SEPARATION AGREEMENT & MUTUAL RELEASE
SEPARATION
AGREEMENT & MUTUAL RELEASE
THIS
SEPARATION AGREEMENT AND MUTUAL RELEASE (this “Agreement”) is made as of June 4,
2008 (the “Effective Date”) by and between GoFish Corporation (the “Company”), a
Nevada corporation maintaining its principal offices at 000 Xxxxxxx Xx.,
00xx
Xxxxx,
Xxx Xxxxxxxxx, XX 00000, and Xxxxxxx Xxxxxxx an individual residing at 0000
Xxxxxxx #00, Xxx Xxxxxxxxx, XX (“Xx. Xxxxxxx,” and, collectively with Company,
the “Parties,” and each a “Party”).
WHEREAS,
Xx. Xxxxxxx is currently employed by the Company as its Chief Executive Officer
pursuant to an Employment Agreement, dated as of October 27, 2006 (the
“Employment Agreement”), and serves on the Company’s Board of Directors (the
“Board”);
WHEREAS,
Xx. Xxxxxxx was previously granted an option (the “2006 Option”) to purchase
500,000 shares of common stock of the Company under the Company’s 2006 Equity
Incentive Plan pursuant to a Stock Option Award Agreement dated October 27,
2006
(the “Option Agreement”);
WHEREAS,
Xx. Xxxxxxx has debt outstanding to the Company in the amount of $17,876.05
(the
“Debt”);
WHEREAS,
Xx. Xxxxxxx had previously entered into a Lock-up Agreement with Xxxxxxxx
Capital Group (“Xxxxxxxx Capital”), dated October 27, 2006 (the “Lock-up
Agreement”), under which the Company has certain rights; and
WHEREAS,
the Company and Xx. Xxxxxxx have mutually agreed to terminate the existing
employment relationship and his service on the Board, to enter into a consulting
relationship and to provide for certain other matters.
NOW,
THEREFORE, in consideration of the mutual promises made herein, the Company
and
Xx. Xxxxxxx hereby agree as follows:
1. Cessation
of Employment and Board Service.
Xx.
Xxxxxxx and the Company acknowledge and agree that Xx. Xxxxxxx shall resign
as
Chief Executive Officer of the Company and as a member of the Board effective
as
of the date on which the Company hires a new Chief Executive Officer (the
“Separation Date”). As of the Separation Date, Xx. Xxxxxxx will no longer hold
any positions as an employee with the Company or on the Board. The Employment
Agreement will be terminated as of the Separation Date and will no longer have
any force or effect, except as specifically referenced in this
Agreement.
2. Accrued
Salary and Vacation; Expense Reimbursement.
The
Company agrees that it will pay Xx. Xxxxxxx all accrued salary, and all accrued
and unused vacation benefits earned through the Separation Date, if any, subject
to standard payroll deductions, withholding taxes and other obligations. Xx.
Xxxxxxx understands that he is entitled to this payment regardless of whether
or
not he signs this Agreement. Xx. Xxxxxxx agrees that he has submitted his final
documented expense reimbursement statement reflecting all business expenses
he
incurred prior to and including the Separation Date, and acknowledges receipt
of
the full amount of reimbursement therefor.
3. Forgiveness
of Debt.
The
Company agrees to forgive and waive the Debt as of the Separation Date.
4. Lock-up
Agreement and Restrictions on Transfer.
4.1. The
Company and Xx. Xxxxxxx hereby agree to terminate the Lock-up Agreement and
the
Company waives the restrictions on transfer set forth therein. The Company
will
use reasonable efforts to obtain Xxxxxxxx Capital’s agreement to terminate the
Lock-up Agreement, as provided in the Lock-up Agreement.
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4.2. For
two
years from the Effective Date, Xx. Xxxxxxx will not sell any shares of the
Company’s stock during any 30 calendar day period that would exceed twenty-five
percent (25%) of the aggregate volume of the Company’s stock that was sold in
the preceding 25 trading days.
4.3. Upon
completion of the 90-day period provided in Rule 144, the Company will issue
a
legal opinion to its transfer agent requesting the removal of the restrictive
legends on Xx. Xxxxxxx’x shares.
5. Stock
Options.
Xx.
Xxxxxxx and the Company agree that the 2006 Option shall be cancelled effective
as of the Separation Date with respect to all shares of common stock of the
Company subject to the 2006 Option and the Option Agreement shall be of no
further force and effect.
6. Consulting
Services.
In
consideration for the release of claims set forth below and other promises
and
covenants set forth herein, the Company will enter into a consulting agreement
with Xx. Xxxxxxx (or his affiliate) for the period of one year (the "Consulting
Period"). Xx. Xxxxxxx will receive compensation under the consulting agreement
in the amount of one hundred twenty thousand dollars per year ($120,000),
payable monthly. In addition, as compensation for his services as a consultant,
Xx. Xxxxxxx will receive an option to purchase three hundred thousand (300,000)
shares of common stock of the Company with an exercise price equal to the
closing price of Company’s common stock on the OTC Bulletin Board on the grant
date thereof.
7. Benefits.
Xx.
Xxxxxxx will be offered benefits to which he is entitled under the Consolidated
Omnibus Budget Reconciliation Act of 1985 (“COBRA”), and Xx. Xxxxxxx retains all
benefits under Company’s 401(k) Plan. If Xx. Xxxxxxx timely elects COBRA
benefits, Company will pay all of Xx. Xxxxxxx’x COBRA benefits, directly to the
COBRA administrator, for a period of twelve months, so that Xx. Xxxxxxx is
fully
covered.
8. No
Other Entitlement.
Xx.
Xxxxxxx confirms that no other monies are due to him from Company relating
to
his service as an employee. Xx. Xxxxxxx acknowledges that he has no entitlement
to enter into the consulting agreement and receive the consideration set forth
in Sections 3, 5, 6 and 7 above, other than in consideration of his general
release of all claims against Company.
9. Company
Property.
Xx.
Xxxxxxx shall promptly return all Company property in his possession or control,
except for Xx. Xxxxxxx’x Company-provided notebook computer, which Xx. Xxxxxxx
will be allowed to retain.
10. Confidential
Information; Non-Disparagement.
Xx.
Xxxxxxx recognizes and acknowledges that the performance of his services for
Company has resulted in its disclosure to him of certain proprietary and
confidential and financial information. Xx. Xxxxxxx agrees that:
10.1.
he will
not disclose or use any of Company’s confidential, proprietary or financial
information for his own or any other person’s or entity’s benefit unless such
use or disclosure is specifically consented to in writing by
Company.
10.2. he
will
not, directly or indirectly, for himself or on behalf of any other person or
entity, induce or attempt to induce any of Company’s personnel to do anything
contrary to the best interests of Company.
10.3. he
will
not make any disparaging remarks, or otherwise take any action that could
reasonably be anticipated to cause material damage to the reputation, goodwill
or business of Company or any employees of Company, or otherwise make remarks
that may reflect negatively upon Company or any of its Xx. Xxxxxxxx in any
context or setting.
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11. Mutual
Release of Claims.
In
consideration for the obligations of both parties set forth in this Agreement,
Xx. Xxxxxxx and Company, on behalf of themselves, and their respective heirs,
executors, officers, directors, employees, stockholders, administrators,
successor corporations and assigns, hereby fully and forever release each other
and their respective heirs, executors, officers, directors, employees,
stockholders, administrators, successor corporations and assigns, of and from
any claim, duty, obligation or cause of action relating to any matters of any
kind, whether presently known or unknown, suspected or unsuspected, that any
of
them may possess arising from any omissions, acts or facts that have occurred
up
until and including the date of this Agreement including, without limitation:
11.1. any
and
all claims relating to or arising from the Employment Agreement and Xx.
Xxxxxxx’x employment relationship with Company and the termination of that
relationship;
11.2. any
and
all claims for wrongful discharge of employment; breach of contract, both
express and implied; breach of a covenant of good faith and fair dealing, both
express and implied, negligent or intentional infliction of emotional distress;
negligent or intentional misrepresentation; negligent or intentional
interference with contract or prospective economic advantage; negligence; and
defamation;
11.3. any
and
all claims for violation of any federal, state or municipal statute, including,
but not limited to, Title VII of the Civil Rights Act of 1964, the Civil Rights
Act of 1991, the Americans with Disabilities Act of 1990, the
Fair
Labor Standards Act; the Fair Credit Reporting Act; the Age Discrimination
in
Employment Act of 1967; the Older Workers Benefit Protection Act; the Xx.
Xxxxxxx Retirement Income Security Act of 1974; the Worker Adjustment and
Retraining Notification Act; the Family and Medical Leave Act; the
Xxxxxxxx-Xxxxx Act of 2002; the California Family Rights Act; the California
Labor Code, except as prohibited by law; the California Workers’ Compensation
Act, except as prohibited by law; and the California Fair Employment and Housing
Act;
11.4. any
and
all claims arising out of any other laws and regulations relating to employment
or employment discrimination; and
11.5. any
and
all claims for attorneys’ fees and costs.
The
Parties agree that the release set forth in this section shall be and remain
in
effect in all respects as a complete general release as to the matters released.
Notwithstanding any other term in this Agreement, this release does not extend
to any obligations incurred under this Agreement. This release does not release
claims that cannot be released as a matter of law, including, but not limited
to, claims under Division 3, Article 2 of the California Labor Code (which
includes California Labor Code section 2802 regarding indemnity for necessary
expenditures or losses by employee) and claims prohibited from release as set
forth in California Labor Code section 206.5 (specifically “any claim or right
on account of wages due, or to become due, or made as an advance on wages to
be
earned, unless payment of such wages has been made”).
12. California
Civil Code Section 1542.
The
Parties acknowledge that they have been advised to consult with legal counsel
and are familiar with the provisions of California Civil Code Section 1542,
a
statute that otherwise prohibits unknown claims, which provides as
follows:
A
GENERAL
RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT
TO
EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN
BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE
DEBTOR.
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The
Parties, being aware of said code section, agree to expressly waive any rights
they may have thereunder, as well as under any other statute or common law
principles of similar effect.
13. No
Admission.
This
Agreement shall not be in any way construed as an admission by Company that
it
has acted wrongfully with respect to Xx. Xxxxxxx or any other person, or that
Xx. Xxxxxxx has any rights whatsoever against Company.
14. Miscellaneous.
14.1. Successors
and Assigns.
This
agreement shall be binding on the parties and upon their heirs, administrators,
representatives, executors, successors and assigns and shall inure to their
benefit and to that of their heirs, administrators, representatives, executors,
successors and assigns.
14.2. Severability.
The
provisions of this Agreement are severable. If any provision is held to be
invalid or unenforceable, it shall not affect the validity or enforceability
of
any other provision. A court may modify any otherwise unenforceable clause
set
forth herein to render this Agreement enforceable.
14.3. Headings.
The
headings of the sections contained in this Agreement are for convenience only
and shall not be deemed to control or affect the meaning or construction of
any
provision of this Agreement.
14.4. Counterparts.
This
Agreement may be executed in 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.
14.5. Notices.
Any
notice given to a party shall be in writing and shall be deemed to have been
given when delivered personally or sent to by certified or registered mail,
postage prepaid, return receipt requested, or by a nationally recognized courier
service, duly addressed to the party concerned at the address indicated in
the
introductory paragraph hereto, or to such changed address as such party may
subsequently give such notice of.
14.6. Governing
Law; Arbitration.
This
Agreement shall be governed by and construed under the laws of the State of
California as such laws are applied to contracts made and to be fully performed
entirely within that state between residents of that state. Any claim, dispute
or controversy arising out of this Agreement, the interpretation, validity
or
enforceability of this Agreement or the alleged breach thereof shall be
submitted by the parties to binding arbitration by the American Arbitration
Association under its then existing commercial rules. The site of the
arbitration proceeding shall be in San Francisco, California, or another
location mutually agreed to by the parties.
14.7. Entire
Agreement; Modification.
This
Agreement sets forth the entire agreement between the parties hereto and
supersedes any and all prior oral or written agreements or understandings
between Xx. Xxxxxxx and Company concerning the subject matter of this Agreement.
This Agreement may not be altered, amended or modified, except by a further
written document signed by both parties.
14.8. Voluntary
Execution and Acceptance.
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:
14.8.1.
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they
have read this Agreement and are fully aware of its legal and binding
effect;
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14.8.2.
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the
terms of this Agreement are the product of mutual negotiation and
compromise between Xx. Xxxxxxx and
Company;
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14.8.3.
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they
understand the terms and consequences of this Agreement and of the
releases it contains and that this Agreement settles, bars, and waives
any
and all claims that the parties have or could possibly have against
the
other party, unless prohibited from releasing such claim by
law;
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14.8.4.
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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. XX.
XXXXXXX WAS ADVISED AND ENCOURAGED BY COMPANY TO CONSULT WITH AN
ATTORNEY OR ANYONE ELSE OF HIS CHOOSING WHO IS NOT EMPLOYED BY COMPANY.
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Company
and Xx. Xxxxxxx now voluntarily and knowingly execute this Agreement, as of
the
date first above.
GOFISH
CORPORATION
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Xxxxxxx
Xxxxxxx
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By:
Its:
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