EXHIBIT 99.3
SEPARATION AND SEVERANCE AGREEMENT
This Separation and Severance Agreement ("Agreement") is made and
entered into by and between EVOLVE ONE, INC., a Delaware corporation (the
"Company"), and ▇▇▇▇▇▇▇ ▇▇▇▇▇, an individual ("Tabin") as of the 26th day of
January 2005.
RECITALS
▇. ▇▇▇▇▇ has been employed by the Company as a key employee and served
on the Company's Board of Directors.
B Tabin and the Company entered into an Employment Agreement on January
3, 2002 (the "Employment Agreement").
C. After lengthy discussions among the parties concerning the
operations, management structure and future of the Company, the parties desire
to terminate their relationship and reorganize the structure of the Company on
an amicable basis pursuant to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual promises, undertakings
and releases, receipt of which is hereby acknowledged as sufficient
consideration by both parties, the parties agree as follows:
1. RECITALS. The above recitals are true, correct, and are herein
incorporated by reference.
2. RESIGNATION OF EMPLOYMENT. Tabin hereby resigns as a key employee
and Director and from any and all other offices or positions he may have had
with the Company or any of its subsidiaries, to be effective on the Termination
Date, as defined herein
Tabin acknowledges that he has timely received all wages, benefits or
other monies due through the date of this Agreement under the Employment
Agreement or otherwise from the Company.
3. TERMINATION. The Employment Agreement is permanently terminated
effective on the Termination Date. Except as otherwise provided for herein in
this Agreement, no provision of the Employment Agreement shall survive the
termination of Tabin's employment with the Company.
4. SEVERANCE AND BENEFITS. Subject to the conditions set forth herein,
the Company and Tabin agree to the following.
(a) The Company shall issue Tabin options to purchase up to 10
million shares ("Shares"), exercisable at $0.30 per share at the time the
Company amends its Stock Option Plan to increase the number of shares covered by
the Plan to allow issuance of the 10 million options. The Shares shall be
registered under an effective registration statement on Form S-8 ("Registration
Statement"). To discharge its obligation under this paragraph, the Company
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shall file the Registration Statement at its sole cost and expense to include
Tabin as a selling shareholder. Tabin acknowledges and understands that the
aggregate amount of shares sold under the Registration Statement during any
three-month period while he remains an affiliate cannot exceed an amount equal
to 1% of the Company's issued and outstanding shares of common stock.
(b) For a period of three (3) years following the Termination
Date of this Agreement, Tabin shall not (i) without first obtaining the written
consent of the Company, directly or indirectly, do business with any of the past
or current customers of the Company for purposes of engaging in any competitive
operations, or (ii) directly or indirectly, solicit or proposition, or otherwise
attempt to induce any of the customers of the Company to terminate their
relationships with the Company.
(c) The Company agrees that if Tabin is made a party, is
threatened to be made a party, to any action, suit or proceeding, whether civil,
criminal, administrative, or investigative (a "Proceeding"), by reason of the
fact that Tabin is or was a director, officer, or employee of the Company, or is
or was serving at the request of the Company as a director, officer, member,
employee, or agent of another corporation, partnership, joint venture, trust, or
other enterprise, including service with respect to employee benefit plans,
whether or not the basis of such Proceeding is Tabin's alleged action in an
official capacity while serving as a director, officer, member, employee, or
agent, Tabin shall be indemnified and held harmless by the Company to the
fullest extent legally permitted or authorized by the Company's Articles of
Incorporation, Bylaws, or resolutions of the Board of the Company, or, if
greater, by the laws of the State of Florida, against all cost, expense,
liability, and loss (including, without limitation, attorney's fees, judgments,
fines or other liabilities or penalties and amounts paid or to be paid in
settlement) reasonably incurred or suffered by Tabin in connection therewith,
and such indemnification shall continue as to Tabin even if he has ceased to be
a director, member, employee, or agent of the Company or other entity and shall
inure to the benefit of Tabin's heirs, executors, and administrators. The
Company shall also advance to Tabin all reasonable costs and expenses incurred
by Tabin in connection with a Proceeding within forty (40) days after receipt by
the Company of a written request for such advance. Such request shall include a
written undertaking by Tabin to repay the amount of such advance if it shall
ultimately be determined that Tabin is not entitled to be indemnified against
such costs and expenses; provided that the amount of such obligation to repay
shall be limited to the after-tax amount of any such advance except to the
extent Tabin is able to offset such taxes incurred on the advance by the tax
benefit, if any, attributable to a deduction for repayment.
(d) Tabin acknowledges that, in consideration of the terms of
this Agreement, the Company is not obligated to pay him any severance pay under
the terms of the Employment Agreement or otherwise, and agrees that the amounts
set forth above are all that Tabin is to receive from the Company. Such
severance pay is in full and complete satisfaction of all of the Company's
obligations to Tabin, including, without limitation, all salary, commissions,
stock options and stock not heretofore issued or granted, car allowances,
vacation pay or other compensation of any kind. Tabin agrees that this severance
payment constitutes consideration for the covenants and releases of Tabin as set
forth herein.
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(e) The Company agrees to pay to Tabin upon execution hereof
$6,144, representing an amount equal to COBRA charges for the ensuing six-month
period.
5. TERMINATION DATE AND CONDITION TO AGREEMENT. The effective date of
the resignation of Tabin and termination of the Employment Agreement shall be
January 26, 2005 ("Termination Date").
6 RETURN OF PROPERTY. As a condition to the terms of this Agreement,
Tabin shall return to the Company, in good condition, all property,
documentation and materials or property to the Company in Tabin's possession.
7. NON-DISPARAGEMENT. The Company and Tabin further agree that they
shall not make any disparaging, denigrating or untrue statements about the
parties or about any other employee of the Company. It is agreed and understood
that any breach of this paragraph by Tabin or the Company would be material to
the other.
8. GENERAL RELEASES AND VOLUNTARY WAIVER OF RIGHTS.
(a) Except for the obligations created by or arising out of
this Agreement, effective on the Termination Date, Tabin and Tabin's
descendants, heirs, successors and assigns, and each of them, do hereby release,
acquit, satisfy and forever discharge and covenant not to ▇▇▇ the Company, its
agents, servants, employees and all persons for whose conduct it is legally
responsible, including, but not limited to, its officers, directors, attorneys,
insurers, stockholders, parent, subsidiary, affiliated or related entities and
their respective successors and assigns, and each of them, past or present, from
any and all manner of action, causes of action, rights, liens, agreements,
contracts, covenants, obligations, suits, claims, debts, dues, sums of monies,
costs, expenses, attorneys' fees, judgments, orders and liabilities, accounts,
covenants, controversies, promises, damages, of whatever kind and nature in law
or equity or otherwise whether now known or unknown, including specifically but
not limited to, any and all claims arising out of such employment relationship
which Tabin ever had (including claims not yet accrued) against the Company, its
agents, servants, employees and persons for whom it is legally responsible, for
and upon any reason arising out of the employment relationship Tabin had with
the Company and the transactions and relationships described herein. Tabin
specifically acknowledges that he has been advised that he should consult with
an attorney concerning his rights and the signing of this Release.
(b) Except for the obligations created by or arising out of
this Agreement, effective on the Termination Date, the Company, and the
Company's successors and assigns, and each of them, does hereby release, acquit,
satisfy and forever discharge and covenant not to ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇'▇
descendants, heirs, successors and assigns, and each of them, past or present,
from any and all manner of action, causes of action, rights, liens, agreements,
contracts, covenants, obligations, suits, claims, debts, dues, sums of monies,
costs, expenses, attorneys' fees, judgments, orders and liabilities, accounts,
covenants, controversies, promises, damages, of whatever kind and nature in law
or equity or otherwise whether now known or unknown, including specifically but
not limited to, any and all claims arising out of such employment
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relationship which the Company against Tabin, for and upon any reason arising
out of the employment relationship with Tabin and the transactions and
relationships described herein.
9. NON-ADMISSIONS. The Company and Tabin agree that neither this
Agreement nor the consideration given shall be construed as an admission of any
wrongdoing or liability by the Company or Tabin, and that all such liability or
wrongdoing is expressly denied.
10. ANTI-COERCION. Each of the Parties hereto has entered into this
Agreement without undue influence, fraud, coercion, duress, misrepresentation,
or restraint having been imposed upon them by any other party, and further
acknowledges that each party had the opportunity to be represented by counsel of
their own selection.
11. INTERPRETATION OF RELEASE. That this Agreement shall be construed
in any case which doubt may arise in such a manner as will make it lawful and
fully enforceable, and in the event that any part hereof shall be deemed
unenforceable or illegal, then it is the intention of the Parties hereto that
such part be severed and only the remainder be in force. That for the purposes
of interpretation and construction of this Agreement, this Agreement shall be
deemed to have been drafted by the Company and by Tabin.
12. NOTICES. Any notice required or permitted to be given under the
terms of this Agreement shall be sufficient if in writing and if sent postage
prepaid by registered or certified mail, return receipt requested; by overnight
delivery; by courier; or by confirmed telecopy, in the case of Tabin to the
business or residence as shown on the records of the Company, or in the case of
the Company to its principal office or at such other place as it may designate.
13. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the Parties and shall not be modified, altered, or discharged, except by
a writing signed by each of the Parties hereto.
14. GOVERNING LAW, JURISDICTION AND VENUE. This Agreement shall be
governed by the laws of the State of Florida. The Parties acknowledge that this
Agreement contains provisions, which are enforceable in the State of Florida,
and all Parties consent to the personal jurisdiction of the State of Florida.
The Company and Employee acknowledge and agree that the U.S. District for the
Southern District of Florida, or if such court lacks jurisdiction, the Judicial
Circuit (or its successor) in and for Palm Beach County, Florida, shall be the
venue and exclusive proper forum in which to adjudicate any case or controversy
arising either, directly or indirectly, under or in connection with this
Agreement and the parties further agree that, in the event of litigation arising
out of or in connection with this Agreement in these courts, they will not
contest or challenge the jurisdiction or venue of these courts.
15. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same Agreement.
16. WAIVER OF BREACH - EFFECT. No waiver or any breach of any term or
provision of this Agreement shall be construed to be, nor shall be, a waiver of
any other breach of this
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Agreement. No waiver shall be binding unless in writing and signed by the Party
waiving the breach.
17. FULL UNDERSTANDING AND VOLUNTARY ACCEPTANCE. In entering into this
Agreement, the Parties represent that they have relied upon the advice of their
attorneys or have chosen to enter into this Agreement without the assistance of
counsel based upon their understanding of the terms hereof. The terms of this
Agreement have been completely read and explained to them by there attorneys
and/or they have reviewed the terms hereof in complete detail and that the terms
are fully understood and voluntarily accepted by them. The Parties understand
and agreement that ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ & Beilly LLP is counsel to the Company
and is not counsel, and has not rendered advice, to Tabin.
18. ATTORNEYS' FEES. In the event of proceeding arising out of the
construction, enforcement, and/or interpretation of this Agreement, the
prevailing party shall be entitled to reasonable attorneys' fees and costs, both
on the trial and appellate level.
19. HEADINGS. The headings in this Agreement are for convenience only
and shall not be used to interpret or construe its provisions.
TABIN ACKNOWLEDGES THAT TABIN HAS READ THIS AGREEMENT, THAT TABIN HAS
BEEN GIVEN AMPLE OPPORTUNITY TO REVIEW IT AND TO CONSULT WITH A REPRESENTATIVE
OR ATTORNEY OF TABIN'S CHOOSING CONCERNING ITS TERMS. TABIN FURTHER ACKNOWLEDGES
THAT TABIN UNDERSTANDS THE TERMS AND CONDITIONS OF THIS AGREEMENT AND IS
VOLUNTARILY ENTERING INTO IT WITH THE COMPANY.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
EVOLVE ONE, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇, President
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇
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