EMPLOYEE PARTIAL SETTLEMENT AGREEMENT
ES/RA20102004-4
This Employee Partial Settlement Agreement (hereafter the "AGREEMENT") is
entered into this 28th day of October2004 by and between:
Xxxx X. Xxxxx, 0000 Xxxx Xxxxx Xx., Xxxxxxx, XX. 00000
And
Viva International, Inc. a Delaware publicly traded company (OTC-BB, VIVI) with
offices at 000 Xxxxxxxx Xxxx Xxxxx, Xxxxxxxx Xxxx, Xxxxxxxx 00000 and Xxxxx,
Xxxxxxx 00000, (hereafter the "COMPANY").
WHEREAS, EMPLOYEE is presently an employee of the COMPANY, with duties having
been properly and satisfactory preformed during the employment period between
January 15, 2003 and September 30, 2004, said duties including but not limited
to (describe):
Vice President Sales & Marketing, President and Chief Executive Officer
President, Viva Air Dominicana S.A.
AND WHEREAS, The COMPANY acknowledges the EMPLOYEE is owed and entitled to
compensation for past services. The COMPANY and the EMPLOYEE wish to amicably
resolve, in part, claims the EMPLOYEE has against the COMPANY.
EMPLOYEE and COMPANY acknowledge that the type and amount of payment to EMPLOYEE
under this AGREEMENT is being made for the sole purpose of partial satisfaction
and will satisfy the claim only to the amount equal to and as reflected in the
applicable S-8 registration statement. Accordingly, the strike price as stated
below in b. will be used in the S-8 registration statement and the claim will be
reduced on the COMPANY'S books and records by the total number of shares issued
to the EMPLOYEE multiplied by the share value as used in the registration
statement.
a. this AGREEMENT is acknowledged as a partial settlement and does not
satisfy the total amount due and owing for the period stated above,
b. the strike price of the stock shall be that of the stock quoted on the
OTC-BB as of the close of business, 04:00 PM, New York, New York USA,
the date this Agreement is executed,
c. this agreement is executed on behalf of the COMPANY and has been
authorized by a resolution of the COMPANY'S Board of Directors,
d. an Attorney's Letter is issued in support of the terms and the
AGREEMENT and in satisfaction of all documentation requirements thereto
and prepares appropriate SEC registration without qualification,
e. an Accountants Letter or Approval as may be customary is issued in
support of the S-8 registration filing,
f. the XXX X-0 Registration is formally requested by the COMPANY to be
prepared by the outside counsel normally used for SEC matters and that
this is done on or before October 29, 2004,
g. instructions to issue stock in accordance with the XXX X-0 registration
statement are to be directed to the COMPANY'S Transfer Agent on the
first business day following acceptance of the S-8 registration by the
SEC. Upon issuance, the Transfer Agent will forward the common stock
certificates directly to the employee unless the employee directs
otherwise in writing to the COMPANY'S Chairman/Secretary.
h. EMPLOYEE agrees to be bound by any restriction, limitation and/or
reporting requirement that may result from acceptance of S-8 stock
pursuant to agreement. EMPLOYEE further agrees and accepts the
responsibility without limitation for any resulting federal or state
income tax that may result from acceptance of S-8 stock and holds the
COMPANY harmless from these tax liabilities.
The parties represent that they have been advised by their respective counsel,
are competent to enter into, fully understand the terms and consequences, and do
knowingly and voluntarily enter into the AGREEMENT.
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THEREFORE; based on the recitals above, the parties agree as follows:
Terms
1. Payment. On or before fifteen (15) calendar days from the date of execution
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of this AGREEMENT or the 10th day of November 2004 which ever comes first,
and in consideration for the promises and covenants contained herein, the
COMPANY will cause to be transferred and delivered free of any fees,
charges and encumbrances except that of any state or federal taxes to
EMPLOYEE or EMPLOYEE'S designated representative in the United States, free
trading common stock in the amount of one million shares (1,000,000). Said
stock shall be subject to the terms and conditions as stated herein this
AGREEMENT, filing requirements, and all SEC Rules and Regulations. EMPLOYEE
agrees to acknowledge and accept said stock in partial settlement of past
due wages for the period first stated above and subject to the terms and
conditions stated herein the AGREEMENT.
2. Tax. Any and all appropriate State and Federal government taxes together
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with any withholding shall be responsibility of the EMPLOYEE, and the
EMPLOYEE agrees to indemnify and hold harmless the COMPANY for any claim
for such by any governmental authority.
3. Obligations under Securities Laws to prevent "Insider" Trading. Obligations
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under the Securities and Exchange Commission, (SEC), rules and regulations
and U.S. securities laws apply to everyone. In the normal course of
business, officers, directors, employees, agents, contractors, consultants
and anyone doing business with the COMPANY may come into possession of
significant, unpublished price sensitive information. This information is
the property of the COMPANY and the EMPLOYEE has been entrusted with it.
EMPLOYEE agrees not to profit from it by buying or selling securities
himself, or passing on the information to others to enable them to profit
or for them to profit on your behalf. The purpose of this policy is both to
inform EMPLOYEE of EMPLOYEE'S legal responsibilities and to make clear to
EMPLOYEE that the misuse of unpublished price sensitive information is
contrary to COMPANY policy and SEC Rules and Regulations & U.S. securities
laws. Xxxxxxx xxxxxxx is a crime, penalized by fines and jail for
individuals under both SEC Rules and Regulations and U.S. laws. Insider
traders must also disclose any profits made, and are often subjected to an
injunction against future violations. Finally, insider traders may be
subjected to civil liability in private lawsuits. Employers and other
controlling persons (including supervisory personnel) are also at risk
under SEC/U.S. securities laws if they recklessly fail to take preventive
steps to control xxxxxxx xxxxxxx.
4. Prohibition against "Short Selling" of Company Stock. EMPLOYEE agrees not
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to, directly or indirectly, and or cause, the selling of any equity
security, including derivatives, of the Company if he or she (1) does not
own the security sold, or (2) if he or she owns the security, does not
deliver it against such sale. No COMPANY director, officer or other
employee, agent, contractor or any party doing business or having a
business or contractual relationship with COMPANY may engage in short
sales. A short sale, as defined in this policy, means any transaction
whereby one may benefit from a decline in the Company's stock price in a
short period of time.
5. Non-Disclosure. EMPLOYEE represents that they have not disclosed the terms
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of this AGREEMENT to anyone other than EMPLOYEE'S spouse. EMPLOYEE, and
EMPLOYEE'S spouse agree to keep the terms of the AGREEMENT, including the
fact that a payment was made to EMPLOYEE and the amount of such payment,
strictly confidential and, unless required by law, will not disclose such
information without the prior written permission of the COMPANY to anyone
except tax advisors, if any, but only after informing those persons that
they too must keep the information confidential.
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6. Statements and Breach. EMPLOYEE, and EMPLOYEE'S spouse may state only that
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"the matter has been resolved" or words to that effect, but will not
otherwise disclose any information about this AGREEMENT or its terms.
Because a breach of this confidentiality paragraph would cause COMPANY
damages that are impracticable or too difficult to fix, in the event of
such a breach, EMPLOYEE shall be liable to COMPANY for liquidated damages
in the amount not to exceed $50,000.00 for each breach, plus any attorneys'
fees and costs owed pursuant to Section 13 herein and any equitable relief.
7. No Disparagement. EMPLOYEE agrees not to disparage COMPANY or any of its
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officers, employees, agents or representatives and will not knowingly say
or do anything that would have an adverse impact on COMPANY.
8. Further Documents. Each party agrees to execute or cause their counsel to
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execute any additional documents and take any further action which may
reasonably be required in order to consummate this AGREEMENT or otherwise
fulfill the obligations of the parties thereunder. The parties hereto this
AGREEMENT agree to modify and execute any changes necessary to correct any
errors clerical and or verbiage which may cloud and or misdirect the intent
of this AGREEMENT.
9. Dispute. Should a dispute arise concerning this AGREEMENT or its
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performance, such dispute shall be resolved by binding arbitration
administered by the American Arbitration Association under its commercial
dispute resolution rules. If arbitration is initiated, the arbitration
shall be held in Miami, Florida. Each party shall bear the cost of their
representation regardless of the arbitrated decision.
10. Construction. This AGREEMENT shall be construed and enforced in accordance
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with the laws of the State of Michigan.
11. Integration. This AGREEMENT constitutes an integration of the entire
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understanding and agreement of the parties with respect to the matters
referred to in this AGREEMENT. Any representation, warranty, promise or
condition, whether written or oral, between the parties with respect to the
matters referred to in this AGREEMENT which is not specifically
incorporated in this AGREEMENT shall not be binding upon any of the parties
hereto and the parties acknowledge that they have not relied, in entering
into this AGREEMENT, upon any representations, warranties, promises or
conditions not specifically set forth in this AGREEMENT. No prior or
contemporaneous oral or written understanding, covenant, or agreement
between the parties, with respect to the employment period described herein
nor matters referred to in this AGREEMENT, shall survive the execution of
this AGREEMENT. Each party hereto assumes the risk of misrepresentation,
concealment or mistake, and if any party should subsequently discover that
any fact relied upon in entering into this AGREEMENT was untrue, or that
any fact was concealed from it, or that its understanding of the facts or
law was incorrect, it shall not be entitled to set aside this AGREEMENT by
reason thereof. This AGREEMENT may be modified only by a written agreement
executed by both parties hereto.
12. Binding Agreement. The parties understand and expressly agree that this
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AGREEMENT shall bind and benefit (as applicable) the heirs, employees,
owners, officers, shareholders, directors, subsidiaries, spouses,
affiliates, successors, predecessors, agents, witnesses, attorneys,
representatives, and assigns of the COMPANY and EMPLOYEE.
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13. Counterparts. This AGREEMENT may be executed in counterparts, and each
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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.
14. Assignment. This AGREEMENT may not be assigned by the Employee or the
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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 the EMPLOYEE.
The Parties hereto acknowledge and execute this Partial Settlement Agreement as
of the date first set forth above by placing their hand and seal below:
Dated: /s/ Xxxxxx X. Xxxxx, Chairman
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for Viva International, Inc. Per Corporate Resolution
dated 10.28.2004.
Dated: 10/28/04
/s/ Xxxx Xxxxx - XXXX XXXXX
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(Employee Signature and Print Name)
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