever have in the future, against the
other.
II.
AGREEMENT
NOW,
THEREFORE, in consideration of the mutual promises herein, which the parties
expressly agree is valuable, adequate and sufficient in all respects, the
parties mutually agree as follows:
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1.
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Mutual
General Releases.
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A. The
Company and its respective officers, directors, partners, principals, employees,
attorneys, insurers, agents, servants, consultants, representatives, successors,
heirs, assigns, control persons and affiliates, (collectively “Company Releasors”)
release and forever discharge Executive and his agents, attorneys, accountants,
insurers, consultants, representatives, future employers, successors and assigns
(collectively, “Executive
Releasees”), from any and all claims, demands, obligations, losses,
causes of action, costs, expenses, attorneys' fees and liabilities of any nature
whatsoever, whether based on contract, tort, statutory or other legal or
equitable theory of recovery, whether known or unknown, which the Company and/or
the Company Releasors have, or had, claims or could claim to have against
Executive, or Executive Releasees, including but not limited to any and all
claims which relate to, arise from, or are in any manner pertaining to the
Employment Agreement or other reason or basis whatsoever.
Mutual
Release Agreement
B. Upon
completion of the Settlement Payments, as defined below, Executive, hereby
releases and forever discharges the Company and past and present affiliates,
subsidiaries, officers, directors, shareholders, partners, principals,
employees, attorneys, insurers, agents, servants, consultants, representatives,
successors, heirs, assigns, control persons and affiliates of the Company and
each of the Public Companies (collectively, the “Released Parties”),
from any and all claims, demands, obligations, losses, causes of action, costs,
expenses, attorneys' fees and liabilities of any nature whatsoever, whether
based on contract, tort, statutory or other legal or equitable theory of
recovery, whether known or unknown, which Executive has, had or claims to have
against any or all of the Released Parties, including but not limited to any and
all claims which relate to, arise from, or are in any manner connected to the
Employment Agreement and/or any other monetary consideration of any nature or
kind, whether accrued or not or other reason or basis whatsoever.
C. The
“Settlement
Payments” means the total aggregate sum of CHF
87,633.13 (Eighty Seven Thousand Six Hundred Thirty Three and 13/100 Swiss
Francs) which shall be paid in two equal
incremental payments on Friday, June 26, 2009 and Monday, July 27,
2009. All Settlement Payments shall be made by wire transfer
to the account provided to the Company by Executive.
D. The
Executive shall promptly deliver to the Company all books and records pertaining
to the Company, including without limitation, any and all contracts,
information, reports, specifications, data, in any and all media or format of
any nature or kind (together with sufficient information regarding the
respective application required for reading such digital data), physical notes,
files, documentation, correspondence, charts and any and all other tangible or
intangible materials of any type whatsoever, all information relating to the
Company tax records, regulatory and legal compliance, customers, vendors,
service providers, consultants, employees, partners, alliances, and any and all
other information which relating to the Company, its respective officers,
directors, shareholders, employees, consultants, advisers and the business or
anticipated business of the Company.
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2.
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Termination
of Agreements. The parties hereto agree and confirm that, except for this
Agreement, any and all agreements, written or oral, including but not
limited to the Employment Agreement, are hereby terminated and are of no
further force and effect. All parties hereto agree that none of the terms,
conditions or obligations, if any, have survived
termination. The parties agree that this Agreement otherwise
supersedes any and all of the terms of the Employment Agreement and all
parties expressly release each other from any continuing rights, duties
and/or obligations under any agreements, and Executive shall make no
further claim for any matters, including, without limitation, any
compensation and any options even if such matters falls within the terms
of the Employment Agreement.
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3.
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Each
party agrees that this Agreement is intended to cover any and all claims
or possible or contingent claims arising out of or related to those
matters referenced or impliedly covered in the general release referenced
above, whether the same are known, unknown or hereafter discovered or
ascertained.
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4.
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No
Executive Lawsuits. Executive covenants and agrees that during
the pendency of the period for completion of the Settlement Payments and
at any time thereafter, except in the event of breach of this Agreement by
the Company, shall not directly or indirectly, initiate, assign, maintain
or prosecute, or in any way knowingly aid or assist in the initiation,
maintenance or prosecution of any claim, demand or cause of action at law
or otherwise, against the Released Parties, or any affiliates of the
Released Parties, or any for damages, loss or injury of any kind arising
from, related to, or in any way connected to any activity with respect to
which a release has been given pursuant to this
Agreement.
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2
Mutual
Release Agreement
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5.
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No
Company Suits. The Company and each of the Company Releasors to
the extent permitted by law covenants and agrees that during the pendency
of the period for completion of the Settlement Payments and at any time
thereafter, except in the event of breach of this Agreement by the
Executive, shall not directly or indirectly, initiate, assign, maintain or
prosecute, or in any way knowingly aid or assist in the initiation,
maintenance or prosecution of any claim, demand or cause of action at law
or otherwise, against the Executive and Executive Releasees, or any of
them, for damages, loss or injury of any kind arising from, related to, or
in any way connected to any activity with respect to which a release has
been given pursuant to this
Agreement.
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6.
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Non-Disclosure. The
terms of this Agreement, shall remain strictly confidential, except as may
otherwise be required to be disclosed by any applicable laws, rules,
regulations, or to a party's attorneys, accountants or insurers, or by
order of a court of competent jurisdiction. Each signatory to
this Agreement individually covenants not to disclose any of the terms of
this Agreement, whether generally or specifically, to any third party,
except as provided herein. Executive furthermore covenants and agrees from
and after the date hereof to maintain the confidentiality of any and all
information about the Company and its affiliates, agents, attorneys,
accountants, insurers, representatives, consultants, successors and
assigns, not otherwise available to the public, including without
limitation, any and all business sources, business contacts, documents,
business plans, business organizations, business structures, formulas,
processes, policies, procedures, products, financial information,
technical information, customers, customer lists, contact information of
customers and all other similar information, in paper, electronic or any
other form or format whatsoever, and also including any confidential
information disclosed to the Company by any third
parties.
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7.
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Non-Disparagement. Each
party hereby agrees not to make any remarks about the other party or any
of the Released Parties that could reasonably be construed as disparaging
or defamatory or adverse to the economic interests or reputational
interests of the Released Parties. Nothing herein shall be
construed as a requirement on the part of either party to disclose to any
third party any non-disparaging information. Any and all
compliance by the Company with respect to requisite disclosures under any
and all laws, rules and regulations applicable to the Company shall be
deemed not to be disparaging or
defamatory.
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8.
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Parties
to Bear Own Costs and Attorneys' Fees. Each party to this Agreement will
bear its own costs, expenses, and claims to interest and attorneys' fees
incurred in or arising out of, or in any way connected with the matters
which are referenced or covered in the mutual releases referenced above or
which were otherwise related to the subject of this
Agreement. Notwithstanding the foregoing, any party in breach
of this Agreement shall indemnify and hold harmless the other party in
respect of any and all fees, costs, expenses and disbursements incurred
with respect to enforcement of this
Agreement.
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9.
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Entire
Agreement. This Agreement represents and contains the entire agreement and
understanding among the parties hereto with respect to the subject matter
of this Agreement, and supersedes any and all prior oral and written
agreements and understandings, including, without limitation, the
Employment Agreement. No representation, warranty, condition,
understanding or agreement of any kind with respect to the subject matter
shall be relied upon by the parties except those contained herein. This
Agreement may not be waived, amended or modified except by an agreement
signed by the party against whom enforcement of any waiver, modification
or amendment is sought.
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3
Mutual
Release Agreement
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10.
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Counterparts.
This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original, and all of which together shall be
deemed one and the same instrument.
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11.
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No
Assignment. The parties each represent and warrant to one another that
they have not sold, assigned, transferred, conveyed or otherwise disposed
of any claim or demand covered by this
Agreement.
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12.
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Heirs,
Successors and Assigns. This Agreement shall be binding upon and inure to
the benefit of the parties' respective legal heirs, successors and
assigns.
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13.
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Severability.
Should any portion (word, clause, phrase, sentence, paragraph or section)
of this Agreement be declared void or unenforceable, such portion shall be
considered independent and severable from the remainder, the validity of
which shall remain unaffected. This Agreement shall survive
indefinitely.
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14.
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Governing
Law. This Agreement is made, and will be construed, under the laws of the
State of New York. All disputes and controversies arising out
of or relating to this Agreement shall be finally settled and binding
under the Rules of International Chamber of Commerce (ICC). The
place of arbitration shall be Zurich, Switzerland. The
Arbitration shall be conducted in English by a single arbitrator appointed
in accordance with the ICC rules. Any award, verdict or
settlement issued under such arbitration may be entered by any party for
order of enforcement by any court of competent
jurisdiction. The arbitrator shall have express powers to take
interim measures he or she deems necessary, including injunctive relief
and measures for the protection or conservation of property, including,
without limitation, confidential information and all intellectual
property.
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15.
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Legal
and Equitable Remedies. Both Parties agree that each Party shall have the
right to enforce this Agreement and any of its provisions by injunction,
specific performance or other equitable relief without prejudice to any
other rights or remedies that party may have at law or in equity for
breach of this Agreement.
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16.
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Notices. Any
notice or other communication to any party in connection with this
Agreement shall be in writing and shall be sent by manual delivery,
overnight courier with written confirmation of receipt or certified United
States mail (postage prepaid) addressed to such party at the address
specified on the signature page hereto, or at such other address as such
party shall have specified to the other party hereto in
writing. Any notice hereof shall be deemed to have been given
only when delivered.
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17.
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Representation. The
officer of the Company executing this Agreement has been duly authorized
to execute and deliver this Agreement as a binding obligation of the
Company. This Agreement shall be fully binding upon delivery
via fax or electronically delivered signature to the same and full extent
as the original thereof.
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[Signature
Page Follows]
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Mutual
Release Agreement
IN
WITNESS WHEREOF, each of the Company and the Executive have duly executed this
Agreement as of the date and year first set forth above.
Executive:
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/s/
Xxxxx Xxxxxxxx
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Xxxxx
Xxxxxxx
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Address
for Notices:
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/s/
Olivier de Vergnies
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Name:
Olivier de Vergnies
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Title:
Director
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