SEPARATION AND CONSULTING AGREEMENT
THIS SEPARATION AND CONSULTING AGREEMENT ("Agreement") is made and entered
into as of April 15, 1999, by and between WORLD WIDE STONE CORPORATION, a Nevada
corporation ("WWS"), and XXX X. XXXXXXXXXX ("LMC").
RECITALS:
A. LMC has provided consulting and other valuable services to WWS from time
to time and has served as an officer and/or director of WWS since its formation
in 1989. LMC currently serves as a Vice President and as a director of WWS.
B. WWS and LMC desire to terminate their current relationship and enter
into a new agreement for LMC to provide consulting services to WWS. Accordingly,
WWS and LMC have agreed to the terms and conditions set forth in this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
covenants set forth in this Agreement, the parties hereto agree as follows:
1. RESIGNATION. LMC hereby resigns as an officer of WWS, effective as
of the date of this Agreement. LMC shall remain a director of WWS, subject to
re-election as a director by the stockholders of WWS in accordance with Nevada
law.
2. SEVERANCE PAYMENTS. WWS shall pay to LMC a severance and consulting
amount equal to $168,480.00, payable in 81 equal monthly installments of
$2,080.00 each, on the fifteenth day of each month beginning on April 15, 1999.
Each of LMC and WWS agrees that this payment has been calculated in
consideration of services previously provided to WWS, in anticipation of the
consulting services to be provided by LMC under Section 3 of this Agreement, and
in consideration of the release given by LMC in Section 5. Accordingly, (a) LMC
agrees that this payment constitutes consideration in addition to anything of
value to which she is already entitled, will adequately compensate her for the
anticipated consulting services to be provided under Section 3, and is
sufficient to support the release given by LMC in Section 5 hereof, and (b) WWS
agrees that such amounts shall be due and payable in full whether or not LMC
actually provides such consulting services to WWS and whether or not such
services are satisfactory to WWS. All payments pursuant to this Section 2 shall
be made consistent with WWS's existing payroll procedures, and, to the extent
required by law, after deducting all applicable federal and state payroll, FICA,
unemployment, and other taxes.
1
3. CONSULTING ENGAGEMENT.
a. The Engagement. WWS hereby engages LMC and LMC hereby accepts
such engagement as an independent contractor to perform the duties set forth in
this Section 3.
b. Duties of LMC. During LMC's engagement by WWS pursuant to this
Agreement, LMC shall render such advice and recommendations to WWS as WWS may
reasonably request with respect to human resources issues encountered in
connection with WWS's business.
c. Compensation.
(i) Fixed Compensation. LMC and WWS agree that the payments
required pursuant to Section 2 of this Agreement shall constitute the only fixed
compensation to LMC for consulting services provided under this Section 3, and
that such payments shall be due and payable in full whether or not LMC actually
provides such consulting services and whether or not such services are
satisfactory to WWS.
(ii) Reimbursement. WWS shall reimburse LMC for all travel
and entertainment expenses and other ordinary and necessary business expenses
incurred by LMC at the request of WWS and in connection with the business of WWS
and LMC's duties under this Agreement; provided, however, that Consultant shall
not incur such expenses in an amount in excess of $1000.00 during any month
without written authorization from WWS. The term "business expenses" shall not
include any item not deductible by WWS for federal income tax purposes. To
obtain reimbursement, LMC shall submit to WWS receipts, bills or sales slips for
the expenses incurred. Reimbursements shall be made by WWS on or before the
tenth day of each month following the month in which LMC submits evidence of the
expenses incurred.
e. Term of Engagement.
(i) Engagement Term. The term of LMC's engagement hereunder
shall commence on the date of this Agreement and shall continue until December
15, 2006 or LMC's death, whichever occurs first.
f. Competition and Confidential Information.
(i) Confidential Information. LMC shall maintain in strict
secrecy all confidential or trade secret information, whether patentable or not,
relating to the business of WWS (the "Confidential Information") obtained by LMC
in the course of LMC's engagement, and LMC shall not, unless first authorized in
writing by WWS, disclose to, or use for LMC's benefit or for the benefit of any
person, firm or entity at any time either during or subsequent to the term of
LMC's engagement, any Confidential Information, except as required in the
performance of LMC's duties on behalf of WWS. For purposes hereof, Confidential
Information shall include without limitation any written materials, drawings, or
2
other reproductions or materials of any kind; any trade secrets, knowledge or
information with respect to processes, inventions, formulae, machinery,
manufacturing techniques or know-how; any business methods or forms; any names
or addresses of employees, customers, or suppliers or data on employees,
customers, or suppliers; and any business policies or other information relating
to or dealing with the human resources, purchasing, production, sales or
distribution policies or practices of WWS.
(ii) Return of Books and Papers. Upon the termination of
LMC's engagement with WWS for any reason, LMC shall deliver promptly to WWS all
employee, customer, and supplier information; all samples or demonstration
models, catalogues, manuals, memoranda, drawings, formulae, and specifications;
all cost, pricing, and other financial data; all other written or printed
materials which are the property of WWS (and any copies of them); and all other
materials which may contain Confidential Information relating to the business of
WWS, which LMC may then have in her possession whether prepared by LMC or not.
(iii) Disclosure of Information. LMC shall disclose promptly
to WWS, or its nominee, any and all ideas, designs, processes, and improvements
of any kind relating to the business of WWS, whether patentable or not,
conceived or made by LMC, either alone or jointly with others, during working
hours or otherwise, during the entire period of LMC's engagement with WWS, or
within six (6) months thereafter.
(iv) Assignment. LMC hereby assigns to WWS or its nominee,
the entire right, title and interest in and to all inventions, discoveries, and
improvements, whether patentable or not, which LMC may conceive or make during
LMC's engagement with WWS, or within six (6) months thereafter, and which relate
to the business of WWS. Whenever requested to do so by WWS, whether during the
period of LMC's engagement or thereafter, LMC shall execute any and all
applications, assignments or other instruments which WWS shall deem necessary or
appropriate to protect the interest of WWS therein.
g. Equitable Relief. In the event a violation of any of the
restrictions contained in this Section 3 is established, WWS shall be entitled
to preliminary and permanent injunctive relief as well as damages and an
equitable accounting of all earnings, profits and other benefits arising from
such violation, which right shall be cumulative and in addition to any other
rights or remedies to which WWS may be entitled. In the event of a violation of
any provision of Sections 3(f)(iii) or (iv), the period for which those
provisions would remain in effect shall be extended for a period of time equal
to that period beginning when such violation commenced and ending when the
activities constituting such violation shall have been finally terminated in
good faith.
4. PERSONAL GUARANTEES. WWS hereby agrees to indemnify and hold LMC
harmless for, from, and against any and all liabilities, suits, actions,
proceedings, claims, demands, losses, damages, fees, costs, taxes, penalties,
and expenses (including, but not limited to, reasonable attorneys' fees) caused
by, arising out of, or otherwise related to LMC's
3
personal guarantees of any of the Company's indebtedness to third parties prior
to the date of this Agreement.
5. MUTUAL RELEASE. Except for those obligations set forth in this
Agreement, WWS hereby releases LMC and LMC hereby releases WWS from any and all
actions, causes of action, suits, debts, controversies, contracts, agreements,
promises, and claims (collectively, "claims"), of every nature, character, and
description, in law or in equity, known or unknown, which they own or hold, or
have at any time heretofore owned or held, or which they hereafter can, shall,
or may own or hold against the other, and each of them, arising out of or
relating to any acts or omissions occurring on or before the date of this
Agreement (but not including claims which arise as a result of events occurring
after the date of execution of this Agreement), including, but not limited to,
any and all claims arising out of or in any way related to the employment of LMC
by WWS, or the termination of said employment. Without limitation, this release
includes any and all claims under Title VII of the Civil Rights Act of 1964, the
Americans With Disabilities Act, the Fair Labor Standards Act, the Age
Discrimination in Employment Act, ERISA, COBRA, state and local civil rights
laws, the Arizona Worker's Compensation Act, or under any other provision or
theory of law, both in tort and in contract, and both statutory and under the
common law. As used in this paragraph, WWS shall include all subsidiaries,
affiliates, directors, officers, attorneys, and agents of WWS, and their
respective heirs, executors, administrators, successors, and assigns, and as
used in this paragraph, LMC shall include her heirs, executors, administrators,
attorneys, agents, successors, assigns, and each of them.
6. MISCELLANEOUS.
a. Notices. All notices, requests, demands and other communications
required or permitted under this Agreement shall be in writing and shall be
deemed to have been duly given, made and received (i) if personally delivered,
on the date of delivery, (ii) if mailed, three days after deposit in the United
States mail, registered or certified, return receipt requested, postage prepaid
and addressed as provided below, or (iii) if by a courier delivery service
providing overnight or "next-day" delivery, on the next business day after
deposit with such service addressed as follows:
(i) If to WWS:
World Wide Stone Corporation
0000 X. 00xx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: President
with a copy to:
X'Xxxxxx, Cavanagh, Anderson, Xxxxxxxxxxxxx & Xxxxxxxx, P.A.
Xxx Xxxx Xxxxxxxxx Xxxx
0
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxxxxx, Esq.
(ii) If to LMC:
Xxx Xxxxxxxxxx
000 X. Xxxxx Xxxx #0
Xxxxxxx, Xxxxxxx 00000
Either party may alter the address to which communications or copies are to be
sent by giving notice of such change of address in conformity with the
provisions of this paragraph for the giving of notice.
b. Indulgences; Waivers. Neither any failure nor any delay on the
part of either party to exercise any right, remedy, power or privilege under
this Agreement shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, remedy, power or privilege preclude any other or
further exercise of the same or of any other right, remedy, power or privilege,
nor shall any waiver of any right, remedy, power or privilege with respect to
any occurrence be construed as a waiver of such right, remedy, power or
privilege with respect to any other occurrence. No waiver shall be binding
unless executed in writing by the party making the waiver.
c. Controlling Law. This Agreement and all questions relating to
its validity, interpretation, performance and enforcement, shall be governed by
and construed in accordance with the laws of the state of Arizona,
notwithstanding any Arizona or other conflict-of-interest provisions to the
contrary.
d. Binding Nature of Agreement. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective heirs,
personal representatives, successors and assigns except that no party may assign
or transfer such party's rights or obligations under this Agreement without the
prior written consent of the other party.
e. Execution in Counterparts. This Agreement may be executed in
any number of counterparts, each of which shall be deemed to be an original as
against each party whose signature appears thereon, and all of which shall
together constitute one and the same instrument. This Agreement shall become
binding when one or more counterparts hereof, individually or taken together,
shall bear the signatures of the parties reflected hereon as the signatories.
f. Entire Agreement. This Agreement contains the entire
understanding between the parties hereto with respect to the subject matter
hereof and supersedes all prior and contemporaneous agreements and
understandings, inducements and conditions, express or implied, oral or written,
except as herein contained. The express terms hereof control and supersede any
course of performance and/or usage of the trade inconsistent
5
with any of the terms hereof. This Agreement may not be modified or amended
other than by an agreement in writing.
g. Paragraph Headings. The paragraph headings in this Agreement
are for convenience only; they form no part of this Agreement and shall not
affect its interpretation.
h. Restrictions Separable. If the scope of any provision of this
Agreement is found by a court to be too broad to permit enforcement to its full
extent, then such provision shall be enforced to the maximum extent permitted by
law. The parties agree that the scope of any provision of this Agreement may be
modified by a judge in any proceeding to enforce this Agreement, so that such
provision can be enforced to the maximum extent permitted by law. Each and every
provision set forth in this Agreement is independent and severable from the
others, and no such provision shall be rendered unenforceable by virtue of the
fact that, for any reason, any other or others of them may be unenforceable in
whole or in part.
i. Consultation with Attorney; Construction. LMC acknowledges
that she has been advised to consult with an attorney prior to executing this
Agreement. The parties hereto acknowledge and agree that each party has
participated in the drafting of this Agreement and that each party has had this
document reviewed, or has had the opportunity to have this document reviewed, by
the respective legal counsel for the parties hereto. Accordingly, each of the
parties hereto acknowledges and agrees that the normal rule of construction to
the effect that any ambiguities are to be resolved against the drafting party
shall not be applied to the interpretation of this Agreement and that no
inference in favor of, or against, any party shall be drawn from the fact that
one party has drafted any portion hereof.
7. CONSIDERATION AND REVOCATION PERIODS. LMC acknowledges that she has been
given up to 21 days within which to consider whether to sign this Agreement;
that she understands that, after signing, she has a period of an additional
seven days to revoke this Agreement, which revocation must be in writing and
received by WWS, in accordance with Section 5(a) hereof, within said seven-day
revocation period; and that this Agreement shall not become enforceable until
said revocation period has expired.
IN WITNESS WHEREOF, the parties have executed this Agreement, or caused
this Agreement to be executed as of the date first written above.
WORLD WIDE STONE CORPORATION,
a Nevada corporation
/s/ Xxx X. Xxxxxxxxxx By: /s/ Xxxxx Xxxxxxxxxx
---------------------------- ----------------------------------------
Xxx X. Xxxxxxxxxx Its: President
6
