EXHIBIT 10.23
SEPARATION AND RELEASE AGREEMENT
This SEPARATION AND RELEASE AGREEMENT (the "Agreement") is made and
entered into by and between EVOKE COMMUNICATIONS, INC. ("Evoke" or "the
Company") and Xxxxxxx Xxxxxx ("Xx. Xxxxxx") (collectively "parties") as of the
Execution Date of this Agreement defined in Paragraph 27 below.
I. RECITALS
WHEREAS, effective as of March 2, 2001, Xx. Xxxxxx will tender his
voluntary resignation from his position as Executive Vice President and Chief
Financial Officer of Evoke and any and all other positions he may have held with
Evoke including, but not limited to, his position as a member of the Board of
Directors of Evoke Europe; and
WHEREAS, the parties wish to make the separation amicable but
conclusive on the terms and conditions set forth herein; and
WHEREAS, Xx. Xxxxxx accepts the benefits of this Separation and Release
Agreement with the acknowledgment that by its terms he has been fully and
satisfactorily compensated; and
WHEREAS, the parties agree that this Separation and Release Agreement
supercedes, replaces and extinguishes any and all other rights and obligations
between the parties related to Xx. Xxxxxx'x employment at Evoke, including but
not limited to, any rights and obligations contained in the Personal Services
Agreement entered into by Xx. Xxxxxx with Evoke on March 29, 2000, as amended.
II. COVENANTS
THEREFORE, in consideration of the Recitals set forth above which are
incorporated herein by reference and of the mutual promises and covenants
contained in this Separation and Release Agreement, it is hereby agreed by and
between the parties hereto as follows:
1. Resignation. Effective as of March 2, 2001 ("Separation Date"), Xx.
Xxxxxx'x employment with Evoke as Executive Vice President and Chief Financial
Officer and any and all other positions he may have held with Evoke including,
but not limited to, his position as a member of the Board of Directors of Evoke
Europe, shall cease.
2. Accrued Compensation. Evoke will compensate Xx. Xxxxxx for all
accrued compensation and vacation as of the Separation Date. Xx. Xxxxxx is
entitled to these payments whether or not he signs this Separation and Release
Agreement.
3. Consideration. Although Evoke has no policy or procedure requiring
payment of any severance benefits in case of voluntary resignation, Evoke agrees
to the following as part of this Separation and Release Agreement.
(a) Severance Benefits. Evoke will make severance payments to Xx.
Xxxxxx in the form of continuation of his Base Salary in effect on the
Separation Date for a period of five
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(5) months commencing on the first business day following the Separation Date
("Severance Period"). These payments will be made on Evoke's ordinary payroll
dates, and will be subject to standard payroll deductions and withholding. At
its discretion, Evoke may accelerate the payment of the severance payments. Such
acceleration, if any, shall not affect the total amount of salary continuation
to be provided under the terms of the Separation and Release Agreement. All
payments made during the Severance Period are expressly conditioned on Xx.
Xxxxxx'x compliance with his obligations under the Separation and Release
Agreement, including but not limited to, Paragraphs 10 and 11 of the Separation
and Release Agreement.
(b) Bonus Payment. Evoke shall pay to Xx. Xxxxxx a bonus for the
year 2000 in two components: (a) $107,500 in cash and (b) 100,000 options which
are fully-vested non-qualified stock options at an exercise price of $0.10 per
share (the "New Option"). The New Option shall be exercisable until 5:00 p.m.,
MST on one (1) year from the Separation Date. Such cash payment shall be made no
later than March 2, 2001.
(c) Health Insurance. To the extent permitted by federal COBRA law,
Xx. Xxxxxx will be eligible to continue health insurance benefits and, later, to
convert to an individual policy. Evoke will provide Xx. Xxxxxx a COBRA
notification form setting forth his rights and responsibilities with regard to
COBRA coverage. Should Xx. Xxxxxx timely elect to continue coverage pursuant to
COBRA, Evoke agrees to pay his COBRA premiums for four (4) months commencing on
the Separation Date in order for Xx. Xxxxxx to maintain health insurance that is
substantially equivalent to his coverage immediately prior to the Separation
Date ("COBRA Reimbursement Period"). Should Xx. Xxxxxx obtain employment with an
employer who provides medical benefits during the COBRA Reimbursement Period,
Evoke's obligation under this Paragraph shall forever cease upon the expiration
of the waiting period (if any) for entitlement to insurance coverage through the
new employer. Xx. Xxxxxx agrees to notify Evoke in writing in the event that he
is eligible to be covered under another plan before the end of the COBRA
Reimbursement Period. In any event, and not withstanding any provision to the
contrary in this Paragraph, Evoke shall have no obligation to make any payments
for COBRA premiums paid for health insurance coverage beyond the expiration of
the COBRA Reimbursement Period.
(d) Stock Options. All prior options to purchase Evoke capital stock
(1,001,000 shares) are hereby canceled and may no longer be exercised and any of
Evoke's obligations thereunder shall be deemed fully discharged and released and
may no longer be exercised.
(e) Loan for Shares. All principal and interest, if any, of Xx.
Xxxxxx'x outstanding loan (as it may have been amended) from the Company as more
fully described on the promissory note attached as Exhibit A to this Agreement
is hereby cancelled in consideration for the return of 250,000 outstanding
shares of Evoke Common Stock (the "Repurchased Stock"). To effect the transfer
of the Repurchased Stock, Xx. Xxxxxx has concurrently executed the Stock Power
attached as Exhibit B hereto and returned stock certificate(s) representing the
Repurchased Stock. Xx. Xxxxxx hereby represents and warrants that he has the
full power and authority to transfer the Repurchased Shares free and clear of
any liens or other encumbrances.
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(f) Additional Consideration. As additional consideration for the
terms of this Agreement, Evoke hereby agrees to grant Xx. Xxxxxx 250,000 shares
of Evoke Common Stock pursuant to the Evoke 2000 Equity Incentive Plan. Xx.
Xxxxxx acknowledges that such grant shall be taxable income to him and that he
will receive a Form 1099 for the tax year 2001 reflecting the amount of such
taxable income. Evoke shall not be responsible for any tax obligation resulting
from this grant or any other terms and conditions of this Agreement.
4. Other Compensation. Except as expressly provided herein, Xx. Xxxxxx
acknowledges and agrees that he will not receive (nor is he entitled to receive)
any additional consideration, payments, reimbursements, stock or benefits of any
kind. Xx. Xxxxxx further acknowledges and agrees that on the Separation Date,
Evoke paid to him in full any and all wages, salary, accrued but unused
vacation, personal time off, commissions, bonuses, stock options, incentives and
compensation due and owing as of the Separation Date.
5. Business Expense Reimbursement. Evoke agrees to reimburse Xx. Xxxxxx
for those reasonable business expenses he necessarily incurred in his capacity
as an Evoke employee as of the Separation Date consistent with Evoke's policies
in this regard. Xx. Xxxxxx acknowledges and agrees that unless expressly
referenced herein, Evoke will not reimburse him for any expenses he incurs after
the Separation Date. Xx. Xxxxxx must submit the necessary documentation
establishing the amount, date and reason for expenses he incurred and for which
he seeks reimbursement no later than 15 days after the Execution Date of this
Separation and Release Agreement. The Compensation Committee shall review and
evaluate any such expense to determine whether such business expense will be
reimbursed.
6. Non-Interference. Xx. Xxxxxx agrees that he will not discuss any
confidential aspect of Evoke's business or affairs with any employee,
stockholder, customer, vendor, strategic partner of Evoke or other third party,
except as may be requested by Evoke from time to time, as may be otherwise
agreed to by Evoke, or as he is legally entitled to as a shareholder of Evoke.
Xx. Xxxxxx further agrees that he will not alone or in combination with any
other person or entity take any action to influence the management or strategic
direction of Evoke other than as a shareholder of Evoke.
7. Nondisparagement. Each of Evoke and Xx. Xxxxxx agree not to, at any
time, disparage the other party to third parties in any manner likely to be
harmful to the other party's business or personal reputation, or the personal or
business reputation of Evoke's directors, shareholders and/or employees.
Notwithstanding the prohibition in the preceding sentence, each party shall
respond accurately and fully to any question, inquiry, or request for
information when required by legal process. Each party acknowledges and agrees
that this paragraph 7 is a material consideration to the other party's entering
into this Separation and Release Agreement and that breach of this paragraph 7
constitutes a material breach of the Separation and Release Agreement.
8. Cooperation in Pending Work. For two (2) months after the Separation
Date, Xx. Xxxxxx agrees to fully cooperate with Evoke in all matters relating to
the winding up of pending work on behalf of Evoke and the orderly transfer of
work to other employees of Evoke following Xx. Xxxxxx'x resignation. During the
Severance Period, Xx. Xxxxxx shall also
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cooperate in the resolution of any dispute, including litigation of any action,
involving Evoke that relates in any way to Xx. Xxxxxx'x activities while
employed by Evoke. Evoke shall pay Xx. Xxxxxx'x reasonable out-of-pocket
expenses incurred in connection with his services in this regard.
9. Evoke Property. Except as expressly identified herein as items to
be retained by Xx. Xxxxxx ("Retained Property"), Xx. Xxxxxx agrees to return to
Evoke all Evoke documents (and all copies thereof) and any and all other Evoke
property in Xx. Xxxxxx'x possession, custody or control, including, but not
limited to, financial information, customer information, customer lists,
employee lists, Evoke files, notes, cellular telephones, personal computers,
contracts, drawings, records, business plans and forecasts, financial
information, specifications, computer-recorded information, software, tangible
property, credit cards, entry cards, identification badges and keys, and any
materials of any kind which contain or embody any proprietary or confidential
material of Evoke (and all reproductions thereof) (the "Evoke Property"). For
purposes of this Separation and Release Agreement, the Retained Property is
identified as the following items: Xx. Xxxxxx'x desktop computer (Tag #02282),
monitor (Tag # 02153) and peripherals; Micron laptop computer (Tag #03390); two
Meridian telephones; all PDAs; Motorola StarTac cell phone; Canon S-20 digital
camera and attachments. Xx. Xxxxxx acknowledges and agrees that Evoke shall have
the right and opportunity to sterilize the Retained Property of any such Evoke
Property prior to the Separation Date, and Xx. Xxxxxx shall cooperate and permit
Evoke to accomplish these efforts. Evoke may cause to be issued to Xx. Xxxxxx an
IRS Form 1099 reflected the depreciated book value of the Retained Property.
10. Non-Competition. Xx. Xxxxxx acknowledges and agrees that during his
employment with Evoke, he had access to confidential and proprietary business
and technological information belonging to Evoke. As a condition to receiving
the severance payments contained in this Separation and Release Agreement, and
in order to protect the confidential information and customer relationships to
which Xx. Xxxxxx had access, and to protect the good will and other business
interests of Evoke, Xx. Xxxxxx agrees to the following provisions:
(a) Xx. Xxxxxx covenants and agrees with Evoke that for a period of
twelve (12) months from the Separation Date, Xx. Xxxxxx will not engage or
participate, directly or indirectly, as principal, agent, employee, employer,
consultant, advisor, sole proprietor, stockholder, partner, independent
contractor, trustee, joint venture or in any other individual or representative
capacity whatever, in the conduct or management of, or own any stock or other
proprietary interest in, or debt of, any business organization, person, firm,
partnership, association, corporation, enterprise or other entity that shall be
engaged in any business (whether in operation or in the planning, research or
development stage) that is a Competitive Business anywhere in the Restricted
Territory, unless Xx. Xxxxxx shall obtain the prior written consent of the
Board, given in its sole discretion, which consent shall make express reference
to this Separation and Release Agreement. Notwithstanding the foregoing, Xx.
Xxxxxx may (i) make passive investments in any company whose stock is listed on
a national securities exchange or traded in the over-the-counter market so long
as he does not come to own, directly or indirectly, more than five percent (5%)
of the equity securities of such company or (ii) join an investment banking firm
and provide general investment banking and advisory services to any business,
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whether or not such business is a Competitive Business and (iii) become employed
by a division of AT&T, MCI and Global Crossing, or an equivalently large,
diversified corporation, provided that Executive is not assigned to a division
or group which directs or conducts a Competitive Business. For purposes of this
Separation and Release Agreement, a business shall be considered a "Competitive
Business" if it involves or relates to (i) any business in which Evoke is
actively engaged on the date of termination or any business in which during the
twelve (12) months immediately preceding the date of termination Evoke actively
contemplated engaging (as evidenced by inclusion in a written business plan or
proposal) or (ii) any business in which an Affiliate is actively engaged on the
date of termination or any business in which during the twelve (12) months
immediately preceding the date of termination an Affiliate actively contemplated
engaging (as evidenced by inclusion in a written business plan or proposal). The
term "Restricted Territory" shall mean each and every county, province, state,
city or other political subdivision of the United States.
(b) During the period of twelve (12) months from the Separation
Date, Xx. Xxxxxx shall not engage in any of the following conduct:
(i) Solicit, divert, encourage, attempt to hire or assist any
other person or entity in hiring or attempting to hire any current
employee of Evoke or any person who was a Evoke employee within the
three (3) month period prior to the termination of Xx. Xxxxxx'x
employment;
(ii) Solicit, divert, or take away, in competition with Evoke,
the business or patronage of any current Evoke customer.
Notwithstanding the foregoing, this restriction shall not apply to
any person or entity who is no longer a customer at the time of any
such solicitation by Xx. Xxxxxx.
(c) Xx. Xxxxxx agrees that if he acts in violation of
Paragraph 10 or Paragraph 11 of this Separation and Release Agreement, the
number of days that such violation exists will be added to any period of
limitations on the specific activities.
(d) The covenants contained in Paragraph 10(a) shall be
construed as a series of separate covenants, one for each county, province,
state, city or other political subdivision of the Restricted Territory. Except
for geographic coverage, each such separate covenant shall be deemed identical
in terms to the covenant contained in Paragraph 10(a). If, in any judicial
proceeding, a court refuses to enforce any of such separate covenants (or any
part thereof), then such unenforceable covenant (or such part) shall be
eliminated from this Separation and Release Agreement to the extent necessary to
permit the remaining separate covenants (or portions thereof) to be enforced. In
the event that the provisions of this Paragraph 10 are deemed to exceed the
time, geographic or scope limitations permitted by applicable law, then such
provisions shall be reformed to the maximum time, geographic or scope
limitations, as the case may be, permitted by applicable laws.
(e) Without limitation of any of the provisions of this
Paragraph 10, any payments to be made to Xx. Xxxxxx during the Severance Period
shall be deemed to secure his agreements set forth in this Paragraph 10 and such
payments may be terminated by the Evoke if
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Xx. Xxxxxx fails to observe the agreements set forth in this Paragraph 10 and
fails to cure such failure within ten (10) days of receipt of written notice of
such failure.
(f) Xx. Xxxxxx (i) acknowledges that his skills and experience are
such that he can anticipate finding employment at a senior level in his
profession, and (ii) represents and agrees that the restrictions imposed by this
Paragraph 10 on engaging in competitive business activities are necessary for
the protection of the legitimate interests and competitive position of Evoke and
do not impose undue hardships on him.
(g) Damages as a Result of Breach. In addition to (and not in
limitation of) any other remedies that may be available to Evoke, upon breach of
the covenants contained in Paragraph 10(a), Xx. Xxxxxx hereby agrees to pay to
Evoke within twenty (20) calendar days the greater of: (i) the contractual
damages available under applicable law and (ii) liquidated damages in the amount
of $500,000.00. Xx. Xxxxxx acknowledges that because contractual damages may be
speculative and difficult to estimate or prove, the liquidated damage provisions
of this paragraph 10(g)(ii) is a fair and reasonable estimate of such potential
damages. The existence of the liquidated damage provision of this paragraph
10(g) shall not limit any other claims or remedies that Evoke may have against
Xx. Xxxxxx or any third party relating directly or indirectly to an alleged
breach of this Agreement, including any claims against a Competitive Business.
11. Confidentiality.
(a) Confidential Information. Xx. Xxxxxx acknowledges that he has
had access to certain information related to the business, operations, future
plans and customers of Evoke, the disclosure or use of which could cause Evoke
substantial losses and damages. Accordingly, Xx. Xxxxxx covenants that he will
keep confidential all information and documents furnished to him by or on behalf
of Evoke and not use the same to his advantage, except to the extent such
information or documents are lawfully obtained from other sources on a non-
confidential (as to Evoke) basis or are in public domain through no fault on his
part or is consented to in writing by Evoke.
(b) Innovations, Patents, and Copyrights. Xx. Xxxxxx agrees to
promptly disclose, in writing, all Innovations to Evoke. Xx. Xxxxxx further
agrees to provide all assistance requested by Evoke, at its expense, in the
preservation of its interests in any Innovations, and hereby assigns and agrees
to assign to Evoke all rights, title and interest in and to all worldwide
patents, patent applications, copyrights, trade secrets and other intellectual
property rights or "Moral Rights" in any Innovation.
"Innovations" shall mean all developments, improvements, designs,
original works of authorship, formulas, processes, software programs, databases,
and trade secrets, whether or not patentable, copyrightable or protectable as
trade secrets, that Xx. Xxxxxx by himself or jointly with others, created,
modified, developed, or implemented during the period of Xx. Xxxxxx'x employment
which relate in any way to Evoke's business. The term Innovations shall not
include Innovations developed entirely on Xx. Xxxxxx'x own time without using
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Evoke's equipment, supplies, facilities or Confidential Information, and which
neither relate to Evoke's business, nor result from any work performed by or for
Evoke.
12. Right to Injunctive Relief. Xx. Xxxxxx agrees and acknowledges that
a violation of the covenants contained in Paragraphs 10 and 11 of this
Separation and Release Agreement will cause irreparable damage to Evoke, and
that it is and may be impossible to estimate or determine the damage that will
be suffered by Evoke in the event of a breach by Xx. Xxxxxx of any such
covenant. Therefore, Xx. Xxxxxx further agrees that in the event of any
violation or threatened violation of such covenants, Evoke shall be entitled as
a matter of course to an injunction out of any court of competent jurisdiction
restraining such violation or threatened violation by Xx. Xxxxxx. Such right to
an injunction to be cumulative and in addition to whatever other remedies Evoke
may have.
13. Lock-Up Agreement. Without the prior written consent of Evoke, Xx.
Xxxxxx, for the duration of 90 days from the Severance Date:
(i) agrees not to (x) offer, pledge, sell, contract to sell,
sell any option or contract to purchase, purchase any option or
contract to sell, grant any option, right or warrant to purchase,
or otherwise transfer or dispose of, directly or indirectly, any
shares of common stock of the Company (the "Common Stock") or any
securities convertible into or exercisable or exchangeable for
Common Stock (including, without limitation, shares of Common Stock
or securities convertible into or exercisable or exchangeable for
Common Stock which may be deemed to be beneficially owned by Xx.
Xxxxxx in accordance with the rules and regulations of the
Securities and Exchange Commission) (collectively, "Company
Securities") or (y) enter into any swap or other arrangement that
transfers all or a portion of the economic consequences associated
with the ownership of any Company Securities (regardless of whether
any of the transactions described in clause (x) or (y) is to be
settled by the delivery of Company Securities, in cash or
otherwise); and
(ii) authorizes the Company to cause the transfer agent to
decline to transfer and/or to note stop transfer restrictions on
the transfer books and records of the Company with respect to any
Company Securities for which Xx. Xxxxxx is the record holder and,
in the case of any such shares or securities for which Xx. Xxxxxx
is the beneficial but not the record holder, agrees to cause the
record holder to cause the transfer agent to decline to transfer
and/or to note stop transfer restrictions on such books and records
with respect to such shares or securities.
Notwithstanding the foregoing, Xx. Xxxxxx may transfer shares of Company
Securities (A) as a bona fide gift or gifts or by will or intestacy, provided
that the transferee thereof agree to be bound by the restrictions set forth
herein or (B) to any trust for the direct or indirect benefit of Xx. Xxxxxx or
the immediate family of Xx. Xxxxxx, provided that the trustee of the trust
agrees to be bound by the restrictions set forth herein, and provided further
that any such transfer shall not involve a disposition for value. For purposes
of this Separation and Release Agreement, "immediate family" shall mean any
relationship by blood, marriage or adoption, not more remote than first cousin.
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14. Denial of Liability. The parties acknowledge that any payment by
Evoke and any release by Xx. Xxxxxx pursuant to this Separation and Release
Agreement are made in compromise of disputed claims, that in making any such
payment or release, Evoke and Xx. Xxxxxx in no way admit any liability to each
other, and that the parties expressly deny any such liability.
15. Non-Disclosure of Agreement. Xx. Xxxxxx acknowledges that
confidentiality and nondisclosure are material considerations for Evoke entering
into this Separation and Release Agreement. As such, the provisions of this
Separation and Release Agreement shall be held in strictest confidence and shall
not be publicized or disclosed in any manner whatsoever, including but not
limited to, the print or broadcast media, any public network such as the
Internet, any other outbound data program such as computer generated mail,
reports or faxes, or any source likely to result in publication or computerized
access. Notwithstanding the prohibition in the preceding sentence: (a) the
parties may disclose this Separation and Release Agreement in confidence to
their respective attorneys, accountants, auditors, tax preparers, and financial
advisors; (b) Evoke may disclose this Separation and Release Agreement as
necessary to fulfill standard or legally required corporate or public reporting
or disclosure requirements; (c) Evoke may disclose this Separation and Release
Agreement upon request from any government entity; and (d) the parties may
disclose this Separation and Release Agreement insofar as such disclosure may be
necessary to enforce its terms or as otherwise required by law.
16. Release of Claims By Xx. Xxxxxx. In consideration for the
consideration set forth in this Separation and Release Agreement and the mutual
covenants of Evoke and Xx. Xxxxxx, Xx. Xxxxxx hereby releases, acquits and
forever discharges Evoke, its affiliated corporations and entities, its and
their officers, directors, agents, representatives, servants, attorneys,
employees, shareholders, successors and assigns of and from any and all claims,
liabilities, demands, causes of action, costs, expenses, attorneys' fees,
damages, indemnities and obligations of every kind and nature, in law, equity,
or otherwise, known or unknown, suspected and unsuspected, disclosed and
undisclosed, liquidated or contingent, arising out of or in any way related to
agreements, events, acts or conduct at any time prior to and including the
Execution Date, including but not limited to: any and all such claims and
demands directly or indirectly arising out of or in any way connected with Xx.
Xxxxxx'x employment with Evoke or the conclusion of that employment; claims or
demands related to salary, bonuses, commissions, stock, stock options, or any
ownership interests in Evoke, vacation pay, personal time off, fringe benefits,
expense reimbursements, sabbatical benefits, severance benefits, or any other
form of compensation; claims pursuant to any federal, any state or any local
law, statute, common law or cause of action including, but not limited to, the
federal Civil Rights Act of 1964, as amended; attorney's fees, costs, and other
expenses under Title VII of the federal Civil Rights Act of 1964, or any other
statute, agreement or source of law; the federal Americans with Disabilities Act
of 1990; the Family and Medical Leave Act; Colorado Fair Employment Act; tort
law; contract law; wrongful discharge; discrimination; harassment; fraud;
defamation; libel; emotional distress; and breach of the implied covenant of
good faith and fair dealing. Xx. Xxxxxx agrees that in the event he brings a
claim covered by this release in which he seeks damages against Evoke or in the
event he seeks to recover against Evoke in any claim brought by a governmental
agency on
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his behalf, this Separation and Release Agreement shall serve as a complete
defense to such claims.
17. Tax Consequences. Xx. Xxxxxx agrees to indemnify Evoke and hold
Evoke harmless from any and all claims or penalties asserted against Evoke for
any failure to pay taxes due on any consideration provided by Evoke pursuant to
this Separation and Release Agreement. Xx. Xxxxxx expressly acknowledges that
Evoke has not made, nor herein makes, any representation about the tax
consequences of any consideration provided by Evoke to Xx. Xxxxxx pursuant to
this Separation and Release Agreement.
18. No Third-Party Rights. The parties agree that by making this
Separation and Release Agreement they do not intend to confer any benefits,
privileges, or rights to others. The Separation and Release Agreement is
strictly between the parties hereto, subject to the terms of paragraph 18 below,
and it shall not be construed to vest in any other the status of third-party
beneficiary.
19. Voluntary and Knowingly. Xx. Xxxxxx acknowledges that in executing
this Separation and Release Agreement, he has reviewed it and understands its
terms and had an opportunity and was advised to seek guidance from counsel of
his own choosing, and was fully advised of his rights under law, and acted
knowingly and voluntarily
20. Duty to Effectuate. The parties agree to perform any lawful
additional acts, including the execution of additional agreements, as are
reasonably necessary to effectuate the purpose of this Separation and Release
Agreement.
21. Entire Agreement. This Separation and Release Agreement constitutes
the complete, final, and exclusive embodiment of the entire agreement between
Xx. Xxxxxx and Evoke with regard to the subject matter hereof. This Separation
and Release Agreement is entered into without reliance on any promise or
representation, written or oral, other than those expressly contained herein. It
may not be modified except in a writing that refers to this Separation and
Release Agreement signed by Xx. Xxxxxx and a duly authorized officer of Evoke.
22. Successors and Assigns. This Separation and Release Agreement shall
bind the heirs, personal representatives, successors, assigns, executors and
administrators of each party, and inure to the benefit of each party, its heirs,
successors and assigns.
23. Applicable Law. This Separation and Release Agreement was entered
into in the State of Colorado, and the parties agree and intend that it be
construed and enforced in accordance with the laws of the State of Colorado.
24. Forum. Any controversy arising out of or relating to this
Separation and Release Agreement or the breach thereof, or any claim or action
to enforce this Separation and Release Agreement or portion thereof, or any
controversy or claim requiring interpretation of this Separation and Release
Agreement must be brought in a forum located within the State of Colorado. No
such action may be brought in any forum outside the State of Colorado. Any
action brought in contravention of this Paragraph 24 by one party is subject to
dismissal at any
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time and at any stage of the proceedings by the other, and no action taken by
the other in defending, counterclaiming or appealing shall be construed as a
waiver of this right to immediate dismissal. A party bringing an action in
contravention of this Paragraph 24 shall be liable to the other party for the
costs, expenses and attorney's fees incurred in successfully dismissing the
action or successfully transferring the action to a forum located within the
State of Colorado.
25. Severable. If any provision of this Separation and Release
Agreement is determined to be invalid, void or unenforceable, in whole or in
part, this determination will not affect any other provision of this Separation
and Release Agreement, and the provision in question shall be modified so as to
be rendered enforceable.
26. Enforce According To Terms. The parties intend this Separation and
Release Agreement and Exhibit A to be enforced according to their terms.
27. Execution Date. This Separation and Release Agreement is effective
on the later of the dates that each party signed this Separation and Release
Agreement ("Execution Date").
28. Section Headings. The section and paragraph headings contained in
this Separation and Release Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Separation and
Release Agreement.
IN WITNESS WHEREOF, the parties have duly authorized and caused this
Separation and Release Agreement to be executed as follows:
XXXXXXX X. XXXXXX, an individual EVOKE COMMUNICATIONS, INC.
/s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxx Xxxxxxxxx
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Xxxxxxx X. Xxxxxx
Its: CEO
--------------------------------
Date: March 2 , 2001 Date: 3/2 , 2001
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