Exhibit 10.1
SEPARATION AGREEMENT
This Separation Agreement (the "Agreement") entered into as of the 11th
day of October, 2001, is entered into by and among Xvariant, Inc., a Nevada
corporation ("Xvariant"), Real Estate Federation, Inc., a Utah corporation,
("REF"), Applied Technology Consultants, Inc., a Nevada corporation ("ATC"),
and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇▇▇▇▇").
WHEREAS, ATC entered into a subscription agreement to purchase certain
shares of stock of REF (which were later converted to shares of Xvariant); and
WHEREAS, REF has failed to achieve its originally estimated projected
operating results; and
WHEREAS, ATC has declined to continue funding of REF absent the
restructuring steps set forth in this Agreement to reduce overhead expenses;
and
WHEREAS, ▇▇▇▇▇▇ and REF entered into an employment agreement dated the
1st day of September, 2000, (the Employment Agreement"), a copy of which is
attached hereto and incorporated herein by reference; and,
WHEREAS, the parties desire to provide for the termination of the
Employment Agreement and ▇▇▇▇▇▇'▇ separation from REF.
NOW THEREFORE, in consideration of the above and other good and valuable
consideration the receipt of which is hereby acknowledged, the parties agree
as follows:
1. Effective Date of Termination. The parties agree ▇▇▇▇▇▇'▇
effective date of termination shall be October 1, 2001 ("Effective Date").
2. Officer and Director Resignation. As of the 12th day of October,
2001, ▇▇▇▇▇▇ shall resign as an officer and director of Xvariant and REF.
▇▇▇▇▇▇ and REF and Xvariant agree to provide written notice of such
resignation to the appropriate state agencies of Utah and Nevada, and to any
other agencies, entities or individuals entitled to know of such resignations.
A directors meeting will be called and replacement officers of REF and
Xvariant will be promptly elected or appointed. Of Wright, Knapp, and ▇▇▇▇▇,
two will have resignations accepted, and one will appoint ▇▇▇▇▇▇, and/or any
other people designated by ATC, and then have his resignation accepted at the
directors meeting.
3. Employment Agreement. ▇▇▇▇▇▇ agrees that the Employment Agreement
is terminated as of the Effective Date and is of no further force nor effect
and any and all payment obligations of REF and Xvariant are satisfied by this
Agreement.
4. Consulting Agreement. REF agrees to engage ▇▇▇▇▇▇ as an
independent consultant to provide sales, marketing and customer liaison
services. The consulting services agreement shall be a month-to-month
arrangement with either party being able to terminate the arrangement upon 30
days prior written notice. REF shall pay to ▇▇▇▇▇▇ the sum of $10,000 per
month for his consulting services, and will reimburse ▇▇▇▇▇▇ for (i) cell
phone costs related to REF's or Xvariant's business activities, and (ii) the
cost of ▇▇▇▇▇▇'▇ health insurance premiums under COBRA or otherwise. During
the time ▇▇▇▇▇▇ is a consultant to REF, ▇▇▇▇▇▇ shall also be entitled to
monthly bonuses of $500 for each $5,000 of gross monthly income above $50,000.
All such bonuses shall be paid within 30 days after the applicable sales
month, but total compensation shall not exceed $20,000 per month.
Additionally, REF and Xvariant hereby agree to pay to ▇▇▇▇▇▇ the sum of
$12,500 in full and complete satisfaction of all amounts owed to him for
salary, vacation, expense reimbursement and any other amounts related in any
way to his employment, and ▇▇▇▇▇▇ accepts such amount in full satisfaction of
all such amounts owed to him under the Employment Agreement. Payment of the
foregoing amount shall be spread equally among, and shall be paid on, REF's
regular pay periods in October, 2001, and shall be subject to normal
withholding of appropriate taxes.
5. Xvariant Stock. At such time as ATC decides that REF is not
viable and that it will no longer provide financing for operations, Xvariant
shall issue 100,000 shares of common stock to ▇▇▇▇▇▇ (the "New Shares") and
▇▇▇▇▇▇ shall tender to Xvariant all stock of Xvariant owned by him, which is
agreed by the parties to be 4,400,000 shares. The New Shares shall be subject
to standard restrictions on transfer under applicable securities laws.
6. Legal Fees. REF and Xvariant agree to reimburse ▇▇▇▇▇▇'▇ share of
legal fees incurred by ▇▇▇▇▇▇ in negotiating and preparation of this Agreement
and related documents; provided, however, the total amount of such fees that
REF and Xvariant shall reimburse ▇▇▇▇▇▇ is limited to $3,500.
7. Release and Waiver. In consideration of the recitals and
agreements set forth in this Agreement and the cash payments to be tendered
hereunder, and with the intent of binding himself and his successors, heirs
and assigns, and upon (i) full payment of the amounts described in paragraph 4
(second paragraph only), 6 and 12 hereof, ▇▇▇▇▇▇ fully and forever releases
and discharges ATC, REF, Xvariant, and their respective, current and future,
officers, directors, shareholders, agents, servants, employees, affiliates,
successors, heirs, personal representatives, from any and all claims, demands,
actions, causes of action, judgments and liabilities of any kind or nature
whatsoever in law, equity or otherwise, whether known or unknown, suspected or
unsuspected, which have existed or which may have existed or which do exist
under or in relation to the Employment Agreement, his employment, his stock
ownership, or his separation from employment.
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8. Confidential Information. Except as otherwise authorized in
writing by Xvariant or REF, ▇▇▇▇▇▇ shall keep secret and retain in strictest
confidence, and shall not use for the benefit of himself or others, all
confidential information of REF and Xvariant, including, without limitation,
know-how, proprietary information, trade secrets, customer lists, details of
client contracts, operation methods or strategies, product development
techniques or plans, inventions and research projects of REF learned by ▇▇▇▇▇▇
during his employment.
9. Property of REF. Other than personal records, files or books of
REF and Xvariant, all memoranda, notes, lists, records and other documents or
papers (and all copies thereof), including such items stored in computer
memories, or by any other means, made or compiled by or on behalf of ▇▇▇▇▇▇,
or made available to ▇▇▇▇▇▇, relating to REF are and shall be REF's property
and shall be delivered to REF promptly upon the execution hereof.
10. Employees of REF. For a period of one year from the date hereof,
▇▇▇▇▇▇ shall not, without the prior written consent of REF, directly or
indirectly, hire, solicit or employ in any capacity any employee of REF or
encourage any such employee to leave such employment.
11. Indemnification. ATC, REF, and Xvariant hereby indemnify and
agree to hold ▇▇▇▇▇▇ and his heirs or personal representatives harmless from
and against any and all claims, demands, actions, causes of action, judgments,
liabilities, costs or expenses of any kind or nature whatsoever, in law,
equity or otherwise, whether presently known or unknown, suspected or
unsuspected, which have existed or which may have existed or which do exist or
which may arise from or relate to: (i) the purchase or sale of any
securities, including stock of ATC, REF or Xvariant, and any fundraising
activities related thereto; (ii) the resignation, replacement, election or
appointment of any officers or directors of REF or Xvariant; (iii) the
operations or business activities of REF or Xvariant or any of their officers,
directors, employees, agents, shareholders, members or affiliates from and
after the date of this Agreement; and (iv) the operations or business
activities of ATC, or any of their officers, directors, employees, agents,
shareholders, members or affiliates. The foregoing indemnification shall not
apply to (i) any statements or information made or created by ▇▇▇▇▇▇ and which
was included in written materials, including business plans and financial
projections, provided to ATC by REF and its principals, including ▇▇▇▇▇▇, or
(ii) any statements made by ▇▇▇▇▇▇ at any business presentation in Europe.
12. Upon execution of this Agreement and related agreements with
▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇, ATC shall pay $28,000 into REF to cover past
payroll and related taxes.
13. Other.
a. Notices. Any notice or other communication required or
permitted hereunder shall be in writing and shall be delivered personally,
telegraphed, telexed, sent by facsimile transmission or sent by certified,
registered or express mail, postage prepaid. Any such notice shall be deemed
given when so delivered personally, telegraphed, telexed or sent by
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facsimile transmission or, if mailed, five (5) days after the date of deposit
in the US mail, as follows:
i. If to REF or Xvariant:
c/o ▇▇▇▇ ▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, #▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
ii. If to ▇▇▇▇▇▇:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Any party may change its address for notice hereunder by notice to the
other parties hereto in writing.
b. Entire Agreement. This Agreement contains the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all prior agreements, written or oral, with respect thereto.
c. Waivers and Amendments. This Agreement may be amended,
modified, superceded canceled, renewed or extended, and the terms and
conditions hereof may be waived, only by a written instrument signed by the
parties or, in the case of a waiver, by the party waiving compliance. Not
delay on the part of any party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof, nor shall any waiver on the part
of any party of any right, power or privilege hereunder, nor any single or
partial exercise of any right, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, power or
privilege hereunder.
d. Governing Law. This Agreement shall be governed by and b e
construed in accordance with the internal laws of the State of Utah applicable
to agreements made and to be performed entirely with such state and any action
to enforce or interpret the provisions hereof shall be maintained only in
federal and/or state courts located in Utah, and the parties hereby consent to
jurisdiction and venue in such courts.
e. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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f. Attorney's fees. In the event there is a default under this
Agreement, the party in default shall pay all costs, expenses and attorney's
fees incurred by the other party in enforcing its rights hereunder.
g. Headings. The headings in this Agreement are for reference
purposes only and shall not in any way affect the meaning or interpretation of
this Agreement.
h. Severability. In the event any term of provision of this
Agreement is determined to be unenforceable by any court or tribunal during
the course of any action to enforce or interpret this Agreement, such term or
provision shall not invalidate or render unenforceable the remaining terms and
provisions of this Agreement, all of which shall remain in effect.
IN WITNESS WHEREOF, the parties have executed this Agreement effective as
of the date first above written.
XVARIANT, INC.,
a Nevada corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Its: President
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REAL ESTATE FEDERATION, INC.,
a Utah corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Its: President
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APPLIED TECHNOLOGY
CONSULTANTS, INC., a Nevada corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Its: President
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▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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