EXHIBIT 10 TERMINATION AGREEMENT
TERMINATION AGREEMENT
This Termination Agreement (the "Termination Agreement") is entered into as
of August 1, 2002 ("Effective Date"), by and between International Wireless,
Inc., a Maryland corporation, with its principal place of business at ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("IWIN"), and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, a
Massachusetts resident who resides at Apartment ▇▇ ▇, ▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (▇▇▇▇▇▇) WITNESSETH:
WHEREAS, IWIN and PAXTON entered into an Employment Agreement on March 29,
2002 whereby ▇▇▇▇▇▇ was named President and Chief Executive Officer and a member
of the Board of Directors of IWIN ("Employment Agreement");
WHEREAS IWIN and ▇▇▇▇▇▇ desire to terminate said Employment Agreement
including the resignation of ▇▇▇▇▇▇ from the Board of Directors of IWIN as of
July 31, 2002 (the "Termination Date") as more particularly set forth herein;
and
WHEREAS IWIN and ▇▇▇▇▇▇ agree that the termination of the Employment
Agreement is by mutual consent and not due to cause.
NOW, THEREFORE, in consideration of the premises and representations,
warranties, covenants and agreements contained herein, IWIN and ▇▇▇▇▇▇ hereto
agree as follows:
1. ▇▇▇▇▇▇ is to return all properties belonging to IWIN including the
Toshiba Laptop, docking station and peripherals paid for by IWIN, the IWIN Debit
Card, the IWI office keys and building entrance scan card, and any other
properties belonging to IWIN in his possession. At the same time, IWIN is to
return all of ▇▇▇▇▇▇'▇ personal belongings in its possession to ▇▇▇▇▇▇.
2. IWIN is to execute a note bearing simple interest of 6%, commencing
August 1, 2002, for the amount of $125,000.00 loaned to IWIN by ▇▇▇▇▇▇ due on or
before February 28, 2003, and attached as Exhibit A.
a. As long as said executed note is not paid in full and up to the total
remaining balance of said note, IWIN shall pay for the August 2002 through
February 2003 lease payment on the 2002 BMW 745i currently leased in the name of
IWIN and in the possession of ▇▇▇▇▇▇ and deduct $1,200.00 per month for a total
of $8,400.00 from said $125,000.00 loaned to IWIN by ▇▇▇▇▇▇.
b. At the earlier of the end of February 2003 or the payment of said
executed note including interest in full, ▇▇▇▇▇▇ has the option to either take
over the lease on the 2002 BMW 745i currently leased in the name of IWIN and in
his possession or turn it over to IWIN as of that date.
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c. IWIN shall pay ten (10%) percent of any and all monies raised from the
sale of equity by IWIN on its behalf towards the payments of principal and
interest on said note as long as said note is not paid in full. At all events,
the total interest and principal less any money paid by means of Paragraph 2a
and 2b above shall be due on or before February 28, 2003.
3. ▇▇▇▇▇▇ hereby relinquishes any rights to any shares in IWIN that he may
have had a right to claim in accordance with Section 3(c) and Section 5 (e) of
the Employment Agreement.
4. In consideration for the mutual release set forth herein, the payment of
▇▇▇▇▇▇'▇ rent for Apartment ▇▇ ▇, ▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ from
September 1, 2002 through March 31, 2003 currently leased in the name of IWIN
and in the possession of ▇▇▇▇▇▇, the reassignment of the remainder of the lease
from April 1, 2003 from IWIN to ▇▇▇▇▇▇, and the issuance of 250,000 options to
purchase IWIN shares at $1.05 per share for the next 12 months terminating on
August 1, 2003 in accordance with the Employment Agreement, said Employment
Agreement shall terminate and ▇▇▇▇▇▇ shall resign from IWIN's Board of Directors
as of the Termination Date and neither party shall have any further rights
obligations under the said Employment Agreement. Nothing in this Termination
Agreement shall be construed to require IWIN to make any payments to compensate
▇▇▇▇▇▇ for any adverse tax effect associated with any payments or for any
deduction or withholding from any payment.
5. IWIN hereby agrees to allow ▇▇▇▇▇▇ to pursue an independent business
relationship with Global E-Pay, Inc., a Delaware corporation and with Wireless
Money of Massachusetts.
6. Except with respect to the items listed in Paragraphs 1, 2, 3 and 4
above, each party hereby releases the other party from all claims, demands,
debts liabilities, costs, expenses, including attorney's fees, of any kind
whatsoever, known or unknown, which each party or may have against the other
including under the Employment Agreement as of the Termination Date.
7. This Termination Agreement and each of the terms hereof shall be
confidential, between IWIN it employees and agents and ▇▇▇▇▇▇, and each agrees
not to disclose to others the terms hereof except to its accountants or
attorneys or as required by law.
8. IWIN, its agents and employees and ▇▇▇▇▇▇ agrees not to engage in any
form of conduct, or make statements or representations, that disparage or
otherwise harm the other party's reputation, good will or commercial interest.
9. ▇▇▇▇▇▇ shall cooperate fully with IWIN in the defense or prosecution of
any claims or actions now in existence or which may be brought in the future
against or on behalf of IWIN which relate to events or occurrences that
transpires while the Employment Agreement was in force. ▇▇▇▇▇▇'▇ full
cooperation in connection with such claims or actions shall include, but not be
limited to, being available to meet with counsel to prepare for discovery or
trial and to act as a witness on behalf of the IWIN at mutually convenient
times. ▇▇▇▇▇▇ also shall cooperate fully with IWIN in connection with any
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investigation or review of any federal, state or local regulatory authority as
any such investigation or review relates to events or occurrences that
transpires.
10. Any controversy or claim arising out of or relating to this Termination
Agreement or the breach thereof or otherwise arising out of this Termination
Agreement (including, without limitation, any claims of unlawful discrimination
whether based on age or otherwise) shall, to the fullest extent permitted by
law, be settled by arbitration in any forum and form agreed upon by the parties
or, in the absence of such an agreement, under the auspices of the American
Arbitration Association ("AAA") in Boston, Massachusetts in accordance with the
Dispute Resolution Rules of the AAA, including, but not limited to, the rules
and procedures applicable to the selection of arbitrators. In the event that any
person or entity other than ▇▇▇▇▇▇ or IWIN may be a party with regard to any
such controversy or claim, such controversy or claim shall be submitted to
arbitration subject to such other person or entity's agreement. Judgment upon
the award rendered by the arbitrator may be entered in any court having
jurisdiction thereof. This Section 10 shall be specifically enforceable.
Notwithstanding the foregoing, this Section 10 shall not preclude either party
from pursuing a court action for the sole purpose of obtaining a temporary
restraining order or a preliminary injunction in circumstances in which such
relief is appropriate; provided that any other relief shall be pursued through
an arbitration proceeding pursuant to this Section 10.
11. Both ▇▇▇▇▇▇ and IWIN hereby agree to continue in full force the terms
set forth in the "Employee Inventions, Non-disclosure and Non-competition
Agreement" dated April 1, 2002 and attached to this Termination Agreement as
Exhibit C.
12. This is a Massachusetts contract and shall be construed under and be
governed in all respects by the laws of the Commonwealth of Massachusetts,
without giving effect to the conflict of laws principles of such Commonwealth.
With respect to any disputes concerning federal law, such disputes shall be
determined in accordance with the law as it would be interpreted and applied by
the United States Court of Appeals for the First Circuit.
13. To the extent that any court action is permitted consistent with or to
enforce Section 9 of this Termination Agreement, the parties hereby consent to
the jurisdiction of the Superior Court of the Commonwealth of Massachusetts and
the United States District Court for the District of Massachusetts. Accordingly,
with respect to any such court action, ▇▇▇▇▇▇ hereby agrees to (a) submit to the
personal jurisdiction of such courts; (b) consent to service of process; and (c)
waive any other requirement (whether imposed by statute, rule of court, or
otherwise) with respect to personal jurisdiction or service of process.
14. This Termination Agreement constitutes the entire agreement between the
parties with respect to the subject matter hereof and supersedes all prior
representations, understandings or agreements, whether written or oral, between
the parties with respect to any related subject matter, except those items named
as exhibits and attached herein.
15. Neither IWIN nor the ▇▇▇▇▇▇ may make any assignment of this Termination
Agreement or any interest herein, by operation of law or otherwise, without the
prior written consent of the other party; provided that IWIN may assign its
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rights under this Termination Agreement with the specific consent of ▇▇▇▇▇▇ in
the event that IWIN shall effect a reorganization, consolidate with or merge
into any other corporation, partnership, organization or other entity, or
transfer all or substantially all of its properties or assets to any other
corporation, partnership, organization or other entity. This Termination
Agreement shall inure to the benefit of and be binding upon IWIN and ▇▇▇▇▇▇,
their respective successors, executors, administrators, heirs and permitted
assigns.
16. If any portion or provision of this Termination Agreement (including,
without limitation, any portion or provision of any section of this Termination
Agreement) shall to any extent be declared illegal or unenforceable by a court
of competent jurisdiction, then the remainder of this Termination Agreement, or
the application of such portion or provision in circumstances other than those
as to which it is so declared illegal or unenforceable, shall not be affected
thereby, and each portion and provision of this Termination Agreement shall be
valid and enforceable to the fullest extent permitted by law.
17. No waiver of any provision hereof shall be effective unless made in
writing and signed by the waiving party. The failure of any party to require the
performance of any term or obligation of this Termination Agreement, or the
waiver by any party of any breach of this Termination Agreement, shall not
prevent any subsequent enforcement of such term or obligation or be deemed a
waiver of any subsequent breach.
18. Any notices, requests, demands and other communications provided for by
this Termination Agreement shall be sufficient if in writing and delivered in
person or sent by a nationally recognized overnight courier service or by
registered or certified mail, postage prepaid, return receipt requested, to
▇▇▇▇▇▇ at the last address ▇▇▇▇▇▇ has filed in writing with IWIN or, in the case
of IWIN, at its main offices, attention of the Chairman or Chief Executive
Officer, and shall be effective on the date of delivery in person or by courier
or fifteen (15) days after the date mailed.
19. This Agreement may be amended or modified only by a written instrument
signed by ▇▇▇▇▇▇ and by the Board of Directors of IWIN.
20. This Agreement may be executed in any number of counterparts, each of
which when so executed and delivered shall be taken to be an original; but such
counterparts shall together constitute one and the same document.
IN WITNESS WHEREOF, IWIN and ▇▇▇▇▇▇ has caused this Termination Agreement
to be signed and delivered as date first written above.
INTERNATIONAL WIRELESS, INC.
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------- ---------------------
Name: ▇▇. ▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chairman of the Board
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Exhibit A
Note
PROMISSORY NOTE
August 1, 2002
FOR VALUE RECEIVED, the undersigned, International Wireless, Inc., a
Maryland corporation, with its principal place of business at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter referred to as the "Borrower"),
promises to pay the order of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (together with any subsequent
holders of this Note, the "Lender"), a Massachusetts resident who resides at
Apartment ▇▇ ▇, ▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇, the principal sum of
ONE HUNDRED AND TWENTY FIVE THOUSAND DOLLARS
($125,000) as has been advanced by the Lender to the Borrower and is
outstanding, together with interest on the unpaid principal balance hereof which
shall accrue as simple interest on the last day of each month at a fixed rate
per annum equal to six percent (6%), at a rate of one half of a percent (0.5%)
per month, to be calculated on the total balance at the end of each month.
Compounded interest shall be treated as additional advances to be added to
principal hereunder. In the absence of demonstrable error, the books and records
of the Borrower shall constitute conclusive evidence of the unpaid principal
balance hereof from time to time. Both Borrower and Lender agree that these
books and records are accurate at the time of signing this note and further
agree that Lender has lent the sum of $125,000 in principal as of the date of
this Note.
As long as said executed promissory note is not paid in full and up to the total
remaining balance of said promissory note, Borrower shall pay for the August
2002 through February 2003 lease payment on the 2002 BMW 745i currently leased
in the name of the Borrower and in the possession of the Lender and deduct
$1,200.00 per month for a total of $8,400.00 from said $125,000.00 loaned to
Borrower by Lender.
At the earlier of the end of February 2003 or the payment of said executed
promissory note including interest in full, Lender has the option to either take
over the lease on the 2002 BMW 745i currently leased in the name of Borrower and
in his possession or turn it over to Lender as of that date.
Borrower shall pay ten (10%) percent of any and all monies raised from the sale
of equity by Borrower on its behalf towards the payments of principal and
interest on said note as long as said note is not paid in full. At all events,
the total interest and principal less any money paid by means of this promissory
note shall be due on or before February 28, 2003, hereinafter referred to as
"Due Date."
This Note may be prepaid in whole or in part at any time. The Lender may, in its
sole discretion and at the request of the Borrower, re-lend amounts that have
been repaid by the Borrower hereunder.
All payments hereunder shall be payable in lawful currency of the United States
of America. Interest shall be calculated on the basis of a year consisting of
365 days and payable for the actual number of days elapsed. All payments shall
be applied first to interest and then to principal due hereunder.
All notices required or permitted to be given hereunder shall be in writing and
shall be effective when mailed, postage prepaid, by registered or certified
mail, addressed to the relevant party at the address set forth in the
introduction, or to such other address as either the Borrower or the Lender may
from time to time specify by like notice.
Any controversy or claim arising out of or relating to this Promissory Note or
the breach thereof or otherwise arising out of this Promissory Note shall, to
the fullest extent permitted by law, be settled by arbitration in any forum and
form agreed upon by the parties or, in the absence of such an agreement, under
the auspices of the American Arbitration Association ("AAA") in Boston,
Massachusetts in accordance with the Dispute Resolution Rules of the AAA,
including, but not limited to, the rules and procedures applicable to the
selection of arbitrators. In the event that any person or entity other than the
Lender or the Borrower may be a party with regard to any such controversy or
claim, such controversy or claim shall be submitted to arbitration subject to
such other person or entity's agreement. Judgment upon the award rendered by the
arbitrator may be entered in any court having jurisdiction thereof. This Section
shall be specifically enforceable. Notwithstanding the foregoing, this Section
shall not preclude either party from pursuing a court action for the sole
purpose of obtaining a temporary restraining order or a preliminary injunction
in circumstances in which such relief is appropriate; provided that any other
relief shall be pursued through an arbitration proceeding pursuant to this
Section.
This is a Massachusetts contract and shall be construed under and be governed in
all respects by the laws of the Commonwealth of Massachusetts, without giving
effect to the conflict of laws principles of such Commonwealth. With respect to
any disputes concerning federal law, such disputes shall be determined in
accordance with the law as it would be interpreted and applied by the United
States Court of Appeals for the First Circuit.
To the extent that any court action is permitted consistent with or to enforce
this Promissory Note, the parties hereby consent to the jurisdiction of the
Superior Court of the Commonwealth of Massachusetts and the United States
District Court for the District of Massachusetts.
If any portion or provision of this Promissory Note (including, without
limitation, any portion or provision of any section of this Promissory Note)
shall to any extent be declared illegal or unenforceable by a court of competent
jurisdiction, then the remainder of this Promissory Note, or the application of
such portion or provision in circumstances other than those as to which it is so
declared illegal or unenforceable, shall not be affected thereby, and each
portion and provision of this Promissory Note shall be valid and enforceable to
the fullest extent permitted by law.
No waiver of any provision hereof shall be effective unless made in writing and
signed by the waiving party. The failure of any party to require the performance
of any term or obligation of this Promissory Note, or the waiver by any party of
any breach of this Promissory Note, shall not prevent any subsequent enforcement
of such term or obligation or be deemed a waiver of any subsequent breach.
Any notices, requests, demands and other communications provided for by this
Promissory Note shall be sufficient if in writing and delivered in person or
sent by a nationally recognized overnight courier service or by registered or
certified mail, postage prepaid, return receipt requested, to the Borrower at
the last address the Borrower have filed in writing with the Lender or, in the
case of the Lender, at its last address of record, and shall be effective on the
date of delivery in person or by courier or fifteen (15) days after the date
mailed.
This Agreement may be amended or modified only by a written instrument signed by
the Lender and by the Board of Directors of the Borrower.
IN WITNESS WHEREOF, the Borrower has executed and delivered this Note, under
seal, on the day and year first above written.
International Wireless, Inc. ("Borrower")
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇
--------------------------
▇▇. ▇▇▇ ▇. ▇▇▇▇▇, Chairman
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇
Chief Operating Officer
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("Lender")
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇