DeSoto, TX 75115-8621 972-298-3800-voice 972-298-3802-fax SEPARATION AND RELEASE AGREEMENT
0000
X. Xxxxxxx Xx., Xxxxx 000
XxXxxx,
XX 00000-0000
972-298-3800-voice
972-298-3802-fax
SEPARATION
AND RELEASE AGREEMENT, dated November 19, 2007, by and between Etelcharge,
Inc.,
a Nevada corporation (the “Company”), and Xxxx Xxxxxxx
and Xxxxxxxx Xxxxxxx (together, the “Shermans”, “you” or
“your”).
WHEREAS,
Xxxx Xxxxxxx was the Chairman and Chief Executive Officer of the Company
until
July 31, 2007, the date Xx. Xxxxxxx’x resignation became effective;
WHEREAS,
Xxxxxxxx Xxxxxxx was the Secretary and a Director of the Company until September
21, 2007, the date Xx. Xxxxxxx resigned;
WHEREAS,
in light of the Shermans having resigned from their respective positions
with
the Company, the Company and the Shermans wish to memorialize certain agreements
they have reached regarding the Shermans’ activities while employed by the
Company and their separation from the Company.
NOW
THEREFORE, in consideration of the sum of $25,000 contemporaneously remitted
by
the Company to the Shermans and for other good and valuable consideration
described herein, the Company and the Shermans (collectively referred to
as the
“Parties”) hereby agree
as follows:
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I.
CONSIDERATION
1.1
The Company has compensated you at your current rate of pay through your
termination dates as set forth above (the “Termination
Dates”). Except as required by law, your entitlement to,
participation in, and accrual of, Company benefits ended as of your Termination
Dates. Your rights and obligations under COBRA and any 401K plan, to
the extent applicable, will be explained under separate cover.
1.2
You acknowledge and agree that you have received all compensation that you
have
earned through the date of this Agreement, including any unused accrued vacation
benefits, except as otherwise provided in this Agreement.
1.3
In exchange for the covenants undertaken and releases given by you in this
Agreement, and provided that you sign, return and do not revoke this Agreement
within eight (8) days after the date it is signed by you and received by
the
Company (the "Effective Date"), the Company will pay you, in addition to
the
compensation set forth in Section 1.1 herein, the sum of $25,000, less required
taxes and withholding (collectively, the "Severance Payment"). The Severance
Payment will be paid in one lump sign following the Effective Date. The
Severance Payment is in addition to any compensation or other amounts owed
to
you up to and including the Termination Date.
1.4
You acknowledge and agree that (i) the Company is not obligated to provide
the
Severance Payment and other additional consideration to you under its normal
polices and procedures, (ii) no other monetary payments shall be made to
you in exchange for entering into this Agreement, and (iii) the Severance
Payment and other additional consideration is being made in full and final
settlement of any and all matters of any kind or nature that were alleged
by, or
could have been alleged by, you against the Company or any of the Releasees
(as
defined in Paragraph 2.3 below).
II.
XXXXXXX OBLIGATIONS
2.1
Xxxxxxx
Representations. The Shermans represent, warrant, covenant and agree with
the Company, jointly and severally, as follows:
2.1.1
They, and each of them, hereby waive and forgive whatever right they have
or may
have to any obligation or debt that the Company may have to either of them,
including any advances, notes or any evidence of indebtedness of any
kind.
2.1.2
There are no obligations owing to them individually or in their status as
past
or present officers, directors or employees of the Company, except as set
forth
in this Agreement.
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2.1.3
The public filings (the “Filings”) of the Company
are
true and correct in all material respects, have been prepared in accordance
with
the forms prescribed and do not omit to state a material fact in light of
the
circumstances in which such statements are made. There are no matters that
are
required to be disclosed therein that have not been disclosed nor have there
been any actions taken or omitted to be taken by either of the Shermans that
would violate or would have violated their fiduciary obligations to the Company
as officers, directors, or controlling stockholders.
2.1.4
They have caused to be reflected and/or recorded on the books and accounts
of
the Company all transactions to form a fair, complete and accurate
representation of the financial position of the Company from the inception
of
the Company to date, and all such transactions are bona fide and have been
on an
arms length basis.
2.1.5
They and each of them have no claim to any of the intellectual property of
the
Company nor are there any inventions, concepts or ideas conceived (whether
committed to writing or otherwise) (collectively, “Inventions”), directly or
indirectly from the beginning of time to the date hereof by the Shermans
or
entities in which they have a direct or indirect involvement (by way of
stockholdings, officers, directors, employees, independent contractors or
otherwise) that could in any way be deemed to constitute any claim by either
of
them or by any other person that challenges in any way the past, present
or
contemplated intellectual property of the Company. Should there be any matter
that would constitute an Invention, the Shermans hereby quitclaim and assign
any
such property right to the Company and will execute and deliver to the Company
any and all documents and filings relating to such Invention and will cooperate
with the Company in taking such steps that will reaffirm the Company’s rights to
the intellectual property of the Company.
2.1.6
They know of no claim, whether asserted or not, against the Company, its
directors, officers, stockholders or agents except as disclosed in Schedule
A
hereto (an “Undisclosed
Claim”) and hereby agree to indemnify and hold harmless the Company, its
officers, directors and agents from any liability, claims, demand or otherwise
(including attorney’s fees and cost in defending or investigating any
such matter) that may result from, any such Undisclosed Claim or the
breach of any of the representations and warranties set forth herein. Should
there be a claim by the Company with respect to the subject matter of
this Agreement, the Company shall have the right to take whatever steps it
requires to seek recovery from the Shermans, whether by way of seeking an
injunction, offsetting any obligation, or realizing against a property right
of
the Shermans or otherwise.
2.1.7
For avoidance of doubt, the Shermans hereby reaffirm their resignations as
officers and directors of the Company effective the dates set forth above
and
affirm that except as specifically set forth in this Agreement, there is
no
obligation, direct or indirect, that the Company has to them or to any party
in
any way connected, associated or controlled by either of them within the
meaning
of Rule 405 of the Rules and Regulations adopted under the Securities Act
of
1933, as amended, of the Securities and Exchange Commission.
2.1.8
The Shermans recognize that because of their historical relationship with
the
Company until their respective resignations, and due to their continued
involvement as stockholders, the restrictive covenant set forth herein is
a
critical part of this Agreement and any violations thereof shall render any
agreement or release by the Company hereunder null and void and shall not
preclude the Company from seeking injunctive relief without the necessity
of
posting a bond associated therewith.
2.2
The Shermans represent that they fully understand their right to review all
aspects of this Agreement with an attorney of their choice, that they have
had
the opportunity to consult with an attorney of their choice, that they have
carefully read and fully understand all the provisions of this Agreement
and
that they are freely, knowingly and voluntarily entering into this
Agreement.
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2.3
Xxxxxxx Release
and
Waiver
2.3.1
For and in exchange for the payments to be made by the Company to you pursuant
to this Agreement, and for other good and valuable consideration, you, Xxxx
Xxxxxxx, on behalf of himself and his heirs, assigns, executors and
representatives, hereby fully and forever, releases and discharges the Company
(including all predecessors and successors, subsidiaries, affiliates, assigns,
officers, directors, trustees, employees, agents and attorneys, past and
present) (“Company
Personnel”) in respect of, from any and all claims, demands, liens,
agreements, contracts, covenants, actions, suits, causes of action, obligations,
controversies, debts, costs, expenses, damages, judgments, orders and
liabilities, of whatever kind or nature, direct or indirect, in law, equity
or
otherwise, whether known or unknown (collectively, “Claims”), arising through
the
date of this Agreement, out of Xxxx Xxxxxxx’x relationship with the Company or
the termination thereof, including, but not limited to, and Claims with respect
to (i) any debts, payments due, stock transfers or certificates, options,
intellectual property, (including, without limitation, intellectual property
consisting of business practices, business processes, and trade secrets)
and
(ii) wages, bonuses, commissions, penalties, deferred compensation, vacation
pay, separation benefits, defamation, libel, slander, negligence, breach
of
covenant of good faith and fair dealing, personal injury, emotional distress,
breach of contract, breach of confidentiality, invasion of privacy, negligence,
improper discharge (based on contract, common law, or statute, including
any
federal, state or local statute or ordinance prohibiting discrimination or
retaliation in employment), alleged violation of the United States Constitution,
the Constitution of the State of New Jersey, the Civil Rights Act of 1964,
including Title VII, the Civil Rights Act of 1991, the Age Discrimination
in
Employment Act of 1967, the Americans with Disabilities Act of 1990, the
Fair
Labor Standards Act, the Employee Retirement Income Security Act of 1974,
the
Worker Adjustment and Retraining Notification Act, the Older Workers Benefit
Protection Act, the Equal Pay Act of 1963, the Family Medical Leave Act,
the
Rehabilitation Act of 1973, or any other federal, state (including, but not
limited to Texas) or local statutes concerning employment, labor, and/or
human
rights or discrimination laws, and any claim for discrimination or retaliation
based on sex, race, color, creed, religion, age, national origin, marital
status, sexual orientation, disability, or perceived disability, medical
condition, status with regard to public assistance, sexual harassment, or
any
other protected class status, but excludes claims arising after the date
hereof
out of any breach of this Agreement.
2.3.2
For and in exchange for the payments to be made by the Company to you pursuant
to this Agreement, and for other good and valuable consideration, you, Xxxxxxxx
Xxxxxxx, on behalf of herself and her heirs, assigns, executors and
representatives, hereby fully and forever, releases and discharges the Company
and Company Personnel in respect of, from any and all claims, demands, liens,
agreements, contracts, covenants, actions, suits, causes of action, obligations,
controversies, debts, costs, expenses, damages, judgments, orders and
liabilities, of whatever kind or nature, direct or indirect, in law, equity
or
otherwise, whether known or unknown, arising through the date of this Agreement,
out of Xxxxxxxx Xxxxxxx’x relationship with the Company or the termination
thereof, including, but not limited to, (i) any debts, payments due, stock
transfers or certificates, options, intellectual property, (including, without
limitation, intellectual property consisting of business practices, business
processes, and trade secrets) and (ii) any claims Xx. Xxxxxxx may have for
wages, bonuses, commissions, penalties, deferred compensation, vacation pay,
separation benefits, defamation, libel, slander, negligence, breach of covenant
of good faith and fair dealing, personal injury, emotional distress, breach
of
contract, breach of confidentiality, invasion of privacy, negligence, improper
discharge (based on contract, common law, or statute, including any federal,
state or local statute or ordinance prohibiting discrimination or retaliation
in
employment), alleged violation of the United States Constitution, the
Constitution of the State of New Jersey, the Civil Rights Act of 1964, including
Title VII, the Civil Rights Act of 1991, the Age Discrimination in Employment
Act of 1967, the Americans with Disabilities Act of 1990, the Employee
Retirement Income Security Act of 1974, the Worker Adjustment and Retraining
Notification Act, the Older Workers Benefit Protection Act, the Equal Pay
Act of
1963, the Family Medical Leave Act, the Rehabilitation Act of 1973, or any
other
federal, state (including, but not limited to Texas) or local statutes
concerning employment, labor, and/or human rights or discrimination laws,
and
any claim for discrimination or retaliation based on sex, race, color, creed,
religion, age, national origin, marital status, sexual orientation, disability,
or perceived disability, medical condition, status with regard to public
assistance, sexual harassment, or any other protected class status, but excludes
claims arising after the date hereof out of any breach of this
Agreement.
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2.3.3
Without limiting the foregoing release in any way, the Shermans acknowledge
and
agree that this Agreement includes a waiver and release of all claims which
they
have or may have under the Age Discrimination in Employment Act of 1967,
as
amended, 29 U.S.C. Section 621, et seq. ("ADEA"). The
following terms and conditions apply to and are part of the waiver and release
of ADEA claims under this Agreement:
(a)
You are hereby advised to consult with an attorney before signing this
Agreement.
(b)
The Company will keep its offer to sign the Agreement open for twenty-one
(21)
days from the date you were presented with this Agreement. However, the Company
is prepared to sign the Agreement and make it effective at any time before
then.
The parties agree that any counteroffer(s) or negotiations that occur subsequent
to the date you were presented with this Agreement, whether material or
immaterial, will not re-start the running of such twenty-one (21) day
period.
(c)
You have the right to revoke the waiver and release of claims under the ADEA
set
forth in this Agreement within seven (7) days after signing this Agreement,
and
the Agreement will not be effective until seven (7) days after the Agreement
signed by you has been returned to the Company. To be effective, your rescission
must be in writing and delivered and received within such seven (7) day period
to the Director of Human Resources of the Company at the address listed on
the
signature page to this Agreement.
(d)
The waiver and release of claims under the ADEA contained in this Agreement
do
not cover rights or claims under the ADEA that may arise after the date on
which
you sign this Agreement.
(e)
You understand that by signing this Agreement you are giving up any right
which
you may have to xxx or otherwise prosecute any Claim against any
Releasee.
(f)
You hereby acknowledge and agree that you are knowingly and voluntarily waiving
and releasing your rights and Claims in exchange for consideration (something
of
value) in addition to anything of value to which you are already
entitled.
(g)
You are not being forced or pressured in any manner whatsoever to sign this
Agreement.
2.3.4
Nothing in this Agreement prevents you from filing a charge with or
participating in an investigation or proceeding conducted by any governmental
agency, including without limitation, the Equal Employment Opportunity
Commission or state or local human rights agencies, to the extent required
or
permitted by law. Notwithstanding the foregoing, you acknowledge and agree,
as a
condition for receiving the Consideration and other benefits contained in
this
Agreement, that you are waiving any and all entitlement to monetary damages,
equitable relief and reinstatement with respect to: (1) any claims released
and
waived as part of this Agreement; or (2) any charge, action, complaint or
lawsuit filed by you or by anyone else on your behalf.
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2.3.5
Xxxx Xxxxxxx expressly represents that he has not filed a lawsuit or initiated
any other administrative proceedings against the Company and that he has
not
assigned any claim against the Company to any other person or entity. Xxxx
Xxxxxxx further promises not to initiate a lawsuit or bring any other claim
against the Company, its successors and assigns, or any Company Personnel
arising out of or in any way related to his employment by the Company, his
activities on behalf of the Company (including, without limitation, the
provision of loans to the Company), or the termination of his employment
by the
Company.
2.3.6
Xxxxxxxx Xxxxxxx expressly represents that she has not filed a lawsuit or
initiated any other administrative proceedings against the Company and that
she
has not assigned any claim against the Company to any other person or entity.
Xxxxxxx Xxxxxxx further promises not to initiate a lawsuit or bring any other
claim against the Company, its successors and assigns, or any Company Personnel
arising out of or in any way related to her employment by the Company, her
activities on behalf of the Company, or the termination of her employment
by the
Company.
2.4
Xxxxxxx Non
Competition/Non Solicitation
2.4.1
Xxxx Xxxxxxx hereby agrees for a period of 5 years (60 months) from the date
of
the signing of this Agreement (the “Restrictive Period”), he will
not, directly or indirectly (i) market or sell products or perform services
which are the same or similar to such as are offered or conducted by the
online
payments business unit of the Company, to any customer or client of the Company;
or (ii) engage in, manage, operate, be connected with or acquire any interest
in, as an advisor, agent, owner, partner, co-venturer, principal, director,
shareholder, lender, employee or otherwise, in any company that markets or
sells
products or performs services which are the same or similar to such as are
offered or conducted by the online payments business unit of the Company,
provided however,
that Xxxx Xxxxxxx may continue to engage in the business of the reselling
of
Credit Card Merchant Services, including, but not limited to, the
Government-to-People segment of the merchant services business. The
geographic scope of this provision is the United States.
2.4.2
Xxxx Xxxxxxx understands that his work as an employee of the Company created
a
relationship of trust and confidence between him and the Company. During
the
Restrictive Period, Xxxx Xxxxxxx agrees that he will not request or otherwise
attempt to induce or influence, directly or indirectly, any present customer,
distributor or supplier, or other persons sharing a business relationship
with
the Company to cancel, to limit or postpone their business with the Company,
or
otherwise take action which might be to the material disadvantage of the
Company. During the Restrictive Period, he will not hire or solicit for
employment, directly or indirectly, or induce or actively attempt to influence,
any employee, agent, officer, director, contractor, consultant or other business
associate of the Company to terminate his or her employment or discontinue
such
person's consultant, contractor or other business association with the Company.
The geographic scope of this provision is the United States.
2.4.3
Xxxxxxxx Xxxxxxx hereby agrees that during the Restrictive Period she will
not,
directly or indirectly (i) market or sell products or perform services such
as
are offered or conducted by the online payments business unit of the Company,
to
any customer or client of the Company; or (ii) engage in, manage, operate,
be
connected with or acquire any interest in, as an advisor, agent, owner, partner,
co-venturer, principal, director, shareholder, lender, employee or otherwise,
in
any company that markets or sells products or performs services such as are
offered or conducted by the online payments business unit of the Company,
providedhowever,
that
Xxxxxxxx Xxxxxxx may continue to engage in the business of the reselling
of
Credit Card Merchant Services, including, but not limited to, the
Government-to-People segment of the merchant services business. The
geographic scope of this provision is the United States.
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2.4.4
Xxxxxxxx Xxxxxxx understands that her work as an employee of the Company
created
a relationship of trust and confidence between her and the Company. During
the
Restrictive Period, Xxxxxxxx Xxxxxxx agrees that she will not request or
otherwise attempt to induce or influence, directly or indirectly, any present
customer, distributor or supplier, or other persons sharing a business
relationship with the Company to cancel, to limit or postpone their business
with the Company, or otherwise take action which might be to the material
disadvantage of the Company. During the Restrictive Period, she will not
hire or
solicit for employment, directly or indirectly, or induce or actively attempt
to
influence, any employee, agent, officer, director, contractor, consultant
or
other business associate of the Company to terminate his or her employment
or
discontinue such person's consultant, contractor or other business association
with the Company. The geographic scope of this provision is the United
States.
2.4.5
The Parties hereto agree that, due to the nature of the Company's business,
and
that of its affiliates and subsidiaries, the duration and geographic scope
of
the non-competition and non-solicitation provisions set forth above in Sections
4.1, 4.2, 4.3 and 4.4 are reasonable. In the event that any court determines
that the duration or the geographic scope, or both, are unreasonable and
that
either of such provisions are to that extent unenforceable, the parties hereto
agree that such provision shall remain in full force and effect for the greatest
time period and in the greatest area that would not render it unenforceable.
The
parties intend that the non-competition and non-solicitation provisions in
Sections 4.1, 4.2, 4.3 and 4.4 herein shall be deemed to be a series of separate
covenants. The Parties also agree that damages are an inadequate remedy for
any
breach of such provisions and that the Company, its affiliates and subsidiaries,
shall, whether or not they are pursuing any potential remedies at law, be
entitled to equitable relief in the form of preliminary and permanent
injunctions without bond or other security upon any actual or threatened
breach
of either of these provisions. The covenants contained in the non-competition
and non-solicitation provisions set forth above are deemed to be material
and
the Company is entering into this Agreement relying on such
covenants.
2.5
Xxxxxxx Assumption
of
Obligations/Indemnification
2.5.1
Xxxxxxxx Xxxxxxx and Xxxx Xxxxxxx hereby agree to be solely and unconditionally
liable for, and to indemnify and hold harmless the Company against, any
obligations that either Xxxxxxxx Xxxxxxx or Xxxx Xxxxxxx may individually
or
jointly have incurred on behalf of or in the name of the Company, including,
but
not limited to, obligations arising under any contracts, loans, commitments
or
promises to employees, prospective investors, or others, or other agreements,
whether verbal or written, which have not been fully and completely disclosed
in
writing to the Company on or prior to September 21, 2007 (the “Undisclosed Xxxxxxx
Obligations”).
2.5.2
Xxxx Xxxxxxx and Xxxxxxxx Xxxxxxx agree that their liability for the Undisclosed
Xxxxxxx Obligations shall be joint and several and shall be without recourse
to
any third party. The Shermans further agree that any amounts due to the Company
in respect of the indemnity contained in this Section 2.5 shall be paid,
at the
election of the Company, in either (i) cash, (ii) shares of Company stock,
or
(iii) a combination of cash and shares of Company stock.
III.
COMPANY OBLIGATIONS
3.1
Company Agreement
Not
to Xxx
Except
to
enforce an indemnity or other right the Company may have under this Agreement,
the Company hereby agrees not to initiate any lawsuit or bring any other
claim
against Xxxx Xxxxxxx or Xxxxxxxx Xxxxxxx based on or arising out of any
unauthorized actions taken, or required actions not taken, by Xxxx Xxxxxxx
or
Xxxxxxxx Xxxxxxx while they were employed by the Company to the extent such
actions taken or not taken have been fully disclosed in writing by the Shermans
to the Company prior to the date of this Agreement.
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3.2
Company
Cooperation
The
Company agrees that it will, for a period of five years from the date of
this
Agreement, provide information and documentation to Xxxx Xxxxxxx and/or Xxxxxxxx
Xxxxxxx and their respective counsel, at the sole cost and expense of the
Shermans, with respect to litigation or governmental proceedings which relate
to
matters with which Xxxx Xxxxxxx and/or Xxxxxxxx Xxxxxxx were involved in
their
capacity as an officer or director of the Company, provided that such
information or documentation will not be provided to the extent (i) such
provision could result in a waiver of attorney-client privilege, (ii) such
provision would be contrary to law, or (iii) the Company’s interest is adverse
to the Shermans.
IV.
MISCELLANEOUS
4.1
Arbitration
In
consideration of the mutual promises set forth herein, the Shermans and the
Company agree, for themselves and the Company and for their representatives,
successors, and assigns and the representatives, successors, and assigns
of the
Company, any controversy or claim arising out of or relating to this Agreement,
its enforcement or interpretation, or because of an alleged breach, default,
or
misrepresentation in connection with any of its provisions, or arising out
of or
relating to the subject matter of this Agreement, shall be settled by final
and
binding arbitration in Reno, Nevada (or such other place in Nevada as may
be
agreed to by the parties) before a single arbitrator, selected in accordance
with the National Rules for the Resolution of Employment Disputes of the
American Arbitration Association ("AAA"), in accordance with the procedures
required under Nevada law; provided, however, that the Company may seek
injunctive relief in order to prevent irreparable harm or preserve the status
quo. This arbitration clause, and its enforcement, shall be governed
by the laws of the State of Nevada. Any award pursuant to said
arbitration shall be accompanied by a written opinion of the arbitrator setting
forth the reason for the award, including findings of fact and conclusions
of
law. The award rendered by the arbitrator shall be conclusive and
binding upon the parties hereto, and judgment upon the award may be entered,
and
enforcement may be sought in, any court of competent jurisdiction. A
court shall vacate, modify or correct any award: (A) where the arbitrator’s
findings of fact are not supported by substantial evidence, (B) where the
arbitrator’s conclusions of law are erroneous; (C) in accordance with Nevada law
governing arbitration; or (D) where the arbitrators knew of a governing legal
principle yet refused to apply it or ignored it altogether. Each
party shall pay its own expenses of arbitration and the expenses of the
arbitrator (including compensation).
YOU
UNDERSTAND THAT, ABSENT THIS AGREEMENT, YOU AND THE COMPANY WOULD HAVE THE
RIGHT
TO XXX EACH OTHER IN COURT, AND THE RIGHT TO A JURY TRIAL, BUT, BY THIS
AGREEMENT, BOTH PARTIES GIVE UP THAT RIGHT.
4.2
Authority,
Reliance,
Liens.
Xxxx
Xxxxxxx and Xxxxxxxx Xxxxxxx represent and warrant that (i) each has the
capacity to act on his or her own behalf and on behalf of all who might claim
through them to bind them to the terms and conditions of this Agreement (ii)
neither Xxxx Xxxxxxx nor Xxxxxxxx Xxxxxxx has relied upon any representations
or
statements made by the Company which are not specifically set forth in this
Agreement, and (iii) there are no liens or claims of lien or assignments
in law
or equity or otherwise of or against any of the claims or causes of action
released pursuant hereto.
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4.3
Voluntary
Execution.
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. The Parties acknowledge that: (i) they have read this
Agreement, (ii) they have been represented in the preparation, negotiation,
and
execution of this Agreement by legal counsel of their own choice or that
they
have voluntarily declined to seek such counsel, (iii) they understand the
terms
and consequences of this Agreement and of the releases therein contained,
and
(iv) they are fully aware of the legal and binding effect of this
Agreement.
4.4
Counsel.
Each
of
Xxxx Xxxxxxx and Xxxxxxxx Xxxxxxx acknowledges that the Company has specifically
advised each of them to seek counsel regarding the legal, tax and other
consequences of the matters provided in this Agreement. In the event
that either or both Mr. and Xxx. Xxxxxxx elects not to consult with an attorney
or other counsel regarding his or her rights and obligations under this
Agreement and the legal effect hereof, each of Xxxx Xxxxxxx and Xxxxxxxx
Xxxxxxx
hereby waives all rights to such consultation. Such waiver is and
shall be irrevocable and unequivocal, without any conditions or reservations
of
any kind.
4.5
Severability.
The
parties understand and agree that in the event any provision of this Agreement
is deemed to be invalid or unenforceable by any court or administrative agency
of competent jurisdiction, the provision shall be deemed to be restricted
in
scope or otherwise modified to the extent necessary to render the same valid
and
enforceable or, in the event that any provision of this Agreement cannot
be
modified or restricted so as to be valid and enforceable, then the same shall
be
deemed excised from this Agreement if circumstances so require, and this
Agreement shall be construed and enforced as if such provision had originally
been incorporated therein as so restricted or modified, or as if such provision
had not originally been contained therein, as the case may be.
4.6
Entire Agreement;
Amendment.
This
Agreement and the attached Schedule A represent the entire agreement and
understanding between the Company and the Shermans concerning the separation
of
each of Xxxx Xxxxxxx and Xxxxxxxx Xxxxxxx from the Company, and
supersedes and replaces any and all prior agreements and understandings
concerning either of Xxxx Xxxxxxx’x or Xxxxxxxx
Xxxxxxx’x relationship with the Company and the Xxxxxxx’x
compensation by the Company, and any prior employment agreement previously
entered into by the Company and either Xxxx Xxxxxxx or Xxxxxxxx
Xxxxxxx. This Agreement may only be amended by a written instrument
signed by Xxxx Xxxxxxx and Xxxxxxxx Xxxxxxx and a duly authorized officer
of the
Company.
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4.7
Specific Enforcement.
Xxxx
Xxxxxxx and Xxxxxxxx Xxxxxxx both acknowledge and agree that the Company
will
suffer irreparable harm as a consequence of any breach or threatened breach
by
either of them of any of the provisions of the Agreement and each of Xxxx
Xxxxxxx and Xxxxxxxx Xxxxxxx hereby consents to the Company seeking and being
awarded such injunctive and other equitable relief as may be appropriate
in the
circumstances to prevent or restrain any such breach or threatened breach.
In
addition, if either of Xxxx Xxxxxxx or Xxxxxxxx Xxxxxxx breaches any term
of
this Agreement, the Company may commence legal action and pursue any available
legal and equitable remedies, including but not limited to suspending and
recovering any and all payments and benefits made or to be made under this
Agreement.
4.8
Governing
Law.
This
Agreement shall in all respects be exclusively interpreted and governed by
the
laws of the State of Nevada (without regard to conflicts laws
principles).
4.9
Costs.
The
Parties shall each bear their own costs, attorneys’ fees and other fees incurred
in connection with this Agreement.
4.10
Successors.
This
Agreement shall extend and inure to the benefit of, and shall be binding
upon,
Xxxx Xxxxxxx, Xxxxxxxx Xxxxxxx, the Company, and each of their respective
permitted successors and assigns.
4.11
Further
Assurances.
At
the
request of any Party, the other Party shall execute and deliver such further
documents, and take such other action, as may be necessary or appropriate
to
give full effect to the transactions contemplated by this
Agreement.
4.12
Counterparts.
This
Agreement may be executed in one or more counterparts, and each counterpart
shall have the same force and effect as an original and shall constitute
an
effective, binding agreement on the part of each of the
undersigned.
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IN
WITNESS WHEREOF, the Parties have executed this Agreement on the date first
written above.
| ETELCHARGE, INC. | |||
|
|
By:
|
/s/ Xxx Xxxx | |
| Xxx Xxxx | |||
| Title: Chairman & CEO | |||
|
By:
|
/s/ Xxxx Xxxxxxx | ||
| Xxxx Xxxxxxx | |||
|
By:
|
/s/ Xxxxxxxx Xxxxxxx | ||
| Xxxxxxxx Xxxxxxx | |||
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