STOCK PURCHASE AND CONSULTING AGREEMENT
This Stock Purchase and Consulting Agreement (the "Agreement") is made and
entered into as of this 11th day of November, 1997, among Xxxxxxx Xxxx, an
individual ("Xxxx"), and Global One Distribution & Merchandising Inc., a
Delaware corporation ("Global One" or the "Company").
WHEREAS, Xxxx and Global One desire to document the termination of Xxxx'x
employment with Global One and its subsidiaries;
WHEREAS, Global One desires to retain Xxxx, and Xxxx desires to act, as a
consultant to Global One; and
WHEREAS, Xxxxxx Xxxxxxx & Xxxxx Incorporated, or its designee (the
"Purchaser") and Xxxx are entering into as Stock Purchase Agreement ("Purchase
Agreement") whereby Purchaser shall purchase and Xxxx shall sell 1,200,000
shares (the "Shares") of Global One's common stock, $.01 par value per share
("Common Stock") held by Xxxx.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements set forth herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. PURCHASE OF STOCK. Simultaneously with the execution of this Agreement,
the Purchaser and Xxxx shall execute the Purchase Agreement.
2. TERMINATION OF EMPLOYMENT.
(a) Effective on or about May 10, 1997, Xxxx'x employment with Global
One is terminated. Also effective as of such date, Xxxx'x position as an
officer of Global One and its subsidiaries is terminated.
(b) Except for the grant of stock options specifically acknowledged as
being vested in this Agreement, Xxxx'x Employment Agreement, dated August
28, 1996, with Global One and OSP Publishing, Inc. (the "Employment
Agreement") is hereby terminated and of no further force or effect. Xxxx
waives the right to any compensation or other renumeration set forth
therein except as otherwise set forth in this Agreement.
3. XXXX RELEASE.
(a) Except as provided herein, Xxxx hereby releases, acquits and
forever discharges Global One, and each of its affiliates, directors,
officers, shareholders, employees, attorneys, representatives and agents
(collectively, the "Global Releasees"), from any and all claims,
liabilities, demands, actions or causes of action of any kind, nature or
description
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whatsoever, whether arising at law or in equity, or upon contract or tort,
or under any state or federal law or otherwise, which Xxxx may have had,
may now have or made claim to have, or may in the future have or claim to
have, howsoever arising or acquired, against the Global Releasees for or by
reason of any act, omission, matter, cause or thing whatsoever arising from
the beginning of time to and including the date hereof, whether such
claims, liabilities, demands, actions or causes of action are matured or
unmatured, known or unknown, existing or not existing, asserted or
unasserted, presently held or acquired in the future, liquidated or
unliquidated, or absolute or contingent.
(b) In connection with the foregoing release, Xxxx hereby waives all
rights and benefits which may be afforded to him by or under California
Civil Code Section 1542, and further acknowledges that if Xxxx hereafter
discovers any facts different from or in addition to those which Xxxx now
knows or believes to be true with respect to any of the claims or other
matter so released, then Global One's foregoing release nonetheless shall
be and remain effective in all respects. Xxxx acknowledges that Section
1542 of the California Civil Code provides as follows:
A general release does not extend to claims which
the creditor does not know or suspect to exist in
his favor at the time of executing the release,
which if known by him, must have materially
affected his settlement with the debtor.
(c) Xxxx represents and warrants that he has not assigned,
transferred or hypothecated or set over to any person or entity any
interest in any of the claims that are the subject of this release.
4. GLOBAL ONE RELEASE.
(a) Except as provided herein, Global One and each of its affiliates,
directors, and officers hereby release, acquit and forever discharge Xxxx
from any and all claims, liabilities, demands, actions or causes of action
of any kind, nature or description whatsoever, whether arising at law or in
equity, or upon contract or tort, or under any state of federal law or
otherwise, which Global One or its affiliates, or any of them, may have
had, or may now have or made claim to have, or may in the future have or
claim to have howsoever arising or acquired, against Xxxx for or by reason
of any act, omission, matter, cause or thing whatsoever arising from the
beginning of time to and including the date hereof, whether such claims,
liabilities, demands, actions or causes of action are matured or unmatured,
known or unknown, existing or not existing, asserted or unasserted,
presently held or acquired in the future, liquidated or unliquidated, or
absolute or contingent.
(b) In connection with the foregoing release, Global One hereby
waives all rights and benefits which may be afforded to it by or under
California Civil Code Section 1542, and further acknowledge that if Global
One hereafter discovers any facts different from or in
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addition to those which Global One now knows or believes to be true with
respect to any of the claims or other matters so released, then Global
One's foregoing release nonetheless shall be and remain effective in all
respects. Global One acknowledges that Section 1542 of the California
Civil Code provides as follows:
A general release does not extend to claims which the creditor
does not know or suspect to exist in his favor at the time of
executing the release which if known by him, must have materially
affected his settlement with the debtor.
(c) Global One represents and warrants that it has not assigned,
transferred or hypothecated or set over to any person or entity any
interest in any of the claims that are the subject of this release.
5. INDEMNIFICATION. Global One hereby agrees to save, defend, indemnify and
hold harmless Xxxx against any and all claims, liabilities, demands,
losses, damages, actions and causes of action, including expenses, costs
and reasonable attorneys' fees, which Xxxx at any time may sustain or incur
in connection with carrying out his duties as an officer, director,
shareholder, employee or consultant of Global One or its affiliates,
whether arising before or after the date of this Agreement (i.e., this
Section 5 survives the termination of this Agreement), and including
without limitation against any shareholder derivative suits (to extent
permitted by law), debts or obligations of Global One and that certain
obligation of OSP to Inotrend, Inc. that Xxxx has personally guaranteed.
Unless required by legal process or applicable law, Xxxx will not disclose
this indemnification agreement to any creditor of Global One or its
affiliates.
6. CONSULTING AGREEMENT; PAYMENTS.
(a) Xxxx shall provide consulting services to Global One with respect
to the sale, marketing and licensing of Global One's products, shall meet
with Global One customers, distributors and licensees as necessary,
devoting a reasonable amount of time, up to 12 days per month, at Xxxx'x
sole discretion for a period of three months from the date of this
Agreement. Either party may terminate the consulting agreement by
providing the other party with seven days' written notice of termination.
(b) For the services describe in paragraph (a) above, Xxxx shall
receive payment of One Thousand Dollars ($1,000.00) per single day for each
eight- to 10-hour day of consulting services provided to Global One (a
"Work Day"); provided, however, that Xxxx may combine hours over two or
more days to aggregate eight hours, or one Work Day. Three Thousand Dollars
($3,000.00) per week of the pay earned under the foregoing sentence shall
be paid in advance on Monday of each week for the three months following
the date of this Agreement; provided, however, that such amounts shall not
be due for any periods following termination of the consulting agreement in
accordance with the provisions of paragraph (a)
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hereof. The amount of any payments due in excess of such guaranteed $3,000
payment shall be paid to Xxxx within one week following the end of the work
week.
(c) Global One shall also reimburse Xxxx'x reasonable expenses
incurred in the performance of his consulting duties under this Agreement
consistent with Global One policy in effect on the date of this Agreement,
and upon such other terms as Xxxx and Global One may agree upon. Xxxx may
require advance payment for air and hotel travel expenses.
(d) Global One shall pay Xxxx Two Thousand Dollars ($2,000.00) per
month for a period of 10 months commencing one month after the date of this
Agreement as and for consideration of his general release of claims against
Global One under his Employment Agreement, whether or not the consulting
portion of this Agreement is earlier terminated.
7. CONFIDENTIALITY. Xxxx recognizes that his positions with Global One and/or
its affiliates are ones of the highest trust and confidence by reason of
Xxxx'x access to and contact with trade secrets and confidential and
proprietary information of the Company. Xxxx agrees to use his best
efforts and exercise utmost diligence to protect and safeguard the trade
secrets and confidential and proprietary information of the Company,
including, but not limited to, any information concerning the Company's
business, finances, investments, performance, productions, works in
progress or professional relationships, and further agrees that he will
not, during the duration of this Agreement or thereafter, disclose,
disseminate or distribute, any such trade secrets or confidential and
proprietary information of Global One and/or its affiliates, directly or
indirectly neither for Xxxx'x own benefit or the benefit of another, except
as is required in the course of Xxxx'x consultations on behalf of Global
One. The foregoing shall not apply to information which becomes public
other than as a result of a prohibited act of Xxxx. All confidential
information relating to the business of the Company, whether prepared by
Xxxx or otherwise coming into his possession, shall remain the exclusive
property of Global One and shall not, except in the furtherance of the
business of the Company, be removed from the premises of Global One and/or
its affiliates under any circumstances without the prior written consent of
Global One. The obligations of Xxxx pursuant to this paragraph shall
survive the termination of Xxxx'x employment and consulting services for
the Company and this Agreement.
8. OWNERSHIP AND AUTHORITY OF WORK. Xxxx acknowledges and agrees that
Global One and/or its affiliates are and shall be the owner and author
throughout the universe of all right, title, and interest in and to any and
all creative work or materials upon which Xxxx performs services hereunder
(a "Work"), as the author of a work made for hire and otherwise as the
context hereof demands. All elements of each work prepared by Xxxx will at
all times belong solely and exclusively to Global One and/or its affiliates
for use in any manner or media now known or hereafter devised, throughout
the universe and perpetuity. Each Work shall include, but may not be
limited to, any and all materials, ideas, or other artistic, creative and
literary property created or developed by Xxxx pursuant to his services
(whether alone or in conjunction with any other person), or which Xxxx may
have disclosed to Global One
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during the term of employment or consultation with Global One and/or its
affiliates. Global One shall have the exclusive right to copyright same
in the name of Global One as an author of a work made for hire and to
exercise throughout the universe all rights of the copyright proprietor
thereunder. To the extent that any Work is deemed not a work made for
hire, Xxxx hereby assigns to Global One any and all rights in such Work,
including but not limited to all copyrights therein and thereto and all
renewals and extensions throughout this universe and grants to Global One a
power of attorney, irrevocable and coupled with an interest to apply for
and obtain in Global One's name all such copyrights, renewals and
extensions thereof. Global One may use and authorize others to use Xxxx'x
likeness and biographical materials on a nonexclusive basis for program
publicity, institutional promotional purposes and any other exploitation of
a Work through any media now known or hereafter devised. For purposes of
this Agreement, each Work shall be deemed to be a work for hire pursuant to
17 U.S.C. Section 101(2), and all authorship and ownership rights of each
Work shall belong to Global One pursuant to 17 U.S.C.Section 201(b).
9. IMAGE 2000. Notwithstanding any limitations or restrictions contained in
Section 7 or 8 above or elsewhere in this Agreement, the parties
acknowledge that Xxxx owns and operates Image 2000, a California
corporation ("Image"). It is understood that Image is not in a business
which would provide primary competition to Global One or its subsidiaries,
but may from time to time compete in such a way which might be considered
to violate the terms of this Agreement and/or more specifically Sections 7
and 8. It is further agreed that Global One and its subsidiaries and their
successors and assigns hereby waive any restrictions or conflicts with
respect to Image, Xxxx and their affiliates unless such results from
receipt of confidential information by Xxxx only through his employment
with Global One during the consulting period set forth in Section 6 hereof,
or any extension thereof. Xxxx, Image and their affiliates are freely able
to explore, develop, commercialize and exploit any idea which might be
competitive to Global One and its subsidiaries subject to the limitations
referenced hereinabove. Xxxx confirms that he will not disclose or use
Global One's confidential information learned during his employment as a
consultant.
10. STOCK OPTIONS. Effective as of the date hereof, Xxxx'x options to purchase
Common Stock previously held by Xxxx shall be reinstated, shall become
fully vested and the exercise price therefor shall be twenty cents ($0.20)
per share. Global One shall execute new nonqualified stock option
agreements in favor of Xxxx on the foregoing terms.
11. OPTIONS TO PURCHASE ASSETS. Whether or not the consulting portion of this
Agreement is earlier terminated, Xxxx shall have the right to require
Global One to purchase (the "Sale Option") and Global One shall have the
right to purchase (the "Purchase Option") the assets of Image 2000 (the
"Assets") on the terms hereinafter set forth.
(a) Within the three-month period following the date hereof, Xxxx
shall have the option to either exercise the Sale Option or to terminate
Global One's Purchase Option by providing written notice to Global One
within such three-month period.
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(b) In the event that Xxxx has neither elected to exercise the Sale
Option or terminated Global One's Purchase Option within the three-month
period following the date of this Agreement, Global One may exercise the
Purchase Option by providing Xxxx written notice within 30 days following
the expiration of such three-month period.
(c) The purchase price for the Assets shall be as follows:
(i) 1,200,000 shares of Common Stock;
(ii) 50% of the net after tax earnings from the Assets for
calendar years 1998 and 1999, payable within 30 days following
the issuance of Global One's final audited financial report for
each such year; and
(iii) Shares of Common Stock equal in value to two times the net
after tax earnings from the Assets for calendar years 1998 and
1999 payable within 30 days following Global One's final audit
for each such year with shares of Common Stock valued at the
closing price on the date immediately preceding the date of
issuance of such audited financial report.
(d) Xxxx'x or Global One's notice of exercise of their respective
options shall specify a closing date for the purchase, which in no event
shall be later than 15 calendar days after the date of the notice. The
closing shall be conditioned upon, among other things, obtaining any
required third party consents and compliance with any governmental
requirements including without limitation the Bulk Sales Act. At the
closing of the purchase, Xxxx shall execute such documentation and take
such actions as maybe required to effect the purchase, including, without
limitation, the execution of an asset purchase agreement or xxxx of sale
with respect to the Assets containing standard representations, including
title to the Assets, and other provisions reasonably requested by Global
One. Any such asset purchase agreement or xxxx of sale shall specifically
identify the Assets in reasonable detail so that the purchase price is
readily calculable in accordance with the provisions of paragraph (c)
above. Notwithstanding the options contained in this Section 11, in the
event Xxxx exercises the Sale Option and both (x) Xxxx discontinues
employment with Global One and (y) Global One's management changes from
that existing as of the date of hereof, then Xxxx shall be entitled, and
Global One agrees to accept: return of the purchase price set forth in
Sections 11(c) (i), 11 (c) (ii) and 11(c) (iii) to Global One and Global
One shall transfer title to the Assets to Xxxx.
12. PARAGRAPH HEADINGS. Paragraph and other headings contained in this
Agreement are for reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement.
13. COUNTERPART EXECUTION. This Agreement may be executed in one or more
counterparts, each of which shall constitute but one and the same
instrument.
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14. SEVERABILITY. Should any portion of this Agreement be determined to be
illegal or unenforceable, all other provisions shall nevertheless remain
effective.
15. PRIOR UNDERSTANDING. This Agreement contains the entire agreement between
the parties with respect to the subject matter hereof, is intended as a
final expression of such parties' agreement with respect to such terms as
are included in the Agreement, is intended as a complete and exclusive
statement of the terms of such Agreement, and supersedes all negotiations,
stipulations, understandings, agreements, representations and warranties,
if any, with respect to such subject matter, which precede or accompany the
execution of this agreement.
16. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of California without regard to
conflict of laws principles.
17. ATTORNEYS FEES. In the event that any action, suit, or other proceeding is
instituted concerning or arising out of this Agreement, the prevailing
party shall recover all of such party's costs, and attorneys' fees incurred
in each and every such action, suit, or other proceeding, including any and
all appeals or petitions therefrom from the non-prevailing party. As used
herein, "attorneys' fees" shall mean the full and actual costs of any legal
services actually rendered in connection with the matters involved,
calculated on the basis of the usual fee charged by the attorneys
performing such services.
18. NOTICES. Notices shall be given in writing to the parties at their
addresses set forth below. Notices shall be sent either by overnight mail
or by certified or registered mail, return receipt requested, and shall be
deemed delivered upon receipt.
If to Global One, to: Global One Distribution & Merchandising Inc.
0000 Xxxxxxxxx Xxxx
Xxxx, XX 00000
If to Xxxx, to: Xxxxxxx Xxxx
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first above written.
GLOBAL ONE DISTRIBUTION & MERCHANDISING INC.
By: /s/ Xxxxxxxx X. Xxx
-----------------------------------------
Xxxxxxxx X. Xxx
Its: Chief Executive Officer
By: /s/ Xxxxxxx Xxxx
-----------------------------------------
XXXXXXX XXXX
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