EXHIBIT 10.1
SEPARATION AGREEMENT AND MUTUAL RELEASE
This Separation Agreement ("Agreement") dated January 21, 2005 ("Effective
Date") is made by and between Medical Makeover Corporation of America, a
Delaware corporation (the "Company"), and Dr, Xxxxxxx X. Xxxxxxxxx
("Executive"). Company and Executive are sometimes collectively hereinafter
referred to as the "Parties."
WHEREAS, Executive is employed by the Company pursuant to the terms of an
Employment Agreement dated April 1, 2004, (the "Employment Agreement"); and
WHEREAS, the Parties have mutually agreed to terminate the employment
relationship, to release each other from any claims arising from or related to
the employment relationship.
NOW THEREFORE, in consideration of the covenants and agreements contained
in this Agreement, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Parties, intending to be
legally bound hereby, agree as follows:
1. Incorporation of Recitals. The Parties agree that the above Recitals are
hereby agreed to and incorporated in the body of this Agreement as if fully set
forth herein.
2. Resignation and Termination of Employment. The Parties acknowledge and
agree that Executive resigned as President and as a member of the Board of
Directors of the Company effective on September 30, 2004 (the "Resignation
Date") and that Executive has terminated his employment with the Company
effective on September 30, 2004 (the "Termination Date"). In addition, Executive
agrees that he will have no right to further employment, membership,
partnership, or any other position or office with Company after the Effective
Date
3. Separation Benefits. In consideration for the release of claims set
forth below and other obligations under this Agreement, the Company agrees to
provide the following separation benefits to Executive:
(a) The Company shall pay to Executive a lump sum of ten thousand
dollars ($10,000.00) (the "Severance Payment") by cashier's check or bank
check upon execution by all Parties. This Agreement shall be null and void
if payment is not made in cleared U.S. Funds and tendered upon execution by
the Company to the Executive;
(b) In satisfaction of all claims which the Executive may have, except
as specified in Section 4(c), the Company shall execute and deliver a
promissory note dated the date hereof in the sum of $47,749.65 (the "Note")
in full satisfaction of all sums owed to the Executive. The Note shall be
payable in twelve (12) monthly payments of $3,979.14 plus interest each
month, commenting on February 1, 2005. A copy of the Note is annexed as
Exhibit A. The Executive is responsible for payment of all income taxes on
Note payments.
4. Executive Benefits. The Executive shall not be entitled to participate
in any of the Company's benefit plans or programs offered to executives of the
Company after the Termination Date.
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5. Stock.
(a) The Executive currently owns 6,900,000 shares of the Company's
common stock. The Executive agrees to return 6,900,000 to the Company's
transfer agent to have two (2) stock certificates issued, one in the amount
of 6,210,000 shares ("Escrow Shares") and one in the amount of 690,000
shares ("Retained Shares"). Executive shall be permitted to sell his
Retained Shares subject to section 4(b) below. The Escrow Shares shall be
held in Executive's name and held in escrow pursuant to the terms and
conditions of the Escrow Agreement by and between the Executive, the
Company and the Escrow Agent, dated the date hereof ("Escrow Agreement"). A
copy of the Escrow Agreement is annexed as Exhibit C.
(b) Restrictions on Sale of Retained Stock. The Executive shall
restrict his public sales of 345,000 shares of his Retained Stock only, as
provided below and as limited by the Securities Act of 1933 (the "Act"),
including Rule 144 promulgated thereunder. In connection with any public or
private sales by the Executive, the Company's counsel shall issue legal
opinions that any such sale is in compliance with applicable law, upon
which the Company may rely. Said Opinion to be held in escrow and delivered
to the Company's Transfer Agent upon request of the Executive so long as
the above Escrow Shares are sold in accordance with this Agreement and the
Escrow Agreement. The Executive shall restrict 345,000 shares of his
Retained Stock for a period of six months from the date he could first sell
his Retained Stock pursuant to the Act, including Rule 144 promulgated
thereunder, but no later than October 2005.
(c) In addition to the Retained Stock described in Section 4(b) above,
on the Effective Date, the Executive shall be issued an aggregate of 89,413
shares of the Company's common stock in the amounts and as of the dates set
forth on the attached Exhibit B.
(d) Except as set forth in this Agreement and pursuant to the Escrow
Agreement, the Executive acknowledges that he has no right, title or
interest in or to any other shares of the Company's capital stock or
options on the Company's capital stock under the Employment Agreement or
any other agreement (oral or written) with the Company.
(e) The Company agrees that the Escrow Shares shall be held by an
escrow agent pursuant to an Escrow Agreement as collateral for the
repayment of monies owed to the Executive pursuant to the Note.
6. Release of Claims. In consideration for the obligations of both parties
set forth in this Agreement, the Parties, on behalf of themselves, and their
respective heirs, executors, officers, directors, executives, investors,
stockholders, administrators and assigns, hereby fully and forever release each
other and their respective heirs, executors, officers, directors, executives,
investors, stockholders, administrators, parent and subsidiary corporations,
predecessor and successor corporations and assigns, of and from any claim, duty,
obligation or cause of action relating to any matters of any kind, whether
presently known or unknown, suspected or unsuspected, that any of them may
possess arising from any omissions, acts or facts that have occurred up until
and including the date of this Agreement including, without limitation:
(a) any and all claims relating to or arising from Executive's
employment relationship with the Company and the termination of that
relationship;
(b) any and all claims relating to, or arising from, Executive's right
to purchase, or actual purchase of shares of stock of the Company;
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(c) any and all claims including, without limitation, claims for
wrongful discharge of employment; breach of contract, both express and
implied; breach of a covenant of good faith and fair dealing, both express
and implied, negligent or intentional infliction of emotional distress;
negligent or intentional misrepresentation; negligent or intentional
interference with contract or prospective economic advantage; negligence;
and defamation;
(d) any and all claims for violation of any federal, state or
municipal statute, including, but not limited to, Title VII of the Civil
Rights Act of 1964, the Civil Rights Act of 1991, the Age Discrimination in
Employment Act of 1967, and the Americans with Disabilities Act of 1990;
(e) any and all claims arising out of any other laws and regulations
relating to employment or employment discrimination; and
(f) any and all claims for attorneys' fees and costs.
The Parties agree that the release set forth in this Section 6 shall,
except for any claims for breach of this Agreement, be and remain in effect in
all respects as a complete general release as to the matters released.
7. Confidential Information. The Executive agrees that any sensitive,
proprietary or confidential information or data relating to Company, including,
without limitation, trade secrets, customer lists, customer contacts, customer
relationships, financial data, long range or short range plans, and other data
and information of a competition-sensitive nature, or any confidential or
proprietary information of others, that he acquired while an Executive of
Company shall not be disclosed or used for any purpose whatsoever.
Notwithstanding the above, the following will not constitute confidential
information (i) information which is or subsequently becomes generally available
to the public through no act of the Executive, (ii) information set forth in the
written records of the Executive prior to disclosure to the Executive by or on
behalf of the Company, and (iii) information which is lawfully obtained by the
Executive in writing from a third party (excluding any affiliates of the
Executive) who did not acquire such confidential information or trade secret,
directly or indirectly, from the Executive or the Company. The Executive agrees
and hereby reaffirms his existing obligations under any and all confidentiality
agreements that he may have signed with Company.
8. Return of Information and Assets. In addition, Executive warrants and
represents that he returned all Company corporate assets in his possession or
under his direction or control to Company and the originals and all copies of
all files, materials, documents or other property relating to the business of
the Company on or before the Effective Date or that said documents are available
for the Company to retrieve from the offices of Xxxx X. Xxxxx, Esq.
9. Continuing Assistance. Not Used.
10. Non-Disparagement. Executive agrees that he will not make any
disparaging, defamatory or denigrating statements regarding the Company or any
of its businesses, executives, agents, officers or directors that could have a
material negative impact on the reputation of Company. Company agrees that it
will not make any disparaging, defamatory or denigrating statements about
Executive or his role or activities at Company or the circumstances leading to
Executive's resignation or the execution of this Agreement that could have a
material negative impact on Executive's reputation.
11. Non-Solicitation. Executive agrees for a period of twenty-four (24)
months after the Effective Date, he will not directly or indirectly,
individually or on behalf of any other person or entity, as an executive,
consultant, owner or in any other capacity, (i) reveal the name of, solicit or
interfere with, or endeavor to entice away from Company any of its suppliers,
customers, or executives, as of the Effective Date, and/or (ii) without the
advance written approval of Company's Board of Directors, employ any person who
was an executive of Company as of the Effective Date.
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12. Non-Competition. Executive agrees for a period of twenty-four (24)
months after the Effective Date, he shall not directly or indirectly, own,
manage, operate, control or participate in the ownership, management, operation
or control of, or be connected as an officer, Executive, partner, director,
individual proprietor, lender, consultant, agent or otherwise with, or have any
financial interest in, or aid or assist anyone else in the conduct of, any
entity or business (a "Competitive Operation") which competes in any line of
business conducted, as of the Effective Date, by Company in any area or market
where such business is being conducted by Company and any line of business that
has been contemplated by Company as of the Effective Date. Since a breach of the
provisions of this paragraph could not adequately be compensated by money
damage, Company shall be entitled, in addition to any other right and remedy
available to it, to an injunction restraining such a breach or a threatened
breach, and in either case no bond or other security shall be required in
connection therewith. Executive agrees that the provisions of this paragraph are
necessary and reasonable to protect the Company in the conduct of its business.
If any restriction contained in this paragraph shall be deemed to be invalid,
illegal, or unenforceable by reason of the extent, duration, or geographical
scope thereof, or otherwise, then the court making such determination shall have
the right to reduce such extent, duration, geographical scope, or other
provisions hereof, and in its reduced form such restriction shall then be
enforceable in the manner contemplated hereby.
13. SEC Reporting/Xxxxxxx Xxxxxxx Compliance. Executive shall make all
appropriate filings with the Securities and Exchange Commission ("SEC")
including, without limitation, Forms 3, 4, 5 and 13(d). In addition, Executive
will cooperate with the Company in providing information with respect to all
reports required to be filed by the Company with the SEC as they relate to
required information with respect to Executive. Further, Executive will remain
in compliance with the terms of the Company's xxxxxxx xxxxxxx program with
respect to purchases and sales of the Company's stock.
14. Authority. The Company represents and warrants that the undersigned has
the authority to act on behalf of the Company and to bind the Company and all
who may claim through it to the terms and conditions of this Agreement. The
Executive represents and warrants that he has the capacity to act on his own
behalf and on behalf of all who might claim through him to bind them to the
terms and conditions of this Agreement. Each Party warrants and represents that
there are no liens or claims of lien or assignments in law or equity or
otherwise of or against any of the claims or causes of action released herein.
15. No Representations. Neither Party has relied upon any representations
or statements made by the other Party hereto which are not specifically set
forth in this Agreement.
16. Severability. In the event that any provision hereof becomes or is
declared by a court or other tribunal of competent jurisdiction to be illegal,
unenforceable or void, this Agreement shall continue in full force and effect
without said provision.
17. Arbitration. The Parties shall attempt to settle all disputes arising
in connection with this Agreement through good faith consultation. In the event
no agreement can be reached on such dispute within fifteen (15) days after
notification in writing by either Party to the other concerning such dispute,
the dispute shall be settled by binding arbitration to be conducted in Palm
Beach County, Florida before the American Arbitration Association under its
Employment Dispute Resolution Rules, or by a judge to be mutually agreed upon.
The arbitration decision shall be final, conclusive and binding on both Parties
and any arbitration award or decision may be entered in any court having
jurisdiction. The Parties agree that the prevailing party in any arbitration
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shall be entitled to injunctive relief in any court of competent jurisdiction to
enforce the arbitration award. The Parties further agree that the prevailing
Party in any such proceeding shall be awarded reasonable attorneys' fees and
costs. THE PARTIES HEREBY WAIVE ANY RIGHTS THEY MAY HAVE TO TRIAL BY JURY IN
REGARD TO ARBITRABLE CLAIMS. Notwithstanding the above, both Parties recognize
that the Note is not subject to this arbitration clause and that the remedies
set forth in the Note supersede this provision.
18. Entire Agreement. This Agreement, and the exhibits and schedules
hereto, represent the entire agreement and understanding between the Parties
concerning Executive's separation from the Company, and supersede and replace
any and all prior agreements and understandings concerning Executive's
relationship with the Company and his compensation by the Company.
19. No Oral Modification. This Agreement may only be amended in writing
signed by the Parties.
20. Governing Law. This Agreement shall be governed by the laws of the
State of Florida, without regard to its conflicts of law provisions. The
language of all parts of this Agreement shall in all cases be construed as a
whole, according to its fair meaning, and not strictly for or against any of the
parties. The parties agree that venue for any disputes and or disagreements
under this agreement is Palm Beach County, Florida.
21. Counterparts. This Agreement may be executed in counterparts, and each
counterpart shall have the same force and effect as an original and shall
constitute an effective, binding agreement on the part of each of the
undersigned. This Agreement may be executed and delivered via facsimile
transmission.
22. Assignment. This Agreement may not be assigned by Executive or the
Company without the prior written consent of the other party. Notwithstanding
the foregoing, this Agreement may be assigned by the Company to a corporation
controlling, controlled by or under common control with the Company without the
consent of Executive.
23. Waiver. Neither the waiver by any party of a breach of or default under
any of the provisions of the Agreement, nor the failure of any party on one or
more occasions, to enforce any of the provisions of the Agreement or to exercise
any right or privilege hereunder shall thereafter be construed as a waiver of
any subsequent breach or default of a similar nature, or as a waiver of any
provisions, rights or privileges hereunder.
24. Further Assurances. The Parties agree to take or cause to be taken such
further actions as may be necessary or as may be reasonably requested in order
to effectuate fully the purposes, terms, and conditions of this Agreement.
25. Voluntary Execution of Agreement. This Agreement is executed
voluntarily and without any duress or undue influence on the part or behalf of
the Parties hereto, with the full intent of releasing all claims. The Parties
acknowledge that:
(a) they have read this Agreement;
(b) they have been represented in the preparation, negotiation, and
execution of this Agreement by legal counsel of their own choice or that
they have voluntarily declined to seek such counsel;
(c) they understand the terms and consequences of this Agreement and
of the releases it contains; and
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(d) they are fully aware of the legal and binding effect of this
Agreement.
26. Construction. The Parties acknowledge that each of them has had the
benefit of legal counsel of its own choice and has been afforded an opportunity
to review this Agreement with its legal counsel and that this Agreement shall be
construed as if jointly drafted by all of the Parties.
27. Settlement Provisions. The provisions of any state, federal, local or
territorial law or statute providing in substance that releases shall not extend
to claims, demands, injuries or damages, losses or liabilities which are unknown
or unsuspected to exist at the time this Agreement is entered are expressly
waived.
IN WITNESS WHEREOF, the Parties have executed this Separation Agreement and
Mutual Release on the respective dates set forth below.
MEDICAL MAKEOVER CORPORATION OF AMERICA.
Dated as of January 21, 2005 By: /s/ Xxxxx Xxxxxxx
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Title: Director
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XX. XXXXXXX X. XXXXXXXXX, an individual
Dated as of January 21, 2005 Xxxxxxx X. Xxxxxxxxx
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Xx. Xxxxxxx X. Xxxxxxxxx
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