TERMINATION AND RELEASE AGREEMENT
This TERMINATION AND RELEASE AGREEMENT, dated as of October 4, 2005 (this
"Agreement"), by and between Cirilium Holdings, Inc., a Delaware corporation
(the "Company") and Xxxxxxx X. Xxxxxxx ("Consultant").
WHEREAS, Consultant has provided consulting services to the Company
pursuant to that certain consulting agreement dated May 3, 2004 (the "First
Consulting Agreement"), and has served as the Company's President and Chief
Operating Officer since July 29, 2004.
WHEREAS, pursuant to a Stock Option Award Agreement dated May 21,
2004 ("Stock Option Award") Consultant was granted options to purchase an
aggregate of 150,000 shares of the Company's restricted common stock
("Options"), vesting equally over a three year period, commencing on the first
anniversary of the Stock Option Award.
WHEREAS, the Company and Consultant each wish to (i) terminate the
First Consulting Agreement in its entirety, (ii) waive and release the other
party's future obligations under the First Consulting Agreement, and all claims
or liabilities which it may have against such other party as of the date of this
Agreement, including, without limitation, pursuant to the First Consulting
Agreement, and (iii) agree with the other party upon certain other terms related
to the foregoing.
NOW, THEREFORE, in consideration of the foregoing, and the mutual
terms, covenants and conditions contained herein and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
1. Termination of First Consulting Agreement.
(a) Effective October 4, 2005 ("Effective Date"), the First
Consulting Agreement is hereby terminated in its entirety and Consultant hereby
resigns voluntarily as an officer of the Company and any of its subsidiaries.
Each of the Company and Consultant hereby acknowledges that no further
obligations remain outstanding under the First Consulting Agreement as of the
date hereof.
(b) Each party hereto, at its own expense, shall, or shall cause its
respective representatives and agents to, promptly return to the other party
hereto any and all information, documents or other materials relating to or
containing confidential or proprietary information of such other party hereto
which are, and any and all other property of the other party hereto which is, in
such party's possession, care or control, regardless of whether such materials
were created or prepared by such party and regardless of the form of, or medium
containing, such information, documents or other materials or other property.
2. Consideration. In consideration for Consultant executing this
Agreement, the parties hereto agree as follows:
(a) Second Consulting Agreement. Upon execution of this Agreement by
the Company and Consultant, the Company and Consultant shall execute and deliver
to each other counterpart signature pages to the form of certain Consulting
Agreement attached hereto as Exhibit A (the "Second Consulting Agreement").
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(b) Grant of Restricted Stock. In addition, the Company shall
deliver to Consultant One Million (1,000,000) shares of the Company's
unregistered, restricted common stock on the Effective Date.
(c) Vesting of Stock Options. The Company shall accelerate the
vesting of the Options previously granted to Consultant such that all of the
Options shall be fully vested and immediately exercisable on the Effective Date.
Consultant's right to exercise the Options shall be governed by the terms and
conditions of the applicable Company Stock Incentive Plan and Stock Option Award
between Consultant and the Company, including periods after termination for the
exercise of the Options, except as expressly modified by this Agreement.
Consultant confirms that he has read and understood the terms and conditions of
the Stock Incentive Plan and his Stock Option Award and understands his
responsibilities contained therein, including the procedures for exercise of
stock options contained therein. Except as otherwise noted herein, nothing in
this Agreement is intended to otherwise supersede or modify the terms and
conditions of the Company's Stock Incentive Plan or any agreements issued in
connection with those plans. The Company shall not be responsible for the
payment of any exercise price or taxes due in connection with the exercise of
such Options.
3. Representations and Warranties of the Consultant. The Consultant hereby
acknowledges that the shares of restricted common stock issued pursuant to this
Agreement will be restricted and have not (and will not, upon issuance, have)
been registered under the Securities Act or any state securities laws and may be
resold only if registered pursuant to the provisions thereunder or if an
exemption from registration is available. The Consultant does not intend to
dispose of all or any part of the shares of Restricted Stock except in
compliance with the provisions of the Securities Act of 1933, as amended (the
"Securities Act") and applicable state securities laws. The Consultant hereby
acknowledges and agrees that the Company may insert the following or similar
legend on the face of the certificates evidencing such shares, if required in
compliance with the Securities Act or state securities laws:
"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS AND MAY NOT BE SOLD
OR OTHERWISE TRANSFERRED OR DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND ANY APPLICABLE STATE
SECURITIES LAWS, OR AN OPINION OF COUNSEL SATISFACTORY TO COUNSEL TO THE ISSUER
THAT AN EXEMPTION FROM REGISTRATION UNDER THE ACT AND ANY APPLICABLE STATE
SECURITIES LAWS IS AVAILABLE."
4. Release.
(a) Consultant, for itself and its affiliates, successors, assigns,
representatives and agents (hereinafter individually and collectively referred
to as the "Releasor"), for good and valuable consideration from the other party
hereto, the receipt and sufficiency of which are hereby acknowledged, hereby
irrevocably, unconditionally and completely releases and forever discharges the
Company and its respective past and present officers, directors, employees,
stockholders, affiliates, subsidiaries, predecessors, successors, assigns,
representatives and agents (hereinafter individually and collectively referred
to as the "Releasee"), from (i) any and all actions, causes of action, claims,
demands, losses, liabilities, agreements, understandings, costs and expenses of
every kind and nature (including, without limitation, attorneys fees and legal
costs), at law or in equity, whether known or unknown, suspected or unsuspected,
which the Releasor now has, may have or has ever had against the Releasee, from
the beginning of the world to the mutual execution of this Agreement, arising
out of or in connection with the First Consulting Agreement or otherwise (each,
a "Claim"), or (ii) any and all past, present and future obligations which the
Releasee may have to the Releasor, from the beginning of the world to the mutual
execution of this Agreement, pursuant to the First Consulting Agreement or
otherwise (each, a "Performance Right"), other than the obligations provided for
in this Agreement.
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(b) Each Releasor party to this Agreement represents to the relevant
Releasee that, as of its execution and delivery of this Agreement, such Releasor
is the sole owner of all right, title and interest in and to all Claims and
Performance Rights, and the Releasor has not entered into any agreement relating
to the assignment, transfer, pledge or other conveyance of any Claim or
Performance Right, or any right, title or interest therein. Each Releasor party
to this Agreement covenants that such Releasor shall not initiate or voluntarily
participate in, or provide assistance with respect to, any legal action, claim
or proceeding against the Releasee for or in respect of any Claims or
Performance Rights.
(c) Consultant acknowledges and agrees that, upon receipt of (i) the
Options; (ii) the Restricted Stock; and (iii) an executed counterpart signature
page signed by the Company to the Second Consulting Agreement, Consultant shall
have no rights, claims or recourse against the Company, its officers, directors,
employees, stockholders, affiliates, predecessors, successors, assigns,
representatives or agents, or the assets of any of the foregoing, pursuant to
this Agreement.
(d) No Admission of Liability. The Parties understand and
acknowledge that this Agreement constitutes a compromise and settlement of all
claims. No action taken by the Parties hereto, or either of them, either
previously or in connection with this Agreement shall be deemed or construed to
be (a) an admission of the truth or falsity of any claims heretofore made or (b)
an acknowledgment or admission by either party of any fault or liability
whatsoever to the other party or to any third party.
5. Non-Disparagement. Each party agrees to refrain from any
disparagement, defamation, libel or slander of the other, or tortious
interference with the contracts and relationships of the other. Consultant
agrees that he or she will refrain from disparaging the Company's business and
any and all of its past or present officers, director or other employees.
6. Entire Agreement. This Agreement constitutes the entire agreement
between the parties with respect to the matters set forth herein, and supersedes
all prior agreements or understandings between the parties with respect to such
matters, including, without limitation, the First Consulting Agreement.
Notwithstanding anything to the contrary in the First Consulting Agreement, no
provisions of the First Consulting Agreement shall survive termination thereof
pursuant to Section 1 of this Agreement.
7. Descriptive Headings. Descriptive headings are for convenience
only and shall not control or affect the meaning or construction of any
provision of this Agreement.
8. Notices. All notices, requests and other communications to any
party hereunder shall be in writing, and shall be sufficient if delivered
personally or sent by telecopy (with confirmation of receipt) or by registered
or certified mail, postage prepaid, return receipt requested, addressed as
follows:
If to the Company:
Cirilium Holdings, Inc.
000 X. Xxxxxxx Xxxxx
Xxxxx 000
Xxxx Xxxx Xxxxx, XX 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
If to Consultant:
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or to such other address or telecopy number as the party to whom notice is to be
given may have furnished to the other party in writing in accordance herewith.
Each such notice, request or communication shall be effective when received or,
if given by mail, when delivered at the address specified in this Section 8 or
on the fifth business day following the date on which such communication is
posted, whichever occurs first.
9. Counterparts. This Agreement may be executed in one or more
counterparts, and each such counterpart hereof shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
agreement.
10. Benefits of Agreement. All of the terms and provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and permitted assigns. Except as otherwise
provided in the immediately preceding sentence, this Agreement is for the sole
benefit of the parties hereto and not for the benefit of any third party.
11. Amendments and Waivers. No modification, amendment or waiver of
any provision of, or consent required by, this Agreement, nor any consent to any
departure herefrom, shall be effective unless it is in writing and signed by the
parties hereto. Such modification, amendment, waiver or consent shall be
effective only in the specific instance and for the purpose for which given.
12. Assignment. This Agreement and the rights and obligations
hereunder shall not be assignable or transferable without the prior written
consent of the Company. Any instrument purporting to make an assignment in
violation of this Section 12 shall be void and of no effect.
13. GOVERNING LAW; CONSENT TO JURISDICTION. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF FLORIDA
(WITHOUT GIVING EFFECT TO ITS CHOICE OR CONFLICT OF LAWS PROVISIONS). EACH OF
THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE
JURISDICTION OF THE COURTS LOCATED IN PALM BEACH COUNTY, FLORIDA, AND
IRREVOCABLY AGREES THAT ALL ACTIONS OR PROCEEDINGS ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE LITIGATED
EXCLUSIVELY IN SUCH COURTS.
14. Enforceability. It is the desire and intent of the parties
hereto that the provisions of this Agreement shall be enforced to the fullest
extent permissible under the laws and public policies applied in each
jurisdiction in which enforcement is sought. Accordingly, if any particular
provision of this Agreement shall be adjudicated to be invalid or unenforceable,
then such provision shall be deemed amended to delete therefrom the portion thus
adjudicated to be invalid or unenforceable, such deletion to apply only with
respect to the operation of such provision in the particular jurisdiction in
which such adjudication is made.
15. Survival of Provisions. Notwithstanding anything to the contrary
in this Agreement, the provisions of Sections 5, 10, 11, 12, 13, 14 and this
Section 15 shall survive both the execution and termination of this Agreement
(regardless of the manner or basis of termination) in accordance with their
terms.
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16. Voluntary Execution of Agreement. This Agreement is executed
voluntarily and without any duress or undue influence on the part or behalf of
the Parties hereto, with the full intent of releasing all claims. Consultant
acknowledges that: (a) he or she has read this Agreement; (b) has been
represented in the preparation, negotiation, and execution of this Agreement by
legal counsel of his or her own choice or that he or she has voluntarily
declined to seek such counsel; (c) understands the terms and consequences of
this Agreement and of the releases it contains; (d) is fully aware of the legal
and binding effect of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed, or have caused
their duly authorized representative to execute, this Termination and Release
Agreement as of the date first above written.
CIRILIUM HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Acting Secretary
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxxx
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