EXHIBIT 10(M)
CONSULTING AND SETTLEMENT AGREEMENT
The parties to this Agreement are Communications World International, Inc.,
a Colorado corporation ("CWII") and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ("▇▇▇▇▇"). This document
describes the agreements of CWII and ▇▇▇▇▇ concerning ▇▇▇▇▇'▇ resignations from
his positions with CWII and its subsidiaries (the "CWII Companies") and CWII's
retention of ▇▇▇▇▇ as a consultant. This Agreement and the payments and other
arrangements described below, give valuable consideration to both CWII and
▇▇▇▇▇ .
1. Termination of Relationships: Effective June 30, 1998, ▇▇▇▇▇ has
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resigned his positions as an officer and director of the CWII Companies.
2. Consulting. ▇▇▇▇▇ will serve as a consultant to CWII for a period of
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six months, beginning on July 1, 1998 (the "Consulting Period"). During the
Consulting Period, ▇▇▇▇▇ will be available to assist CWII management and consult
with CWII management as reasonably requested by CWII management. During this
Consulting Period, ▇▇▇▇▇ will receive the same salary that he received
immediately prior to his resignations of the positions set forth in Section 1
above, namely $102,000 per year. Accordingly, ▇▇▇▇▇ will receive payments during
the Consulting Period aggregating $51,000, which shall be payable in twelve
equal installments of $4,250. During the Consulting Period, CWII will provide
▇▇▇▇▇ with an automobile allowance of $600 per month. All installment payments
during the Consulting Period shall be made in accordance with CWII's regular
payroll procedures until paid in full. In addition, ▇▇▇▇▇ will be paid $87,132
on January 4, 1999 as severance, which includes all accrued wages, vacations,
sick time and personal time off. All payments shall include deductions for
standard withholding and authorized deductions. ▇▇▇▇▇ agrees that he shall be
exclusively responsible for payment of all individual taxes owed by him to any
governmental agency as a result of any of the provisions of this Agreement.
▇▇▇▇▇ agrees that, subsequent to June 30, 1998 (the effective date of his
resignation), CWII will make no further contribution in respect of him to any
benefit plans maintained by or for CWII or any of its subsidiaries, including
contributions to CWII's 401(k) Plan.
3. Release by ▇▇▇▇▇: ▇▇▇▇▇ releases and waives all claims for loss,
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damage or injury arising from or in any way relating to the following
("Claims"):
(a) the employment of ▇▇▇▇▇ with CWII, including his positions as an
officer and member of the Board of Directors of the CWII Companies, and his
resignation from employment and his positions with the CWII Companies;
(b) discrimination on the basis of age, sex, race, religion, national
origin or another basis, including claims under the Age Discrimination in
Employment Act;
(c) other violations of federal, state or local statutes, ordinances,
regulations, rules, decisions or laws;
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(d) failure of the CWII Companies to act in good faith and deal
fairly;
(e) injuries, illness or disabilities of ▇▇▇▇▇;
(f) exposure of ▇▇▇▇▇ to toxic or hazardous materials;
(g) stress, anxiety or mental anguish;
(h) sexual harassment;
(i) defamation based on statements to ▇▇▇▇▇ or others;
(j) breach of an express or implied employment contract, change in
control contract or other agreement, except for breach of this Agreement;
(k) compensation or reimbursement of ▇▇▇▇▇;
(l) unfair employment practices; and
(m) any act or omission by or on behalf of any of the CWII Companies.
4. Claims Included: The Claims released and waived by ▇▇▇▇▇ include
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claims:
(a) arising before the date of this Agreement;
(b) arising on or after the date of this Agreement that relate to
▇▇▇▇▇'▇ employment by CWII;
(c) that are presently known, suspected, unknown or unsuspected by
▇▇▇▇▇;
(d) for reinstatement or future employment;
(e) for actual, consequential, punitive or special damages;
(f) for attorney's fees, costs, experts' fees and other expenses of
investigating, litigating or settling Claims, except as provided in this
Agreement; and
(g) against any of the CWII Companies and their respective affiliates,
employees, officers, directors, attorneys, contractors and agents, including
without limitation all financial advisors, including Bathgate ▇▇▇▇▇▇▇▇ Capital
Group LLC and Century Capital Group, Inc. and their respective affiliates.
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5. Claims Excluded: ▇▇▇▇▇ does not release or waive ▇▇▇▇▇'▇ right to
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recover under health, life or disability policies insuring ▇▇▇▇▇, and does not
release or waive Claims for breach of this Agreement or for worker's
compensation benefits. CWII will continue to include ▇▇▇▇▇ as a participant in
its medical insurance program and to pay the standard premiums during the
Consulting Period. Thereafter, ▇▇▇▇▇ will continue as a participant in CWII's
medical insurance program under the provisions generally known as COBRA until
other notice is provided by ▇▇▇▇▇ to CWII.
6. Agreement Not To ▇▇▇ of CWII: ▇▇▇▇▇ waives any right to file suit for
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any Claim. ▇▇▇▇▇ will not ▇▇▇ any of the CWII Companies for any Claim. ▇▇▇▇▇
will not initiate or proceed with any other action or proceeding against any of
the CWII Companies that relates to something that could give rise to a Claim.
7. Agreement Not To ▇▇▇ of CWII: CWII waives any right to file suit for
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any Claim. CWII will not ▇▇▇ ▇▇▇▇▇ for any Claim. CWII will not initiate or
proceed with any other action or proceeding against ▇▇▇▇▇ that relates to
something that could give rise to a Claim. CWII does not waive Claims for
breach of this Agreement.
8. Termination of Relationships: ▇▇▇▇▇ and CWII acknowledge that any
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employment or contractual relationship between them will be terminated and that
they will have no further employment or contractual relationship except as may
arise out of this Agreement.
9. No CWII Admission: CWII does not admit any wrongdoing or liability.
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CWII has executed this Agreement solely to avoid the expense of potential
litigation. The payments and other arrangements described above compromise and
settle any Claims of ▇▇▇▇▇.
10. Revocability: Either ▇▇▇▇▇ or CWII may revoke this Agreement in its
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entirety during the seven days following execution of the Agreement by ▇▇▇▇▇.
Any revocation of the Agreement must be in writing and hand-delivered during the
revocation period. This Agreement will become enforceable seven days following
execution by ▇▇▇▇▇, unless it is revoked during the seven-day period.
11. Confidences: ▇▇▇▇▇ will maintain the confidentiality of all of the
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CWII Companies' trade secrets, proprietary information, insider information,
security procedures and other confidences that came into ▇▇▇▇▇'▇ possession or
knowledge during employment by CWII. ▇▇▇▇▇ will not use such information
concerning the CWII Companies' business prospects or practices to profit ▇▇▇▇▇
or others.
12. Property: Upon the effective date of his resignation, ▇▇▇▇▇ will
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promptly return any other property pertaining to his work with CWII, including
keys and credit cards, without request or demand by CWII.
13. Stock Options and Warrants. Effective as of August 12, 1997, CWII
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adopted its
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1997 Stock Option Plan (the "Plan") for the benefit of CWII's employees,
directors and consultants. In the Plan, CWII granted ▇▇▇▇▇ options to purchase,
under certain conditions, up to 100,000 shares of CWII's common stock at an
exercise price of $1.30 per share. Among other conditions, the option grants to
▇▇▇▇▇ and other persons are subject to approval of the Plan by CWII's
shareholders. A date has not been set for a meeting of CWII's shareholders to
consider the Plan.
▇▇▇▇▇ and CWII agree that the grant to ▇▇▇▇▇ of options to purchase up to
100,000 shares of CWII's common stock pursuant to the Plan is cancelled and
that, except as described below, ▇▇▇▇▇ has no ownership of, or rights to, any
options, warrants or similar instruments relating to the acquisition by him of
shares of the capital stock of the CWII.
Concurrent with the execution of this Agreement, CWII will issue a Warrant
to ▇▇▇▇▇ entitling ▇▇▇▇▇ to purchase up to 100,000 shares of CWII's common stock
at an exercise price of $1.30 per share. The exercise rights will vest
immediately and will not be subject to any future authorization by the Board of
Directors or shareholders of CWII. However, the Warrant may not be exercised by
▇▇▇▇▇ unless and until the shareholders of CWII approve an increase in the
authorized common stock of CWII such that 100,000 shares of authorized, but
unissued shares of CWII's common stock will be available upon exercise of the
Warrant by ▇▇▇▇▇. CWII can give no assurance that this will be accomplished or
that, if accomplished, it will be accomplished in a timely manner. The Warrant
will expire on August 11, 2001. Provided, that, if there are not sufficient
authorized, but unissued shares of CWII's common stock available for issuance
upon exercise of the Warrant granted to ▇▇▇▇▇ prior to August 11, 2001, the
expiration date of the Warrant will be extended to that date which is 30 days
after shareholder approval of such authorized, but unissued shares.
14. Proxy. Concurrent with the execution of this Agreement, ▇▇▇▇▇ will
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execute and deliver to ▇▇▇▇▇ ▇▇▇▇▇▇ the Proxy (in the form attached as Exhibit A
to this Agreement). ▇▇▇▇▇ may make transfers of the CWII common stock owned by
him without regard to the Proxy if such transfers are made in public
transactions to persons not affiliated with ▇▇▇▇▇. For example, if ▇▇▇▇▇ were
to transfer any of his CWII common stock to his wife, a condition of transfer
would be execution of a Proxy by his wife.
15. Loan from the Company to ▇▇▇▇▇. CWII has loaned to ▇▇▇▇▇ $25,000. On
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or before January 4, 1999, CWII will pay to ▇▇▇▇▇ a bonus of $39,968, and the
net amount of $25,000 shall be paid by ▇▇▇▇▇ to the Company in retirement of the
loan. At CWII's option the check to ▇▇▇▇▇ may be endorsed for repayment to
CWII, or any such other procedure as CWII may reasonably request. Upon such
repayment of the loan, CWII shall deliver the Note evidencing the $25,000 loan
to ▇▇▇▇▇, marked "PAID."
16. ▇▇▇▇▇ Personal Guarantee. ▇▇▇▇▇ has personally guaranteed a debt
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obligation of CWII to Toshiba America Information Systems, Inc. ("TAIS") made on
or about December 22, 1995. CWII agrees to indemnify ▇▇▇▇▇ for any claim, cause
of action, debt or liability resulting
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in any way from that personal guarantee. CWII and ▇▇▇▇▇ acknowledge that CWII
and ▇▇▇▇▇ have requested TAIS to release ▇▇▇▇▇ from the personal guarantee. At
the request of TAIS, CWII has obtained, and owns, a policy of insurance on the
life of ▇▇▇▇▇. CWII is obligated pursuant to its agreement with TAIS to hold
such policy, and to use the proceeds thereof, to repay the obligations of CWII
to TAIS. With the consent of TAIS, or the repayment of the obligation to TAIS,
CWII will assign to ▇▇▇▇▇ such policy.
17. Covenant Not to Compete. ▇▇▇▇▇ covenants and agrees that within a 75
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mile radius of each of the cities of Phoenix, Arizona, Tucson, Arizona, Denver,
Colorado and Dallas, Texas, and for the duration of the Consulting Period,
except and to the extent and unless consented to and approved in writing by
CWII, he shall not directly or indirectly:
(a) work or act as a consultant or representative for, carry on or be
engaged in or connected with or interested in, advise, lend money to, guarantee
the debts and obligations of or permit his name or any part thereof to be used
or employed by any person or persons, partnership, firm, association, syndicate,
business entity or agency, company or corporation, engaged in or connected with
or interested in a business or operations substantially similar to those being
carried on by the Company;
(b) solicit business from customers and clients of the Company;
(c) do anything that may, directly or indirectly, adversely affect the
gross sales or profitability of the Company; and
(d) procure, solicit or entice employees of the Company. Nothing in
this Section shall be construed to prohibit ▇▇▇▇▇ from owning less than 5% of
the common stock or other investment securities of a public corporation which
competes with CWII, provided he doesn't work for that company.
18. References: The CWII Companies may respond to inquiries from third
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parties about ▇▇▇▇▇'▇ employment with CWII by identifying ▇▇▇▇▇'▇ date of hire,
date of resignation and position held at the time of termination of employment.
CWII will have no obligation to provide further information to prospective
employers of ▇▇▇▇▇.
19. Entire Agreement; Amendments: This is the entire agreement concerning
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the termination of ▇▇▇▇▇'▇ employment with CWII. ▇▇▇▇▇ is not entitled to rely
upon any other written or oral offer or agreement with CWII. This Agreement can
be modified only by a document signed by both parties. ▇▇▇▇▇ acknowledges that
the only promises made to cause ▇▇▇▇▇ to sign this Agreement are those stated in
this Agreement.
20. Successors: This Agreement benefits and binds the parties'
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representatives and successors.
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21. Governing Law and Severability of Power: This Agreement will be
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interpreted in accordance with the laws of the State of Colorado. If any
portion of this Agreement is unenforceable, the remaining portions of the
Agreement will remain enforceable.
22. Attorney Fees: CWII agrees to pay ▇▇▇▇▇'▇ legal fees incurred in
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negotiating and drafting this Agreement, in an amount not to exceed $5,000.
23. Counterparts: This Agreement may be executed in counterparts, and
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each counterpart, when executed, shall have the efficacy of a signed original.
Photographic copies of such signed counterparts may be used in lieu of the
originals for any purpose.
24. ▇▇▇▇▇ Acknowledgements. ▇▇▇▇▇ understands that this Agreement is a
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final and binding waiver of any claims against CWII. ▇▇▇▇▇ acknowledges that he
was given 21 days to consider this Agreement and chose to sign the Agreement
prior to the expiration of the 21-day period. ▇▇▇▇▇ acknowledges that ▇▇▇▇▇ has
been told by CWII to consult with an attorney prior to signing this Agreement.
▇▇▇▇▇ represents that he has consulted with an attorney regarding this
Agreement.
COMMUNICATIONS WORLD
INTERNATIONAL, INC.
___________________________ By: _____________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Authorized Officer
Date: July ___, 1998 Date: July ___, 1998
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VOID AFTER 3:00 P.M. CENTRAL DAYLIGHT TIME ON
AUGUST 11, 2001
WARRANT TO PURCHASE 100,000 SHARES OF COMMON STOCK
COMMUNICATIONS WORLD INTERNATIONAL, INC.
No. W-RDO-1
FOR VALUE RECEIVED, Communications World International, Inc. (the
"Company"), a Colorado corporation with its principal offices located at ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, #▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇, hereby certifies that
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ (the "Holder") is
entitled, subject to the provisions of this Warrant, to purchase from the
Company, at any time, or from time to time during the period commencing on the
date hereof and expiring at 3:00 p.m. Central Daylight Time, on August 11, 2001
(the "Expiration Date"), up to ONE HUNDRED THOUSAND (100,000) fully paid and
non-assessable Shares of Common Stock (the "Warrant Stock") at a price of $1.30
per share (the "Exercise Price"). The number of shares of Warrant Stock and the
Exercise Price may be adjusted from time to time as hereinafter set forth.
The Holder agrees with the Company that this Warrant is issued, and all the
rights hereunder shall be held subject to, all of the conditions, limitations
and provisions set forth herein.
1. Exercise of Warrant.
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1.1 Exercise Procedures. Subject to the limitations set forth below
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in this Section 1 and in Section 6 hereof, this Warrant may be exercised in
whole or in part, during the period expiring at 3:00 p.m. Central Daylight Time
on the Expiration Date or, if such day is a day on which banking institutions in
Denver, Colorado are authorized by law to close, then on the next succeeding day
that shall not be such a day, by presentation and surrender of this Warrant to
the Company at its principal office, or at the office of its stock transfer
agent, if any, with the Warrant Exercise Form attached hereto duly executed and
accompanied by payment (either in cash or by certified or official bank check,
payable to the order of the Company) of the Exercise Price for the number of
shares specified in such form and instruments of transfer, if appropriate, duly
executed by the Holder or his or her duly authorized attorney. As soon as
practicable after each such exercise of the Warrants the Company shall issue and
deliver to the Holder a certificate or certificates for the Warrant Stock,
registered in the name of the Holder or its designee. If this Warrant should be
exercised in part only, the Company shall, upon surrender of this Warrant for
cancellation, execute and deliver a new Warrant evidencing the rights of the
Holder thereof to purchase the balance of the shares purchasable hereunder. Upon
receipt by the Company of this Warrant, together with the Exercise Price, at its
office, or by the stock transfer agent of the Company at its office, in proper
form for exercise, the Holder shall be deemed to be the holder of record of the
shares of Warrant Stock issuable upon such exercise, notwithstanding that the
stock transfer books of the Company shall then be closed or that certificates
representing such shares of Warrant Stock shall not then be actually delivered
to the Holder. The Holder shall pay any and all
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documentary, stamp or similar issue or transfer taxes and fees payable in
respect of the issue or delivery of shares of Warrant Stock on exercise of this
Warrant.
1.2 No Exercise Without Sufficient Authorized, Unissued Shares.
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Notwithstanding anything in this Warrant to the contrary, this Warrant may not
be exercised unless and until the Company has amended its Articles of
Incorporation to increase the number of shares of authorized and unissued shares
of Common Stock to permit the exercise of this Warrant. Holder recognizes that
there can be no assurance that this will be accomplished or that, if
accomplished, it will be accomplished in a timely manner. The Company agrees
that if there are not sufficient authorized, but unissued shares of Common Stock
available for issuance upon exercise of this Warrant prior to July 12, 2001, the
Expiration Date will be extended to that date which is thirty days after
shareholder approval of the amendment to Articles of Incorporation to increase
the authorized shares of Common Stock.
2. Fractional Shares. The Company shall not be required to issue a
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fractional share upon the exercise of this Warrant, but rather the aggregate
number of shares issuable will be rounded up or down to the nearest full share.
3. Transferability of Warrant. This Warrant shall not be transferable
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except by will or the laws of descent and distribution, and shall be exercisable
during the Holder's lifetime only by the Holder.
4. Rights of the Holder. The Holder shall not, by virtue hereof, be
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entitled to any rights of a stockholder in the Company, either at law or in
equity, and the rights of the Holder are limited to those expressed in this
Warrant.
5. Anti-Dilution Provisions.
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5.1 Adjustment for Recapitalization. If the Company shall at any time
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subdivide all its outstanding shares of Common Stock (or other securities at the
time receivable upon the exercise of the Warrant) by recapitalization,
reclassification or split-up thereof, or if the Company shall declare a stock
dividend or distribute shares of Common Stock to all of its stockholders without
receipt of cash payment or other valid consideration, the number of shares of
Common Stock subject to this Warrant immediately prior to such subdivision shall
be proportionately increased, and if the Company shall at any time combine the
outstanding shares of Common Stock by recapitalization, reclassification or
combination thereof, the number of shares of Common Stock subject to this
Warrant immediately prior to such combination shall be proportionately
decreased. Any such adjustment and adjustment to the Exercise Price pursuant to
this Section 6.1 shall be effective at the close of business on the effective
date of such subdivision or combination or if any adjustment is the result of a
stock dividend or distribution then the effective date for such adjustment based
thereon shall be the record date therefor.
Whenever the number of shares of Warrant Stock purchasable upon
the exercise of this Warrant is adjusted, as provided in this Section 6.1, the
Exercise Price shall be
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adjusted to the nearest cent by multiplying such Exercise Price immediately
prior to such adjustment by a fraction (x) the numerator of which shall be the
number of shares of Warrant Stock purchasable upon the exercise immediately
prior to such adjustment, and (y) the denominator of which shall be the number
of shares of Warrant Stock so purchasable immediately thereafter.
5.2 Adjustment for Reorganization, Consolidation, Merger, Etc. In
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case of any reorganization of the Company (or any other corporation, the
securities of which are at the time receivable on the exercise of this Warrant)
or if the Company (or any such other corporation) shall consolidate with or
merge into another corporation or convey all or substantially all of its assets
to another corporation, then, and in each such case, the Holder of this Warrant
upon the exercise thereof as provided in Section 1 at any time after the
consummation of such reorganization, consolidation, merger or conveyance, shall
be entitled to receive, in lieu of the securities and property receivable upon
the exercise of this Warrant prior to such consummation, the securities or
property to which such Holder would have been entitled upon such consummation if
such Holder had exercised this Warrant immediately prior thereto; in each such
case, the terms of this Warrant shall be applicable to the securities or
property receivable upon the exercise of this Warrant after such consummation.
6. Restrictions on Exercise Imposed by Federal and State Securities Laws.
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Holder hereby acknowledges that neither this Warrant nor any of the securities
that may be acquired upon exercise of this Warrant have been registered under
the 1933 Act or under the securities laws of any state. The Holder acknowledges
that, upon exercise of this Warrant, the securities to be issued upon such
exercise may come under applicable federal and state securities (or other) laws
requiring registration, qualification or approval of governmental authorities
before such securities may be validly issued or delivered upon notice of such
exercise. With respect to any such securities, this Warrant may not be
exercised by, and securities shall not be issued to, any Holder in which such
exercise would be unlawful. As a condition to exercise, the Company may require
the Holder to sign a representation letter confirming compliance with this
Agreement and applicable federal and state securities laws and other applicable
laws, and may require the Holder to provide an opinion of counsel that the
exercise and issuance of the Warrant Stock will not violate law, such counsel
and such opinion to be satisfactory to the Company and its counsel.
7. Legend. Unless the shares of Warrant Stock have been registered under
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the 1933 Act, upon exercise of any of the Warrants and the issuance of any of
the shares of Warrant Stock, all certificates representing shares shall bear on
the face thereof substantially the following legend, as well as any other
legends necessary to comply with applicable state and federal laws for the
issuance of such shares:
"The shares represented by this Certificate have not been registered
under the United States Securities Act of 1933 ("the 1933 Act") and are
"restricted securities" as that term is defined in Rule 144 under the ▇▇▇▇ ▇▇▇.
The shares may not be offered for sale, sold or otherwise transferred except
pursuant to an effective registration statement under the 1933 Act or pursuant
to an exemption from registration under the 1933 Act the availability of which
is to be established to the satisfaction of the Company."
-3-
8. Notices. All notices required hereunder shall be in writing and shall
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be deemed given when telegraphed, delivered personally or within five days after
mailing when mailed by certified or registered mail, return receipt requested,
at the address of such party as set forth on the first page, or at such other
address of which the Company or Holder has been advised by notice hereunder.
9. Applicable Law. This Warrant is issued under and shall for all purposes
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be governed by and construed in accordance with the laws of the State of
Colorado.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed on its
behalf, in its corporate name, by its duly authorized officer, all as of the day
and year first above written.
COMMUNICATIONS WORLD
INTERATIONAL, INC., a Colorado corporation
Dated: ______________ By:___________________________________
Authorized Officer
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WARRANT EXERCISE FORM
The undersigned hereby irrevocably elects to exercise the within Warrant to
the extent of purchasing _________ shares of Common Stock of Communications
World International, Inc., a Colorado corporation, and hereby makes payment of
$__________ in payment therefor. The undersigned understands that exercise of
the within Warrant is subject to, among other things, the limitations provided
in Section 1 and compliance with Section 6 of the within Warrant.
______________________________
Signature
______________________________
Signature, if jointly held
______________________________
Social Security or Taxpayer
Identification Number
______________________________
Date
INSTRUCTIONS FOR ISSUANCE OF STOCK
(if other than to the registered holder of the written Warrant)
_______________________________
Name:
_______________________________
Address
(Please typewrite or print in block
letters)
_______________________________
Social Security or Taxpayer
Identification Number
FORM OF IRREVOCABLE PROXY
COMMUNICATIONS WORLD INTERNATIONAL, INC.
▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, #▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
PROXY FOR MEETINGS OF SHAREHOLDERS
The undersigned hereby appoints ▇▇▇▇▇ ▇▇▇▇▇▇ as his proxy and attorney-in-
fact, with full power of substitution (the "Proxy") to vote all the common and
preferred shares of the undersigned, with all of the powers which the
undersigned would possess if personally present at any and all meetings of
shareholders of Communications World International, Inc. (the "Company") or any
adjournment thereof, on any and all matters. Without limiting the foregoing, the
Proxy is authorized to vote upon any proposals for (a) an increase in the
authorized capital stock of the Company, (b) a merger or other transaction
pursuant to which the Company would acquire directly or indirectly any other
entities, (c) adoptions of stock option plans, or other proposals relating to
stock options, warrants or other rights to acquire common or preferred stock of
the Company, and (d) all such other business as may come before any meetings of
the Company's shareholders.
The undersigned agrees that at any time, and from time to time, upon the
request of the Proxy, he promptly will execute and deliver such further
documents and do such further acts and things as Proxy may request in order to
effect fully the purposes of this appointment of proxy.
THIS IRREVOCABLE PROXY IS EXECUTED AND DELIVERED IN CONNECTION WITH THAT
CERTAIN CONSULTING AND SETTLEMENT AGREEMENT BETWEEN THE UNDERSIGNED AND THE
COMPANY OF EVEN DATE HEREWITH AND THE UNDERSIGNED ACKNOWLEDGES AND AGREES (A)
THAT THIS IRREVOCABLE PROXY IS COUPLED WITH AN INTEREST AND IRREVOCABLE AND THAT
THE FOREGOING APPOINTMENT IS VALID FOR A PERIOD OF TWO YEARS FROM THE DATE
HEREOF, (B) THAT THE COMPANY SHALL NOT BE REQUIRED TO RECOGNIZE ANY WRITING FROM
THE UNDERSIGNED PURPORTING TO REVOKE THE FOREGOING APPOINTMENT AND (C) TO SAVE,
DEFEND AND INDEMNIFY THE PROXY FROM AND AGAINST ANY AND ALL CLAIMS ARISING OUT
OF OR IN CONNECTION WITH THE FOREGOING APPOINTMENT OF THE PROXY. THE UNDERSIGNED
ALSO ACKNOWLEDGES AND AGREES THAT ANY ATTEMPTED REVOCATION OF THE FOREGOING
APPOINTMENT OF THE PROXY SHALL CAUSE IRREPARABLE HARM AND THAT THIS APPOINTMENT
AND THE AGREEMENTS OF THE UNDERSIGNED CONTAINED HEREIN MAY, IN ADDITION TO ALL
OTHER RIGHTS AND REMEDIES AVAILABLE AT LAW OR IN EQUITY, BE ENFORCED BY
INJUNCTION OR SPECIFIC PERFORMANCE WITHOUT THE NECESSITY OF ANY BOND.
Please sign exactly as shown on your stock certificate(s).
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