Exhibit 10.2
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 Xxxxxx Xxxxx ("Employee").
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, Employee 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 Employee's 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 the Employee's
effective date of termination shall be October 1, 2001 ("Effective Date").
2. Officer and Director Resignation. As of the 12th day of October,
2001, the Employee resigns as an officer and director of Xvariant and REF.
The Employee 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 the replacement directors of REF and
Xvariant will be promptly elected or appointed. Of Wright, Knapp, and Xxxxx,
two will have resignations accepted, and one will appoint Xxxxxx, and/or any
other people designated by ATC, and then have his resignation accepted at the
directors meeting.
3. Employment Agreement. Employee 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. Separation Payment. REF and Xvariant hereby agree to pay to
Employee the sum of $17,500 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 Employee 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 and November 2001, and shall be
subject to normal withholding of appropriate taxes.
5. Xvariant Stock. Upon full payment of the amounts described in
paragraphs 4, 6 and 12 hereof, Employee shall tender to Xvariant all stock of
Xvariant owned by him, which is agreed by the parties to be 550,000 shares,
which shares shall be canceled by Xvariant. Xvariant shall issue
contemporaneously with the cancellation described above 100,000 shares of
Xvariant common stock to Employee (the "New Shares"). Upon the issuance of
the New Shares, Employee waives any claims he may have to additional equity in
REF or Xvariant, except as may arise under the last sentence of this paragraph
regarding dilution. The New Shares shall be subject to standard restrictions
on transfer as required under applicable securities laws. In addition,
Employee agrees not to sell, pledge or attempt to transfer the New Shares in
any manner for a period of three years from the date of this Agreement. In
the event of any future issuance or split of Xvariant stock, Employee's New
Shares shall be adjusted such that said shares shall not be diluted
differently than the shares held by ATC or any affiliate of ATC.
6. Legal Fees. REF and Xvariant agree to reimburse Employee's share
of legal fees incurred by Employee in negotiating and preparation of this
Agreement and related documents; provided, however, the total amount of such
fees that REF and Xvariant shall reimburse Employee 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 paragraphs
4, 6 and 12 hereof and (ii) issuance of the New Shares pursuant to paragraph 5
hereof, Employee 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.
8. Confidential Information. Except as otherwise authorized in
writing by Xvariant or REF, Employee 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
Employee during his employment.
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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 Employee,
or made available to Employee, 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,
Employee 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 Employee 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 any statements or information made or created by Employee and which
was included in written materials, including business plans and financial
projections, provided to ATC by REF and its principals, including Employee.
12. Upon execution of this Agreement and related agreements with Xxxxxx
X. Xxxxxx and Xxxx Xxxxx, 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 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 Xxxx X Xxxxxx
000 Xxxxx Xxxx Xxxxxx, #0000
Xxxx Xxxx Xxxx, Xxxx 00000
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ii. If to Employee:
Xxxxxx Xxxxx
000 Xxxxx Xxxxxxxxx Xxxxxx #00
Xxxx Xxxx Xxxx, Xxxx 00000
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.
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.
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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/ Xxxx X. Xxxxxx
----------------------------
Its: President
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REAL ESTATE FEDERATION, INC.,
a Utah corporation
By: /s/ Xxxx X. Xxxxxx
----------------------------
Its: President
----------------------------
APPLIED TECHNOLOGY
CONSULTANTS, INC., a Nevada corporation
By: /s/ Xxxx X. Xxxxxx
----------------------------
Its: President
----------------------------
EMPLOYEE
/s/ Xxxxxx Xxxxx
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Xxxxxx Xxxxx
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