AGREEMENT AND RELEASE
THIS AGREEMENT AND RELEASE (the "Agreement") is made as of this 15th
day of November, 2005, between ARADYME CORPORATION, a Delaware corporation (the
"Company"), and XXXX X. XXXXXX ("Employee").
Premises
WHEREAS, Employee and the Company have agreed to the termination of
Employee's employment with the Company under the Executive Employment Agreement
dated February 11, 2005 (the "Employment Agreement"), and Employee has been in a
position that has required services provided by Employee to be special, unique,
and extraordinary; and
WHEREAS, in connection with employment by the Company, Employee has had
access to the Company's currently-existing trade secrets and other confidential
proprietary information; and
WHEREAS, Employee has been in a position in which Employee has
participated in the creation and development of additional trade secrets and
other confidential proprietary information; and
WHEREAS, Employee has been in a position in which Employee has had
regular and significant contact with the Company's clients; and
WHEREAS, the services the Company performs for clients are not limited
to any local or regional market and the Company competes for clients on a
national and international basis;
NOW THEREFORE, Employee agrees to and accepts all of the terms and
conditions of this Agreement:
Agreement
1. Termination of Employment. Employee acknowledges that the Employment
Agreement and his employment under the Employment Agreement shall terminate
immediately upon the execution of this Agreement, although the Company shall
maintain him on the Company's rolls through December 31, 2005 (the "Termination
Date"), paying his salary and maintaining his insurance benefits through the
Termination Date. Employee agrees to submit his resignation as an employee, as
the President, and as a director of the Company, in a form acceptable to the
Company, upon execution of this Agreement.
2. Release. Employee agrees that the Company's agreement to maintain
Employee on the Company's rolls through the Termination Date, paying his salary
and maintaining his insurance benefits, represents settlement in full of all
outstanding obligations owed to Employee by the Company, including any
obligations that might be claimed under the Employment Agreement. Employee, on
behalf of himself and his heirs, executors, and assigns, hereby fully and
forever releases the Company and its officers, directors, employees, investors,
shareholders, administrators, predecessor and successor corporations, and
assigns from any claim, duty, obligation, or cause of action relating to any
matters of any kind, whether known or unknown, suspected or unsuspected, that he
may possess arising from any omissions, acts, or facts that have occurred up
until and including the date of this Agreement, including:
(a) any and all claims relating to or arising from Employee's
employment relationship with the Company and termination of that
relationship;
(b) any and all claims relating to, or arising from,
Employee's right to purchase, actual purchase of, or sale of shares of
stock of the Company;
(c) any and all claims for personal injury, including 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; and
defamation;
(d) any and all claims for violation of any federal, state, or
municipal statute, including the Utah Antidiscrimination Act, Title VII
of the Civil Rights Act of 1964, and the Employee Retirement Income
Security Act;
(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 attorney's fees and costs.
The Company and Employee agree that the release set forth in this section shall
be and remain in effect in all respects as a complete and general release as to
the matters released. This release does not extend to any obligations incurred
under this Agreement.
3. Additional Release of Age Discrimination Claims and Waiver by
Employee. Employee, on behalf of himself and his heirs, executors, and assigns,
hereby fully and forever releases the Company and its officers, directors,
employees, investors, shareholders, administrators, predecessor and successor
corporations, and assigns from any and all actions and causes of action,
judgments, execution, suits, debts, claims, demands, liabilities, obligations,
damages, and expenses of any and every character, known or unknown, direct
and/or indirect, at law or in equity, under the Age Discrimination in Employment
Act (29 U.S.C.A. xx.xx. 621-634) ("ADEA") arising prior to the date hereof. In
so doing, Employee acknowledges that:
(a) As part of this Agreement, I am receiving consideration in
addition to that which I am already entitled in consideration for my
waiver of rights and claims under the ADEA.
KT
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(initial)
(b) I have been advised in writing that I should consult with
an attorney before signing this Agreement.
KT
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(initial)
(c) I have a right to a 21-day period to consider entering
into this Agreement, and I am knowingly and voluntarily waiving that
right.
KT
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(initial)
(d) For a period of seven days following my execution of this
Agreement, I may revoke this Agreement, and this Agreement may not
become effective or enforceable until that seven-day period has
expired.
KT
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(initial)
4. Noncompetition. Employee hereby acknowledges that the noncompetition
provisions of Section 9 of the Employment Agreement remain in full force and
effect, and that for a period ending one year following the Termination Date
(the "Noncompetition Period"), Employee shall not, singly, jointly, as a
partner, member, employee, agent, officer, director, stockholder (except as a
holder, for investment purposes only, of not more than 1% of the outstanding
stock of any company listed on a national securities exchange or actively traded
in a national over-the-counter market), equity holder, lender, consultant,
independent contractor, or joint venturer of any other person, or in any other
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capacity, directly or beneficially, own, manage, operate, join, control,
participate in the ownership, management, operation or control of, permit the
use of his name by, work for, provide consulting, financial or other assistance
to, or be connected in any manner with a Competing Business (as defined in the
Employment Agreement) anywhere in the Protected Territory (as defined in the
Employment Agreement), without the prior written approval of the Company's board
of directors.
5. Nonsolicitation. Employee hereby acknowledges that the
nonsolicitation provisions of Section 10 of the Employment Agreement remain in
full force and effect, and that during the Noncompetition Period, Employee shall
not: (a) employ, retain, engage (as an employee, consultant, or independent
contractor), or induce, or attempt to induce to be employed, retained, or
engaged, any person that is or was during the Noncompetition Period an employee,
consultant, or independent contractor of the Company; (b) induce or attempt to
induce any person during the Noncompetition Period as an employee, consultant,
or independent contractor of the Company to terminate his or her employment or
other relationship with the Company; or (c) induce or attempt to induce any
person that is a customer of the Company or that otherwise is a contracting
party with the Company during the Noncompetition Period to terminate any written
or oral agreement, understanding, or other relationship with the Company.
6. Mutual Noninterference and Nondisparagement. Each of Employee and
the Company agrees not to interfere with the other's activities or business in
any way or to make any statements, written or oral, that disparage, criticize,
or defame the other, including any statements by Employee that disparage,
criticize, or defame the Company's officers, directors, affiliates, products, or
business practices.
7. Restriction on Sale of Common Stock. Employee is the beneficial
owner of 1,381,979 shares of the Company's common stock and options to purchase
an additional 1,050,000 shares of the Company's common stock (together, the
shares of common stock currently owned and the shares of common stock issuable
upon the exercise of the options are referred to as the "Shares"). Employee
irrevocably agrees that, without the prior written consent of the Company, which
such consent may be granted or withheld in its absolute discretion, Employee
will not, directly or indirectly, offer, sell, agree to sell, grant an option to
sell, or otherwise dispose of (or announce any such offer, sale, agreement,
grant of an option to sell, or other disposition) the Shares until after
December 31, 2006, except for:
(a) transfers made to family members, trusts, or similar
transfers for estate planning purposes to entities or persons under
Employee's control or other privately-negotiated transaction in which
the transferee is bound by the provisions of this Section 7 of this
Agreement;
(b) pledges in connection with loans, subject to the
provisions of this Section 7 of this Agreement and provided the lender
agrees to be bound by the terms of this Section 7 of this Agreement;
(c) offers and sales after December 31, 2005, in the lesser
of, during any consecutive 30 days, either (i) 15,000 Shares or (i) one
percent (1%) of the number of Shares; or
(d) sales of such number of Shares as to which the Company may
agree to in writing.
Employee agrees that the provisions of this Section 7 of this Agreement shall be
binding upon Employee's successors, assigns, heirs, and personal
representatives. In furtherance of the foregoing, the Company and its transfer
agent are hereby authorized to decline to register any transfer of securities if
such transfer would constitute a violation or breach of this Agreement. The
Employee consents to the Company's transfer agent placing a stop transfer order
against the registration of transfer of the Shares.
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8. Relief. Employee agrees that a breach or threatened breach by him of
any provision in Sections 4, 5, 6, or 7 of this Agreement will cause such damage
to the Company as will be irreparable, and for that reason, Employee further
agrees that the Company shall be entitled as a matter of right to an injunction
from any court of competent jurisdiction restraining any further violation of
such provisions by Employee. The right to injunction shall be cumulative and in
addition to whatever other equitable or legal remedies the Company may have,
including, specifically, recovery of damages.
9. Miscellaneous.
(a) This Agreement constitutes the entire agreement between
the Company and Employee with respect to the subject matter hereof. It
shall not be modified except by a written agreement dated subsequent to
the date of this Agreement signed by both parties. None of the
provisions of this Agreement shall be deemed to have been waived by any
act or acquiescence on the part of the Company, but only by an
instrument in writing signed by an authorized officer of the Company.
No waiver of any provision of this Agreement shall constitute a waiver
of any other provision(s) or of the same provision on another occasion.
(b) This Agreement shall be construed under and governed by
the laws of the state of Utah (except for its conflicts of laws
principles). Employee irrevocably agrees that all actions or
proceedings arising from or related to this Agreement shall be heard or
litigated exclusively in courts having situs within the city of Salt
Lake City, county of Salt Lake, state of Utah. Employee consents and
submits to the jurisdiction of any state or federal court located
within the city of Salt Lake City, county of Salt Lake, state of Utah,
and irrevocably waives any right to transfer or change of venue of any
such action or proceeding or to object to the jurisdiction of any such
court.
(c) If any provision of this Agreement shall be held by a
court of competent jurisdiction to be illegal, invalid, or
unenforceable, the remaining provisions shall remain in full force and
effect and the affected provision(s) shall be reformed without further
action by the parties hereto only to the extent necessary to make such
provision(s) valid and enforceable.
(d) All obligations created by this Agreement shall survive
change or termination of Employee's employment with the Company.
(e) Descriptive headings appear herein for convenience only
and shall not control or affect the meaning or construction of any of
the provisions hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement.
COMPANY:
Aradyme Corporation
By /s/ Xxxxx X. Xxxxxxx
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Duly authorized officer
EMPLOYEE:
/s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
11-15-05
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Date
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