Final SEPARATION AGREEMENT AND RELEASE
Exhibit 10.3
Final
SEPARATION AGREEMENT AND
RELEASE
This
Separation Agreement and Release (the “Agreement”)
is entered into as of March 8, 2010 by and between ▇▇▇ ▇▇▇▇▇▇▇ (“▇▇.
▇▇▇▇▇▇▇”), and Helix Wind, Corp., a Nevada corporation (the “Company”). ▇▇.
▇▇▇▇▇▇▇ has resigned as Chief Executive Officer and a member of the Board of
Directors of the Company effective March 8, 2010 (“Employment
Termination Date”). This Agreement is entered into in
consideration of the commitments made by each party to the other, all of which
commitments are set forth in this Agreement.
1. The
Company and ▇▇. ▇▇▇▇▇▇▇ agree as follows:
(a) Cash
Payments. The Company acknowledges its outstanding debt
obligations to ▇▇. ▇▇▇▇▇▇▇ in the amount of $188,722 as follows: (i) $56,740 for
cash advances made by ▇▇. ▇▇▇▇▇▇▇ to the Company; (ii) $115,365 for a loan
extended by ▇▇. ▇▇▇▇▇▇▇ to the Company; and (iii) $16,667 in unpaid
vacation. The Company agrees to repay 50% of the $188,722 concurrent
with the execution of the Agreement, and repay the remaining 50% of the $188,722
upon the Company’s closing of an equity financing resulting in minimum gross
proceeds of $1,000,000.
(b) Convertible
Note. The Company acknowledges its outstanding debt
obligations to ▇▇. ▇▇▇▇▇▇▇ in the amount of $144,833 as follows: (i) $75,667 in
accrued compensation for 2008; (ii) $29,166 in accrued compensation for the time
period between August 2009 and February 2010; and (iii) $40,000 in accrued board
compensation. The Company agrees to repay the amount of
$144,833 pursuant to the terms of the Convertible Note (the “Convertible
Note”) in the form attached hereto as Exhibit
1(b), which shall be executed by the Company and ▇▇. ▇▇▇▇▇▇▇ concurrently
with the execution of this Agreement by the Company and ▇▇.
▇▇▇▇▇▇▇..
(c) Shares of Common
Stock. The Company shall issue ▇▇. ▇▇▇▇▇▇▇ 4,800,000
restricted shares of Company common stock concurrently with the execution of
this Agreement by the Company and ▇▇. ▇▇▇▇▇▇▇, which shall be subject to the
Lock-Up Agreement referenced in Section 7(a).
2. Pledged
Shares. ▇▇. ▇▇▇▇▇▇▇ acknowledges and agrees that as of the
Employment Termination Date he has relinquished all ownership interest in the
4,800,000 shares of Company Common Stock (including any and all proceeds from
the sale of such shares) which he pledged to St. ▇▇▇▇▇▇ Investments, LLC
pursuant to the terms of the Stock Pledge Agreement dated January 27, 2010
between ▇▇. ▇▇▇▇▇▇▇ and St. ▇▇▇▇▇▇ Investments, LLC.
3. Convertible
Note. ▇▇. ▇▇▇▇▇▇▇ and the Company acknowledge and agree that
the 9% Convertible Note in the principal amount of $72,768 dated February 11,
2009 (“9%
Convertible Note”) shall remain in effect pursuant to the terms of the 9%
Convertible Note..
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4. Warrant. ▇▇.
▇▇▇▇▇▇▇ and the Company acknowledge and agree that the Warrant dated February
11, 2009 (the “Warrant
Agreement”) to purchase up to 145,536 shares of Company Common Stock
shall remain in effect pursuant to the terms of the Warrant
Agreement.
5. Stock
Options. ▇▇. ▇▇▇▇▇▇▇ and the Company acknowledge and agree
that the Share Employee Stock Option Plan Notice of Grant of Incentive Stock
Option/Incentive Stock Option Agreement dated February 11, 2009 (the “Stock Option
Agreement”) to purchase up to 3,253,740 shares of Company Common Stock
shall remain in effect pursuant to the terms of the Stock Option Agreement and
the Company’s Share Employee Incentive Stock Option (“Stock Option
Plan”). As of the Employment Termination Date, 2,602,992
options under the Stock Option Agreement have vested at an exercise price of
$.55 per share, and the remaining 650,748 options under the Stock Option
Agreement shall be deemed to have expired as provided under Section 7(a) (ii) of
the Share Employee Stock Option Plan.
6. Facility
Lease. ▇▇. ▇▇▇▇▇▇▇ and the Company acknowledge and agree that
the Lease Agreement dated November 1, 2008 between BRER VENTURES, LLC and the
Company for the Company’s headquarters located at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the “Building”)
is amended as of the Employment Termination Date to provide that (i) the square
footage covered by the Lease Agreement shall be reduced to 1,666 square feet,
and the Company shall determine which section(s) it will now be leasing by March
5, 2010; (ii) the monthly rent shall be $2,500.00 effective as of the date that
Company has reduced its occupied space to 1,666 square feet, duly notified ▇▇.
▇▇▇▇▇▇▇ of such reduction, and ▇▇. ▇▇▇▇▇▇▇ shall have confirmed such reduction
within 1 business day; (iii) the term is converted to a month to month term, and
BRER VENTURES, LLC must provide the Company at least 45 days prior written
notice of termination; and (iv) ▇▇. ▇▇▇▇▇▇▇ shall not have access to the
Company’s offices from 8:00 a.m. to 5:00 p.m. Mondays through Fridays or on
Saturday or Sunday without first notifying the Company’s President by email,
telephone or text message that ▇▇. ▇▇▇▇▇▇▇ needs access to the building for
business reasons. In addition, Mr. and ▇▇▇. ▇▇▇▇▇▇▇ and their affiliates shall
not occupy the Building while the Company is leasing any portion of the
Building. All other terms of the current Lease Agreement between Company and
Brer Ventures, LLC shall remain in full force and effect.
7. Lock-Up Agreement; Status of
Shares.
(a) Lock-Up. ▇▇.
▇▇▇▇▇▇▇ acknowledges and agrees that all shares of Company Common Stock to be
received from the Company or any third party shall be subject to the Lock-Up
Agreement dated February 5, 2009 executed by ▇▇. ▇▇▇▇▇▇▇ in favor of the
Company, then called Clearview Acquisitions, Inc. (the “Lock-up
Agreement”), including, without limitation, the shares of Company Common
Stock to be received pursuant to Section 1(b), Section 1(c), Section 3, Section
4 and/or Section 5.
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(b) Restricted
Shares. ▇▇. ▇▇▇▇▇▇▇ acknowledges and agrees that all shares of
Common Stock to be received pursuant to Section 1(b), Section 1(c), Section 3,
Section 4 and/or Section 5 (i) are characterized as “restricted securities”
under the Securities Act of 1933 (as amended and together with the rules and
regulations promulgated thereunder, the “Securities
Act”) and that, under the Securities Act and applicable regulations
thereunder, such securities may not be resold, pledged or otherwise transferred
without registration under the Securities Act or an exemption therefrom; (ii)
are being offered in a transaction not involving any public offering in the
United States within the meaning of the Securities Act, and the shares of Common
Stock have not yet been registered under the Securities Act; and (iii) may be
offered, resold, pledged or otherwise transferred only in a transaction
registered under the Securities Act, or meeting the requirements of Rule 144, or
in accordance with another exemption from the registration requirements of the
Securities Act (and based upon an opinion of counsel if the Company so requests)
and in accordance with any applicable securities laws of any State of the United
States or any other applicable jurisdiction.
8. Voting of Company Shares;
Company Actions.
(a) Removal of ▇▇▇▇
▇▇▇▇▇▇▇. Concurrently with the execution of this Agreement by
the Company and ▇▇. ▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇▇ shall deliver to the Company the
resignation executed by ▇▇▇▇ ▇▇▇▇▇▇▇ providing for his resignation from the
Board of Directors of the Company as of March 8, 2010, in the form provided by
the Company to ▇▇▇▇ ▇▇▇▇▇▇▇.
(b) No Proxy
Contest. Until March 8, 2012, ▇▇. ▇▇▇▇▇▇▇ agrees not to vote
his shares in favor of any candidate for the Company’s Board of Directors which
is not nominated by Company management, and during this time period, not to
initiate, support in any manner, or directly or indirectly contest management’s
candidate(s) for the Company’s Board of Directors.
(c) No Bankruptcy or
Reorganization. On the condition that the Company meets its
obligations under this Agreement, ▇▇. ▇▇▇▇▇▇▇ agrees not to, directly or
indirectly, petition or apply to any tribunal for the appointment of any
receiver, liquidator, or trustee for the Company or for any substantial part of
the Company’s property or assets, or commence any proceedings under any
bankruptcy, reorganization, arrangement, readjustment of debt, receivership,
dissolution, or liquidation law or statute of any jurisdiction against or
involving the Company.
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9. ▇▇▇▇▇▇ Litigation.
▇▇. ▇▇▇▇▇▇▇ and the Company acknowledge that on or about July 10, 2009, ▇▇▇▇▇▇▇
▇▇▇▇▇▇ filed an action against the Company, ▇▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ in
the San Diego Superior Court, Central District, Case No. ▇▇-▇▇▇▇-▇▇▇▇▇▇▇▇
entitled ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ v.
Helix Wind, et al. alleging, inter alia, breach of the
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Employment Agreement, and on or about November 6, 2009, the
Company filed a cross-complaint alleging, inter alia, breach of the ▇▇▇▇▇▇▇
▇▇▇▇▇▇ Employment Agreement, naming ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ as
cross-defendant. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇’▇ Complaint and all amendments
thereto, and the Company’s related Cross-Complaint in Case No. ▇▇-▇▇▇▇-▇▇▇▇▇▇▇▇
entitled ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ v.
Helix Wind, et al. shall hereinafter be referred to collectively as the
“▇▇▇▇▇▇
Action”. ▇▇. ▇▇▇▇▇▇▇ and the Company agree to use their best
efforts to settle the ▇▇▇▇▇▇ Action resulting in a payment by the Company in an
amount no greater than $150,000. ▇▇. ▇▇▇▇▇▇▇ and the Company agree to
execute any and all required documents, including a settlement agreement in the
form substantially similar to that previously executed with ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ on or
about December 11, 2009, to settle the ▇▇▇▇▇▇ Action. The settlement
amounts paid by the Company shall be made in accordance with the terms of the
previously executed settlement agreement dated on or about December 11,
2009. In the event the ▇▇▇▇▇▇ Action cannot be settled, ▇▇. ▇▇▇▇▇▇▇
and the Company agree to cooperate in good faith with one another in defending
the ▇▇▇▇▇▇ Action, with each of ▇▇. ▇▇▇▇▇▇▇’▇ controlled entities, on the one
hand, and the Company on the other hand, bearing their own legal costs in
defending the ▇▇▇▇▇▇ Action. The Company agrees to bear the costs in defending
▇▇. ▇▇▇▇▇▇▇ personally as it relates to the claims in the ▇▇▇▇▇▇ Action against
the Company.
10. Termination of Employment
and Company Agreements; Fulfillment of Company
Obligations. ▇▇. ▇▇▇▇▇▇▇ acknowledges and agrees that
effective as of the Employment Termination Date, (i) his employment with the
Company shall be terminated; (ii) he has resigned all positions as an officer
(including as the Chief Executive Officer) and director of the Company; (iii)
his Employment Agreement dated June 1, 2008, as amended, (the “Employment
Agreement”) with the Company is terminated (except for the provisions
which survive as provided in Section 11); (iv) his Board of Directors Service
and Indemnification Agreement dated March 12, 2008 is terminated although no
rights to indemnification are released; and (v) any and all employment or board
services agreements are terminated. As of the Employment Termination
Date, ▇▇. ▇▇▇▇▇▇▇ shall no longer represent himself as an officer, director or
employee of the Company. Except as set forth in this Agreement, ▇▇.
▇▇▇▇▇▇▇ agrees the Company has already paid him any and all salary, other wages,
vacation pay and/or severance pay and expense reimbursement he is owed, and that
no such further payments or amounts are owed or will be owed.
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11. Confidentiality
Agreement. ▇▇. ▇▇▇▇▇▇▇ acknowledges and agrees to continue to
be bound by the confidentiality, proprietary rights, invention disclosure and
ownership, and non-solicitation provisions from his Employment Agreement which
are attached hereto as Exhibit 11
(the “Employee
Confidentiality Agreement”), and which shall continue in full force and
effect.
12. Release by ▇▇.
▇▇▇▇▇▇▇. Contingent upon the Company meeting its obligations
to ▇▇. ▇▇▇▇▇▇▇ under this Agreement, and except for any rights or claims created
by or contained in this Agreement, ▇▇. ▇▇▇▇▇▇▇, for himself and for each of the
▇▇▇▇▇▇▇ Owned Entities (as defined in Section 20) and his representatives,
heirs, successors and assigns, does hereby release, acquit and forever discharge
the Company and its past, present and future employees, agents, officers,
directors, shareholders, partners, heirs, executors, administrators, insurers,
successors and assigns (all hereinafter “Releasees”),
from and against any and all claims, rights, demands, actions, obligations,
liabilities and causes of action, whether asserted or unasserted, of any and
every kind, nature and character whatsoever, known or unknown, that he may now
have or has ever had against Releasees, or any of them, including but not
limited to those arising from or in any way connected with or related
to:
(a) the
employment of ▇▇. ▇▇▇▇▇▇▇ by Releasees, or any of them, the termination of that
employment, the lack of such employment, or any claims of discrimination or
retaliation, including but not limited to any claims arising under the Civil
Rights Act of 1964, California’s Fair Employment and Housing Act, and any claims
of discrimination arising under any federal, state or local law;
and
(b) all
acts or omissions of Releasees, or any of them, whatsoever occurring before the
Effective Date of this Agreement (as defined in Section 29 below), except for
(i) any acts or omissions that would constitute a breach of Company’s
obligations under this Agreement, or (ii) any acts of fraud or intentional
misconduct or violations of law.
13. Release by the
Company. Contingent upon ▇▇. ▇▇▇▇▇▇▇ meeting
his obligations to the Company under this Agreement, and except for
any rights or claims created by or contained in this Agreement, the Company, for
itself and for each of its representatives, successors and assigns, does hereby
release, acquit and forever discharge ▇▇. ▇▇▇▇▇▇▇ and each of the ▇▇▇▇▇▇▇ owned
entities from and against any and all claims, rights, demands, actions,
obligations, liabilities and causes of action, whether asserted or unasserted,
of any and every kind, nature and character whatsoever, known or unknown, that
it may now have or has ever had against ▇▇. ▇▇▇▇▇▇▇, including but not limited
to those arising from or in any way connected with or related to:
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(a) the
employment of ▇▇. ▇▇▇▇▇▇▇ by Releasees, or any of them, the termination of that
employment, the lack of such employment, or any claims of discrimination,
harassment or retaliation, including but not limited to any claims arising under
the California Fair Employment and Housing Act, Title VII of the Civil Rights
Act of 1964, and the Americans with Disabilities Act, and any claims arising
under any federal, state or local law; and
(b) all
acts or omissions of ▇▇. ▇▇▇▇▇▇▇, whatsoever, occurring before the Effective
Date of this Agreement, except for (i) any acts or omissions that would
constitute a breach of ▇▇. ▇▇▇▇▇▇▇’▇ obligations under this Agreement or the
Employee Confidentiality Agreement, or (ii) any acts of fraud or intentional
misconduct or violations of law.
14. Section 1542
Waiver. ▇▇. ▇▇▇▇▇▇▇ and the Company understand and agree that
this Agreement is a full and final release covering all known and unknown and
unanticipated injuries, debts, claims or damages to him or it that have arisen
or may have arisen from any matters, acts, omissions or dealings released in
Sections 12 and 13 above. Therefore, as to these matters released
above, ▇▇. ▇▇▇▇▇▇▇ and the Company hereby expressly waive and relinquish any and
all rights or benefits that he or it may now have, or in the future may have
under the terms of Section 1542 of the California Civil Code and any similar law
of any state or territory of the United States. Said section provides
as follows:
“A
general release does not extend to claims which the creditor does not know or
suspect to exist in his or her favor at the time of executing the release, which
if known by him or her must have materially affected his or her settlement with
the debtor.”
▇▇.
▇▇▇▇▇▇▇ and the Company acknowledge that he and it are aware that he or it may
hereafter discover facts in addition to, or different from, those which he or it
now knows or believes to be true, but it is his and its intention hereby, fully
and finally and forever, to settle and to release any and all matters, disputes
and differences, known or unknown, suspected or unsuspected, that do now exist,
may exist or heretofore have existed with respect to those matters described in
Sections 12 and 13.
15. No
Filings. ▇▇. ▇▇▇▇▇▇▇ warrants and represents that he has not
filed any claim, charge, action or complaint concerning any matter referred to
in this Agreement. ▇▇. ▇▇▇▇▇▇▇ further agrees neither to file nor to
encourage another to file any claims, charges, actions or complaints for damages
concerning any matter referred to in this Agreement, except as otherwise
provided by law.
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16. Non-Disparagement of the
Company and Parties; No Contact. ▇▇. ▇▇▇▇▇▇▇ agrees not to engage in any
form of conduct or make any statements or representations that disparage,
criticize or otherwise be critical, or otherwise impair the reputation, goodwill
or commercial interests, of the Company, or its past, present and future
subsidiaries, divisions, affiliates, successors, officers, directors, attorneys,
agents and employees. The Company agrees that neither it nor any of its Senior
Executives shall engage in any form of conduct or make any statements or
representations that disparage, portray in a negative light, or otherwise
impairs the reputation of ▇▇. ▇▇▇▇▇▇▇. "Senior
Executives" include ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇. The Company shall
provide ▇▇. ▇▇▇▇▇▇▇ with a reasonable opportunity to review in advance any press
release or Form 8-K filing by the Company that refers to ▇▇.
▇▇▇▇▇▇▇. ▇▇. ▇▇▇▇▇▇▇ also agrees not to contact any customer,
supplier, vendor, banker, investment banker, investor or shareholder of the
Company for the purposes of discussing the Company, the Senior Executives or any
Company business.
17. Company Property; Company
Intellectual Property.
(a) ▇▇.
▇▇▇▇▇▇▇ acknowledges and agrees (i) all Company assets (as listed on the
Company’s balance sheet) are owned solely by the Company and ▇▇. ▇▇▇▇▇▇▇ does
not have any ownership claim in such assets; and (ii) all Company intellectual
property, including, without limitation, all trade secrets, patents, patent
applications, concepts, designs, diagrams, manuals, trademarks, copyrights,
websites, drawings, related to the Company or its business and assets are owned
solely by the Company, and ▇▇. ▇▇▇▇▇▇▇ does not have any ownership claim in such
assets.
(b) Whenever
requested by the Company, and at Company’s cost and expense, ▇▇. ▇▇▇▇▇▇▇ shall
testify in all legal proceedings, sign all lawful papers and otherwise perform
all acts necessary or appropriate to enable the Company and its successors and
assigns to obtain and enforce legal protections for all such Company
intellectual property in all countries.
(c) The
Company hereby assigns to ▇▇. ▇▇▇▇▇▇▇ the following Company property: MAC
computer and associated peripherals (keyboard, mouse, hard drives after removal
of Company data, ScanSnap scanner and laptop stand), 2 monitors and cell phone
and headset. The Company shall not be obligated to maintain ▇▇.
▇▇▇▇▇▇▇’▇ cell phone service after the effective date (“Employment
Termination Date”), and shall not be obligated to pay any past due
amounts outstanding as of the effective date (“Employment
Termination Date”).
(d) ▇▇.
▇▇▇▇▇▇▇ shall return to the Company on the Employment Termination Date all
Company property in his possession other than as described in subsection (c)
above. As of the Employment Termination Date, ▇▇. ▇▇▇▇▇▇▇’▇ access to
the Company’s computer system, e-mail server and voice mail shall be
terminated.
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18. Representation; No
Admission. This settlement was either negotiated for ▇▇.
▇▇▇▇▇▇▇ by a legal representative of his own choosing or he, after having had a
reasonable opportunity to obtain a legal representative of his own choosing,
elected to represent himself in such negotiations. Both the Company
and ▇▇. ▇▇▇▇▇▇▇ are voluntarily agreeing to this compromise
agreement. Except as expressly set forth herein, nothing in this
Agreement shall constitute an admission of any liability or
obligation.
19. Confidentiality. ▇▇.
▇▇▇▇▇▇▇ and the Company agree that he and it will neither disclose nor
voluntarily allow anyone else to disclose either the fact of, the reasons for,
or the provisions of this Agreement without the prior written consent of the
other party, unless required to do so by law, provided, that ▇▇. ▇▇▇▇▇▇▇ and the
Company nonetheless may disclose this Agreement and its provisions to his or its
attorney, accountants and any taxing authority, and either party may disclose
this Agreement in connection with any legal proceeding relating
thereto. ▇▇. ▇▇▇▇▇▇▇ acknowledges that the Company is required to
publicly disclose the resignation of ▇▇. ▇▇▇▇▇▇▇ and the terms of this
Agreement.
20. Entire Agreement; Certain
Definitions. ▇▇. ▇▇▇▇▇▇▇ and the Company expressly state that
each has read this Agreement and understands all of its terms, that the
preceding paragraphs recite the sole consideration for this Agreement , and that
this Agreement constitutes the entire agreement with respect to any matters
referred to in it. This Agreement supersedes any and all other
agreements between ▇▇. ▇▇▇▇▇▇▇ and the Company except for the Employee
Confidentiality Agreement, the Convertible Note, the 9% Convertible Note, the
Warrant Agreement, the Stock Option Plan and the Lock-Up Agreement, each of
which shall remain in full force and effect. This Agreement may only
be amended in writing signed by ▇▇. ▇▇▇▇▇▇▇ and the President of the Company,
and it is executed voluntarily and with full knowledge of its
significance. As used throughout in this Agreement, (i) “Company”
shall include any and all subsidiaries of the Company, and (ii) “▇▇. ▇▇▇▇▇▇▇”
shall include Hyperion Business Services, LLC, BRER VENTURES, LLC, the Fidelis
Charitable Remainder Trust, and all trusts and entities directly or indirectly
owned or controlled by ▇▇. ▇▇▇▇▇▇▇ (collectively, the “▇▇▇▇▇▇▇ Owned
Entities”). ▇▇. ▇▇▇▇▇▇▇ represents and warrants to the Company
that Hyperion Business Services, LLC and BRER VENTURES, LLC are 100% owned and
controlled by ▇▇. ▇▇▇▇▇▇▇ and his brother, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇. All
references to “days” in this Agreement shall be calendar days.
21. Governing
Law. This Agreement will be interpreted pursuant to the laws
of the State of California.
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22. No
Solicitation. ▇▇. ▇▇▇▇▇▇▇ shall not at any time within the one
(1) year period (the “Restricted
Period”) immediately following the Employment Termination Date, directly
or indirectly, in any territory in the United States or any foreign country in
which the Company, or any subsidiary of the Company, (collectively, the "Company
Entities") are doing business, or have actually investigated doing
business, or where their products are sold as of the date hereof: with the
exception of Mr. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ III, attempt to hire any person who is employed
by the Company Entities, assist in the hiring by any other entity or person of
any person who is at the time employed by the Company Entities or encourage any
such employee to terminate his or her relationship with the Company
Entities.
23. Indemnification. Nothing
in this Agreement shall be deemed to be a limitation or waiver of the Company’s
rights or obligations to indemnify ▇▇. ▇▇▇▇▇▇▇ after the Employment Termination
Date under the Bylaws or Certificate of Incorporation of the Company, or
applicable state law.
24. Severability;
Non-Waiver. In the event that any of the terms, conditions or
provisions of this Agreement are held to be illegal, unenforceable or invalid by
any court of competent jurisdiction, the remaining terms, conditions or
provisions hereof shall remain in full force and effect. The failure
or delay of either party to enforce at any time any provision of this Agreement
shall not constitute a waiver of such party’s right thereafter to enforce each
and every provision of this Agreement.
25. Counterparts. This
Agreement may be executed in any number of counterparts and delivered by
facsimile transmission, all of which taken together shall constitute a single
instrument.
26. Authority;
Capacity. Each party to this Agreement hereby represents
and warrants to the other party that (i) the execution, performance and delivery
of this Agreement has been authorized by all necessary corporate action by such
party; (ii) the representative executing this Agreement on behalf of such party
has been granted all necessary corporate power and authority to act on behalf of
such party with respect to the execution, performance and delivery of this
Agreement; and (iii) the representative executing this Agreement on behalf of
such party is of legal age and capacity to enter into agreements which are fully
binding and enforceable against such party.
27. Injunctive
Relief. ▇▇. ▇▇▇▇▇▇▇ agrees that any breach of Sections 2, 8,
9, 10, 11 (including the Employee Confidentiality Agreement), 16, 17, 19 or 22
of this Agreement will cause irreparable injury to the Company for which it
would have no adequate remedy at law. Accordingly, the Company shall
be entitled to immediate injunctive relief prohibiting any breach of those
sections of this Agreement.
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28. Attorneys' Fees and
Costs. In the event either party shall bring any action to
enforce or protect any of its rights under this Agreement, the prevailing party
shall be entitled to recover, in addition to his or its damages, his or its
reasonable attorneys' fees and costs incurred in connection
therewith.
29.
Effective
Date. This Agreement shall be effective once it is signed by
all Parties (the "Effective
Date").
30. CIRCULAR 230
DISCLAIMER. EACH PARTY TO THIS AGREEMENT (FOR PURPOSES OF THIS
SECTION, THE "ACKNOWLEDGING PARTY"; AND EACH PARTY TO THIS AGREEMENT OTHER THAN
THE ACKNOWLEDGING PARTY, AN "OTHER PARTY") ACKNOWLEDGES AND AGREES THAT
(1) NO PROVISION OF THIS AGREEMENT, AND NO WRITTEN COMMUNICATION OR
DISCLOSURE BETWEEN OR AMONG THE PARTIES OR THEIR ATTORNEYS AND OTHER ADVISERS,
IS OR WAS INTENDED TO BE, NOR SHALL ANY SUCH COMMUNICATION OR DISCLOSURE
CONSTITUTE OR BE CONSTRUED OR BE RELIED UPON AS, TAX ADVICE WITHIN THE MEANING
OF UNITED STATES TREASURY DEPARTMENT CIRCULAR 230 (31 CFR PART 10, AS AMENDED);
(2) THE ACKNOWLEDGING PARTY (A) HAS RELIED EXCLUSIVELY UPON HIS OR ITS
OWN, INDEPENDENT LEGAL AND TAX ADVISERS FOR ADVICE (INCLUDING TAX ADVICE) IN
CONNECTION WITH THIS AGREEMENT, (B) HAS NOT ENTERED INTO THIS AGREEMENT
BASED UPON THE RECOMMENDATION OF ANY OTHER PARTY OR ANY ATTORNEY OR ADVISOR TO
ANY OTHER PARTY, AND (C) IS NOT ENTITLED TO RELY UPON ANY COMMUNICATION OR
DISCLOSURE BY ANY ATTORNEY OR ADVISER TO ANY OTHER PARTY TO AVOID ANY TAX
PENALTY THAT MAY BE IMPOSED ON THE ACKNOWLEDGING PARTY; AND (3) NO ATTORNEY
OR ADVISER TO ANY OTHER PARTY HAS IMPOSED ANY LIMITATION THAT PROTECTS THE
CONFIDENTIALITY OF ANY SUCH ATTORNEY'S OR ADVISER'S TAX STRATEGIES (REGARDLESS
OF
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WHETHER
SUCH LIMITATION IS LEGALLY BINDING) UPON DISCLOSURE BY THE ACKNOWLEDGING PARTY
OF THE TAX TREATMENT OR TAX STRUCTURE OF ANY TRANSACTION, INCLUDING ANY
TRANSACTION CONTEMPLATED BY THIS AGREEMENT.
I have
read this Separation Agreement and Release and I accept and agree to the
provisions contained in this Agreement and hereby execute it voluntarily and
with full understanding of its consequences.
|
/s/ ▇▇▇
▇▇▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇, individually and on behalf of
all ▇▇▇▇▇▇▇ Owned Entities
/s/ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, as Co-Member of Hyperion Business Services, LLC and BRER
VENTURES, LLC, solely as this Agreement and Release relates to those
entities
|
|
|
By: /s/ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title:
President
|
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