AGREEMENT AND MUTUAL RELEASE
This
Agreement and Mutual Release is made this 10thday
of
January 2008 by and between Solomon Technologies, Inc., a Delaware corporation
having a principal place of business at 0000 Xxxx Xxxxxx, Xxxx. X, Xxxx Xxxxxx,
XX (the “Company”) and Xxxx X. Xxxxxx, an individual residing at 00 Xxxx Xxxxx
Xxxxx, Xxxxxxxx, XX (“Xxxxxx”). The Company and Xxxxxx hereby agree as
follows:
1. Xxxxxx
voluntarily resigned his employment as chief executive officer of the Company
effective as of the close of business on January 3, 2008, and the Company hereby
accepts such resignation.
2. Xxxxxx
and the Company are entering into the Xxxx X. Xxxxxx 2008 Consulting Agreement
and Plan (“Consulting Agreement”) of even date herewith, a copy of which is
attached hereto as Exhibit
A.
3. Xxxxxx
relinquishes any and all claims to compensation and payments of any kind under
his employment agreement with the Company dated January 31, 2007 (“Employment
Agreement”) or otherwise, including, without limitation, any accrued vacation
pay and any compensation that may have accrued after the payroll period ending
December 28, 2007.
4.
Xxxxxx
hereby forfeits any and all grants of options to purchase the Company’s common
stock or of stock appreciation rights, whether or not the exercise of such
options or rights has vested. Xxxxxx acknowledges and agrees that the issuance
to him of the Shares (as defined herein) shall be in full payment of all
expenses he has incurred on the behalf of the Company, and the Company agrees
to
report the issuance of such shares for tax purposes and otherwise as an expense
reimbursement. Notwithstanding the foregoing, the Shares shall be issued
pursuant to, and in partial consideration for, Xxxxxx’x agreement to enter into
the Consulting Agreement and shall be included with such shares in a
registration statement filed with the Securities and Exchange Commission on
Form
S-8 or equivalent.
5.
Xxxxxx
represents and warrants that he has returned to the Company all property
belonging to the Company, except for the Company’s laptop computer now in his
possession which Xxxxxx agrees to return upon the expiration of the term of
the
Consulting Agreement.
6. Xxxxxx
represents and warrants that he will not directly or indirectly recruit or
hire
or attempt to recruit or hire any employee, consultant or agent of the Company
or assist any person or persons in recruiting or hiring or soliciting any
employee, consultant or agent of the Company or any of its affiliates or any
person who becomes an employee of the Company or any of its affiliates for
a
period of six months from the date hereof.
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7. In
consideration of the issuance to Xxxxxx of 333,000 shares of the Company’s
common stock, par value $.001 (“Shares”), and for good and valuable
consideration, the sufficiency of which is hereby acknowledged, Xxxxxx hereby
irrevocably and unconditionally releases, acquits and forever discharges the
Company and its predecessors, successors, affiliates, and assigns, and the
directors, officers, employees, shareholders, members and representatives of
any
of the foregoing, and all persons acting on behalf or through any of the
foregoing (collectively, the “Solomon Released Parties”), from any and all
charges, complaints, claims, liabilities, obligations, promises, agreements,
controversies, damages, actions, causes of action, suits, rights, demands,
costs, losses, debts and expenses (including attorney’s fees and costs actually
incurred), of any nature whatsoever, known or unknown (collectively, “Claims”),
that Xxxxxx now has, owns, or holds, or claims to have, own, or hold or that
Xxxxxx at any time had, owned, or held, or claimed to have had, owned or held
against the Solomon Released Parties or any of them, through the date Xxxxxx
signs this Agreement. This general release of Claims includes, without
implication of limitation, the complete release of all Claims of breach of
express or implied contract; all claims of wrongful termination of employment
whether in contract or tort; all Claims of intentional, reckless, or negligent
infliction of emotional distress; all Claims of breach of any express or implied
covenant of employment, including the covenant of good faith and fair dealing;
all Claims of interference with contractual or advantageous relations, whether
prospective or existing; all Claims of deceit or misrepresentation; all Claims
of discrimination under state or federal law, all Claims of defamation or damage
to reputation; all Claims for reinstatement; all Claims for punitive or
emotional distress damages; all Claims for stock, stock options, wages, bonuses,
severance, back or front pay or other forms of compensation and all Claims
for
attorney’s fees and costs. This general release of Claims shall not be construed
to include a release of Claims that arise from the Company’s express obligations
under this Agreement and the Consulting Agreement. Xxxxxx further agrees not
to
initiate any litigation, lawsuit, claim or action against the Company or any
of
the Solomon Released Parties with respect to any and all Claims released in
this
paragraph 7.
8. For
good
and valuable consideration, the sufficiency of which is hereby acknowledged,
the
Solomon Released Parties hereby irrevocably and unconditionally release, acquit,
and forever discharge Xxxxxx, as well as his heirs, agents, executors,
successors, and assigns(hereinafter “the Xxxxxx Released Parties”) from any and
all Claims that the Solomon Released Parties may have against the Xxxxxx
Released Parties under the Employment Agreement or from his service as chief
executive officer of the Company, and from any and all charges, complaints,
claims, liabilities, obligations, promises, agreements, controversies, damages,
actions, causes of action, suits, rights, demands, costs, losses, debts and
expenses (including attorney’s fees and costs actually incurred), of any nature
whatsoever, known or unknown (collectively, “Claims”), that the Solomon Released
Parties now have, own, or hold, or claim to have, own, or hold or that the
Solomon Released Parties at any time had, owned, or held, or claimed to have
had, owned or held against the Xxxxxx Released Parties, through the date the
Solomon Released Parties sign this Agreement. This general release of Claims
includes, without implication of limitation, the complete release of all Claims
of breach of express or implied contract; all claims of breach of fiduciary
duty, negligence, disparagement, interference in business relations, prima
facie
tort, or defamation, all claims described in or arising from the allegations
set
forth in the letter to Xxxxxx dated January 3, 2008 from Xxxx Xxxxxxxx Xxxxx,
and any other Claims, whether based in tort or contract, or arising under the
statute, regulations, or common law of any jurisdiction. This general release
of
Claims shall not be construed to include a release of Claims that arise from
Xxxxxx’x obligations under this Agreement or the Consulting Agreement. The
Solomon Released Parties hereby acknowledge that Xxxxxx has no non-competition
obligation under the Proprietary Rights and Non-Competition Agreement between
the Company and Xxxxxx or under any other agreement or any stock or compensation
plan. The Solomon Released Parties further agree not to initiate any litigation,
lawsuit, claim or action against Xxxxxx with respect to any and all Claims
released in this paragraph 8.
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9. The
invalidity or unenforceability of any particular provision of this Agreement
shall not affect the other provisions hereof, and this Agreement shall be
construed in all respects as if such invalid or unenforceable provisions were
omitted.
10. This
Agreement shall be governed by and construed in accordance with the law of
the
State of Connecticut. Each party irrevocably agrees that any action, suit or
other legal proceeding against them shall be brought in a court of the State
of
Connecticut or in the United States District Court for the District of
Connecticut. By its and his execution and delivery of this Agreement, each
party
hereto irrevocably submits to and accepts the jurisdiction of each of such
courts and waives any objection (including any objection to venue or any
objection based upon the grounds of forum non convenience) which might be
asserted against the bringing of any such action, suit or other legal proceeding
in such courts.
11. The
Company agrees not to make any statements that disparage Xxxxxx, and Xxxxxx
agrees not to make any statements that disparage the Company or any of their
products, services, employees, officers or directors. Xxxxxx further agrees
that
he will not discuss with any person at any time any matter of any kind
whatsoever having to do with any of the Solomon Released Parties, including
in
particular the Company, its business, its finances, its prospects or its
personnel. Notwithstanding the foregoing, statements made in the course of
sworn
testimony in legal proceedings or other statements required by law shall not
be
subject to this Section 10. In addition, nothing in this Agreement (or in the
Proprietary Rights and Non-Competition Agreement between Xxxxxx and the Company)
shall preclude Xxxxxx from describing, to a prospective employer or other
business prospect, Xxxxxx’x responsibilities, achievements and compensation as
an employee of the Company. In response to inquiries from prospective employers
and other third parties concerning Xxxxxx, the Company shall advise the inquirer
that Xxxxxx was the Company’s Chief Executive Officer from February 5, 2007
through January 3, 2008, that Xxxxxx’x compensation consisted of an annual base
salary of $190,000, plus bonus and incentive compensation, and that Xxxxxx
voluntarily resigned on January 3, 2008.
12. Other
than the Consulting Agreement and the Proprietary Rights Agreement, this
Agreement constitutes the entire agreement between Xxxxxx and the Company,
and
all other previous agreements or promises between Xxxxxx and the Company are
superseded, null, and void. except the Company shall continue to be bound by
its
indemnification obligations to Xxxxxx to the maximum extent provided in the
Company’s Certificate of Incorporation and Bylaws as of February 5, 2007 or
thereafter, and as otherwise required by law. Xxxxxx reaffirms his continuing
obligations under the Proprietary Rights Agreement, except to the extent his
obligations under the Proprietary Rights and Non-Competition Agreement are
released by the Company under this Agreement.. Xxxxxx acknowledges that he
has
carefully read and fully understands all of the provisions of this Agreement,
the Consulting Agreement and the Proprietary Rights Agreement
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13. This
Agreement may not be changed orally but only by an agreement in writing signed
by the party against whom enforcement of any waiver, change, modification,
extension or discharge is sought. Xxxxxx acknowledges that he is signing this
Agreement and the Consulting Agreement voluntarily. Xxxxxx further acknowledges
that he has retained independent legal counsel and is not relying on any
representations by any representative of the Company concerning the meaning
or
any aspect of this Agreement.
14. This
Agreement may be executed simultaneously or in any number of counterparts,
each
of which so executed and delivered shall be taken to be an original; but such
counterparts shall together constitute but one and the same
document.
15. This
Agreement supersedes the Agreement and Mutual Release between the Company and
Xxxxxx dated January 9, 2008.
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SOLOMON
TECHNOLOGIES, INC.
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By:
/s/
Xxxx X. Xxxxxxxxx
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Xxxx
X. Xxxxxxxxx
Chairman,
Board
of Directors
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/s/
Xxxx X. Xxxxxx
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Xxxx
X. Xxxxxx
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Attachments
Exhibit
A
- Xxxx
X. Xxxxxx 2008 Consulting Agreement and Plan
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